Tenorio v. United States, 21707.
| Decision Date | 28 February 1968 |
| Docket Number | No. 21707.,21707. |
| Citation | 390 F.2d 96 |
| Parties | Nonie TENORIO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jon H. Kouba (argued), San Francisco, Cal., for appellant.
Edward E. Davis, U. S. Atty., Morton Sitver (argued), Asst. U. S. Atty., Phoenix, Ariz., for appellee.
Before HAMLIN, DUNIWAY, and ELY, Circuit Judges.
In a jury trial, appellant Tenorio was found guilty of having unlawfully imported approximately two ounces of heroin into the United States, a violation of 21 U.S.C. § 174. Having waived indictment, the appellant was prosecuted under an information which charged that he, together with his brother, a codefendant in the court below,1 "contrary to law, knowingly imported and brought approximately two (2) ounces of heroin, a narcotic drug, into the United States * * *." It is here claimed, for the first time, that the information was fatally defective.
Appellant and his brother were the only two occupants of an automobile which entered the United States from Mexico on August 9, 1966. When the automobile came to the border from the Mexican side, an immigration inspector requested that its trunk be opened. After appellant opened the trunk, the officer requested that the vehicle be driven to a secondary inspection station. Notwithstanding the request, the automobile was driven away at a rapid speed. A witness observed the vehicle as it was driven into a parking lot in the border town of San Luis, Arizona. This witness testified that from a distance of "not over 50 yards" he observed the appellant's brother "get out of the automobile and close the door and walk over towards the front of the bank, and then walk around the bank * * *." The witness went on to state that the brother then "scooped up something in the ground, and laid his hand in the ground and covered it up." The witness informed one Goff, a customs port investigator, of his observations, and Goff, having located the Tenorio brothers in the restroom of a nearby service station, returned them, with their automobile, to the port of entry. They were detained for about six hours. During that time, a search of the automobile was conducted, and it resulted in a discovery of certain paraphernalia of the kind employed by narcotics users in administering drugs to themselves. Goff also discovered two packages, wrapped in a handkerchief, under some sand in the vicinity where appellant's brother had been observed by the witness. Subsequent examination and analysis revealed that one of the packages contained heroin. Dummy packages were prepared to resemble the original ones and were sprinkled with a chemical dust which, upon coming in contact with the moisture of human skin, would color the skin indelibly blue. The dummy packages were then placed in the location where the package of heroin had been discovered. The location was kept under constant surveillance and eventually, during the morning of August 14, 1966, appellant's brother was observed as he walked to the location, picked up something with his hand, and entered an automobile which appellant was driving. The car was pursued and finally stopped in an alfalfa field. When the brothers were then arrested, it was seen that there was a smudge of coloring on the appellant's right temple and that his brother's hands and forearms were colored purple from the chemical dust which had been sprinkled on the dummy packages.
The appellant did not testify. His brother testified that the two, both heroin addicts, had gone to Mexico on August 9, 1966, for the purpose of purchasing heroin, but had been unable to complete the purchase in Mexico. The brother explained that he delivered the purchase money in Mexico and was told to telephone for instructions after he had reentered the United States. He further testified that upon being released from custody on August 9th, after the border detention, he made the telephone call for instructions and was told that the heroin was behind the bank. The thrust of this testimony, which the jury obviously disbelieved, was that the brothers had not imported the contraband, but had come into its possession for the first time in this country.
In his appeal, the appellant raises three points, one of which, that pertaining to the alleged defectiveness of the information, has already been mentioned and will be discussed subsequently. The other two have no merit whatsoever. Both pertain to argument made by the prosecuting attorney in his summation to the jury. Certain questions and answers appear in the cross-examination of appellant's brother as follows:
As he discussed this testimony in his argument, the prosecutor stated:
Later, the prosecutor continued:
Although it is clear that the prosecutor was mistaken in his recollection of the testimony, his misstatement was not seriously prejudicial. Immediately after the objection had been overruled, the prosecutor commented, fairly and quite properly: "Ladies and gentlemen, if I at any time misstate the evidence or do not state it as you recall it, then use your own interpretation of it, for you are 12 collective heads as opposed to my one." While the objection was made by counsel for appellant's codefendant and not by his own attorney, we do not base our determination upon this procedural technicality. The argument was simply not prejudicially erroneous, especially when considered in the light of the court's instruction to the jury that "statements and arguments of counsel are not evidence * * *."
In the opening portion of his summation, the prosecutor also remarked: "I don't think there is any point in making any argument as to why there are crimes involving heroin, the destruction and the...
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Brooks v. Kemp
...the reference was acceptable because the increase in crime is "within the common knowledge of all reasonable people." Tenorio v. United States, 390 F.2d 96, 99 (9th Cir.) (prosecutorial reference, in prosecution for importation of heroin, to "the destruction and the human waste which arises......
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United States v. Friedman
...the trial. Brief mention of those statements in the government's closing summation was not reversible error. See Tenorio v. United States, 9 Cir., 1968, 390 F.2d 96, 98-99; cf. United States v. Cozzetti, 9 Cir., 1971, 441 F.2d Finally, both Friedman and Jacobs raise numerous objections to t......
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Perry v. Mulligan
...in commenting on the social consequences of a crime. United States v. Ramos, 268 F.2d 878, 880 (2nd Cir. 1959); Tenorio v. United States, 390 F.2d 96, 98-99 (9th Cir.), cert. denied 393 U.S. 874, 89 S.Ct. 169, 21 L.Ed.2d 145 (1968); State v. Knight, 63 N.J. 187, 193-194, 305 A.2d 793, 796 (......
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Burden v. Zant, 88-8619
...was acceptable because the increase in crime is 'within the common knowledge of all reasonable people.' " (quoting Tenorio v. United States, 390 F.2d 96, 99 (9th Cir.) (prosecutorial reference to destruction and waste caused by heroin use acceptable as common knowledge), cert. denied, 393 U......