Thomas v. United States
| Decision Date | 08 July 1966 |
| Docket Number | No. 20388,20650.,20388 |
| Citation | 363 F.2d 159 |
| Parties | Everett Lyle THOMAS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jack I. Podret, Tucson, Ariz., for appellant.
William P. Copple, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., John Augustine, Asst. U. S. Atty., Tucson, Ariz., for appellee.
Before BARNES and BROWNING, Circuit Judges, and THOMPSON, District Judge.
On January 14, 1965 appellant Thomas was indicted, together with four other defendants (Ortega, Tona, Mrs. Ortega and Miss Bock) on one count of violating Section 174 of Title 21 United States Code, to-wit: receiving, concealing, and facilitating the transportation and concealment, of 13.7 grams of heroin.1 The heroin was discovered in a search of an automobile on November 30, 1964, of which appellant Thomas was the owner and driver. The search was incident to an arrest made when the auto was stopped between eight and nine miles north of the Mexican border.2 The auto and the defendants had come across the border from Mexico the previous day.
Prior to the trial, and on January 15, 1965, defendant Tona pleaded guilty to the lesser charge (failure to register as a narcotic user) and was dismissed as a defendant from this case.
Defendants Thomas and Bock moved to suppress the seized heroin, alleging an illegal search and seizure in that the searching officers did not have probable cause to believe the defendants had or were about to commit a felony.
The government resisted the motion, urging probable cause existed for the search (19 U.S.C. § 482). The trial judge upheld the government's position that probable cause existed. This was alleged as error, both on the first motion for new trial, and on this appeal.
We find no merit in this contention. Appellant relies heavily on the Cervantes case (Cervantes v. United States, 263 F. 2d 800 (9th Cir. 1959) and 278 F.2d 350 (9th Cir. 1960)), but the government correctly points out that in Cervantes there was no personal observation by the government officers following the receipt of the informer's information — while here there was, i. e., the observation of the meetings with the two taxicab drivers and the numerous border crossings. As the trial court carefully pointed out, there were seven factors involved, which we number as follows:
(R.T., Vol. II, L 8-22.)
We therefore hold there was probable cause for the search — i. e., "a reasonable cause to suspect there was merchandise which was imported contrary to law" within the auto.
Prior to the start of trial, on March 17, 1965, the government, in the presence of the jury, dismissed the indictment as to the two female defendants. This is charged as error.
Thus defendants Thomas and Ortega alone went to trial.
Tona, an admitted addict, testified Ortega wanted him (Tona) to obtain narcotics. Tona "believed" Thomas took part in this conversation.3
Tona testified both Thomas and Ortega bought heroin, but that Thomas' bundle alone was that discovered in the search of the auto. Tona admitted on cross-examination that he had been promised a chance to plead to a lesser sentence if he would testify against the other defendants.4
At the end of the government's case, the trial court ordered a judgment of acquittal as to Ortega.
Thomas, the sole remaining defendant, was convicted by the jury. Although the evidence is close and sometimes conflicting, and with much of it given by persons known to be addicted to narcotics, there exists sufficient evidence, looking at the issues most favorable to the government's position (as we must on appeal after a jury's conviction) to uphold the defendant Thomas' conviction.
We must note there are before us two appeals.5 The second appeal being from the denial of a second motion for new trial, made on the basis of newly discovered evidence, i. e., the asserted recantation by the defendant Ortega of his testimony given at the trial; his "new" testimony that it was his heroin that was discovered in the search of the Thomas auto. The court denied the motion for a new trial, characterizing Ortega as "an evasive and perjurious witness."
We need not agree with the trial judge's estimate of defendant Ortega; neither do we disagree. Ortega was certainly not a convincing witness, either at the trial, or on the second motion for new trial. Suffice it to say with respect to a matter involving so largely a matter of discretion resting in the trial judge, we find no error in the trial court's ruling denying the second motion for a new trial. The denial of the motion for new trial in case Number 20650 is affirmed.
Having found there was probable cause for the search of appellant's car, that the evidence was sufficient to support appellant's conviction, and that there was no abuse of discretion in denying each motion for a new trial, we reach appellant's fourth and fifth alleged errors — the court's refusal to give the jury certain proposed instructions, defendant's numbers three and four.
It is conceded proffered instruction number three is not the law. See: Woxberg v. United States, 329 F.2d 284 (9th Cir. 1964); Kaplan v. United States, 329 F.2d 561 (9th Cir. 1964).
Appellant's Requested Instruction Number Four6 is a proper instruction in many cases, and particularly in those cases where circumstantial evidence alone is presented against a defendant. Its value decreases somewhat in direct ratio to the amount of direct evidence produced. Here there existed direct evidence. It would be difficult to say, as a matter of law, that the evidence against the defendant in this case was "chiefly" circumstantial.
The jury was carefully and properly instructed7 on the burden of proof where the evidence before the trier of fact is capable of two interpretations, one consistent with guilt; one consistent with innocence. We think the instructions as a whole were adequate, and we find no reversible error in them.
We come to appellant's last point, which compels us to reverse. To savor the import of the prosecution's questions, we desire to quote from the record exactly what was said.
On cross-examination of defendant Thomas, the Assistant United States Attorney asked:
(RT 406, L 18-21.)
We assume this was an attempted foundation for impeachment by proof of a prior inconsistent statement. We assume it was not impeachment on a collateral matter, and that it was relevant. Wigmore on Evidence, 3d ed., Vol. III § 1020.
(It should be noted that although the one-time defendant Tona was examined at length and vigorously cross-examined (RT 29-149), no foundation was laid, or attempted to be laid, at that time for impeachment of Thomas by asking Tona concerning any previous statement made by Thomas.)
When this "foundation question" was asked by the prosecutor, the trial judge very properly inquired:
Counsel for appellant, outside the hearing of the jury, then pointed out that Exhibit 3 (the statement taken by the government from Tona) did not support the government's position. And the trial judge very properly stated:
"If it doesn\'t, the whole thing will be blown out of the water." (RT 407.)
Accepting the challenge, government counsel continued:
This was an inadequate and poorly formed question. There was a variance in content between the two questions. If we concede the person was named, the time and place were not. Robinson v. United States, 144 F.2d 392 (6th Cir. 1944). McCormick, Evidence (1954), Chapter 5, §§ 36, 37; Wigmore on Evidence, 3d ed., Vol. III §§ 1017, 1029.
There was no real inconsistency between appellant's denial and the purported impeaching testimony. Wigmore, supra, § 1040.
Thus defendant Thomas was accused of having previous dealings with, and a market for, narcotics. This was use of a statement not usable as substantive evidence of the facts stated. The crime of selling (or giving away) narcotics in the past was inferred. Without proof of either a previous conviction or even a previous arrest as to such a crime, the government prosecutor offered the impeachment, for which the foundation had been allegedly so laid.
We next turn to the supposed impeachment.
Tona was called in rebuttal, by the government, and testified:
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