U.S. v. Arteaga-Limones

• Decision Date: 08 April 1976
• Docket Number: ARTEAGA-LIMONES and M,No. 75--1648,75--1648
• Citation: 529 F.2d 1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Demetrioike Lozano Cantu, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1183

529 F.2d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Jose Demetrio ARTEAGA-LIMONES and Mike Lozano Cantu,

Defendants-Appellants.

No. 75--1648.

United States Court of Appeals, Fifth Circuit.

April 8, 1976.

Rehearing and Rehearing En Banc

Denied June 9, 1976.

Jake Jay Reich, San Antonio, Tex., Kenneth E. Houp, Jr., Austin, Tex., Arturo C. Gonzalez, Del Rio, Tex., for defendants-appellants.

John E. Clark, U.S. Atty., James W. Kerr, Jr., Asst. U.S. Atty., San Antonio, Tex., Mervyn Hamburg, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before COLEMAN, CLARK and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Jose Demetrio Arteaga-Limones (Arteaga) and Mike Lozano Cantu (Cantu) appeal from their convictions of drug-related offenses. Arteaga was convicted under 21 U.S.C. § 963, conspiracy to import marijuana; 21 U.S.C. §§ 952(a), 960(a)(1), illegal importation of marijuana; 21 U.S.C. § 846, conspiracy to possess marijuana with intent to distribute; and 21 U.S.C. § 841(a)(1), possession of marijuana with intent to distribute. He received a sentence of five years imprisonment and five years special parole on each count, to be served consecutively. Cantu was convicted of the two latter offenses and received a sentence of five years imprisonment and five years special parole on each count, to be served concurrently. Both defendants assert numerous claims of error. Arteaga's appeal was argued orally to the court; that of Cantu was submitted on briefs only.

FACTS

In May 1974, during the trial of Julio Castillo-de la Garza (Castillo) on charges involving the illegal importation of a 300-pound shipment of hashish, evidence was developed that implicated Arteaga-Limones, Cantu and one Alvaro Moreno in the importation and distribution of 350 pounds of marijuana between January 1, 1973 and October 9, 1973. Castillo was convicted on the hashish charges and became the chief witness in the instant trial of Arteaga-Limones and Cantu. The following account of the events preceding and following the importation of the marijuana is primarily drawn from his testimony.

On or about January 30, 1973, Castillo and Arteaga travelled across the border to Ciudad Acuna, Mexico (the residence of Castillo), and carried back two sacks of marijuana. They stored the sacks at Arteaga's home in Del Rio, Texas, and later transported them to the San Antonio area and sold them to an unidentified purchaser. No money changed hands at the time of delivery, but Castillo later received several payments totaling approximately $60,000, which he

turned over to Arteaga. Castillo then met Moreno, a narcotics dealer, and discussed transporting marijuana for him. Around May 5, 1973, Arteaga and Castillo met at Arteaga's home and traveled to a small ranch near the Mexican border, where they observed two of Arteaga's employees arrive from the direction of Mexico with sacks of marijuana. Arteaga and Castillo stored the sacks at Arteaga's house. Later, when Moreno asked to buy some marijuana from Castillo, Castillo told him of the recent importation. Moreno requested a credit transaction. Castillo agreed, subject to Arteaga's approval. Arteaga agreed and implied that Cantu would make the delivery. The next morning, when Castillo met Cantu in a motel restaurant in San Marcos, Cantu told Castillo that part of the marijuana was in his car. Moreno came to the restaurant and left in Cantu's car. Arteaga arrived and reported that the rest of the marijuana was in another car parked nearby. Moreno returned to the restaurant and left in this car also. After two months passed without word or payment from Moreno, Castillo traveled to New York to see Moreno. Castillo received $800 and returned to Ciudad Acuna. About a month later Castillo and Arteaga received $11,500 from Moreno. None of the marijuana was recovered, since it had already entered the distribution network by the time Castillo's account came to light.

CANTU

Cantu asserts claims of error relating to the sufficiency of evidence, the sufficiency of Count Four of the indictment and the admission of an extraneous offense.

1. Sufficiency of the evidence. Cantu challenges the sufficiency of the evidence to support his conviction on Counts Three and Four, asserting that there was no evidence 'other than hearsay' to establish the existence of a conspiracy or Cantu's connection with it, and no evidence of Cantu's possession of the marijuana with intent to distribute it. We begin by noting that Cantu received concurrent sentences for the violations; accordingly, if the proof be adequate as to either count, no reversible error is present. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1956); United States v. Ransom, 515 F.2d 885, 891 (5th Cir. 1975).

We approach the evidence with the responsibility to view it on appeal in the light most favorable to the government, as required by Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941). Accordingly, we have no difficulty finding sufficient evidence to support both the conspiracy and substantive charges. Castillo's account firmly establishes a basis for the existence of a conspiracy between himself, Arteaga and Moreno. Only slight evidence is required to link a defendant to a conspiracy once the fact of conspiracy has been established. United States v. Lawson, 523 F.2d 804, 807 (5th Cir. 1975); United States v. McGann, 431 F.2d 1104, 1107 (5th Cir. 1970), cert. denied, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971). We believe that a jury could reasonably find, from the testimony as to Cantu's involvement with Castillo, his provision of a hiding place for the marijuana and his service as a delivery courier, that he participated in the conspiracy as charged in Count Three. See United States v. Sanchez, 508 F.2d 388, 392--93 (5th Cir.), cert. denied, 423 U.S. 827, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975). The latter activity allegedly involving a transfer of marijuana at San Marcos, Texas, also provides a valid basis for a finding that Cantu possessed marijuana with intent to distribute it as charged in Count Four.

2. Sufficiency of Count Four of the indictment. Both Arteaga and Cantu urge that Count Four of the indictment, charging actual violation of 21 U.S.C. § 841(a)(1), was fatally defective in that it failed to allege any location for While the counts of an indictment must stand independently for the purpose of being judged as to sufficiency, they need not be read apart from the caption and heading of the indictment, which clearly state that the action is being brought in the Western District of Texas, Del Rio Division. Defendants had the right to be tried in the district and division where the offense was committed, not the right to be told they would be tried there. See Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953,84 S.Ct. 1626, 12 L.Ed.2d 498 (1964). Where, as here, no allegation of a variance between charges and proof is made, and no other circumstance demonstrating that the defendant was in any way disadvantaged 3. Admissibility of an extraneous offense. The government offered evidence of Cantu's 1974 narcotics conviction to establish intent and a general scheme or design:

the commission of the offense. ¹ They support their position with language from United States v. Miranda, 494 F.2d 783, 788 (5th Cir.), cert. denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974), stating that '(f)ailure to specify the precise location of the offense is not fatal if the district is alleged.' From this statement they infer an alternative rule that where the district is not alleged, the failure to specify the location of the offense is fatal to the indictment. We refuse to make this inferential interpretation. In Miranda, this court specifically noted that the validity of an indictment under Rule 7(c) is determined by practical, not technical, considerations. 494 F.2d at 788, citing United States v. Miller,491 F.2d 638, 649 (5th Cir.), cert. denied, 419 U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186 (1974). Miranda further held that the sufficiency of the indictment must be tested under the standard enunciated in Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932). It cited as support for the statement on which Arteaga and Cantu rely United States v. Tomasetta, 429 F.2d 978 (1st Cir. 1970). Tomasetta specifically repudiates the proposition that any single averment determines the sufficiency of the indictment ² and states '(t)he failure to specify with greater precision the location of the alleged offense would surely not have given rise to this (reversal for insufficiency) (had) sufficient additional facts (been) averred.' Id. at 980. The statement in Miranda was intended as no more than a summary of the court's comparison between the Miranda and Tomasetta situations. The construction suggested by defendants would conflict with the law of all circuits that have faced this issued. See United States v. Honneus, 508 F.2d 566 (1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); United States v. Powell, 498 F.2d 890 (9th Cir.), cert. denied,419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974); Flores v. United States,338 F.2d 966 (10th Cir. 1964); 1 C. Wright, Federal Practice & Procedure § 125 (1969). ³ It would not advance the policies of the Federal Rules of Criminal Procedure applicable to indictments. See F.R.Crim.P. 7(c), 18 has been brought to light, we refuse to find error in the fact that each count of this indictment did not repeat the division and district in which the crime was charged to have been committed.

'Q Mr. Castillo, on or about May 2nd, 1974 were you convicted of an offense in violation of Federal law?

'A Yes, sir, I was convicted of possession and with intent to distribute 301 pounds of hash. And I am presently...