U.S. v. Baldarrama
| Decision Date | 20 January 1978 |
| Docket Number | Nos. 76-3625 and 77-5265,s. 76-3625 and 77-5265 |
| Citation | 566 F.2d 560 |
| Parties | 3 Fed. R. Evid. Serv. 99 UNITED STATES of America, Plaintiff-Appellee, v. Edward BALDARRAMA, Matias G. Segarra and Felix Bensor, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Casas GUZMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lucien B. Campbell, Federal Public Defender, P. Joseph Brake, Asst. Fed. Public Defender, San Antonio, Tex., for Segarra.
Joe L. Hernandez, San Antonio, Tex., for Bensor.
Donald J. Walheim, San Antonio, Tex. (Court-appointed), for Baldarrama.
Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Robert S. Bennett, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.
Neill Boldrick, Jr., and Allan K. DuBois (Court-Appointed), San Antonio, Tex., for defendant-appellant.
Gilbert Casas Guzman, pro se.
Appeals from the United States District Court for the Western District of Texas.
Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.
Defendants appeal from convictions of conspiracy, aiding and abetting, and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a) (1) and 846. Defendants Baldarrama, Segarra, Bensor and Guzman were found guilty of conspiring to distribute heroin. Each of the remaining five counts of the indictment charged Segarra with possession with intent to distribute and one of the other defendants with aiding and abetting such possession. Baldarrama was convicted of aiding and abetting Segarra on three separate counts; Bensor and Guzman on one each.
Bensor and Guzman contend that the evidence was insufficient to support the aiding and abetting convictions. Baldarrama, Bensor and Guzman allege that there was insufficient evidence to uphold their convictions of a single conspiracy including all four defendants. Defendants unanimously claim that the admission of Guzman's prior heroin conviction was prejudicial error. Baldarrama avers that prejudicial error resulted from the trial court's failure to grant a severance after the court ruled that Guzman's prior heroin conviction could be admitted at trial. Defendant Bensor urges that the indictment was unconstitutionally vague because it failed to allege any overt acts manifesting intent to join the conspiracy. Segarra complains of an implication of an extraneous offense in a prosecution witness' testimony regarding Segarra's visit to a Methadone Maintenance Center. Finally, defendant Guzman contends that the hearsay statements of coconspirators were wrongly admitted before a prima facie case of conspiracy had been established and that the imposition of consecutive sentences for aiding and abetting and conspiracy was error. We affirm.
The charges in this case arose out of five separate heroin transactions in which an undercover agent purchased substantial amounts of heroin from defendant Segarra. On January 28, 1976, undercover agent Rodriguez spoke with Segarra and arranged for the purchase of heroin. Segarra did not deliver the heroin at their first meeting, but rather drove with Rodriguez to the vicinity of Jimenez Garage in San Antonio, Texas. Segarra told Rodriguez to meet him later at a certain service station. The agent followed instructions, and was at the station when Segarra arrived in a blue van driven by defendant Baldarrama. The heroin delivery was not made at the service station, however, as Segarra said that he was having trouble contacting his source. Rodriguez and Segarra drove back to Jimenez Garage. The blue van driven by Baldarrama was already parked in the vicinity. After waiting for Segarra to make contact with his source, Rodriguez and Segarra drove to Stanley's Ice House. Segarra said that they were to meet the man driving the blue van at the Ice House, and that he would have the heroin. In a few minutes Baldarrama arrived in the blue van. Segarra went over to the van, appeared to take something that Baldarrama was handing out of the van, and returned to the agent's car with a package of brown heroin.
The four other transactions followed the same pattern of the agent placing an order by telephone, followed by delay while Segarra arranged delivery of the heroin by one of his sources, and sale to the agent soon after the heroin was transferred to Segarra.
Six days after the first purchase, Rodriguez called Segarra seeking to purchase some "white" heroin. Testimony at trial established that white heroin is very rare in San Antonio, where "brown" Mexican heroin is predominant. Segarra asked the agent to call back in ten minutes so he could check with his source. When Rodriguez called again Segarra said that the heroin could be delivered in one hour. During this time Segarra's residence was under surveillance. At 11:30 a. m. Segarra left his home and walked to Jack's Ice House, where he met briefly with defendant Guzman. After this meeting Guzman drove a two-tone brown Thunderbird to his residence, parked, then walked around his yard and over to a disabled car. Guzman was seen doing something to the front of the car before he entered the residence for a few minutes. Guzman then drove the Thunderbird to Segarra's home. Segarra walked out to Guzman's vehicle and talked to him for a few moments. Guzman remained in the car. Five minutes after Guzman left, Rodriguez called Segarra, who informed him that he now had the heroin. Rodriguez purchased the heroin in Segarra's home. After Rodriguez left the residence Segarra walked to the Methadone Maintenance Center, then to Jimenez Used Car Lot, where he encountered Guzman.
The third transaction took place 16 days later. Rodriguez was instructed to meet Segarra at Stanley's Ice House. Baldarrama drove up in a blue van and brought a toothpaste box out of the rear door. The box contained four packages of heroin. Baldarrama was involved in the fourth transaction as well. The pattern was identical a call from Rodriguez, delay while the source was contacted, delivery by the source to Segarra, then Segarra's call to the agent informing him of the availability of the heroin. Baldarrama's blue van drove up to Segarra's residence and Segarra went out to the van just before Rodriguez was told that the heroin was ready.
The final purchase occurred on March 22, 1976, nearly two months after the first transaction. Soon after Rodriguez phoned, Segarra left his residence, returning 25 minutes later. Subsequent to his return a 1970 brown Pontiac arrived at Segarra's home. Segarra came out to talk with the driver of the Pontiac, who remained in the car. The Pontiac left and Segarra went to meet Rodriguez and another agent. They arranged for the heroin to be delivered at Los Apaches Restaurant. Segarra parked in the restaurant lot and walked to the corner. In approximately 5 minutes the 1970 brown Pontiac which had been seen earlier that day at Segarra's home drove up and parked near Segarra's vehicle. The Pontiac was driven by defendant Bensor. Segarra strode quickly to Bensor's car, talked with him, and appeared to lean inside the car. As Segarra returned to his own vehicle he carried a small white package. Segarra opened his car and appeared to be placing something in the front seat. Bensor moved his car across the street, parking so that the view of the restaurant parking lot was unobstructed. Agent Rodriguez arrived shortly thereafter, and after some negotiating with Segarra, the other agents moved in to arrest both Segarra and Bensor. Three packages of heroin wrapped in a light-colored paper towel were found in Segarra's vehicle.
Defendants Bensor and Guzman contend that the evidence was insufficient to support their convictions for aiding and abetting the sale of heroin by Segarra. The defendants did not present any witnesses, so the question on appeal is simply whether the jury could reasonably find Bensor and Guzman guilty on the basis of the circumstantial evidence of their connection to Segarra's sales of heroin. The evidence must be examined in the light most favorable to the Government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). There is substantial evidence supporting the jury's conclusion that Bensor and Guzman aided Segarra's sales of heroin. Guzman met with Segarra at Jack's Ice House after Agent Rodriguez had asked to purchase white heroin. Guzman drove home, entered his residence, then went to Segarra's house. Segarra met him and 5 minutes later called Rodriguez and told him the heroin was ready. These facts strongly indicate that Guzman was Segarra's source of white heroin. Guzman's previous conviction for possession of white heroin buttresses that interpretation of the facts. Bensor's claim is equally meritless. His automobile was seen at Segarra's house under the same circumstances as Guzman's after Rodriguez had requested a purchase but before Rodriguez was told that he could make the pickup. Bensor's appearance at the parking lot at Los Apaches Restaurant, the white package that was visible as Segarra left Bensor's vehicle and the extremely suspicious circumstance of Bensor reparking and remaining in his car near the site of the heroin transaction all support the jury's verdict.
Defendant Baldarrama joins Guzman and Bensor in urging that the evidence did not support convictions of a single conspiracy of all four defendants. These defendants insist that the Government's attempt to demonstrate a "wheel" conspiracy with Segarra as the "hub" and the other defendants as "spokes" failed because there was no showing of any connection between Guzman, Bensor and Baldarrama. 1 According to this analysis, the conviction must be overturned because of the absence of a "rim" connecting the different conspirators. This court is no stranger to the question of whether the evidence indicates one large conspiracy or several smaller conspiracies. In United States v. Perez, 5 Cir., 1973, 489 F.2d 51, 57, cert. denied,...
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