U.S. v. Bracy

• Decision Date: 23 December 1977
• Docket Number: Nos. 76-3416,76-3289 and 76-3325,s. 76-3416
• Citation: 566 F.2d 649
• Parties: UNITED STATES of America, Appellee, v. Boyer Alfredo BRACY, Appellant. UNITED STATES of America, Appellee, v. Sondra Denise MARTIN, Appellant. UNITED STATES of America, Appellee, v. Brenda BRACY, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 649

566 F.2d 649

UNITED STATES of America, Appellee, v. Boyer Alfredo BRACY, Appellant.

UNITED STATES of America, Appellee, v. Sondra Denise MARTIN, Appellant.

UNITED STATES of America, Appellee, v. Brenda BRACY, Appellant.

Nos. 76-3416, 76-3289 and 76-3325.

United States Court of Appeals, Ninth Circuit.

Dec. 23, 1977.

Rehearings and Rehearings In Banc Denied Feb. 13 and 28, 1978.

Ron Minkin, (argued), Los Angeles, Cal., Edward F. Bell, (argued), Detroit, Mich., for appellants.

Stephen W. Peterson, Asst. U.S. Atty., (argued), on the brief, Terry J. Knoepp, U. S. Atty., San Diego, Cal., for appellee.

Appeals from the United States District Court, Southern District of California.

Before WRIGHT and KILKENNY, Circuit Judges, and GRANT, District Judge. ^*

KILKENNY, Circuit Judge:

Appellants, together with three others (Stephanie Maria Gurley, Juanita Louise Kendricks, and Jerry Word), were indicted, tried and convicted in a jury trial of: (1) conspiracy to illegally import a controlled substance (heroin and cocaine) in violation of Title 21 U.S.C. § 963; (2) illegal importation of a controlled substance (5.5 pounds of heroin) in violation of Title 21 U.S.C. §§ 952, 960 and 963; (3) illegal importation of a controlled substance with intent to distribute (heroin and cocaine) in violation of Title 21 U.S.C. §§ 841(a)(1) and 846; (4) knowingly and intentionally possessing with intention to distribute approximately 5.5 pounds of heroin, a controlled substance, in violation of Title 21 U.S.C. § 841(a)(1).

The indictment before us, which was returned on June 30, 1976, superseded a previous indictment which was returned on April 28th of the same year. James Howard Porter (Porter), who later testified for the government, was named in the June 30th indictment as an unindicted coconspirator. Boyer Alfredo Bracy (A. Bracy), Sondra Denise Martin (Martin), and Brenda Bracy (B. Bracy) appeal. We affirm.

FACTUAL BACKGROUND

The incidents upon which the counts in the superseding indictment were grounded and upon which appellants were convicted are separately summarized to facilitate the treatment of the issue concerning the number of conspiracies. The jury found there was one overall conspiracy.

FEBRUARY 17, 1975, ARREST (CANADA INCIDENT)

On February 16, 1975, an airport security guard, while checking luggage at the Detroit airport noticed a large amount of cash in one Canada's luggage. Canada was accompanied by appellant A. Bracy. The security guard informed a local Drug Enforcement Agency (DEA) agent who ran a routine check on A. Bracy. He found that A. Bracy had a long history of narcotics violations. He notified officials in San Diego, Canada's destination, to alert them of this information. San Diego authorities established surveillance on Canada when she arrived in their city. She was met at the airport by Turner, a coconspirator, and later the two of them walked to a waiting car being driven by one Welsh. The trio rented a room at a local motel and engaged in a variety of activities around San Diego. Phone records from the rented room revealed that its occupants had placed a long distance call to a Detroit number assigned to the wife of a known lieutenant in a narcotics ring headed by Juanita Kendricks (Kendricks), a codefendant, and her husband, Richard, A. Bracy's parents. The following day, the 17th, Turner and Welsh went to Tijuana, Mexico, and they returned that afternoon. Another series of events followed where one or more of the threesome would leave the motel room. All

three, Canada, Turner, and Welsh checked out of the motel and headed north from San Diego. Their car was stopped by California Highway Patrol officers who asked permission to search the vehicle. Permission was granted, and the officers found various narcotics (heroin and cocaine) in the trunk.

JANUARY, 1976, INCIDENT

Porter, an unindicted coconspirator, was employed by A. Bracy as a cleanup man at A. Bracy's suburban Detroit home. One Lomas worked as construction supervisor on the home. Both men moved to Los Angeles shortly before Christmas, 1975. Early in 1976 A. Bracy called Lomas and told him that he would be stopping in Los Angeles for a visit. A. Bracy arrived at Lomas' apartment with a girl friend, Susan Perry, and gave Lomas and Porter money, allegedly to buy undergarments to conceal narcotics. Lomas and Porter returned with the clothing. Then A. Bracy and Lomas drove to San Diego where they contacted Porter who had flown to San Diego and registered in a local motel (Royal Inn). Lomas remained in the room while A. Bracy and Porter went to Tijuana. In Mexico, they met with Manuel Banaga (Manning). A. Bracy gave Manning a briefcase. Following the exchange, A. Bracy and Porter checked into a Tijuana Ramada Inn. A. Bracy instructed Porter to wait at the Ramada Inn until Manning arrived. Manning came to the room, and Porter gave him some car keys on A. Bracy's orders. After more waiting, Porter returned to the San Diego Royal Inn where he had met earlier with Lomas and A. Bracy. Lomas returned to Los Angeles. The next day Porter called Lomas and was advised that Lomas and appellant B. Bracy and her children would be traveling to San Diego. Lomas instructed Porter to wait for B. Bracy in Tijuana. Upon her arrival in Mexico, B. Bracy called Manning who returned to her room with the car keys he had been given by Porter the day before. B. Bracy left the hotel room with her children and returned with two bags of baby clothes in which were mixed several bags of heroin and cocaine. B. Bracy and Porter met and agreed that since they had a large number of drug packages she would transport the heroin, and he would cross with the cocaine. B. Bracy drove into the United States, and Porter flew into Los Angeles. Once in Los Angeles, Porter met Lomas and the two were later joined by B. Bracy. The three agreed that Porter should transport the narcotics to A. Bracy's home in Belleville, Michigan, a suburb of Detroit. Porter departed that night for Detroit, but on arrival he became suspicious of receiving payment for the smuggling so he left the heroin and flew back to Los Angeles keeping the cocaine as security. After Porter returned to Los Angeles, he was questioned by B. Bracy and Canada as to why he did not leave the cocaine as directed. Appellants B. Bracy and Martin tried to convince Porter to turn over the cocaine. Porter eventually returned the narcotics, but only after he was paid by A. Bracy.

MARCH 17, 1976, INCIDENT

In mid-March, 1976, Porter was contacted by Martin and was told that A. Bracy was coming to Los Angeles. A. Bracy, Martin, and Jerry Word (Word) met Porter in his apartment. The meeting was organized to continue the narcotics smuggling effort. A Bracy again gave Porter money to buy a girdle for smuggling purposes. Porter flew to San Diego and later checked into the Ramada Inn in Tijuana. Six hours later, A. Bracy, Martin, and Word arrived at the hotel restaurant. Porter passed his room number to Word in the hotel restroom. Porter also gave the number to A. Bracy in a similar fashion. Porter returned to his room and waited for one hour for A. Bracy, Martin and Word to arrive. A. Bracy brought two kilos of heroin with him. Porter was assigned to smuggle the heroin across the border in the girdle. Word and Porter left the hotel together, but they took separate cabs into the United States. Porter then flew back to Los Angeles, whereupon he returned to his apartment. About two hours later, A. Bracy arrived at Porter's apartment and took the heroin. He paid Porter $1,000.00 for his efforts.

MARCH 20, 1976, INCIDENT

On March 20, 1976, A. Bracy again contacted Porter about going to Mexico. Porter was told to go to the Ramada Inn in Tijuana as before. Porter waited at the motel for six hours, and since no one arrived he departed for Los Angeles. That same day, Word went to the residence of one Debra Gillenwater (Gillenwater) and asked to borrow a car that was registered in her sister's name. Gillenwater consented. Word was accompanied by A. Bracy. Appellant Martin also registered in a nearby room. On the next morning Martin called Porter in Los Angeles and A. Bracy came on the line to inquire why Porter was not in Tijuana. Porter told A. Bracy that he got tired of waiting and had returned to Los Angeles. A. Bracy instructed Porter to come immediately to Tijuana. Several hours later Martin again called Porter and asked why he had not left for Mexico. Porter said he was on his way. These calls were verified by telephone logs at the Ramada Inn in Tijuana. Porter went to the airport but missed his flight and was forced to call A. Bracy with the news. A. Bracy told Porter to forget about coming to Tijuana. Additionally, on March 21, 1976, an automobile driven by Stephanie Gurley, a codefendant, was inspected at the San Ysidro port of entry and found to contain narcotics. The car was the same one borrowed by Word the day before. On or about March 21st, Maxine Chong (Chong) phoned B. Bracy and told her that someone named Stephanie was in trouble. At trial, Chong testified that the conversation might have been that Porter told her that Stephanie was in trouble.

There is substantial evidence that A. Bracy was the catalyst around whom the overall web of conspiracy was spun and that the command center of the group was in and around Detroit, Michigan.

GRAND JURY INCIDENTS

Porter was served with a grand jury subpoena on April 6, 1976, and immediately phoned B. Bracy demanding $25,000.00 in exchange for his silence. B. Bracy, although professing innocence, referred him to Detroit. Another witness received an envelope from B. Bracy which he gave to Lomas. Inferentially, this envelope contained the money to pay Porter's legal fees.

On April 14, 1976, Porter appeared before the grand jury and told several lies. He testified that he had concluded working for A. Bracy in November of 1975, had only seen him once since then, and that A. Bracy had...