U.S. v. Carrillo, 77-5019

• Decision Date: 10 January 1978
• Docket Number: No. 77-5019,77-5019
• Citation: 565 F.2d 1323
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Conrado Gillie CARRILLO and Ernest Pete Montoya, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1323

565 F.2d 1323

UNITED STATES of America, Plaintiff-Appellee, v. Conrado Gillie CARRILLO and Ernest Pete Montoya,

Defendants-Appellants.

No. 77-5019.

United States Court of Appeals, Fifth Circuit.

Jan. 10, 1978.

Lucien B. Campbell, Federal Public Defender, C. Larry Mathews, Jr., Asst. Federal Public Defender, El Paso, Tex., for Carrillo.

Roddy L. Harrison, Pecos, Tex. (Court-Appointed), for Montoya.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Ronald P. Guyer, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

GEWIN, Circuit Judge:

Conrado Gillie Carrillo and Ernest Pete Montoya were found guilty by a jury and convicted for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and for importation of that heroin into the United States from the Republic of Mexico in violation of 21 U.S.C. § 952(a).

Both defendants challenge the sufficiency of the evidence to support their convictions. In addition Montoya claims reversible error in the trial court's failure to grant a mistrial because of allegedly prejudicial testimony elicited by the prosecutor from a government witness. We affirm.

I FACTS

On June 28, 1976, defendants, who were traveling from Ojinoga, Mexico, entered the United States through the port of entry at Presidio, Texas. Montoya was driving a 1976 Oldsmobile Cutlass. Carrillo occupied the front passenger's seat. The vehicle stopped at the Customs Office and the occupants were questioned by Customs Officer Short concerning their citizenship and whether they had anything to declare. Defendants replied that they were U. S. citizens and had liquor that they were bringing in from Mexico.

While questioning defendants the officer noticed that Carrillo was extremely nervous. He fidgeted in his seat, fluttered his eyelids, and moved his hands rapidly. As a result of these observations Officer Short ordered the vehicle into the area for secondary inspection. There defendants stated that they had traveled to Ojinoga to visit a relative. During Officer Short's inspection of the car, Carrillo, who continued his nervous behavior, requested that he be allowed to take the liquor to the liquor control authorities to pay the state tax. Officer Short noticed that when Carrillo left the inspection area his nervousness diminished.

The inspection of the vehicle revealed some electrician's tape in the glove compartment. In light of this discovery and Carrillo's nervous behavior, the officer took the defendants to the Customs Office for a search of their persons. The search revealed a .25 caliber pistol hidden in Carrillo's right boot and a clip with .25 caliber shells in Montoya's front left pocket. This clip fit the pistol found on Carrillo. Each defendant had track marks on both arms which appeared to be recent.

Following this search of defendants' persons, Officer Short conducted a more thorough search of their car. Beneath the front console of the car, between the driver's and passenger's seat, the officer located a packet wrapped in black electrician's tape which was found to contain heroin. At this time the officer placed both men under arrest. Defendants denied any knowledge of the heroin's presence, although Carrillo was so nervous that his denial was almost unintelligible.

Officer Short then returned to the vehicle and investigated the right side of the console on the passenger's side and discovered a much larger packet of heroin, wrapped like the first in electrician's tape. During the completion of the search Montoya asked the officer, "Who told you it was there?" The officer replied that no one told him it was there; that he had just found it. Montoya continued, "Somebody told you it was there. Who was it?"

The automobile used by the defendants was found to have been rented by one Clarence Ramiro on June 26, 1976, in Albuquerque, New Mexico. Mr. Ramiro was acquainted with both appellants; with Montoya since 1969 and with Carrillo, whose sister he dated, for about the same length of time. Shortly after he rented the car, Ramiro left it at Montoya's apartment and gave him the keys. Ramiro had a date with Carrillo's sister Irene and had gone to Montoya's apartment to leave her baby there. No permission was granted to take the car to Mexico.

It was later determined that the large packet contained one hundred two and one-half grams or less than four ounces of 56% pure heroin, while the small packet held two tenths of a gram of 54% pure heroin.

II SUFFICIENCY OF THE EVIDENCE

Defendants' primary contention is that because of the insufficiency of the evidence against them the district court erred in denying their motions for judgments of acquittal. Viewing the evidence in the light most favorable to the government, the verdict of a jury must be sustained if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This court has held that the standard to be applied in determining the sufficiency of the evidence is as follows:

On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt.

The same test . . . should apply whether the evidence is direct or circumstantial.

(W)e must accept as established all reasonable inferences that tend to support the action of the jury, and any conflicts in the evidence must be resolved in favor of the jury verdict.

United States v. Warner, 441 F.2d 821, 825, 831 (5th Cir. 1971); quoted in United States v. Parr, 516 F.2d 458, 463-64 (5th Cir. 1975). More recently this court has held that the standard to be applied by a trial judge in testing the sufficiency of the evidence for submission to the jury is "whether a reasonably minded jury must necessarily entertain a reasonable doubt about the evidence." United States v. Bright, 550 F.2d 240, 242 (5th Cir. 1977), citing United States v. Haggins, 545 F.2d 1009, 1013 (5th Cir. 1977).

Applying these standards to the instant case we find that the trial court did not err in denying defendants' motions for judgment of acquittal. Taking the case against each defendant in turn, it is clear that the evidence adduced against Montoya was more than sufficient to support his conviction. Montoya was the driver of a vehicle in which a large quantity of heroin was found. He obtained that vehicle in Albuquerque, New Mexico, from the person who had rented it and used it to enter Mexico and return to the port of entry at Presidio, Texas, where the heroin was subsequently discovered. Both of his arms had puncture marks on them. Most damaging of all to Montoya's case was his question to the officer as to who told him about the presence of the heroin in the car, mentioned earlier.

The evidence against Carrillo, while somewhat less compelling than that adduced against Montoya, is nevertheless sufficient to support his conviction. Carrillo was traveling from Mexico into the United States with Montoya in an automobile containing a large quantity of heroin. The largest packet of heroin was found beneath the console on the passenger side. When stopped at the port of entry for routine questioning Carrillo became extremely nervous. This nervousness appeared to the Customs officer to decrease as Carrillo's distance from the automobile and the officer increased. Carrillo asserts that his nervousness was caused by the unloaded pistol in his boot. However, at the time Carrillo displayed such nervousness the car and not he was being searched. In fact the agent allowed him to take his liquor to the liquor control officials and pay the tax.

Carrillo asserts that he was merely a passenger in the car and that there was no evidence showing that he had known Montoya for any significant period of time prior to their arrest. However, both Montoya and Carrillo lived in Albuquerque, New Mexico. Both men had been acquainted for at least six years with Clarence Ramiro, the man from whom Montoya obtained the car in which they were riding. Ramiro dated Carrillo's sister Irene, and the night Ramiro left the rental car at Montoya's apartment he had gone to the apartment to leave Irene's baby there while he and Irene went out on a date. There was also testimony by the Customs officer that appellants had told him they had gone to Ojinoga, Mexico, to visit a relative. In addition, Montoya had in his possession a loaded bullet clip which fit the pistol in Carrillo's possession. Finally, Carrillo, like Montoya, had puncture marks on both arms, suggesting that he used heroin. The combined weight of these facts is such that a jury could reasonably draw the inference that Carrillo had traveled from Albuquerque, New Mexico, to Ojinoga, Mexico, with Montoya for the purpose of importing heroin into the United States for distribution.

On the basis of the evidence presented in this case we hold that a reasonably minded jury could have found beyond a reasonable doubt that the appellants engaged jointly in the importation of heroin from Mexico with the intent to distribute. See United States v. Riggins, 563 F.2d 1264 (5th Cir. 1977); United States v. Parr, 516 F.2d 458, 464 (5th Cir. 1975); United States v. Schechter, 475 F.2d 1099, 1101 (5th Cir. 1973).

III DENIAL OF MONTOYA'S MOTION FOR A MISTRIAL

Montoya also asserts that the trial court erred in refusing to grant his motion for a mistrial. The motion was based on a statement elicited by the prosecutor from Mr. Ramiro. The prosecutor asked Mr. Ramiro whether he knew if Mr. Montoya was an addict. Ramiro replied, "Yes, I know." Then, over defense counsel's objection Ramiro stated that prior to 1971 he knew Montoya was an addict but at the present he had no such...