U.S. v. Corral-Martinez

• Decision Date: 02 April 1979
• Docket Number: No. 77-5680,D,CORRAL-MARTINE,77-5680
• Citation: 592 F.2d 263
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erasmoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 263

592 F.2d 263

UNITED STATES of America, Plaintiff-Appellee, v. Erasmo CORRAL-MARTINEZ, Defendant-Appellant.

No. 77-5680.

United States Court of Appeals, Fifth Circuit.

April 2, 1979.

Jose Escobar, Mario J. Martinez, El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Wayne F. Speck, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before GEWIN, RONEY and GEE, Circuit Judges.

GEE, Circuit Judge:

Erasmo Corral-Martinez appeals his convictions of conspiracy to import, importation, and possession of heroin, violations of 21 U.S.C. §§ 963, 952(a) and 841(a)(1). He challenges the introduction into evidence of the heroin found in his car during a search at the border and the district court's determination that his post-arrest statement had been voluntary. He also complains about being tried with his cousin, an alleged co-conspirator, ¹ about a possible prosecutorial reference to his silence, and about a jury instruction. For the reasons discussed below, we reject his contentions and therefore affirm his conviction.

I. The Facts.

At midmorning on June 16, 1977, customs officers on duty at the Presidio, Texas, port of entry were discussing two recent heroin seizures at the Texas-Mexican border involving cars with Illinois license plates, driven by Mexicans legally residing in the United States. Senior Customs Inspector Trevino then decided to search any car with Illinois plates that crossed the border that day. A few minutes later, with disastrous timing from their point of view, Corral-Martinez and his cousin, Jose Corral, crossed the bridge into the United States in a late model sedan bearing Illinois plates. When he sighted the plates, Officer Trevino decided the car would have to be searched. Another officer began the primary inspection and reported to Trevino that the men claimed to have been in Mexico about ten days, had alien registration cards indicating that they were Mexican citizens legally residing in the United States, and that they had two or three curios to declare. Trevino ordered that a secondary inspection be done and, while another officer began checking the luggage, ran a computer check which proved negative. Trevino then began to inspect the car, starting with the door on the passenger side, to determine whether any screws had been tampered with. Apparently before noticing anything in particular, Trevino was called away by the officer at the luggage inspection table who had found a loaded pistol in a coat that had been hanging in the car's back seat.

Erasmo Corral-Martinez admitted that the weapon was his and denied having other weapons in the car or on his person. At that point he was in police detention pending further processing. ² While questioning Erasmo, Trevino noticed a bulge in his trousers around the waistline and decided to do pat-down searches, followed by strip searches of the two men. He found a zippered leather pouch containing $500.00 around Erasmo's waist and only loose American and Mexican currency in Jose's pockets. During the searches which were done while the two suspects were separated, each man was asked why he had gone to Mexico. Erasmo said that he and his cousin had gone to visit a very sick uncle. Jose on the other hand said he had gone simply as a tourist and, when questioned specifically about the uncle, denied visiting any sick relative. ³ At a suppression hearing Officer Trevino testified that, at this point, "because of the contradictions and everything, I was reasonably sure that there was contraband in the car." Trevino then took his screwdriver and began removing door panels and other coverings in the car, finding 34 pounds of heroin worth more than a million dollars concealed behind the panels in the rear passenger area of the car.

Trevino next arrested the two, handcuffed them, and took them back into his office. He read them their Miranda rights in Spanish; both men said they understood their rights. Neither indicated a desire to make any statement, and they were not questioned further. DEA officials who have exclusive jurisdiction over processing such offenses were notified and the closest agent, Agent Alcorn from Midland, Texas, approximately 260 miles away, was dispatched immediately to Presidio. En route he stopped at Marfa, Texas, to see that the magistrate who was closest to Presidio would be available later in the afternoon. When Alcorn arrived at Presidio at about 4:30 p. m., the defendants were given forms, printed in Spanish, regarding their Miranda rights. Each read his copy and indicated understanding, but refused to sign the form or waive his rights to remain silent. When each indicated he did not wish to make a statement, Alcorn withdrew to begin the necessary paperwork. A few minutes later Erasmo Corral called Trevino over and said he wanted to talk with Alcorn. Trevino and Alcorn took him aside and after reminding him of his rights accepted his oral statement that an unknown person had asked him and Jose to drive his car to Gomez Palacio in Durango, Mexico, leave the car parked there, and return the next day; that they were to drive the car back to a Chicago suburb and leave it parked near a factory; that in return each was to receive $1,500. After completing his paperwork, Agent Alcorn drove the two men to Marfa, where they appeared before the magistrate approximately eight hours after their arrest.

II. The Search Issue.

Erasmo Corral-Martinez urges that the 34 pounds of heroin should have been suppressed because it was "fruit of the poisonous tree" secured as a result of exploiting the contradictory statements he and Jose had made without benefit of Miranda warnings. In support he cites United States v. McCain,556 F.2d 253 (5th Cir. 1977), and United States v. Castellana, 488 F.2d 65, 67-68 (5th Cir.), Rev'd on other grounds, 500 F.2d 325 (1974) (en banc). We observe that it was the trial judge himself who, after careful reflection on our cases regarding custodial situations at the border, ⁴ first speculated that, in addition to suppressing the contradictory statements themselves, he perhaps should also suppress the heroin as "fruit" of the ill-gotten statements. So troubled was he by this issue that he ordered a supplemental hearing to assure himself that the search had not been an " exploitation of (the) illegality" prohibited under the principles of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He heard a second rendition of the events by Officer Trevino and then made specific findings of fact (1) that when Trevino saw that the car had Illinois plates, he made up his mind that the car would have to be searched, and (2) that the search was not the result of exploitation of defendants' statements since the decision to search had already been made. Acceptance of appellant's argument would necessitate our finding these determinations clearly erroneous, and this we cannot do. There is sufficient basis for them in the record a record constructed as a result of the judge's attention to the precise issue raised here. We cannot substitute any after-the-fact impression of ours that the suppressed statements must have affected the decision to search or the extent of the search done. Nor are we troubled by the fact that the decision to search appellant's car was made on the basis of a generalized suspicion of cars bearing Illinois plates. The knowledge of the customs agents of recent drug hauls in cars matching the exact profile of appellant's made their decision a reasonable exercise of discretion rather than merely an arbitrary one. Moreover, exercise of customs powers to do full searches at the border itself need not be predicated on any suspicion at all. United States v. Ivey, 546 F.2d 139, 144 (5th Cir.), Cert. denied, 431 U.S. 943, 97 S.Ct. 2662, 53 L.Ed.2d 263 (1977); United States v. Bowman, 502 F.2d 1215, 1219 (5th Cir. 1974).

III. Voluntariness of the Statements.

Appellant next challenges the district court's finding that he spoke voluntarily in making his statement to Agent Alcorn regarding the inducement for his Mexican trip. He argues that there was undue delay in taking him before a magistrate, that the continued detention and attempts at interrogation were for the sole purpose of securing incriminating statements, and that his previous indications that he did not wish to talk meant that he had not voluntarily waived his right to remain silent. Some additional force is added to his contentions by our recent decision in United States v. Hernandez, 574 F.2d 1362 (5th Cir. 1978), in which we stated that repeated Miranda warnings did not make the recipient more fully aware of his rights but rather indicated to him that the police must not mean what they say. We are not persuaded, however, that the district court committed any error, much less clear error, in finding appellant's statement voluntary. The facts developed at the evidentiary hearing are substantially different from the facts involved in Hernandez. In that case the appellant first received Miranda warnings immediately upon arrest. He was then confined in the close quarters of a police wagon for nearly five hours, though the police station was only minutes away. Upon his 5 a. m. arrival at the station he was again read his rights in the midst of attempts to elicit conversation and to secure his cooperation in return for favorable probation reports. Though the appellant had explicitly refused to speak and may have even requested an attorney, the police began another round of questioning fifteen minutes later, following new warnings. It was either during this session or another one some 30 minutes later that the appellant made the incriminating statements which we ruled must be suppressed because his "right to cut off questioning" had not been "scrupulously honored." 574 F.2d at 1368-69, Citing Michigan...