U.S. v. Cruz, s. 78-1257

• Decision Date: 17 August 1979
• Docket Number: 78-2178,Nos. 78-1257,s. 78-1257
• Citation: 603 F.2d 673
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herminio CRUZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 673

603 F.2d 673

UNITED STATES of America, Plaintiff-Appellee, v. Herminio CRUZ, Defendant-Appellant.

Nos. 78-1257, 78-2178.

United States Court of Appeals Seventh Circuit.

Argued April 5, 1979.

Decided Aug. 17, 1979.

Allan A. Ackerman, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U.S. Atty., Victoria J. Meyers, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL and BAUER, Circuit Judges, and HOFFMAN, ^* Senior District Judge.

PER CURIAM.

Appellant Herminio Cruz was charged in a single-count indictment with possession with intent to distribute approximately nine pounds of a mixture containing heroin, in violation of Title 21, United States Code, § 841(a)(1). The jury returned a verdict of guilty. Cruz was fined $25,000 and sentenced to fifteen years in the custody of the Attorney General of the United States.

The seizure of the heroin resulted from the execution of a warrant directing the search of a residence owned by Cruz. Evidence introduced at trial indicated that Cruz's estranged wife and their children lived in the building, and that Cruz occupied a first floor bedroom in which he kept clothing and other personal effects. During the search a brown paper bag containing $29,000 in cash was found on the bed in the first floor bedroom. A small scale and a coffee grinder which contained traces of heroin were found in the kitchen. The heroin was discovered hidden in the hollow portions of a cinder block wall in the basement. Cruz was present at the time of the search. After being arrested and transported to the headquarters of the Drug Enforcement Agency, Cruz allegedly admitted that the heroin found in the basement was his, and further stated that he had obtained the heroin from a Mexican male known variously as "Chencho" and "El Colorado". At trial Cruz denied admitting that the heroin was his and contended that he was not informed of his rights after his arrest. DEA agents testified that Cruz was informed of his rights during his transportation to headquarters, and also during the processing of his arrest prior to questioning by the agents.

Following his conviction Cruz filed several post-trial motions, alleging that the deputy marshal in charge of the jury during its deliberations had made improper comments to the jurors concerning the jury instructions, and alleging that the heroin introduced into evidence at trial was taken into the jury room in violation of the court's order. Three jurors selected at random and the deputy marshal were deposed concerning these allegations. The court subsequently denied appellant's motions for relief.

Appellant raises five areas in which it is alleged that error occurred during trial: (1) the denial of appellant's motion to quash the search warrant; (2) the admission of appellant's alleged confession into evidence; (3) the nature of the reasonable doubt instruction to the jury; (4) the nature of the prosecutor's closing argument; and (5) the denial of the post-trial motions. We find appellant's contentions to be without merit, and accordingly affirm the conviction.

The search warrant executed on appellant's residence was issued in reliance on the affidavit of one of the agents involved in the investigation. The affidavit thoroughly detailed the progress of the overall conspiracy investigation, which began on the east coast, moved to Chicago, and culminated in an arrest in the Hartford, Connecticut airport and the recovery of a kilogram of heroin. That portion of the affidavit material to establishing probable cause to search the Cruz residence misidentified the individual who drove to the residence to pick up the heroin which was later recovered in Hartford. That mistake in identity was understandable under the circumstances and was not material to the determination of probable cause. The facts do not support the appellant's contention that the misstatement in the affidavit was reckless or intentionally untruthful. The district court properly denied appellant's motion to quash the search warrant. ¹

At the time appellant was processed following his arrest he refused to sign a printed form waiving his right to remain silent and his right to counsel. In effect he argues that this renders any communication made by him at the time an involuntary communication. Most recently the Supreme Court has held that, while an express written or oral statement of waiver is usually strong proof of the validity of that waiver, it is not inevitably either necessary or sufficient to establish waiver. North Carolina v. Butler, --- U.S. ----, ----, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Thus, a refusal to sign a waiver form is a relevant factor in determining whether an individual knowingly and intelligently waived his privilege, but it is not a controlling one. United States v. Gardner, 516 F.2d 334, 341 (7th Cir. 1975). Prior to questioning Cruz a government agent purportedly informed him of his rights in Spanish, asked him if he understood his rights, and handed him the waiver form. Cruz refused to sign the waiver unless his lawyer was present. Thereupon the agents advised him that they would like to ask him some questions, that he was entitled to have his lawyer present, that he did not have to answer any questions unless his lawyer was present, and that he could stop the questioning at any time for the purpose of consulting with an attorney. ² At that time Cruz was asked about the heroin found in his home, and, according to the agents' testimony, admitted it was his. At trial Cruz denied being informed of his rights at any time, and denied admitting ownership of the heroin. Faced with two totally conflicting versions of the events surrounding the alleged confession, the court resolved the issues of fact concerning the...