U.S. v. Emery, 77-2650

• Decision Date: 10 October 1978
• Docket Number: No. 77-2650,77-2650
• Citation: 591 F.2d 1266
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Empie EMERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1266

591 F.2d 1266

UNITED STATES of America, Plaintiff-Appellee, v. John Empie EMERY, Defendant-Appellant.

No. 77-2650.

United States Court of Appeals, Ninth Circuit.

Oct. 10, 1978.

David Hamilton (argued), Reno, Nev., for defendant-appellant.

Leland Luffy, Asst. U. S. Atty. (argued), Reno, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before SNEED and TANG, Circuit Judges, and INGRAM, ^* District Judge.

TANG, Circuit Judge:

Appellant Emery appeals from a conviction of conspiracy to import marijuana in violation of 21 U.S.C. § 963. Emery makes two assignments of error. The first is that statements he made while in the custody of Mexican police were improperly admitted because he had not been given Miranda warnings before he made the statements.

The second contention is that testimony of a government witness should have been suppressed because the government did not comply with its discovery representations.

Drug Enforcement Agency (D.E.A.) Agent Ramirez, acting on a call from the Reno office of the D.E.A. alerted the Mexican police that a drug transaction was possible in the Guaymas area. Agent Ramirez coordinated the surveillance of the Guaymas, Mexico Airport with the Mexican police. Agent Ramirez and the Mexican police were present when D.E.A. undercover Agent Johns, piloting a rented airplane landed at the airport. Agent Johns had been hired by one of the co-conspirators to fly the airplane to Guaymas. The plane was met by Weber, one of the co-conspirators. Weber left and later returned with Emery. Each carried suitcases containing marijuana.

Agent Johns asked Weber and Emery where the marijuana was as he needed to know how to load the airplane. Weber replied that he had half and Emery stated he had the other half. As they approached the plane, Agent Johns gave a prearranged signal to the surveilling D.E.A. Agents and the Mexican police which resulted in the arrest of Emery, Weber and Agent Johns by the Mexican police.

Both Emery and Weber were searched and interrogated by the Mexican police with Agent Ramirez observing. Emery did not make a statement at that time, but later after being transported to Hermosillo by helicopter Emery stated that his job was to get the drugs and that it was Weber's job to transport the drugs out of Mexico and sell it. At no time was Emery advised of his Miranda rights.

Failure of the Mexican authorities to comply with the requirements of Miranda is not chargeable to the United States authorities absent a showing of a joint venture between the United States and Mexican authorities. United States v. Trenary, 473 F.2d 680 (9th Cir. 1973). The rationale for excluding confessions is not present where United States agents do not actively participate in the arrest and interrogation as this court pointed out in United States v. Chavarria, 443 F.2d 904 (9th Cir. 1971), where we said:

Miranda was intended as a deterrent to unlawful police interrogations. When the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the conduct of foreign police. Therefor, so long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible (citations omitted). 443 F.2d at 905.

Here, however, we find that a joint venture existed between the United States and Mexican authorities. The participation of the D.E.A. agents in this...