U.S. v. Garcia, 75--3543

• Decision Date: 21 April 1976
• Docket Number: No. 75--3543,75--3543
• Citation: 530 F.2d 650
• Parties: 2 Fed. R. Evid. Serv. 564 UNITED STATES of America, Plaintiff-Appellee, v. Manuel Ricardo GARCIA and Niceforo Gutierrez-Saenz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 650

530 F.2d 650

2 Fed. R. Evid. Serv. 564

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Ricardo GARCIA and Niceforo Gutierrez-Saenz,

Defendants-Appellants.

No. 75--3543.

United States Court of Appeals, Fifth Circuit.

April 21, 1976.

L. Aron Pena, Edinburg, Tex., for Garcia.

Homer Salinas, Robert Salinas, Mercedes, Tex., Phil Harris, Weslaco, Tex., for Saenz.

Edward B. McDonough, Jr., U.S. Atty., Anna E. Stool, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.

COLEMAN, Circuit Judge.

This is the story of a pound of heroin which swam the Rio Grande and sent four men to prison. Two pleaded guilty. Two others were tried and convicted. They appeal. We affirm as to both appellants.

Gutierrez-Saenz (Saenz) and Garcia were convicted of possessing heroin with intent to distribute and of conspiring to possess heroin intending to distribute it, 21 U.S.C., §§ 841(a)(1) and 846. The overt act charged in the conspiracy count was the delivery of approximately seventeen ounces of heroin on or about May 6, 1975. Garcia was also convicted of carrying a firearm during the commission of these offenses, 18 U.S.C., § 924(c)(2).

Indicted along with appellants were Octavio Gama-Marron (Marron), David Ramiro Garza, Noe Sanchez, and Fausto Carrion. Marron and Sanchez pleaded guilty. Carrion was dismissed by the section is intended to serve the interests a judgment of acquittal in favor of Garza.

Saenz was sentenced to eight years for possession and eight years for conspiracy, to run concurrently, plus concurrent special parole terms of five years on each count. Garcia was assessed concurrent either year terms for each of his three convictions, with concurrent special distinguishable so as not to dictate

In the spring of 1975, Drug Enforcement Administration agent Foster J. Watkins sought to apprehend drug dealers in South Texas by posing as a purchaser to § 3006A(e). Due to a procedural an interest in narcotics to Noe Sanchez, Watkins met Sanchez May 4, 1975, in Madero, Texas, to obtain a small sample of heroin. Sanchez informed Watkins that the sample came from a pound of heroin owned by an acquaintance who owned or lived in a bar in Sullivan City, Texas. The trial revealed that the source of the sample was Garcia. Satisfied that Sanchez's sample was actually heroin, Watkins told Sanchez he was interested in doing business with the bar owner, but that he preferred not to deal in the bar for fear that his money might be stolen before the deal could be completed.

On May 5, Watkins and Sanchez met again and drove to the Sullivan City bar, Balde's Place, to ask the bar owner-dope dealer where, other than Balde's, the deal might be consummated. The trip was fruitless, for the bar was closed when they got there.

Watkins and Sanchez met again on May 6. Sanchez then went to Balde's Place, where he conferred with the bar owner about the feasibility of an exchange somewhere other than at the bar. To learn the outcome of the negotiations, Watkins was to call the phone number which Sanchez had given him earlier. The phone book revealed that number to be Balde's Place, the Sullivan City bar. The bar owner agreed to deal elsewhere, so Sanchez and Watkins arranged a 2:00 p.m. meeting to decide the time and location for the sale.

Sanchez and Watkins agreed that the exchange would take place at 5:00 p.m. that same day at the home of Sanchez's girlfriend, Marisa Foley. Watkins told Sanchez he would bring a companion, a money man, traveling in a second car as a safeguard.

After the meeting Watkins returned to his office, where plans were hurriedly made for surveillance teams. Agent Lex Henderson was to pose as the money man.

Marisa Foley's home was situated on a dirt road, off Route 1016, near Mission, Texas. As agents Watkins and Henderson approached in separate cars at the appointed time they encountered two lookouts at the intersection of Route 1016 and the dirt road. These lookouts, Yolanda Fernandez and Fausto Carrion, told Watkins to go on in because the dealers (having arrived earlier in two cars) were waiting for them. Money man Henderson would, of course, be constantly communicating with surveillance agents over a two-way radio, so Watkins warned the lookouts that Henderson was under orders to protect the money, if approached, by bolting or by shooting the intruder. The agents went down the dirt road to the Foley home, Henderson stopping about fifty yards behind Watkins' car.

Watkins had anticipated the presence of only Sanchez and the bar owner but there were five men in the Foley yard. They were Garcia, Saenz, Sanchez, Marron, and Garza. Sanchez approached Watkins' car and said, 'Come on in; come on in, Joe. They've been here. They are waiting, they are in a hurry. Let's do the deal.' When Watkins asked about all the people, Sanchez said, 'Don't worry, Joe. They are cool. They had been waiting. Come on, hurry.'

The two cars used by the five to reach the Foley home were parked in the driveway. Marron and the heroin (under the front seat of the car) had been driven to the scene by Saenz in his light tan Chevrolet. Garza and Garcia, part owner of Balde's Place, had arrived in Garcia's dark blue, late-model Chevrolet.

As Watkins approached the group, Garcia spoke to Marron in Spanish, ordering him to remove the heroin from the Saenz vehicle. Marron got the heroin from beneath the front passenger seat, and it was given to Watkins. Watkins knelt to the ground to open the package and inspect the goods. As he did, the entire group gathered around to watch, and someone said, 'Hurry up and open the package. Go on, open it.' Garcia added, 'It's good stuff, man. We want to do business; we can do a kilo a week if you want that much.'

Watkins told the group he would walk back to Henderson's car and would return with Henderson and the money. Watkins went to Henderson's car; Henderson alerted surveillance to come in for the arrest. Watkins returned with Henderson and the money. During the money exchange which followed, Garcia and Sanchez dealt with Watkins and Henderson while the other three stood near the cars. Twice during the exchange, Marron started from the cars toward the Watkins-Henderson-Garcia-Sanchez group. Each time Garcia said something to Marron, and he turned back.

When the surveillance agents were slow to arrive, Henderson arrested Garcia and Sanchez; Watkins arrested Marron, Garza, and Saenz. When arrested by Henderson, Garcia told the agent that he had a weapon in his boot, from which Henderson removed a .357 magnum Colt, loaded with soft lead-nosed bullets in copper jackets.

The surveillance team arrived as the arrests were effected, and the arrestees were forthwith transported to jail. DEA Agent Horacio Ayala drove Marron, Saenz, and Garza. En route, Marron said that it was his heroin and that the others in the car were innocent.

After arriving at the jail, however, agent Ayala took Marron aside and told him not to protect other guilty parties. In response, Marron told Ayala that Garcia had approached him for drugs months before, when Marron was unable to supply them. A couple of days before the arrest, however, Garcia approached him again for the pound of heroin subsequently 'sold' to agent Watkins. To get this heroin, Marron went to Saenz, who lived across the Rio Grande in Mexico. Saenz agreed to supply the heroin and offered Marron $500 to swim the contraband across the Rio Grande River from Mexico to Texas. On the day of delivery to Watkins, Marron swam the drugs across and Saenz picked him up on the Texas side of the river in his tan Chevrolet. Saenz then drove Marron and the drugs to the Foley house to await Watkins.

When called as a witness for the prosecution Marron swore to a different version. He did reiterate that Garcia had asked him to arrange the deal. He denied that Saenz had supplied the heroin, swearing that an unidentified person, named Jose, gave him the heroin in Mexico. He denied that Saenz even knew of the arrangements. Marron confirmed that Saenz had been told to pick him up on the Texas side of the Rio Grande; he admitted that Saenz had thereafter driven him to Balde's Place to tell Garcia and Garza that the drugs had been secured. Moreover, he admitted that Saenz drove him from the bar to the Foley home for the exchange while Garcia and Garza simultaneously made the same trip in Garcia's car. Nevertheless, Marron denied that Saenz knew what was happening. Marron further maintained that although he, the witness, put the package under the car seat during the drive to Foley's, Saenz might not have even seen the package containing the one pound block of heroin.

Marron's about face surprised the prosecution. Indeed, Marron had altered his statements during his pre-trial incarceration, but he had intimated that his trial testimony would tally with his earlier discussion with agent Ayala. To impeach Marron, the prosecution called Ayala to relate Marron's prior inconsistent statements. In addition, Ayala testified that before Marron took the witness stand he approached Ayala in the hall and apologized for hedging on his earlier statements. Marron said he had lied out of fear for himself and family at the hands of Saenz and his friends.

Saenz's counsel objected to the prior inconsistent statements as hearsay ans also objected to the government impeaching its own witness, an objection which was correctly overruled, Fed.Rules Evid., Rule 607, 28 U.S.C. ¹ Garcia's attorney voiced the same objection and got the same ruling. Defense counsel did not ask the Court to instruct the jury that Ayala's testimony was not substantive evidence and was admitted solely as impeachment. No such instruction was given at any point in the trial and no point was ever made about the omission.

Approximately an hour after the jury began deliberating, it...