U.S. v. Garza

• Decision Date: 05 June 1978
• Docket Number: No. 77-5244,77-5244
• Citation: 574 F.2d 298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Meliton GARZA, Jr., and Rogelio Torres, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 298

574 F.2d 298

UNITED STATES of America, Plaintiff-Appellee, v. Meliton GARZA, Jr., and Rogelio Torres, Defendants-Appellants.

No. 77-5244.

United States Court of Appeals Fifth Circuit.

June 5, 1978.

Rehearing Denied July 12, 1978.

Dick DeGuerin, Houston, Tex., for Garza.

John J. Pichinson, Corpus Christi, Tex., for Torres.

J. A. Canales, U. S. Atty., Mary L. Sinderson, John Potter, George A. Kelt, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.

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

Before SKELTON, ^* Senior Judge, FAY and RUBIN, Circuit Judges.

FAY, Circuit Judge:

The defendants in the above-styled case were convicted of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a), 963, and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The defendant Garza has asserted numerous errors on appeal, and, because we have concluded that the trial court abused its discretion in refusing to submit various defense exhibits to the jury, we hereby reverse the conviction of the defendant Garza and remand for retrial. After careful review of the record, we have concluded that the conviction of the defendant Torres is due to be affirmed.

I. FACTS

The facts, considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), indicate that during early October, 1975, seven individuals met initially at an apartment in Corpus Christi, Texas, where the seeds of a conspiracy to import marijuana were planted. Those persons present included Duane Egli, Olvido Ortiz, Fred Brulloths, Ramsey Muniz, Robert Muniz, and the defendants in the case at bar, Meliton Garza and Rogelio Torres. Torres was introduced as the bodyguard of Ramsey Muniz, and, although he remained in hearing range during the course of the discussion, he actually participated little, if at all, in the discussion. The participants in the discussion agreed that marijuana would be imported by airplane from Mexico into the United States. Brulloths explained that he had a "connection" in Ixtepec, Oaxaca, Mexico, who would furnish the marijuana. A subsequent meeting at the Corpus Christi apartment transpired on October 10, 1975, between Ortiz, Ramsey Muniz, Brulloths, Marcelo Gonzales, ¹ and the defendants in the case at bar, Garza and Torres. The discussion once again concerned importation of marijuana and it was agreed that Ortiz, Egli, and the defendant Torres would travel to Mexico by automobile in order to inspect potential landing strips. They rendezvoused with Gonzales in Mexico and then proceeded on the landing strip inspection. Ortiz, Egli, and Torres subsequently traveled to Mexico again in order to meet Gonzales and inspect a landing strip near Monterrey.

Several other meetings took place between Egli, Ortiz, Brulloths, Ramsey Muniz, and the defendants Garza and Torres subsequent to the return from the second trip to Mexico. The marijuana importation scheme was discussed at all such meetings and it was finally agreed that Road 7050 near Freer, Texas, would be a suitable landing place upon return from Mexico with the marijuana haul. Although present at many The case was called for jury selection on January 6, 1977. The defendants challenged the jury selection procedure on several grounds, including, inter alia, that a large number of the veniremen had participated in prior jury service and that the procedure of selecting jurors well in advance of trial would result in jury service by members of the selected panel between the time of selection and the commencement of trial. The defendants' motion to quash the jury panel was denied and the parties then proceeded to select the jury.

of such meetings, and within hearing range, the defendant Torres took little part in the discussions, if at all. On October 28, 1975, Egli, Ortiz, and the defendant Torres traveled to Freer, Texas, to inspect the isolated road which was to serve as the landing strip following the return from Mexico. The defendant Garza accompanied the pilot Egli to Mexico on December 21, 1975, where fourteen sacks of marijuana were loaded into the airplane and flown to the United States.

The trial commenced on February 14, 1977, and the co-conspirators Brulloths, Egli, Ortiz, and Bernard Bowen ² testified on behalf of the government. The defendant Garza's chief defense was comprised of an all-out attack on the credibility of the witnesses. Counsel for Garza probed at length on cross-examination into the nature of the carrot held out to each witness. In its case in chief, the government introduced a letter from the United States Attorney to Brulloths' attorney detailing an agreement concerning the testimony to be given by Brulloths. The defendant Garza later introduced seven exhibits which detailed the nature of the various charges against the witnesses Brulloths and Ortiz as well as the dismissal of several of the charges. Before the jury retired to consider the evidence, the court withdrew the seven defense exhibits but permitted the letter introduced by the government to go to the jury room.

The defendant Torres premised his defense on the theory that he acted only as the bodyguard-chauffeur of Ramsey Muniz. Through cross-examination, he attempted to establish that he did not have knowledge of the conspiracy, and, in any event, failed to participate therein.

The defendants were found guilty of both counts charged in the indictment. The defendant Garza was sentenced to consecutive five year terms of imprisonment and Torres was sentenced to concurrent three year terms.

II. MERITS

A. The Defendant Garza

Garza contends that the trial court committed reversible error in refusing to submit his first seven exhibits to the jury for consideration during the course of deliberations. As we have mentioned above, during its case in chief the government introduced a letter dated June 2, 1976, from the United States Attorney to Mr. Anthony Friloux, attorney for Fred Brulloths, detailing the agreement between Brulloths and the government concerning his expected cooperation. Briefly stated, the letter provides that in exchange for Brulloths' guilty plea in a pending cocaine case and his testimony in various other cases, the government will not file charges based upon any information elicited from him, will advise Judge Cox of the extent of his cooperation, and will dismiss two pending heroin indictments. The defendant later introduced seven exhibits to detail the offenses charged against Brulloths and Ortiz which were dismissed and to show that the letter did not accurately state the entire range of benefits to be received by Brulloths. ³

Upon discovery that these exhibits were not to be submitted to the jury, counsel for the defendant Garza timely objected. Counsel pointed out that he was relying upon the exhibits to detail precisely what Brulloths had worked his way out of. The court replied that there was ample testimony in the record referring to the charges against Brulloths and Ortiz, that the defendant could base his closing argument upon such testimony, and that the exhibits were merely cumulative. The defendant's motion to reopen his case was then denied.

It is the law of this Circuit that the trial court retains discretion to determine whether properly admitted evidentiary exhibits should accompany the jury into the jury room. United States v. Zepeda-Santana, 569 F.2d 1386 (5th Cir. 1978); United States v. Stone, 472 F.2d 909, 914 (5th Cir. 1973). Our inquiry, therefore, is limited to the question of whether, under the facts and circumstances of this case, refusal to submit the exhibits constituted an abuse of discretion.

At the outset, we note that our thorough review of the record reveals that the subject matter of defendant Garza's exhibits one through seven was the subject of inquiry during cross-examination of the government witnesses. At first blush, it would therefore appear that the decision of the trial court to withhold the defense exhibits from the jury deliberations did not constitute an abuse of discretion. We wish to emphasize that if Government's Exhibit Number 1, the letter from the government to Brulloths' attorney purportedly detailing Brulloths' agreement, had also been withheld from the jury deliberations, we would undoubtedly conclude that the action of the trial court did not constitute an abuse of discretion. The decision of the trial court to submit only the government exhibit, however, is the crucial factor in arriving at the decision which we must necessarily reach.

The government exhibit-letter succinctly spelled out certain benefits which were to flow to the witness Brulloths. Information supplied by Brulloths would not give rise to subsequent indictments against him. Judge Cox would be advised of the extent of his cooperation. Finally, the heroin conspiracy indictments would be dismissed. The letter makes absolutely no mention, however, of the fact that by order dated September 1, 1976, Brulloths' appeal bond in a prior marijuana conspiracy case had been reduced from $350,000 to $20,000, five per cent deposit required. The order, on its face, reveals that the government agreed to the bond reduction. We feel that the reduction in bond, which permitted Brulloths to gain immediate freedom after months of incarceration, and to retain his liberty for a significant period thereafter, was an important factor bearing upon the motive and credibility of Brulloths and should not have been selectively withheld from jury consideration in documentary form. Submission of the government exhibit only was tantamount to suggesting that the letter contained the entire agreement between the government and Brulloths ⁴ and that the cross-examination of Brulloths concerning Additionally, defendant's exhibits six and seven detailed...