U.S. v. Gomez, 75--2415

• Decision Date: 25 March 1976
• Docket Number: No. 75--2415,75--2415
• Citation: 529 F.2d 412
• Parties: 2 Fed. R. Evid. Serv. 195 UNITED STATES of America, Plaintiff-Appellee, v. Telesforo Ray GOMEZ, and Cayetano Morin-Degollado, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 412

529 F.2d 412

2 Fed. R. Evid. Serv. 195

UNITED STATES of America, Plaintiff-Appellee, v. Telesforo Ray GOMEZ, and Cayetano Morin-Degollado Defendants-Appellants.

No. 75--2415.

United States Court of Appeals Fifth Circuit.

March 25, 1976.

Rehearing and Rehearing En Banc

Denied May 26, 1976.

Clyde W. Woody, Houston, Tex., for Gomez.

Abel Toscano, Jr., Harlingen, Tex., for Morin.

Edward B. McDonough, Jr., U.S. Atty., James R. Gough, Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before BROWN, Chief Judge, GOLDBERG and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Defendants, Telesforo Ray Gomez and Cayetano Morin-Degollado, appeal from their convictions for conspiracy to distribute, 21 U.S.C.A. § 846, and knowingly and intentionally distributing and possessing with intent to distribute, 21 U.S.C.A. § 841(a)(1), approximately 460 pounds of marijuana. These six points are alleged on appeal: (1) prejudicial error in admitting an agent's hearsay testimony as to what an informant told him; (2) error in denial of motion to suppress evidence; (3) insufficient evidence; (4) improper conduct of trial judge; (5) improper admission into evidence of a gun; and (6) improper jury instructions. Deciding against defendants' arguments, we affirm.

The Facts

There were five original defendants: the two appellants and Josue Morin-Degollado, Saloma Gonzalez-Serrano and David William Howison.

On December 21, 1974, Special Drug Agent Murray received a tip from a reliable, unidentified informant, that a large quantity of marijuana would be picked up later that night. The location given was a well known smuggler's border crossing point near La Militar Tavern in Penitas, Texas, close to the United States-Mexican border. Although the informant did not name those involved, he did relate that the contraband was to be picked up in a 1968 Chevrolet pickup truck with sideboards, bearing a 1974 Texas license plate, DJ 9481, and that the owners of the marijuana would be in the area and driving a 1974 red Ford sedan, license number VCY 381. This car was later determined to be owned by defendant Cayetano Morin-Degollado.

Acting on this information agent Wilkins proceeded to the location. As he was riding through the area, Wilkins saw both vehicles in the parking lot of La Frontera Tavern, located about 75 yards from La Militar. He noticed two men walking alongside the highway towards the tavern. They were later discovered to be Howison and Josue Morin-Degollado. The agent then concealed himself near the place where he believed the contraband would be picked up. From his position of surveillance, Wilkins soon observed Howison and Josue Morin-Degollado leave La Frontera, disappear for a few minutes into the dense underbrush surrounding the area, and then return to the tavern. Shortly, all five defendants left La Frontera together. Howison and Josue Morin-Degollado took the truck to an area near where they had previously entered the underbrush and began to load the pickup with burlap sacks. With loading completed, the truck pulled alongside the car and Josue got out of the truck and into the front seat of the Ford with the two appellants and Gonzalez-Serrano while Howison stayed in the pickup. Proceeding toward McAllen, Texas, both vehicles were soon stopped after about 20 miles by Government agents.

A search of the truck revealed 460 pounds of marijuana. Only a loaded .38 caliber pistol was found under the passenger side of the front seat on the initial search of theFord automobile. A later search at the station, however, revealed marijuana debris found in the folds of a blue blanket in the trunk.

A jury found Gomez, Howison and Cayetano Morin-Degollado guilty of the conspiracy and knowing possession with intent to distribute 460 pounds of marijuana. Gonzalez-Serrano was found not guilty. Josue Morin-Degollado fled the court's jurisdiction prior to trial. Gomez and Cayetano Morin-Degollado were sentenced to two concurrent five year terms, with special parole of ten years. Howison did not appeal.

Informant's Hearsay

Although not specifically argued in the briefs, defendants strongly urged at oral argument that the convictions should be reversed because the court allowed agent Murray to testify that the informant told him the owners of the marijuana would be driving a red 1974 Ford, license number VCY 381. The informant was not available for cross-examination. Defendants say the admission of this hearsay evidence as to marijuana ownership constituted reversible error.

As soon as the agent had testified to this statement, the judge instructed the jury in the proper use of this type of evidence.

I am admitting what the informant told agent Murray here not for the truthfulness of what he told him but just to see why the officers did whatever they did after that because the informer is not here for us to cross-examine.

The judge on three occasions instructed the jury as to the limited use of the evidence. This testimony, he said, was to help inform the jury why the agents were in that area in the first place.

We have previously approved such testimony for such limited purpose. To explain why the agents were at the scene of the crime, the evidence is, of course, not hearsay, but direct evidence of what the informant told the agent. In United States v. Herrera, 455 F.2d 157( 5th Cir. 1972), we said of such evidence:

This testimony was not relied upon by the Government to establish the truth of what was said and the jury was so instructed. The trial court specifically limited the use of this evidence to showing why the customs agent took the action he did to obtain a physical identification of Herrera.

455 F.2d at 158.

But to accomplish this purpose, it was not necessary for the agent to tell the jury that the informant told him the owner of the marijuana would be in the red Ford. That testimony tended to point directly to a connection between the marijuana and the occupants of the red Ford, and was purely hearsay evidence of that fact. In United States v. Hernandez, 441 F.2d 157 (5th Cir.), cert. denied, 404 U.S. 847, 92 S.Ct. 150, 30 L.Ed.2d 84 (1972), this Court distinguished between the two aspects of such testimony. In discussing the prior cases of Brown v. United States, 202 F.2d 474 (5th Cir. 1953), Landsdown v. United States, 348 F.2d 405 (5th Cir. 1965), McMillian v. United States, 363 F.2d 165 (5th Cir. 1966), and United States v. Duke, 423 F.2d 387 (5th Cir. 1970), the Court in Hernandez said that:

In each of these cases the admitted testimony related to information that pointed directly to the suspects involved. The evidence here was background evidence admitted to show that the officers did not act in a vacuum and it did not point to appellant. The Court both in its rulings on the objections to admissibility and in its oral charge strictly limited the evidence to that single purpose. We are of the view that prejudicial error in respect to this evidence has not been demonstrated.

441 F.2d at 164. Cf. Busby v. United States, 296 F.2d 328, 332 (9th Cir. 1961), cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278 (1962) and Smith v. United States, 70 App.D.C. 255, 105 F.2d 778, 779 (1939).

In the recent case of United States v. Rodriguez, 524 F.2d 485 (5th Cir. 1975), we held as inadmissible hearsay an agent's testimony that the marijuana involved belonged to Rodriguez. Apparently centering on the inability of a jury to disregard the probative nature of the testimony as hearsay, compared to its nonhearsay purpose, the Court said:

Despite the court's cautionary instruction however, the nature of the testimony was such that even this preadmission warning was probably insufficient to remove the statements from the realm of hearsay. No instruction, regardless of its specificity or timeliness, could have precluded the jury from considering the informant's statements as some evidence that the defendant was in fact the owner of the seized marijuana. The most impartial and responsible juror could not have avoided drawing an inference that the informant's statements, as recited by Agent Lawrence, had some probative value.

524 F.2d at 487 citing McCormick, Evidence 587 (2d ed. 1972).

Although not as clearly pointing to the defendants as in Rodriguez, the testimony was of the same nature, 'pointed directly to the suspects involved,' to use the language of Hernandez, and should not have been admitted. In any kind of balancing approach, we would hold that the need for the evidence does not outweigh the possible improper prejudice that results from its admission. See, e.g., Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961); C. McCormick, Handbook of the Law of Evidence § 301 at 627, §§ 304--305 at 632--634 (1954); Fed.R.Evid. § 803(24). Cf. United States v. Williamson, 482 F.2d 508, 514 (5th Cir. 1973).

The admission of the testimony does not, however, require automatic reversal. Against the argument that the admission of the highly prejudicial statements linking Rodriguez to the marijuana warranted reversal, the Court in Rodriguez held that before reversal, there must be a significant possibility that, considering the other evidence in the case, the statement had a 'substantial impact' on the verdict of the jury. United States v. Rodriguez, supra.

Viewing the evidence as a whole, we find little, if anything, to indicate that the testimony had a substantial impact on the verdict of the jury. Ownership of the marijuana was not an issue. So the statement was not directly controlling on any point in issue. The other evidence produced by the Government strongly supported the charge of conspiracy and possession. Direct eyewitness testimony overwhelmingly tied those in the Ford to the marijuana. It made little difference who 'owned' it, and we think the statement, in the context of the...