U.S. v. Hernandez, 87-2643
| Decision Date | 25 March 1988 |
| Docket Number | No. 87-2643,87-2643 |
| Citation | 842 F.2d 82 |
| Parties | 25 Fed. R. Evid. Serv. 460 UNITED STATES of America, Plaintiff-Appellee, v. Paul Espinoza HERNANDEZ and Juan Carlos Lamelas, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James R. Gough, Scott Behnke, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before GARWOOD and JONES, Circuit Judges, and FISHER, * District Judge.
Defendants-appellants, Paul Espinoza Hernandez and Juan Carlos Lamelas seek a reversal of their drug convictions because the district court proceeded with the trial after their voluntary absence. A jury trial with co-defendants had been in progress for three days and after Hernandez and Lamelas made the choice to leave their trial, the district court concluded that Hernandez and Lamelas did not intend to return and proceeded with the trial in their absence.
The correctness of this conclusion was confirmed by the fact that it was some ten months from the jury verdict before defendants were apprehended. Both Hernandez and Lamelas were found guilty of the crimes for which they were charged and despite their conduct during the trial have appealed their judgment of conviction on the basis of their absence and other assignments of error. Finding no error, we AFFIRM.
This case originated from a purported "buy" of three kilograms of cocaine by special agents of the Drug Enforcement Administration (DEA) from co-defendant James Milton Wilhite. A confidential informant made contact with Wilhite in the fall of 1985 and introduced Wilhite to DEA special agent Peter McCormick, acting in an undercover capacity as a member of a group of investors interested in purchasing cocaine. There were numerous telephone The first kilogram was delivered at the Kroger Shopping Center at Interstate 45 and FM 517 in Dickinson, Texas, between Houston and Galveston. When the delivery was effected, Wilhite and another co-defendant, Robert Edward Hillman, were arrested. In addition to seizing one kilogram of cocaine at this time, among other things, the agents also seized two motel room keys to room 319 at the LaQuinta Motor Inn at 9902 Gulf Freeway in Houston. 1
conversations and some small drug transactions. Ultimately, arrangements were made to purchase several kilograms of cocaine from Wilhite and his associates for approximately $40,000.00 per kilogram on December 30, 1985.
Wilhite cooperated with the special agents and consented to the search of room 319 which he had earlier rented at the LaQuinta Motor Inn. Pursuant to this search, another one-kilogram package of cocaine was found inside the room on which Hernandez' and Lamelas' fingerprints were found. Shortly thereafter, and while Wilhite and the special agents were at the LaQuinta Motor Inn, Hernandez and Lamelas arrived at the motel in a silver Nissan automobile. Lamelas got out of the car and began to walk up the outside stairs of the motel. However, he returned quickly to the car in response to a horn signal by Hernandez, the driver of the automobile. Wilhite then went on to the balcony and there were brief shouted words between him and the occupants of the car. Wilhite then went down the stairs and talked to the occupants of the car. Hernandez and Lamelas apparently became suspicious and began to drive out of the parking lot. At this point, the arrest signal was given and a high-speed chase ensued. Finally the Nissan automobile was blocked by traffic and the agents were able to close in and effect the arrest of Hernandez and Lamelas. Among other things, more than $14,000.00 in cash was found in the defendants-appellants' possession, as well as a small quantity of marijuana and a "ledger sheet." 2
Hernandez and Lamelas were charged in two counts of a four-count indictment with conspiracy to possess more than one kilogram of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846 and 841(a)(1) (Count I), and with possession of such cocaine with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count IV). Hernandez and Lamelas were tried as co-defendants along with Wilhite and Hillman. On May 10, 1986, Hernandez and Lamelas were found guilty in absentia of the two counts with which they were each charged. 3 A sentence of ten years imprisonment was imposed upon Hernandez on each count, to be served concurrently, and to be followed by a special parole term of three years on Count IV. A sentence of five years imprisonment was imposed upon Lamelas on each count, to be served concurrently, and to be followed by a special parole term of three years on Count IV.
Hernandez and Lamelas both contend that the District Court erred in continuing the trial in their absence without making an inquiry into the likelihood that the trial could take place soon in their presence; further inquiring as to the burden, if any, that a second trial would place on the government and its witnesses and whether defendants-appellants were absent voluntarily.
A trial court may proceed with a trial when a defendant, who is initially present, voluntarily absents himself after the trial has commenced. Fed.R.Crim.P. 43(b). 4 However, as this court stated in The finding that the defendants' absence was voluntary should not have abruptly ended the court's inquiry. In Smith v. United States, 5 Cir.1966, 357 F.2d 486, 490, we noted that the court has 'only a narrow discretion' in deciding whether to proceed with a trial when the defendant is voluntarily in absentia because the right to be present at one's own trial must be carefully safeguarded. Compare United States v. Davis, 7 Cir.1973, 486 F.2d 725, 727, cert. denied, 1974, 415 U.S. 979, 94 S.Ct. 1569, 39 L.Ed.2d 876.
United States v. Benavides, 596 F.2d 137, 139 (5th Cir.1979):
In exercising this narrow discretion, the trial court must weigh the likelihood that the trial could soon take place with the defendants present; the difficulty of rescheduling, particularly in multiple-defendant trials; the burden on the Government in having to undertake two trials, particularly in multiple-defendant trials; and inconvenience to jurors. Benavides, supra, 596 F.2d at p. 139; United States v. Beltran-Nunez, 716 F.2d 287, 290 (5th Cir.1983).
In this case, testimony began on April 30, 1986. The trial court recessed until May 2, 1986, on which day further testimony was given. The trial court then recessed until Monday, May 5, 1986 at which time counsel for Hernandez and Lamelas informed the Court that his clients were absent. A recess was taken and the attorney for defendants-appellants attempted to discover their whereabouts; Hernandez' wife reported to him that Hernandez had left her house the previous evening to go to Galveston to meet with Lamelas who was staying at the Holiday Inn Motel. At this time, the government moved for a continuation of the trial in absentia, and the defendants-appellants' attorney moved for a mistrial. Out of an abundance of precaution, the district court recessed the trial until the next day, giving the defendants-appellants an opportunity to appear or to inform the court of the reason for their absence.
On May 6, 1986, the attorney for Hernandez and Lamelas informed the district court that he knew nothing further about his clients' actions or where they might be located. The district court ascertained from the U.S. Marshal that Lamelas had checked out of his room at the Holiday Inn at 5:06 p.m. on the preceding Friday, May 2, 1986. The district court was further informed that numerous calls had been made by Lamelas to Miami, Florida, and one call in particular was made by Lamelas to "Muse Air" shortly before he checked out of his motel. Based on the above, the district court was justified in concluding that Hernandez and Lamelas had made the choice not to continue to be present for their trial; further that an additional recess or delay would not be productive.
The district court postponed the trial long enough and made an adequate and sufficient examination to determine that Hernandez and Lamelas intentionally and voluntarily absented themselves from the trial and that there was little likelihood of their returning or being captured in the near future. Accordingly the district court did not abuse its discretion in continuing the trial in the absence of defendants-appellants.
Defendants-appellants, Hernandez and Lamelas, both contend that the district court erred in denying their joint motion for severance of defendants and in failing to conduct a Garcia hearing.
On April 28, 1986, counsel for Hernandez and Lamelas advised the court that he had recently been provided with additional discovery, specifically an audio tape, which created a conflict of interest between his clients. At that time, he filed a joint motion for severance of the trials of Hernandez The tape was of a telephone conversation between Hernandez and Wilhite, which occurred after the arrest of Wilhite and before the arrest of Hernandez and Lamelas. According to defendants' counsel, the taped conversation between Hernandez and Wilhite was exculpatory as to Hernandez and inculpatory as to Lamelas. The district court denied the joint motion for severance. Although the district court further denied Lamelas' motion to suppress the tape, during the trial it ruled that the tape was not admissible into evidence.
and Lamelas, based on antagonistic defenses, and additionally filed a motion to suppress the tape on behalf of Lamelas.
As this court stated in United States v. Bruno, 809 F.2d 1097, 1103 (5th Cir.1987):
The test for severance because of antagonistic defenses...
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