U.S. v. Herring
| Decision Date | 17 July 1978 |
| Docket Number | Nos. 77-1387,s. 77-1387 |
| Citation | 582 F.2d 535 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William D. HERRING, Jack Ray Hargrove, Arthur D. Baca, George Gilbert Chapman and Manuel Padilla, Defendants-Appellants. to 77-1391. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., and Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M., on brief), for plaintiff-appellee.
John F. Quinn, Santa Fe, N. M., for defendant-appellant William D. Herring.
Orville L. Hardman, Parkersburg, W. Va. (John F. Quinn, Santa Fe, N. M., on brief), for defendant-appellant Jack Ray Hargrove.
David L. Norvell, Albuquerque, N. M., for defendant-appellant Arthur D. Baca.
John W. Boyd of Freedman, Boyd & Daniels, Albuquerque, N. M. (Jess Horn, Oklahoma City, Okl., on brief), for defendant-appellant George Gilbert Chapman.
Ralph C. Binford, Albuquerque, N. M., for defendant-appellant Manuel Padilla.
Before SETH, Chief Judge, and LEWIS and DOYLE, Circuit Judges.
This is a case which involves a number of defendants, and which is concerned with the importation of a large quantity of marijuana from Mexico. The appellants are William D. Herring, Jack Ray Hargrove, Arthur D. Baca, George G. Chapman and Manuel Padilla, all of whom were convicted of possession with intent to distribute marijuana, contrary to 21 U.S.C. § 841(a)(1) (1976), and of conspiracy to possess with intent to distribute and to distribute marijuana, contrary to 21 U.S.C. § 846 (1976). An additional defendant, Donald Bearl Riley, was indicted but did not go to trial.
The main witness for the government was one Lonnie Brown, who testified that he had known Riley for a period of three years, because Riley had married his (Brown's) sister. In late November 1976, Riley contacted Brown and asked him if he knew anybody who wished to buy marijuana. Brown testified that he contacted the Drug Enforcement Administration (DEA) and reported that Riley had asked him about it, and thereafter Brown met with the DEA and volunteered to help them, in return for which DEA agreed to help him financially. Soon thereafter, Brown introduced Riley to the DEA agents and an agreement was reached, the result of which was that Brown and Riley flew to Mexico. After some abortive efforts, Riley telephoned Brown in late December, saying that the deal was ready and that Brown was supposed to go to Albuquerque to see the place where the deal was to take place. Later, an unknown person called Brown on the phone and said that the location had been changed to Conchas Dam.
On December 30, Brown drove a pickup with a camper shell to Conchas Dam. On that evening, he met Donald Bearl Riley, Arthur Baca, Jack Hargrove, William Herring and Manuel Padilla at the airstrip near Conchas Dam. Marijuana was stacked on the runway. Defendant Hargrove asked Brown if he had the money and if it were good, and he answered that the money was on the way. The marijuana was loaded into a pickup truck driven there by Brown. Brown and the defendants went to a bar that was close by, where they drank beer and played pool. Brown said that Riley and Hargrove had told him that the plane which had flown the marijuana from Mexico left it off at Conchas Dam and returned to Tucumcari airport. Riley said that the pilot and Hargrove had flown it in from Mexico. Brown and Riley left the bar in the station wagon after a few hours, to return to the airport to meet the DEA agents. Soon thereafter, the bar closed and the four remaining defendants left there in the pickup truck.
Gary Walsmith, a patrolman of the New Mexico State Police, at the direction of a superior, Officer Boarman, had been maintaining surveillance at a highway intersection. It had been explained to him that a large quantity of marijuana was to be brought into the Conchas Dam airstrip. While he was maintaining the surveillance, he had seen only three automobiles pass by prior to the pickup truck with the camper shell coming by. The headlights of the truck illuminated the place where Walsmith was parked and so he decided to follow it. He drove up behind the truck so that his lights penetrated the window of the camper shell so that he could observe some packages, which he believed from their appearance to contain marijuana. Following this view, he decided to stop the truck. He turned on his flashing lights to do so. When the truck stopped, Herring and Padilla fled, whereas Baca and Hargrove remained. Herring, however, was caught almost immediately and Padilla was arrested the next morning. Walsmith arrested Baca and Hargrove and searched the truck. He also seized the packages which, of course, proved to contain marijuana.
Riley was arrested in the station wagon at the airport. In that station wagon there was a flight manual for a Piper Navajo Aircraft together with the checkbook of the defendant Chapman, who proved to be the pilot of the aircraft. Also, there was a rental agreement for the aircraft between Chapman and Catlin Aviation of Oklahoma City. There was evidence that Chapman was at the Tucumcari airport earlier that same evening refueling the airplane. He was seen by DEA Agent Boarman, who, based upon a tip received from the United States Customs Service, had been looking for the Piper Navajo. The plane had the registration number which had been given to Chapman. Chapman left a note for Hargrove telling him where he (Chapman) would be staying, so after the other defendants had been arrested, Chapman was arrested by Boarman at the hotel.
The main points raised on this appeal on behalf of Baca, Hargrove, Herring and Padilla are the following:
1. The alleged error on the part of the trial court in denying the motion to suppress the seized marijuana on the ground that the search and seizure was a violation of the Fourth Amendment.
2. Each of the defendants, including not only Herring and Hargrove, but also Padilla, Chapman and Baca, contends that the court erred in denying their several motions for severance due to the disproportionate weight of the evidence and because of the fact that there was evidence admissible against some and inadmissible against others.
3. All of the defendants claim that the trial court erred in receiving evidence which they maintain was withheld from them contrary to an open file agreement, whereby the government agreed to allow the defendants access to its files in return for their agreement to waive preliminary hearing. They point to a statement by the informant, Lonnie Brown, and a hotel registration slip signed "Bill Davis."
It is also contended on behalf of all of the defendants that the trial court erred in denying defendants' objections to introduction of the photographic array which is used for the identification of some of the defendants; it is also maintained that the in-court identification based upon the allegedly illegal photographs was error.
Other trial errors are raised in addition to those mentioned, including misinstructions in some instances, insufficiency of the evidence, limitations on cross-examination, etc. It would seem that the main objection deals with the failure to suppress the seized marijuana on the ground that the question is of constitutional magnitude. The seizure of this is, of course, the key to the case against all of the defendants.
The guilt of appellant Chapman, the airplane pilot, is dependent on the validity of the seizure of the marijuana by the surrounding circumstances.
The trial court ruled that the search was not illegal and accepted the marijuana into evidence. If this was correct, the evidence in support of guilt was legally sufficient. Accordingly, this is the pivotal issue in the case.
The defendant Chapman, who is charged by reason of the government's theory that he piloted the airplane which transported the marijuana, contends:
1. That the evidence was insufficient to establish his participation in the conspiracy, whereby evidence would be admissible against him and, particularly, that involving statements made by alleged co-conspirators prior to any involvement by him.
2. Insufficiency of the evidence to establish Chapman's guilt of possession.
3. Error of the court in denying Chapman's motion to suppress evidence taken in the course of the search of his hotel room.
4. Failure of the court to give the defendant Chapman's requested instruction.
Was there probable cause to justify the stopping of the truck and the arrest of its occupants?
Officer Walsmith had been told by his superior, Officer Boarman, to conduct surveillance of the area near the Conchas Dam airport. Boarman advised Walsmith that there was to be a large amount of marijuana flown into the area and gave him the description of the plane together with its identification number. While conducting the surveillance, Walsmith saw the pickup turn south on State Road 129, the intersection of which he was watching. According to his testimony, the pickup was going very fast. He pursued it, but did not attempt to stop it, which he had a perfect right to do since it was a public highway. Cf. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). While following the pickup, he observed burlap type bags containing kilo sized packages of marijuana. After seeing this, he brought the vehicle to a stop and in doing so he turned on his emergency lights. At the place where the vehicle stopped, two of the occupants fled toward a fence. Finally, after exiting his vehicle, he smelled the odor of marijuana.
This background constituted initially suspicion and, finally, probable cause for the arrest.
We cannot disregard the fact that Walsmith had been alerted to the landing of an airplane carrying the marijuana. That is why he was conducting the surveillance. There was cause for...
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