U.S. v. Lerma

• Citation: 657 F.2d 786
• Decision Date: 30 September 1981
• Docket Number: No. 81-2052,81-2052
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Elibardo LERMA, Defendant-Appellant. Summary Calendar. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 786

657 F.2d 786

UNITED STATES of America, Plaintiff-Appellee, v. Jose Elibardo LERMA, Defendant-Appellant.

No. 81-2052

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Unit A

Sept. 30, 1981.

L. Aron Pena, Edinburg, Tex., for defendant-appellant.

Anna E. Stool, John M. Potter, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before AINSWORTH, REAVLEY and RANDALL, Circuit Judges.

AINSWORTH, Circuit Judge:

Jose Elibardo Lerma was indicted and convicted of conspiracy to possess marijuana with intent to distribute, possession of marijuana with intent to distribute, and using a communication facility to accomplish these offenses, each a violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 841(a) (1), 843(b), 846. Lerma appeals, arguing that certain evidentiary rulings, the insufficiency of the evidence and flaws in the indictment warrant reversal of his conviction. Finding no reversible error among these asserted defects, we affirm.

Lerma was implicated in a sale of over thirteen hundred pounds of marijuana by James Dickenson, who was arrested with the marijuana at a border checkpoint early on May 6, 1979. According to Dickenson's testimony, approximately two months earlier Dickenson and Ronald Spicer, both residents of Camden, Arkansas, had enlisted the aid of Tirzo Hernandez Garcia in a scheme to buy marijuana. ¹ Garcia gave them the telephone number of a source for marijuana, whom he believed was named Pedro Villarreal. Spicer called the number and told Dickenson that someone named Joe had instructed them to come to Harlingen, Texas. At a Harlingen motel, Dickenson and Spicer met two men, one whom Dickenson later identified as the appellant Jose Elibardo Lerma. A sale of marijuana was discussed, but not consummated because Lerma lacked the three hundred pounds Spicer then wished to acquire. Spicer and Dickenson returned to Arkansas without the marijuana.

Several weeks later, in April 1979, Dickenson testified that he was approached by Spicer and engaged to drive a truckload of marijuana from Harlingen to Camden for five hundred dollars. Dickenson accompanied Spicer to Harlingen, where they stayed for approximately twelve days. During this period, they were visited twice by a man Dickenson later identified as Lerma. A sale of eight hundred pounds of marijuana was discussed during one of these meetings. Subsequently, Spicer rented a truck and loaded it with old furniture. The truck was then turned over to Lerma and a companion. Five hours later, Spicer and Dickenson were led by Lerma to a secluded area where the truck was parked. There, Spicer paid Lerma fifty-four thousand dollars for over thirteen hundred pounds of marijuana that had been loaded in the truck. The transaction completed, Dickenson drove the truck north while Spicer led the way in his automobile. Dickenson was arrested at the Sarita checkpoint after the truck was stopped and the marijuana discovered.

Dickenson pled guilty of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Initially, he did not implicate Spicer, Garcia, or Lerma. While incarcerated, Dickenson notified federal agents that he wished to provide them with information because his family had been threatened. From photographs, Dickenson identified Lerma as the man who had sold Spicer the marijuana. He also identified Lerma in court. The government did not promise Dickenson any benefit in exchange for his cooperation.

At trial, the government produced managers of three Harlingen motels who verified that Spicer had registered at their motels during the periods Dickenson testified that he and Spicer were in Harlingen. The records manager of a truck rental firm testified that Spicer had rented the truck on May 1, 1979. The government also proved the making of forty-six long distance telephone calls to Lerma's residence ² from Spicer's home or place of business between March and October of 1979. Five others were placed by Spicer to Lerma's place of employment. Thirty-seven calls were made from Lerma's residence telephone to Spicer's residence, and twelve others were made to his place of business. After Lerma's indictment, a warrant was issued and he was arrested by a government agent. Lerma's counsel objected at trial when the arresting agent was asked to describe what he found on Lerma's person. The objection was overruled and the agent testified that he had discovered a gun and several identifying papers. The agent also testified that after being warned of his constitutional rights, Lerma had given the agent certain personal information, including his telephone number.

Lerma argues that mention of his possession of the gun was irrelevant and requires reversal of his conviction. His claim must be viewed within the context of the trial court's broad discretion to determine the relevancy of proffered evidence. Such discretion is reviewable only for abuse. United States v. Wasman, 641 F.2d 326, 329 (5th Cir. 1981); United States v. Welliver, 601 F.2d 203, 210 (5th Cir. 1979). Evidence admitted by the trial court of the search incident to Lerma's lawful arrest established a logical predicate to the admission of the identifying papers seized and personal information given by Lerma. Failure to prove the arrest would have left the jury to speculate how this evidence had been obtained. Lerma's possession of the gun was merely one of the circumstances of the arrest; the gun itself was not introduced into evidence. The trial court did not overstep the bounds of its discretion by permitting evidence of the gun's seizure to be heard by the jury.

Lerma further argues that the putative error in mention of the gun was compounded by the agent's opinion testimony that carrying the weapon violated state law. This opinion, however, was elicited only after persistent cross-examination by Lerma's lawyer. Any error in the admission of statements concerning the legal consequences of carrying a gun was invited by his attorney's questioning. The accepted rule regarding statements procured in this manner is that "where the injection of allegedly inadmissible evidence is attributable to action of the defense, its introduction does not constitute reversible error." United States v. Martinez, 604 F.2d 361, 366 (5th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 708, 62 L.Ed.2d 671 (1980) quoting United States v. Doran, 564 F.2d 1176, 1177 (5th Cir. 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). Having deliberately pursued a strategy that created a potential error at trial, Lerma cannot seek relief from the untoward results of that strategy on appeal.

Furthermore, any conceivable prejudicial effect of mention of the gun was effectively blunted by the judge's special caution to the jury that "the incident involving the gun is not involved in this case ... That is an incidental matter that took place at the time he was taken into custody ... you don't use it against him." See United States v. Macker, 608 F.2d 223, 227 (5th Cir. 1979) (curative effect of cautionary instruction regarding gun).

Lerma also protests that the arresting agent's testimony that he acted under a post-indictment warrant should have been excluded. Lerma theorizes that jurors would prejudicially infer guilt from issuance of an arrest warrant. His claim is without merit, however, since a warrant or the existence of an established exception to the warrant requirement is a...