U.S. v. Lopez

• Decision Date: 19 August 1980
• Docket Number: No. 79-1051,79-1051
• Citation: 625 F.2d 889
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Ramon LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 889

625 F.2d 889

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Ramon LOPEZ, Defendant-Appellant.

No. 79-1051.

United States Court of Appeals, Ninth Circuit.

Submitted April 17, 1980.

Decided Aug. 19, 1980.

Edward P. Moffat, Asst. Federal Defender, Fresno, Cal., for defendant-appellant.

David F. Rodriguez, Asst. U. S. Atty., Fresno, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before MERRILL and WALLACE, Circuit Judges, and WYATT, ^* District Judge.

WYATT, District Judge:

This is an appeal by Jesus Ramon Lopez (Ramon) from a judgment of conviction, entered in the United States District Court for the Eastern District of California, on one count of an indictment charging him and six others with conspiracy in violation of 21 U.S.C. § 846. The object of the conspiracy was charged to be to possess with intent to distribute a controlled substance (heroin) in violation of 21 U.S.C. § 841(a)(1). A jury found Lopez guilty on the one count described, after a trial before Honorable M.D. Crocker, District Judge.

The six others charged in the conspiracy count were Federico Parra Fierro (Federico), Alberto Parra Fierro (Alberto), Paz Margarita Garcia de Parra (Margarita), Camerina Parra Villa (Camerina), Enrique Lopez Beltran (Enrique), and Jose Bonifacio Garcia (Garcia). Federico and Margarita are husband and wife who lived at 1438 Eighth Street in Mendota, California. Federico and Alberto are brothers. Enrique and Camerina are husband and wife, who lived in Santa Ana, California, where appellant Ramon also lived.

The indictment was returned on September 21, 1978. Count I was the conspiracy count already described. Count II charged all the defendants except Garcia with possession on August 30, 1978, with intent to distribute, of 50 ounces of heroin in violation of 21 U.S.C. § 841(a)(1). Count III charged Enrique with possession of a firearm during the commission of the felony charged in Count II, in violation of 18 U.S.C. § 924(c). Count IV charged Federico, Margarita and Garcia with the sale on August 7, 1978, of 50.6 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). Count V charged Federico and Margarita with the sale on August 15, 1978, of one ounce of heroin, in violation of 21 U.S.C. § 841(a)(1).

The trial of Alberto and Ramon on Counts I and II the only counts naming them took place at Fresno before Judge Crocker and a jury in November, 1978. We are not told what happened to the defendants named in the indictment other than Ramon. The transcript indicates that Enrique and Camerina were released on bail, that they jumped bail, that apparently they fled to Mexico, and that a warrant for their arrest is outstanding; and that Federico pleaded guilty to some count or counts and was sentenced. We do not know what happened to Alberto at the hands of the jury; there is no transcript of the jury verdict. Apparently Garcia and Margarita were not brought to trial; what the status of the indictment is as to them does not appear.

The docket shows as to Ramon that on November 14 the jury returned a verdict of guilty on Count I and could not reach a verdict on Count II.

The docket shows that after the verdict was returned, a motion for a mistrial (this must be an error; the motion must have been for a new trial) was made for Ramon and denied from the bench without opinion. The docket shows that a motion for judgment of acquittal was made for Ramon and denied from the bench without opinion.

The sentence imposed on Ramon on January 22, 1979, was to imprisonment for five years and a special parole term of three years. Count II was ordered dismissed, on what ground and by what authority are not made to appear.

This appeal followed. In default of $25,000 cash or surety bond, Ramon has been confined pending this appeal.

We conclude that the evidence was ample to establish that there was a conspiracy as charged but was clearly not sufficient to establish that Ramon was a knowing member of and participant in that conspiracy. We are therefore obliged to reverse the judgment of conviction.

1.

After the government had rested, a motion was made for Ramon for a judgment of acquittal on both counts. Fed.R.Crim.P. 29(a). The motion was denied. We review the evidence, as it might arguably affect Ramon and his motion, received during the government's case.

Two purchases, and an attempted purchase, of heroin were made in August 1978 by an undercover officer, Deputy Moses Rodriguez (Moses) of the office of the Sheriff of Tulare County. This was done as part of an investigation of the heroin activities of Federico, who lived with his wife, Margarita, at 1438 Eighth Street in Mendota. The investigation was a cooperative endeavor of the Federal Drug Enforcement Administration, the California Bureau of Narcotics, the Sheriff of Fresno County, the Sheriff of Tulare County, and the Fresno Police Department. The controlling officer of the investigation, DEA Special Agent Plavan, testified that the investigation was of Federico; so far as appears, the officers did not have any knowledge or information as to Ramon. There was testimony by Moses that he had never seen or heard of Ramon until after Ramon was arrested.

Plavan knew Jose Garcia in Fresno as an illegal alien who had been earlier arrested and knew that Garcia was acquainted with Federico and Margarita. Plavan had no reason to believe that Garcia knew Ramon, Enrique, Camerina, or Alberto.

Plavan suggested to Moses that he get in touch with Garcia, that he ask Garcia to arrange for the purchase of some heroin (presumably from Federico), and, if successful, that Moses pay Garcia $100 for so doing.

Moses, in a Ford LTD undercover auto, drove to a radio station in Fresno on August 7 (unless otherwise indicated, all dates are in 1978) and talked to Garcia, who worked there. He introduced himself as "Pancho" and told Garcia that he wanted an ounce of good heroin. Garcia telephoned Federico. Then they (Garcia and Moses) left for Mendota. On the drive over, Garcia explained that they were going to the better of the two persons he knew who were selling heroin; also that he had been arrested before, that there was an investigation going on about law enforcement in Fresno, and that it would be safer to go to a smaller town where the police patrol was not as heavy as in Fresno.

Moses, in the Ford undercover auto, was taken to the residence of Federico in Mendota where he was introduced to Federico and Margarita as "Pancho". Garcia told Federico that Pancho wanted an ounce of heroin. Federico brought out an ounce, put it in a plastic baggie, and gave it to Pancho who satisfied himself that it was heroin; Pancho gave Federico $1,000 or $1,500 in currency as payment for the heroin.

Thereafter, Moses telephoned Federico on August 15 and told him that he (Moses) was on his way to Mendota. He got there and bought another ounce of heroin from Federico; he paid $1,005 for it. In the house at the same time were Margarita, an older woman not then identified, and an unidentified man. After the purchase, Moses talked with Federico about obtaining 40 to 48 ounces of heroin. Moses had not been introduced to the other man present, but when Moses asked about a larger quantity, the unidentified man interrupted to say: "We can sell you 300 ounces if you want." Federico said he would give the price later for the larger quantity. Moses said he would telephone to learn the price.

At the transaction on August 15, Moses tried to learn from Federico where he got his heroin. Federico said that "he had connections in Santa Ana", that "he'd been dealing heroin for two years out of the Santa Ana area", and that "he got paid so much an ounce for selling it".

When Moses went on August 7 and 15 to the residence of Federico, there were other officers in the residence area also assigned to the investigation; they were circling in vehicles.

Moses telephoned to Federico on August 21. Federico said he had gone to Santa Ana, had talked to "the boys from Santa Ana", and the price for 40 ounces was $54,000 to $56,000. Moses said he wanted 8 or 10 ounces more than the 40 ounces and would call on August 28.

Moses telephoned again on August 28. Federico said that "the people from Santa Ana" had misquoted the price, that "she quoted me the wrong price. The lady from Santa Ana", that the price should have been $62,000, and that he had got them to agree to sell for $60,000. Moses said he would pay the $60,000 but wanted 8 or 10 ounces more, for delivery on August 30. Such was Moses's testimony, but in his written reports there is no reference to any "boys from Santa Ana" and Moses testified that he had concluded that the "she" was the "ramrod of the transaction". Moreover, there is nothing to show that Ramon was included in the term "boys from Santa Ana"; true, he lived there and is a male but Santa Ana, a town of some 100,000, must have 50,000 males.

Moses telephoned on August 29. Federico told him that the people from Santa Ana would be at his house the next day, that he (Pancho) should come to Mendota the next day and telephone Federico from a store nearby, that they could then meet, and that they "would make the transaction there". Moses agreed.

On August 30 (a Wednesday), the officer group met in a briefing session on the transaction expected to take place. Moses telephoned Federico and said that he was leaving the Sacramento area.

The telephone conversations between Moses and Federico up to this point were tape-recorded and later transcribed. They were in Spanish and the Spanish transcript was translated into English. The government did not offer these transcripts or their translations in evidence and, although made available to the defense, they were not offered by the defense either. It seems to be undisputed that at no time in any of the conversations was there any reference to Ramon. Moses testified that whenever Federico...