U.S. v. Ochoa, 77-5089

Decision Date16 December 1977
Docket NumberNo. 77-5089,77-5089
Citation564 F.2d 1155
Parties2 Fed. R. Evid. Serv. 851 UNITED STATES of America, Plaintiff-Appellee, v. Oscar Homero OCHOA and Ernest Garza Gonzalez, Defendants-Appellants. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

Joe L. Hernandez, San Antonio, Tex., for Ochoa.

Anthony Nicholas (Court Appointed), Terrence McDonald, San Antonio, Tex., for defendants-appellants.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, W. Ray Jahn, Asst. U. S. Attys., James E. Bock, Trial Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before AINSWORTH, MORGAN and GEE, Circuit Judges.

AINSWORTH, Circuit Judge:

Defendants Oscar Ochoa and Ernest Gonzalez were convicted by a jury of conspiracy to possess heroin with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Both defendants contend that the trial court erred in admitting the testimony of the prosecution witnesses regarding the statements of coconspirators, as there was no independent evidence of a conspiracy. In addition, defendants urge that the court's failure to determine the existence of independent evidence of a conspiracy before admission of the coconspirators' statements was plain error and that the evidence was insufficient to support a conviction. Defendant Gonzalez insists that the admission of certain statements made by the prosecutor in his closing remarks was plain error. After thorough review of the defendants' assertions, we affirm.

On July 25, 1976, Officer Russell Reina, working as an undercover agent for the Drug Enforcement Administration (DEA), telephoned Enrique Ramirez in San Antonio regarding the purchase of some heroin. Ramirez had previously told Officer Reina that he had several contacts involved in the sale of heroin. Four days later Officer Reina and Agent Castro accompanied Ramirez on a trip to the Rio Grande Valley for the purpose of negotiating the purchase of heroin. On their arrival in McAllen, Texas, the three travelers stopped at a convenience store where Ramirez called McAllen telephone number 686-3086 and asked for "Oscar." Ramirez was unable to get through to Oscar until later that afternoon. After talking with Oscar, Ramirez told Officer Reina that "the man" was coming to meet them, and twenty minutes later defendant Oscar Ochoa drove into the parking lot where Ramirez and the agents were waiting. Ochoa parked approximately 10 yards from Officer Reina's vehicle. Ramirez entered Ochoa's car and spoke with him for 15-20 minutes. Ramirez then informed the agents that Ochoa had agreed to set up a meeting to negotiate the sale of heroin. The agents handed Ramirez $10 to give Ochoa, and Ramirez told them that Ochoa was going to arrange the meeting with the source of the heroin and would return soon. The agents were to remain at the parking lot until Ochoa's return.

Surveillance agents tailed Ochoa to La Paloma Lounge and then to a residence at 2920 Gumwood Street. This residence is the location of the telephone number dialed by Ramirez on his arrival in McAllen. During Ochoa's absence Ramirez told the agents that Ochoa had found two sources of heroin, but that one source had left McAllen because of the late arrival of Ramirez and the agents. Ochoa drove back to the parking lot and Ramirez once again walked to Ochoa's car and conversed with him. Ramirez informed the agents that they were to meet the contact at La Paloma Lounge. But when Ochoa, Ramirez and the agents arrived at the lounge the contact was not there. Ramirez and Ochoa remained in the lounge and the agents left. On their return 30 minutes later the agents were told that "Ernie," the contact, had come and gone but that he was expected back shortly. Twenty minutes later Ernie had still not returned, and Ochoa went out to search for him. Shortly thereafter an automobile driven by defendant Ernest Gonzalez drove up to La Paloma Lounge. Ramirez stated, "(t)here he is, there's Ernie," and went up to Gonzalez's car and spoke with him for a couple of minutes. Ramirez then motioned the agents over to Gonzalez's car. Agent Castro walked over to it and was introduced to Gonzalez, who asked how much Castro was interested in purchasing. Agent Castro answered that the amount desired depended on the price and quality. Gonzalez assured the agent that the quality was good, and mentioned a price range. The conversation between Agent Castro and defendant Gonzalez lasted two or three minutes, at which point it was interrupted by the return of defendant Ochoa who said, "(t)here he is," referring to Gonzalez. Ochoa assured Agent Castro that Gonzalez could acquire "it" and that the quality was good. Gonzalez then left the parking lot to find the sources. After waiting 11/2 hours for Gonzalez's return with the long-awaited heroin, the agents departed. Officer Reina spoke with Ramirez on four separate occasions after the evening of July 29 regarding drug purchases. In these taped phone conversations Ramirez mentioned both defendants in connection with the sale of heroin, and told Reina that the heroin deal was firmly arranged if Reina would return to McAllen.

Independent Evidence of a Conspiracy

Both defendants insist that there was inadequate independent evidence of a conspiracy on the part of Ramirez, Ochoa and Gonzalez to support the admission of the agents' testimony as to the statements of the three men. The Government sought to present this testimony under Fed.R.Evid 801(d)(2)(E), which provides that a statement of a coconspirator made during the course and in furtherance of the conspiracy is not hearsay. See, e. g., United States v. Brown, 5 Cir., 1977, 555 F.2d 407, 422-23. The existence of such a conspiracy must be demonstrated independently of the statements sought to be admitted. See id.; United States v. Leaman, 5 Cir., 546 F.2d 148, 150, cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). This court has held that a prima facie case of conspiracy must be presented in order to support the admission of coconspirators' statements. See United States v. Oliva, 5 Cir., 1974, 497 F.2d 130. 1 The evidence must be reviewed in the light most favorable to the Government. See id. at 133-34.

In the present case the testimony of the two undercover agents as to what they saw and the independently admissible testimony as to what they heard were enough to establish a prima facie case of conspiracy including Ramirez, Ochoa and Gonzalez. The behavior of Ochoa and Gonzalez was perfectly consistent with a conspiracy to distribute heroin to the two agents brought in by Ramirez. There was independently admissible evidence that Ramirez called Ochoa and that Ochoa met the agents and Ramirez in the parking lot, consulted with Ramirez in his automobile, and accepted the $10 tendered to him by the agents. Ochoa accompanied Ramirez and the agents to La Paloma Lounge. Ochoa eventually left the lounge to search for "Ernie." After Ochoa left, defendant Ernest Gonzalez arrived, and asked Agent Castro how much he wanted. Gonzalez also said that the quality was good and mentioned prices. When Ochoa returned he told Castro that Gonzalez was capable of delivering the heroin. The totality of this evidence constitutes a prima facie case of conspiracy.

Defendants contend that the trial court should have determined if there was sufficient independent evidence of a conspiracy before admitting the coconspirators' statements. Defendants rely on a recent First Circuit case, United States v. Petrozziello, 1 Cir., 1977, 548 F.2d 20 and Fed.R.Evid. 104(a) 2 as support for this contention. However, recent Fifth Circuit decisions have rejected this position, although without express reference to Fed.R.Evid. 104(a). See United States v. Ellis, 5 Cir., 1977, 547 F.2d 863, 867; United States v. Leaman, 5 Cir., 546 F.2d 148, 150, cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). 3

Jury Argument

Defendant Gonzalez urges that the prosecutor's closing argument contained five improper and prejudicial remarks. As neither defendant made a timely objection at trial, our scope of review is limited to plain error. See, e. g., United States v. Arteaga-Limones, 5 Cir., 529 F.2d 1183, 1190, cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976).

Gonzalez strongly urges that these five statements are prejudicial under the standard set forth in United States v. Corona, 5 Cir., 1977, 551 F.2d 1386. In Corona the prosecutor made remarks that the court found were intended to bolster the testimony of government witnesses. The Corona court stated that "(i)t should be abundantly clear by now that '(i)t is impermissible for the prosecutor to assert his own credibility as a basis for conviction.' " Id. at 1389, quoting United States v. Herrera, 5 Cir., 1976, 531 F.2d 788, 790.

The prejudicial effect of a prosecutor's argument must be judged on the basis of the whole argument taken in the context of the entire case. See United States v. Corona, 5 Cir., 1977, 551 F.2d at 1388. In Corona the "bolstering" of the prosecution witness was accompanied by improper remarks suggesting guilt by association and the statement that a codefendant had already pled guilty. But in United States v. Serrano, 5 Cir., 1974, 496 F.2d 81, the prosecutor's improper remarks were limited to the type of vouching for credibility condemned in Corona, and the court still found such remarks reversible error. In Serrano the court described the defendant's appeal as claiming plain error. The body of the opinion did not mention the plain error standard and instead focused on rejecting the prosecution's claim of harmless error. In any case, the Serrano argument was so close in content to the summation condemned in United States v. Brown, 5 Cir., 1971, 451 F.2d 1231, as to make a finding of plain error understandable. In United States v. Arteaga-Limones, 5 Cir., 529 F.2d 1183, 1190, cert. denied, 429...

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