U.S. v. Payseur

• Decision Date: 08 August 1974
• Docket Number: No. 72-2928,72-2928
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray PAYSEUR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 966

501 F.2d 966

UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray PAYSEUR, Defendant-Appellant.

No. 72-2928.

United States Court of Appeals, Ninth Circuit.

Aug. 8, 1974, Rehearing Denied Oct. 1, 1974.

Joseph Shemaria (argued), Los Angeles, Cal., for defendant-appellant.

W. Michael Mayock, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY, CARTER and WRIGHT, Circuit Judges.

OPINION

JAMES M. CARTER, Circuit Judge:

Defendant Donald Ray Payseur appeals from a judgment of conviction on two counts: (1) conspiring with others, in violation of 21 U.S.C. 963, to import marijuana into the United States from Mexico, such importation being prohibited by 21 U.S.C. 952(a) and 960(a)(1); and (2) importing marijuana into the United States in violation of 21 U.S.C. 952(a) and 960(a)(1).

As a young adult offender (see 18 U.S.C. 4209) he was sentenced under the provisions of the Federal Youth Corrections Act, 18 U.S.C. 5005-5026. Imprisonment was suspended under 18 U.S.C. 3651 and he was placed on probation on the condition that he serve the first six months in jail.

The Issues

Payseur presents eight grounds for reversal:

1. The trial court's refusal to permit the issue of entrapment to go to the jury, and the curtailment of cross-examination on matters allegedly relevant to entrapment;

2. The trial court's instructions regarding the reliance the jury could place on one truthful witness;

3. The trial court's denial of a motion for continuance of the trial date;

4. The trial court's denial of access to the government's witness Pendley;

5. The trial court's improper admissions of hearsay statements;

6. The trial court's denial of a motion to suppress real evidence obtained by seizure and search of Payseur's flight bag;

7. The trial court's improper admission of three items of documentary evidence; and

8. The trial court's procedural error as regards selection of the jury.

Discerning no reversible errors in any of the trial court's actions, we affirm. On the eight grounds asserted for reversal, only the first two (entrapment and instructions) require an extended discussion. The facts of the case are related in some detail in order to illuminate the discussion of the first ground.

The Facts

The indictment was filed on July 21, 1971, charging in count I that Payseur and seven other defendants (Fisher, Talla, Idom, May, Reynolds, Masillo, and Nelson) had knowingly and wilfully conspired to import marijuana into the United States from Mexico.

Count II of the indictment charged that Payseur and May actually imported marijuana into the United States from Mexico. Count III charged Nelson and Reynolds with possession of such marijuana with intent to distribute, and count IV leveled an identical charge against Idom.

Defendant Fisher, Talla and Idom pleaded guilty. The rest went to trial, the jury finding them guilty. Only Payseur appeals.

At trial, the key witness for the government was an informant named Cleatus 'El Duque' Pendley. He testified that prior to 1971 he and Fisher had been partners in the business of smuggling marijuana, but that their partnership ended when Pendley was arrested in February of 1971. In July of 1971, having been released on bond, Pendley sought out William Rosenblatt, a special agent for the United States Customs Agency Service, and asked to become a government informant. Pendley was told to follow up and report any criminal activity he should observe, especially if Fisher were involved.

Soon afterwards, Pendley visited Fisher's home in California and asked his old partner what he had been doing lately. Fisher replied, 'Why smuggling, of course.'

Pendley and Fisher went to the house of Masillo in Riverside, California. They were told by Masillo that Nelson had called from Mexicali, Mexico, with the news that 'some stuff' was available from Harvey. Fisher first called Nelson, who verified the information, and then called Harvey, arranging to meet with the latter in Mexicali that night. Pendley was invited.

After secretly informing customs agents of what was afoot, Pendley flew with Fisher by private Cessna airplane to Calexico, a California city just across the border from Mexicali. From Calexico they crossed into Mexicali and sampled Harvey's marijuana. It was good, and Fisher agreed to pay $60 per kilogram, with delivery to be made on the Mexican side of the border. Fisher remarked that he would pick up the goods by airplane because 'his boy' needed some work to do and needed to make some money. Although Fisher did not say at that time who 'his boy' was, the following evidence establishes that it must have been Payseur, the present appellant.

After Pendley and Fisher left Mexico they returned to California to arrange the details of financing and transporting the marijuana. Talla, whom they met in a Colony Kitchen restaurant in Corona, agreed to supply the cash. Pendley and Fisher then split up, but met again the next day at the house of Masillo. It was there that Pendley first met Payseur, who appeared to be a friend of Masillo's.

Pendley, Fisher and Payseur proceeded to the nearby Flabob Airport and took up the Cessna, Fisher piloting. As they circled over Riverside, Fisher pointed out a spot near the Jarupa Hills Trailer Park that he said would be a good place to land with the marijuana from Mexico. In response to an inquiry by Fisher, Payseur said he was sure he could put the airplane down there.

Later, after obtaining the purchase money from Talla, Fisher, Pendley and Payseur returned to the house of Masillo. Fisher, having entrusted the cash to Pendley's custody, then left the house, saying he was going to try to get additional money. During his absence, Pendley displayed the cash in his custody to those present, which included, besides himself and Payseur, Payseur's wife, Masillo and Masillo's wife. Masillo and the two women became excited at the sight.

When Fisher returned to Masillo's, Payseur said he knew where he could get an airplane to make the smuggling run. Pendley observed, 'Well, the number one thing you need in smuggling, fellows, is an airplane to smuggle with. I think somebody ought to get on the phone and call one-- get one.'

Payseur called Aer-O-West Aviation and reserved a Cherokee airplane, commenting to Pendley that he, Payseur, 'knew he could fly half the load up with it.'

Fisher then gave the men final instructions. He handed Pendley a slip of paper upon which was written the name 'Frank Curtis' (established as an alias of Idom). Fisher told Pendley that 'Curtis' would supply the van for picking up the marijuana once the plane brought it down in California.

Fisher then departed, presumably going home. Payseur suggested to the other men present (Pendley, Nelson and Masillo) that the Corona Airport would be a good backup site in the event that anything went wrong with the spot near the Jurupa Hills Trailer Park.

Payseur, Pendley, Nelson and Masillo then went to Fisher's house. Fisher was there and introduced them to two new men, Reynolds and May. Fisher said that May would fly to Mexico with Payseur to pick up the marijuana and that Reynolds would ride with Nelson in the pickup van.

Pendley promptly notified customs agents of the new development. Customs agent Grootendorst thus had an airplane ready to tail Payseur and May as they flew in the Cherokee airplane down to the Calexico airport. At Calexico, Payseur and May took on Fisher, who had arrived ahead, and the three men flew on to Mexico. Agent Grootendorst kept his plane aloft just above the border, waiting. After twenty-five minutes, he saw the Cherokee airplane coming back. He followed it to Palm Springs, California, where he lost the track.

Other customs agents were waiting, however, at the landing site in Jurupa Hills Trailer Park in Riverside. They watched as the Cherokee touched down and taxied over to a van, then flew off again five minutes later. The van promptly departed as well.

Shortly thereafter, the Cherokee landed in Corona. Customs agents were waiting there too. Payseur stepped out on the wing of the airplane, holding a flight bag. An agent announced his arrest, and Payseur, putting the flight bag down on top of the wing, stepped down to the ground. After Payseur's custody was ensured, the agent seized the bag. In it were various maps, used at trial as evidence of the crime.

At sundry places and times, Fisher, Talla, Idom, May, Reynolds, Masillo and Nelson were also arrested.

I. Entrapment

Payseur contends that the judgment of conviction must be reversed because the trial court (a) improperly curtailed the cross-examination of a key government witness on matters relevant to the entrapment defense, and (b) erroneously refused to submit the issue of entrapment to the jury. Our perusal of the trial record convinces us, however, that the contested acts of the trial court were neither improper nor erroneous.

a. Curtailment of cross-examination

Pendley, the key government witness, was subjected to lengthy cross-examination by five separate lawyers for the defense. Defendant Payseur now points to various instances where the court disallowed particular questions by the defense and concludes 'It is thus apparent that the defense below did not enjoy the broad latitude of cross-examination necessary to explore exploiter Pendley's background, motives, credibility and involvement in entrapment. Though there is no doubt that many of the court's rulings were technically correct, the harsh curtailment of questioning undoubtedly dampened the defense vigor for the pursuit of truth.'

Having studied the trial transcript, we agree with defendant Payseur that 'many of the court's rulings were technically correct.' But we do not agree that the tenor of the court's curtailment of questioning was harsh or unfair. The court disallowed questions probing the state of Pendley's mind, for Pendley was not on trial, and Pendley's state of mind is...