U.S. v. Rojas

• Decision Date: 20 August 1976
• Docket Number: No. 75-3760,75-3760
• Citation: 537 F.2d 216
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald ROJAS, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 216

537 F.2d 216

UNITED STATES of America, Plaintiff-Appellee, v. Gerald ROJAS, Sr., Defendant-Appellant.

No. 75-3760.

United States Court of Appeals, Fifth Circuit

.

Aug. 20, 1976.

Paul Antinori, Jr., Barry A. Cohen, Tampa, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Terrance Smiljanich, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM and MORGAN, Circuit Judges, and LYNNE, District Judge.

LEWIS R. MORGAN, Circuit Judge:

Appellant Gerald Rojas, Sr. was convicted of possession of a controlled substance, cocaine, with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846. He assigns four grounds as error requiring reversal. We affirm.

I. Facts.

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the jury could have found the following: On February 8, 1975, two Tampa, Florida undercover police detectives, Hartzner and Larson, met Stephen Charles Alfonso to attempt to purchase narcotics from him. Although no narcotics transaction occurred that day, Alfonso sold some counterfeit money to the detectives and arranged to meet them again at a predetermined street intersection on February 12.

At about 11:00 p. m. February 12, Hartzner, Larson, and Alfonso met as planned. The detectives asked whether Alfonso could supply them with cocaine, whereupon he left for about fifteen minutes and returned with a small sample of the drug. The three agreed to meet at the same place at 1:00 a. m. February 13 in order to complete the sale of half an ounce of cocaine for $625.

Hartzner and Larson met Alfonso, who was accompanied by appellant's nephew Richard "Chicky" Valdez, as scheduled. The detectives delivered $625 and Alfonso and Valdez delivered one quarter ounce of cocaine, directing the detectives to follow them to a new location for delivery of the other quarter ounce. This new location was two to four blocks from the house at 3010 West Laurel Street in Tampa where appellant, his wife Melba, and his stepson Jose Garcia lived. When the four met at the new location Valdez left in an automobile with the money, returned about five minutes later, and delivered the second quarter ounce.

The detectives next met Alfonso at his residence about 6:40 p. m. February 15, at which time they discussed with him the purchase of a full ounce of cocaine. Alfonso told the detectives that he would have to check to see whether he could procure an ounce and that the detectives should meet him at a shopping center at 8:00 p. m. that evening. Alfonso then contacted Valdez, and at about 8:00 p. m. the two of them drove to the house at 3010 West Laurel Street, which Valdez identified to Alfonso as his source's house. Valdez went inside the house alone, returned a few minutes later, and told Alfonso that "the old man" was taking a shower and that they should return later. Alfonso and Valdez then met the detectives, told them that their source was taking a shower, and agreed to meet later at Alfonso's residence.

Alfonso and Valdez returned to the house at 3010 West Laurel Street. Valdez again went inside alone, returning a few minutes later with a quantity of cocaine. At about 9:30 p. m. Alfonso and Valdez met Hartzner and Larson at Alfonso's residence, where the detectives delivered $1,200 and were given an ounce of cocaine. Valdez then left to return some extra cocaine to his source and was followed by a police surveillance team back to the house at 3010 West Laurel Street.

Later the same night Ernest Spencer, an informant for the State Attorney's office at Gainesville, went to Valdez' residence with two other persons to negotiate for the purchase of some cocaine. At about 1:00 a. m. the next morning, February 16, Valdez, Spencer, and the others drove to the house at 3010 West Laurel Street. Valdez went inside alone, spoke with someone in the house, returned to the car, and announced that his "uncle's got plenty of coke but he's just to (sic) plum out tonight to do any business." Later the same morning appellant Rojas met Valdez, Spencer, and the others at Valdez' residence. There Rojas personally delivered an ounce of cocaine to Spencer's companions in return for $1,100. At this time the five men discussed the possibility of further transactions for a pound or more of cocaine, with Valdez repeatedly stating that, "My uncle don't sell no bad drugs."

On February 21 a team of law enforcement officers executed a search warrant on the house at 3010 West Laurel Street. There, concealed under the seat of a lounge chair in the "Florida" or living room, they discovered a bag containing seven ounces of cocaine. They also found a set of scales of a kind suitable for weighing drugs in Rojas' and his wife's bedroom and a quantity of marijuana in the stepson's bedroom. After the search, as Detective Hartzner was about to leave the house carrying the cocaine, appellant asked him whether he could leave "half the stash." Hartzner declined.

A federal grand jury indicted appellant, Alfonso, and Valdez on February 27, 1975. On February 28 Alfonso pleaded guilty to conspiracy to possess cocaine with intent to distribute. Valdez' case was severed from appellant's, and Valdez was convicted on the same charge July 8, 1975.

Appellant's trial began July 15. The principal witnesses for the government were Hartzner, Alfonso, and Spencer; Valdez did not testify. A government expert testified that chemical analysis of four cocaine samples the two quarter ounces purchased February 13, the ounce purchased February 15, and the seven ounces seized in the search February 21 revealed such a similar and unusual combination of cocaine and other substances that there was a "high degree of probability" that the four samples once had been part of a single mixture. Appellant presented evidence of an alibi for the evening of February 15. The jury retired for deliberation on the afternoon of July 17 and returned its verdict of guilty on both counts two hours later. Appellant was sentenced to concurrent ten-year terms, plus the mandatory special parole term.

II. Voir Dire.

Appellant's first assignment of error complains of the district court's refusal to ask prospective jurors on the voir dire to state their feelings concerning persons charged with drug related crimes. Appellant filed, together with his new trial motion, an affidavit of the jury foreman, Bobby Hornsby, which stated that Hornsby had helped organize and had served on an organization called the Reach Out Crisis Center, the purpose of which "was to help people on drugs as well as other social type difficulties." The affidavit further stated that if appellant's requested voir dire question had been asked, Hornsby would have made known his activities with this organization. Appellant's counsel state that if this information had been elicited, they would have excused this juror.

The district court may, of course, choose to ask counsel to submit proposed questions and conduct the voir dire itself. Fed.R.Crim.Pro. 24(a). The scope of the voir dire is committed to the sound discretion of the trial judge, United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976); United States v. Gassaway, 456 F.2d 624, 626 (5th Cir. 1972), "subject to the essential demands of fairness," Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470-471, 75 L.Ed. 1054 (1931). The experienced trial judge in this case, after inquiring into the prospective jurors' and their families' acquaintances with the defendant and counsel and into their familiarity with the case from news reports, asked all prospective jurors whether they knew of any other reason why they could not give both the government and the defendant a fair and impartial trial. Hornsby did not state that he knew of any such reason. His post-trial affidavit does not state that he was prejudiced in any way.

Here, as in United States v. Eastwood, 489 F.2d 818 (5th Cir. 1973), the district court declined to ask prospective jurors specific questions regarding their feelings about or experiences with drugs or drugs users, but instead relied on "careful though general questions pertaining to the possibility of bias." Id. at 820. Here, as in Eastland, we think this course did not affect the essential fairness of appellant's trial and hence did not constitute an abuse of discretion. See also United States v. Goodwin, 470 F.2d 893, 897-98 (5th Cir. 1972), cert. denied, 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691 (1973); United States v. Gassaway, supra, 456 F.2d at 625-26.

III. Instruction on Possession.

Appellant next argues that, in view of the fact that he shared occupancy with two other persons, the district court erred in refusing to give his requested jury instruction that his mere physical proximity to cocaine hidden in a common room of the house was insufficient to establish the element of possession, either actual or constructive. ¹ It is true that a defendant's mere presence in an area where narcotics are discovered is insufficient evidence to support a conviction for possession. United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir. 1974); United States v. Stephenson,474 F.2d 1353, 1355 (5th Cir. 1973). Nonetheless, the charge given by the district court was sufficient, if followed, to preclude conviction for mere presence or proximity. The instruction correctly stated that in order to find possession, the jury must find that the defendant had either direct physical control or the power and intention to exercise dominion or control over the cocaine. ² United States v. Ferg, supra, 504 F.2d at 916-17; United States v. Stephenson, supra, 474 F.2d at 1355. The instruction was in terms nearly identical to that given in United States v. Gloria, 494 F.2d 477, 483 (...