U.S. v. Sanchez, 73-2737

• Decision Date: 24 February 1975
• Docket Number: No. 73-2737,73-2737
• Citation: 508 F.2d 388
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo Jaime Lerma SANCHEZ and Carlos Guillermo Salinas, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 388

508 F.2d 388

UNITED STATES of America, Plaintiff-Appellee, v. Arturo Jaime Lerma SANCHEZ and Carlos Guillermo Salinas Jr., Defendants-Appellants.

No. 73-2737.

United states Court of Appeals, Fifth Circuit.

Feb. 24, 1975, Rehearing Denied April 4, 1975.

Phil Burleson, Dallas, Tex., for Sanchez.

Michael P. Gibson, Dallas, Tax., William C. Wright, Laredo, Tex., for Salinas.

Frank D. McCown, U.S. Atty., W. E. Smith, Alex H. McGlinchey, Asst. U.S. Attys., Fort Worth, Tex., for plaintiff-Appellee.

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

Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The appellants, Arturo Jaime Lerma Sanchez (Lerma) and Carlos Guillermo Salinas, Jr. (Salinas) were tried and found guilty before a jury at Abilene, Texas, in the Northern District of Texas, on May 21-25, 1973 under an indictment returned by a Northern District grand jury in the Fort Worth Division of that court. The indictment, ¹ returned April 24, 1973 charged the two appellants, in Count 1, together with eleven co-defendants, with conspiracy, Title 21, U.S.C. 846, to distribute cocaine, a narcotic drug and a Schedule II controlled substance, to persons in the Arlington-Fort Worth-Dallas, Texas area, and in Overland Park, Kansas in violation of Title 21, U.S.C. 841(a)(1). Only the two appellants went to trial. Ten co-defendants had previously plead guilty to one or more counts of the indictment. One co-defendant, Manuel Sandoval Martinez (Martinez) was then under arrest and in jail in the Republic of Mexico and unavailable for trial. Count 1, the conspiracy count was the only count of the six-count indictment naming Lerma and Salinas, neither of whom was mentioned in any of the ten overt acts alleged in Count 1. Counts 2, 3, 4, 5 and 6 dealt with related activities of other defendants none of whom went to trial. Upon conviction and after denial of post-trial motions (following an evidentiary hearing), ² Lerma and Salinas were each sentenced to fifteen years confinement to be followed by a special parole term of three years. This appeal followed. We affirm.

The principal grounds of error urged by Salinas are: (1) abuse of discretion by the trial court in denying a transfer under Rule 21(b), F.R.Crim.P. from the Northern District of Texas to the Laredo Division of the Southern District of Texas; (2) violation of his Sixth Amendment rights by the denial in part of his motion for Bill of Particulars and the failure of the trial court to require the government to furnish witness statements and other discovery earlier than the morning before the trial, and (3) the sentence to the maximum statutory confinement period of fifteen years was cruel and unusual punishment, in violation of the Eighth Amendment, in view of Salinas' youth, his prior unblemished record, and his honorable service in the Vietnam war.

Lerma advances the same grounds of appeal as those urged by Salinas except the question raised as to length of sentence, and additionally asserts that the evidence was insufficient to prove his participation in the conspiracy.

I The Evidence

In view of Lerma's separate claim of insufficiency of the evidence we must state the evidence in some detail.

The government's case was built around the testimony of an indicted co-defendant and co-conspirator, Rodolfo Serna Laurel, Jr. (Laurel). The jury was entitled to find the following facts which emerged from his testimony and that of other indicted co-defendants, principally Arturo Trevino Guevara (Guevera) and Peter Harrison Walker (Walker), together with the testimony of the undercover agents who worked on the case.

Laurel had lived in Laredo, Texas the greater part of his 22 years, but was living in Corpus Christi during most of the critical period involved, from November, 1972 through February, 1973. He and Salinas, also a Laredo native, were old acquaintances, Salinas being related to Laurel's aunt. He first met Lerma in November, 1972. At that time Salinas approached Laurel in Laredo and asked if he had connections for cocaine. Laurel said he would see if connections were available and met with Salinas later in November at the Laredo home of Salinas' grandmother, on Victoria Street, where Salinas shared an upstairs apartment with his brother, Jorge. Lerma came in later and the projected cocaine transaction was discussed by the three, Laurel, Salinas and Lerma. Laurel said he could place six ounces of cocaine, and a price of $600 per ounce net to Salinas and Lerma was indicated. Lerma left for a time. After his return, the discussion of a deal in cocaine continued. That evening the three went to a restaurant in Nuevo Laredo, Mexico where they met with Sandoval Martinez. Martinez was employed by a business next door to Lerma's brother, for whom Lerma worked for some years. Lerma and Martinez had been friends for ten or twelve years, according to Lerma. After a whispered conference between Martinez and Salinas, Salinas told Laurel he might get the six ounces of cocaine in December. Arrangements were made for Laurel to call and inquire whether Salinas had any shrimp (the agreed code word for cocaine). After several calls producing negative replies, Laurel was told that shrimp were available and he went from Corpus Christi to Laredo, to the Salinas apartment upstairs at the home of his grandmother, meeting Lerma and Salinas there. The six ounces of cocaine were delivered after being tested with Chlorox. Laurel sold the cocaine for $675 an ounce to Guevara, after calling Guevara at his residence in Austin, Texas. The cocaine was delivered by Laurel to Guevara in Corpus Christi on December 24, 1972. Walker accompanied Guevara to this meeting. Arrangements were made with Salinas in Lerma's presence for Laurel to sell three more ounces to Guevara for an advance of $1,000. The cocaine was procured by Laurel as before, from Salinas in Lerma's presence at Salinas' apartment, again after several telephone calls, some to Lerma, some to Salinas.

In early January, 1973, Guevara called Laurel asking for an additional pound of cocaine. After an exchange of telephone calls with Salinas, Laurel went to Laredo where Lerma and Salinas had 8 ounces of cocaine in a plastic bag and some Procaine on the table in the same apartment. The 8 ounces of cocaine were cut by admixing 8 ounces of Procaine to produce a pound. Laurel took this mixture to Corpus Christi where he delivered it to Guevara and Walker. During this time Salinas and Lerma both knew the identity of Laurel's buyer, Guevara, and approved delivery of cocaine to him on a credit basis. Thereafter, in late January, 1973, 2 1/2 pounds of cocaine were procured by Laurel from the same source in a similar manner. During this visit, in the same Nuevo Laredo restaurant as before, the three met with Sandoval Martinez at which time Lerma conferred with Martinez in a voice too low for the others to hear. Laurel stayed several days in Laredo awaiting delivery of the two and one-half pounds of cocaine which was made by Salinas. Laurel delivered the cocaine to Guevara and Walker, who took 2 pounds to Fort Worth, where they delivered it to a co-defendant Larry Branum. Branum was arrested in Arlington, Texas, January 26, 1973 with this cocaine in his possession. Kathleen Branum, his wife, was arrested with him, as were the co-defendants Larry Speake, Richard Ray and Richard Garnett. A short time later Walker was caught in Kansas City, Kansas in possession of the remaining one-half pound of the original two and one-half pound consignment. When Laurel learned of the loss of the two pounds during Branum's arrest he notified first Lerma and later Salinas by telephone.

In an effort to recover from these serious business losses of large quantities of contraband, an additional two pounds of cocaine was procured by Sanchez and Lerma from their source (presumably Sandoval Martinez) and delivered to Laurel in February, 1973, by directing Laurel to a hole in the fence surrounding the home of the other grandmother of Salinas. Salinas had told Laurel he could pay off the cost of the last two pounds by 'working and selling more cocaine.' Laurel, in possession of this two pounds of cocaine was arrested at the Love Field Airport, Dallas, February 14, 1973 soon after deplaning from a Braniff International Air Lines Flight from Corpus Christi.

With Laurel's arrest on February 14, along with the apprehension of Walker and Guevara in Kansas City on February 2, 1973, the arrests of Larry Speake, Richard Ray and Richard Garnett, along with the two Branums in Arlington on January 26, 1973, and a sale of one ounce of cocaine to undercover BNDD agents on January 19, 1973 by the defendants Hattersley and Cowan, ten of the defendants were apprehended with cocaine in their possession. These arrests in possession of contraband ³ were the basis for the pleas of guilty by the ten defendants named. This in turn led to the tracing, by testimony and proof of telephone calls from Southwestern Bell Telephone Company records, of all of the various deliveries of cocaine from Salinas and Lerma at the 1904 Victoria Street, Laredo apartment of Salinas to Laurel. Agents arrested Lerma and Salinas at the grandmother's 1904 Victoria Street residence in Laredo on April 10, 1973. Initially, Salinas attempted to resist arrest by threatening the officers with a .357 Magnum pistol. Lerma was in possession of a .45 pistol at that time, both defendants had knives in their belts and there is testimony that both attempted to flee the scene.

The billing record of telephone calls from November 1972 through February 1973 included outgoing and incoming calls between Laurel's residence in Corpus Christi, (and after February 20, 1973 in Laredo), Salinas' residence and that of his grandmother in Laredo, Lerma's residence in Laredo, Sandoval Martinez's office in Nuevo Laredo, Arturo Guevara's Austin residence...