U.S. v. Sanchez-Murillo

• Citation: 608 F.2d 1314
• Decision Date: 03 December 1979
• Docket Number: D,No. 78-2584,SANCHEZ-MURILL,78-2584
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Patricioefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1314

608 F.2d 1314

UNITED STATES of America, Plaintiff-Appellee, v. Jose Patricio SANCHEZ-MURILLO, Defendant-Appellant.

No. 78-2584.

United States Court of Appeals Ninth Circuit.

Dec. 3, 1979.

Alan Saltzman, Saltzman & Horvitz, Beverly Hills, Cal., for defendant-appellant.

Bruce R. Castetter, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Barton C. Sheela, III, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

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

Before SNEED and TANG, Circuit Judges, and PFAELZER, ^* District Judge.

PFAELZER, District Judge:

I

FACTS AND PROCEDURAL SETTING

Defendant-Appellant Jose Patricio Sanchez-Murillo (herein "defendant") appeals from his conviction for conspiring to smuggle, induce, harbor and transport illegal aliens, and for harboring illegal aliens, all in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324. Defendant was indicted by a Federal Grand Jury for these violations on April 5, 1978. On May 4, 1978, defendant moved for dismissal of the indictment on the ground that the government had returned a "percipient witness" to Mexico without allowing his counsel the opportunity to interview the witness.

Evidence adduced at the pretrial hearing on the motion for dismissal revealed that in September of 1977, the Border Patrol received an anonymous telephone call stating that two houses belonging to one of the other defendants in the case were being used as "drop houses" ¹ for illegal aliens. Border Patrol Agent Daniel McCaskill (herein "Agent McCaskill") began preliminary surveillance of the houses in September. In February 1978, Agent McCaskill intensified his investigation and the Border Patrol began conducting intensive surveillances of the houses over a period of several weeks.

On or about February 16, 1978, Agent McCaskill met Miguel Mercado-Bermudez, (herein "Bermudez"), who told Agent On February 24, 1978, Agent McCaskill was advised that Bermudez had been arrested entering the United States. Agent McCaskill again told Bermudez that he was required to keep him informed of his activities, and Bermudez was returned to Mexico in order to protect his cover.

McCaskill that he had been at the suspect houses on several occasions and had been solicited to work for an alien smuggling ring at that location. Agent McCaskill decided to have Bermudez infiltrate the smuggling ring and act as an informant. To this end, Bermudez was given an immigration form permitting him to enter the United States and was directed to keep Agent McCaskill informed of his activities. Specifically, he was instructed to contact Agent McCaskill immediately upon entering the United States and before he engaged in any activities with the ring.

On February 26, 1978, surveillance agents saw Bermudez at the drop houses. His presence there had not been authorized by Agent McCaskill. Later that evening, Bermudez was arrested by the Border Patrol near the Salton Sea in the company of several other illegal aliens. Agent McCaskill instructed the Border Patrol to return Bermudez to Mexico. Bermudez' permit was taken from him and he was instructed to contact Agent McCaskill from San Ysidro as soon as possible after his arrival in Mexico. Thereafter, not having heard from Bermudez, Agent McCaskill sent a letter to his address in Mexico. The letter was not answered. Sometime later Agent McCaskill refused to accept a collect call from a person claiming to be Bermudez.

At the hearing on the motion to dismiss the indictment, defendant argued that by returning Bermudez to Mexico, the government deprived him of the right to subpoena Bermudez as a witness. Defendant claimed that this prejudiced his ability to present his defense, in violation of his constitutional right to due process.

The trial court denied the motion to dismiss and a jury trial was held on May 24, 1978. At the trial, Agent McCaskill testified as to the Modus operandi of alien smuggling rings, and explained the function of drop houses. Agent McCaskill also testified regarding the surveillance of the particular houses in this case. He stated that on several occasions during his preliminary surveillance he saw a 1977 Dodge van registered to defendant, parked near the houses being investigated. Other surveillance agents testified that they observed a number of vehicles loading and unloading individuals who entered and exited the basements of the suspect houses. Bags of groceries were frequently taken into the basements and garages of the houses, and the defendant was twice observed carrying groceries into one of the garages. On one occasion, four males were seen coming out of one of the garages and running in a crouch to defendant's van. Defendant walked to the van, looked in, and drove it away. On another occasion, codefendant Irene Perez was arrested driving a car with two illegal aliens in the trunk. The car was registered to defendant and he subsequently retrieved the car from the police storage lot.

On the night of March 26, 1978, Border Patrol Agents, pursuant to a warrant, searched the two houses in question. The garages and basements of the houses showed signs of concentrated human occupancy, including accumulations of food wrappers and human excrement on the floors. Ten illegal aliens were found in the basement of one house and eight more were in the garage. Defendant and codefendant Ruth Perez, the daughter of codefendant Irene Perez, were found in bed in the upstairs portion of this house. Three of the illegal aliens found in the garage testified that they had made arrangements with an individual in Tijuana to be smuggled into the United States for $200 each. They had been led across the border on foot and then driven in a van to the address at which they were subsequently arrested.

Defendant was convicted on four counts of the indictment, one for conspiracy and three for harboring illegal aliens. He was sentenced to four years in custody on the conspiracy charge and five years in custody

on each of the other three counts. The five year sentences, which ran concurrently with each other but consecutive to the four year sentence, were suspended and defendant was placed on probation for a period of five years. Defendant is presently in custody serving his four year sentence.

II

ISSUES PRESENTED ON APPEAL

1. Did the trial court err in denying defendant's motion to dismiss the indictment?

2. Is the evidence sufficient to sustain the jury's verdict?

3. Did the trial court err in permitting the investigating officer to testify as an expert at the trial?

4. Did the trial court abuse its discretion by sentencing the appellant to four years in custody on the conspiracy charge?

III

DISCUSSION

A. Motion to Dismiss

Defendant argues that the government should not have returned Bermudez to Mexico, relying primarily on United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971). The defendant in that case was arrested driving an automobile which contained six illegal aliens. The Border Patrol interviewed all of the aliens and then returned three of them to Mexico, retaining the other three to testify as witnesses at the trial. The three prosecution witnesses testified only that they were waiting by the roadside and were told to get into the car when it pulled up. The court found that the government had deprived the defendant of the opportunity to examine the other three witnesses who might have been able to support his version of the facts and that it was a violation of due process to return those witnesses to Mexico. The conviction was overturned.

The factors which led to the decision in Mendez-Rodriguez were summarized in United States v. McQuillan, 507 F.2d 30, 32-33 (9th Cir. 1974) as follows: 1) the court's disapproval of the government's policy of "keeping select alien eyewitnesses while returning others to Mexico"; ² 2) the aliens returned to Mexico "were in fact eyewitnesses to, and active participants in, the crime with which defendant was charged"; 3) the defendant "had an alibi which might have been corroborated by the missing witnesses"; and 4) although the defendant was unable to show that the testimony of the missing witnesses would have been helpful, "there was at least a strong probability that the missing witnesses could have provided material and relevant information concerning the events constituting the crime."

In United States v. Castellanos-Machorro, 512 F.2d 1181 (9th Cir. 1975), these principles were applied to a case where defendants were a husband and wife who managed a motel used as a drop house. The husband was convicted of one count of conspiracy and eleven counts of harboring illegal aliens, all of which related to the concealment and transportation of five named aliens. The wife was convicted only of conspiracy. Both defendants appealed on the ground that they were deprived of the opportunity to interview 88 aliens apprehended while allegedly traveling north from the motel and approximately 200 other aliens discovered in the vicinity of the motel. The court, in rejecting both appeals, relied on the principles...