U.S. v. Vargas-Rios

• Citation: 607 F.2d 831
• Decision Date: 27 September 1979
• Docket Number: No. 79-1126,VARGAS-RIO,D,79-1126
• Parties: 5 Fed. R. Evid. Serv. 714 UNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 831

607 F.2d 831

5 Fed. R. Evid. Serv. 714

UNITED STATES of America, Plaintiff-Appellee, v. Javier VARGAS-RIOS, Defendant-Appellant.

No. 79-1126.

United States Court of Appeals, Ninth Circuit.

Sept. 27, 1979.

Rehearing Denied Nov. 20, 1979.

Lawrence A. Callaghan, Goldstein & Phillips, San Francisco, Cal., for defendant-appellant.

Jo-Lynne Lee, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before MERRILL and SNEED, Circuit Judges, and REAL ^*, District Judge.

SNEED, Circuit Judge:

Defendant-appellant Javier Vargas-Rios appeals from his district court convictions of 21 U.S.C. § 841(a)(1), distribution of heroin, and 21 U.S.C. § 846, conspiracy to distribute heroin. Appellant's two codefendants each pleaded guilty to single counts of conspiracy. At the close of the government's case, appellant moved for a judgment of acquittal pursuant to F.R.Crim.P. 29(a), but the motion was denied. On January 4, 1979, the jury found appellant guilty on both counts of the indictment. Appellant then renewed the motion for judgment of acquittal under Rules 29(a) and 33. It was again denied. Thereupon, appellant was sentenced to custody for three years. Sentence was suspended except for 120 days, which were to be served in a community treatment center. A special parole term of three years was also imposed.

Appellant has raised numerous issues on appeal which strike at various aspects of the process by which he was convicted. These are as follows:

(1) Did the district court err in denying appellant's motions for acquittal?

(2) Did the district court err in denying appellant's motion to dismiss the indictment because of inaccurate information presented to the grand jury?

(3) Did the district court err in instructing the jury concerning how and when the acts and declarations of coconspirators could be considered in determining appellant's guilt?

(4) Did the district court err in denying appellant's motion to strike the array because of comments of a single prospective juror during voir dire?

(5) Did prosecutor prevent one of appellant's codefendants from testifying and make inflamatory and misleading remarks to the jury, thus depriving appellant of a fair trial?

(6) Did prosecutor's errors in opening and closing arguments deprive appellant of a fair trial?

We hold that the district court did not err and that the appellant was not deprived of a fair trial. Therefore, we affirm.

I. FACTS

The facts of this case reveal the dreary and repetitive pattern of the sale of drugs to law enforcement officers, the "bust," the prosecution and conviction of the seller and his confederates, and an appeal.

On October 30, 1978, William Ruzzamenti, an undercover agent for the Drug Enforcement One hour later the agents and Barajas met at the BART station. Barajas counted the $23,000 tendered by the agents and then spoke with Pena who left immediately thereafter and was observed walking toward the Chevrolet in the company of appellant. An agent, charged with surveillance duties, noticed that Pena and appellant were "looking all around very intently in occupied vehicles in the area." Meanwhile, Barajas, apparently suspecting a trap, insisted they move to another location to conclude the transaction. The agents agreed. Barajas, driving the green Toyota, traveled by a circuitous route to a location on Capp Street. The agents followed. Appellant and Pena in the Chevrolet took a more direct route to a spot one block from where Barajas stopped.

Administration, received a message to meet Amodor Barajas-Delgado (Barajas) at Kerry's Restaurant in San Francisco. Ruzzamenti was accompanied to Kerry's by a state narcotics officer. At Kerry's, Barajas offered to sell 14 ounces of Mexican heroin for $23,000, 11 ounces of which were to be supplied by "his man." The agents requested a sample. Barajas made a phone call and then told the agents that "his man" would deliver the sample. Fifteen minutes later, appellant arrived at Kerry's in a black and white Chevrolet, accompanied by Eliseo Pena-Alvarado (Pena), who entered Kerry's while appellant remained in the car. Barajas and Pena conversed privately, after which Barajas offered the agents a sample of heroin. It was agreed to complete the exchange at the BART station on 16th and Mission Streets in San Francisco. Upon leaving Kerry's, Barajas and Pena talked briefly with appellant and then drove away in a green Toyota. Appellant followed in the Chevrolet.

Barajas, after being satisfied that no police had followed him, crossed the street and briefly spoke with Pena, who then returned to the Chevrolet where appellant was waiting. Barajas told the agents that Pena had gone for the heroin. Pena was seen to walk up to the passenger side of the Chevrolet, reach inside, and remove a brown paper bag. Appellant remained in the driver's seat. Pena took the bag, which contained the heroin, to the agent's car, whereupon Pena and Barajas were arrested.

Appellant was arrested in the Chevrolet from which it was not possible to see the arrest of Barajas and Pena. Upon being advised that he was under arrest appellant stated: "I don't know anything about it, I'm just giving a friend a ride." Appellant's fingerprints were not found on the brown paper bag.

Each defendant was advised of his rights pursuant to Miranda. Thereafter, appellant merely repeated his earlier statement to the effect that he was giving a friend a ride and knew nothing "about it."

II. APPELLANT'S MOTIONS FOR ACQUITTAL

The jury found appellant conspired to distribute heroin and did distribute heroin. The appellant continues to insist as he did from the moment of his arrest that he was only an unknowing chauffeur. Our role in reviewing a jury finding is very small. Jury verdicts must be upheld, as the appellee insists, when the reviewing court finds there was sufficient relevant evidence to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). See United States v. Friedman, 593 F.2d 109, 115 (9th Cir. 1979); United States v. Rosales, 584 F.2d 870, 872 (9th Cir. 1978). The evidence against appellant easily reaches the required level.

The numerous appearances of the appellant during the course of the negotiations and his obvious utility to the entire enterprise distinguishes this case from United States v. Weaver, 594 F.2d 1272 (9th Cir. 1979). Appellant was no mere passenger who contributed nothing to the conspiracy. The relevant evidence indicates that he performed a quite necessary function in the enterprise. Nor was he merely a paid chauffeur charged with possession of heroin

with respect to which his employer was also charged as in United States v. Gardner, 475 F.2d 1273 (9th Cir. 1973). Relevant evidence indicates the appellant's role in the illegal transaction was substantial, not insignificant and innocent. Such evidence also distinguishes this case from United States v. Martinez, 514 F.2d 334 (9th Cir. 1975). The jury rationally could find beyond a reasonable doubt that appellant conspired to distribute and did distribute heroin that he was more than a mere chauffeur who knew not what Barajas and Pena were doing.

III. INACCURATE INFORMATION PRESENTED TO GRAND JURY

Appellant, prior to trial, unsuccessfully sought to quash the indictment on grounds that a prosecuting witness had misstated certain evidence to the grand jury. At the completion of the prosecution's case, the motion was renewed, but again it was denied.

The misstatements were made by Agent Ruzzamenti who contends that they were unintentional and innocent. Appellant does not contend otherwise. The specific misstatements were:

(1) Vargas-Rios met with Barajas at the BART station. (2) Vargas-Rios and Pena conversed with Barajas at one point along the way to Capp Street. (3) Pena went into the car to get the bag of heroin. (4) Vargas-Rios did not make a post-arrest statement. (5) Vargas-Rios and Pena drove in the same direction as Barajas and the undercover agents on the way to Capp Street.

We agree with the comment of the trial judge with respect to these misstatements: "It is not particularly praiseworthy but I don't think it is enough for me to act to dismiss the indictment at this point." That sums it up nicely.

Appellant asserts that the misstatements prejudiced him and that had they not been presented no indictment would have been returned. Without the misstatements appellant insists there was insufficient evidence to indict.

We disagree. In United States v. Fox, 425 F.2d 996, 1001 (9th Cir. 1970), we held:

A decision to quash an indictment because of the admission of incompetent evidence Lies in the sound discretion of the trial court. (citations omitted) (emphasis added).

This is not a case in which dehors the misstatements there was a complete absence of evidence presented before the grand jury. See United States v. Romero, 585 F.2d 391 (9th Cir. 1978), Cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 492 (1979); United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972); United States v. Costello, 221 F.2d 668 (2d Cir.), Aff'd, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

Under the circumstances of this case, United States v. Kennedy, 564 F.2d 1329 (9th Cir. 1977) Cert. denied, 435 U.S. 944 (1978), is controlling. There we said:

We believe that the rule to be distilled from the authorities . . . must be that only in a flagrant case, and perhaps only where knowing perjury, relating to a material matter, has been presented to the grand jury should the trial judge dismiss an otherwise valid indictment returned by an apparently unbiased grand jury.

564 F.2d 1329, at 1338.

The prosecution in this case cannot be charged with such misconduct.

IV. JURY INSTRUCTIONS REGARDING DECLARATIONS OF COCONSPIRATORS

Appellant in a pretrial motion sought to bar...