U.S. v. Wood, BELTRAN-LEO

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore ELY, CARTER, and GOODWIN; JAMES M. CARTER
Citation550 F.2d 435
Parties1 Fed. R. Evid. Serv. 492 UNITED STATES of America, Plaintiff-Appellee, v. Scott WOOD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George L. MARTINEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseefendant-Appellant.
Decision Date23 December 1976
Docket NumberVELASQUEZ-LEDESM,BELTRAN-LEO,Nos. 76-1538,76-1482,D,76-1425 and 76-1350

Page 435

550 F.2d 435
1 Fed. R. Evid. Serv. 492
UNITED STATES of America, Plaintiff-Appellee,
v.
Scott WOOD, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose BELTRAN-LEON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
George L. MARTINEZ, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose VELASQUEZ-LEDESMA, Defendant-Appellant.
Nos. 76-1538, 76-1482, 76-1425 and 76-1350.
United States Court of Appeals,
Ninth Circuit.
Dec. 23, 1976.
As Amended on Denial of Rehearing and Rehearing En Banc March 1, 1977.

Page 436

Paul J. Fisher, Seattle, Wash., for Scott Wood.

Philip A. DeMassa (argued), San Diego, Cal., for Jose Beltran-Leon.

James M. McCabe, appointed (argued), San Diego, Cal., for George L. Martinez.

Page 437

Thomas M. Geisness (argued), of Geisness & Day, Seattle, Wash., for Jose Velasquez-Ledesma.

J. Ronald Sim, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for the United States.

Appeal from the United States District Court for the Western District of Washington.

Before ELY, CARTER, and GOODWIN, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This is a consolidated appeal by four defendants convicted by a jury of various counts involving the importation, possession, and distribution of nine tons of marijuana. Appellants claim numerous errors by the trial court. We dismiss the appeal of one appellant and affirm the convictions of the others.

Facts

On October 22, 1975, Drug Enforcement Administration (DEA) agents arrested Hector Lazos and George Martinez, both citizens of Mexico, in Seattle. Lazos soon began to reveal the details of a shipment of nine tons of marijuana smuggled from Mexico to Seattle on a fishing boat. Based on this information, a search warrant was obtained and a search conducted of a ranch located near Black Diamond, Washington, where about four and one-half tons of marijuana were found.

Under the direction of DEA officials, Lazos cooperated by making telephone calls to several of the other defendants to arrange sales of the marijuana. These conversations were taped and played at trial. Lazos called appellant Jose Velasquez-Ledesma in San Francisco. Velasquez was staying in a hotel with appellant Jose Beltran-Leon. An arrangement was made for Velasquez and Beltran to come to Seattle to pick up the money from the sales.

Lazos and appellant Scott Wood picked up Velasquez and Beltran at the airport in Seattle and drove back to a hotel. A tape was made of the conversation during this trip, although the quality of the recording was quite poor. A copy was later made available to the defendants. During the conversation, a sale was planned involving two DEA agents posing as customers.

Velasquez and Beltran checked into their hotel. Lazos and Wood went to an isolated house where more marijuana was stored and made the "sale" to DEA agents. Velasquez, Beltran, and Wood were then arrested. A subsequent search of the boat used for the job revealed traces of marijuana and maps and charts indicating a route from Mexico prepared by Wood, who operated the boat.

Lazos testified at trial that the criminal scheme began in September 1975. He met with Velasquez, Martinez, and Beltran's brother-in-law, "Noe," in Los Angeles to plan the operation. Velasquez told Lazos that the marijuana was owned by Roberto Beltran, Beltran's uncle, that Wood would supervise transportation, that Martinez would buy the load, and that Beltran would be picking up the money from the sale. This testimony constituted the principal part of the government's case.

Appellants were charged along with 10 other defendants in a 10-count indictment. After a two and one-half week trial, all of the appellants were convicted of some counts and acquitted of others. Two defendants were acquitted of all counts. Wood and Velasquez received 10-year sentences; Beltran got six years; Martinez received four. Velasquez and Martinez are serving their sentences. Beltran is free on bail. Wood is a fugitive.

Dismissal of Wood's Appeal

Appellant Wood is currently a fugitive from justice. The trial court has issued a bench warrant for his arrest for failure to comply with the conditions of his bail. His attorney was advised that his appeal was in jeopardy unless he surrendered himself. He has not. There is no indication that he

Page 438

would do so upon a decision adverse to him. Dismissal of an appeal of a fugitive under these circumstances is appropriate. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); United States v. Villegas-Codallos, 543 F.2d 1124 (9 Cir. 1976); Johnson v. Laird, 432 F.2d 77, 79 (9 Cir. 1970). Wood's appeal is therefore dismissed.

Probable Cause to Search

Following the arrests of Lazos and Martinez, the government procured two search warrants. The first authorized the search of the ranch near Black Diamond, Washington, where the marijuana was found. This warrant was based upon the affidavit of a DEA agent who received his information from Lazos. The second warrant was issued for the search of the vessel used in the smuggling operation. 1

Appellants argue that the search warrant issued for the search of the ranch failed to meet the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Under Aguilar, a warrant must be based on an affidavit which informs the magistrate of (1) some of the underlying circumstances from which the informant's information is drawn, and (2) some basis for determining that the informant is credible. 378 U.S. at 114, 84 S.Ct. 1509. See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

The affidavit in this case detailed the DEA's knowledge of the Beltran drug-smuggling organization. It contained a detailed description of the residence where the marijuana was stashed, as well as the identity of at least one of the occupants. This information alone meets the first prong of the Aguilar test.

But the informant also disclosed his personal role in the smuggling operation. He admitted participation in illegal activities. Such statements against one's own penal interest are a sufficient indication of reliability by themselves. As the Chief Justice said for the plurality in Harris :

"Quite apart from the affiant's own knowledge of respondent's activities, there was an additional reason for crediting the informant's tip. Here the warrant's affidavit recited extrajudicial statements of a declarant . . . that over the past two years he had many times and recently purchased 'illicit whiskey.' These statements were against the informant's penal interest. . . .

"Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People to not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility sufficient at least to support a finding of probable cause to search." 403 U.S. at 583, 91 S.Ct. at 2082.

We believe this reasoning is compelling here. The informant's admissions, coupled with his specific information, combine to form more than an adequate basis of reliability of the affidavit. Thus, the second prong of the Aguilar test is met and probable cause is established for the warrant. See also United States v. Carmichael, 489 F.2d 983 (7 Cir. 1973) (unsworn statements of secondary informant establish probable cause).

Beltran's Motion for Severance

On the morning of the trial, counsel for Beltran represented to the court that if he were granted severance, both Wood and Velasquez would testify on behalf of his client. No affidavits were presented nor was additional proof that this testimony would be forthcoming offered despite the opportunity given for this purpose by the district court. However, counsel for both

Page 439

Wood and Velasquez were present during this discussion and neither objected to counsel's representations.

A motion for severance under Fed.R.Crim.P. 14 is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse. United States v. Olson, 504 F.2d 1222, 1224 (9 Cir. 1974). Beltran failed to demonstrate that co-defendants Wood and Velasquez actually would testify at a severed trial. There was no offer of proof as to what testimony, if any, they would give. Under these circumstances there was no abuse of discretion by the district court. Cf. United States v. Cruz, 536 F.2d 1264, 1268 (9 Cir. 1976); United States v. Ellsworth, 481 F.2d 864 (9 Cir. 1973).

Post-Arrest Activity of Informant Lazos

After his arrest, Lazos began assisting the DEA in gathering evidence against his co-conspirators. He made telephone calls, recorded with his consent, to several of the defendants as well as to the wife of Velasquez. Velasquez argues that these calls indirectly interfered with the attorney-client privilege. He admits that there are no cases holding that post-arrest contact by the government with a defendant's wife is a basis for reversal.

There was not the type of interference here as seen in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), where the government directly invaded the defense camp to obtain information about trial strategy. However, we are inclined to agree with appellant that the government acted improperly in arranging these calls. Any delay caused by or lack of trust resulting from these contacts could be a violation of a defendant's right to counsel and require reversal. But Velasquez has failed to show that any of the informant's calls to his wife prejudiced him in any way.

Absent such a showing, the argument must fail. This is not a case such as Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), where post-arrest conversations were used as...

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64 practice notes
  • U.S. v. Eaglin, No. 75-2720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 1977
    ...States v. Kaplan, 554 F.2d 958, 963 (9th Cir. 1977); United States v. Perry, 550 F.2d 524, 529 (9th Cir. 1977); United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1977). Two of the strongest pieces of evidence tending to show that Eaglin was aware of Bowles' status were statements reported ......
  • U.S. v. Phillips, Nos. 79-3189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 28, 1981
    ...status, we dismiss his appeal. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); United States v. Wood, 550 F.2d 435, 437-38 (9th Cir. 1976); United States v. Isuman, 482 F.2d 1378 (5th Cir. 2 The sentences imposed by the district court in the aggregate were as ......
  • U.S. v. Cella, Nos. 76-2722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 9, 1977
    ...under the rule established in Dutton, supra, 400 U.S. at 88-89, 91 S.Ct. 210, and as adopted by this court, United States v. Wood, 550 F.2d 435, 442 (9th Cir. 1976); United States v. Snow, 521 F.2d 730, 734 (9th Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 III. C. 2......
  • United States v. Sharpe, No. 83-529
    • United States
    • United States Supreme Court
    • March 20, 1985
    ...v. Holmes, 680 F.2d 1372, 1373 (CA11 1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983); United States v. Wood, 550 F.2d 435, 437-438 (CA9 1976); United States v. Sperling, 506 F.2d 1323, 1345, n. 33 (CA2 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 43......
  • Request a trial to view additional results
64 cases
  • U.S. v. Eaglin, No. 75-2720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 1977
    ...States v. Kaplan, 554 F.2d 958, 963 (9th Cir. 1977); United States v. Perry, 550 F.2d 524, 529 (9th Cir. 1977); United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1977). Two of the strongest pieces of evidence tending to show that Eaglin was aware of Bowles' status were statements reported ......
  • U.S. v. Phillips, Nos. 79-3189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 28, 1981
    ...status, we dismiss his appeal. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); United States v. Wood, 550 F.2d 435, 437-38 (9th Cir. 1976); United States v. Isuman, 482 F.2d 1378 (5th Cir. 2 The sentences imposed by the district court in the aggregate were as ......
  • U.S. v. Cella, Nos. 76-2722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 9, 1977
    ...under the rule established in Dutton, supra, 400 U.S. at 88-89, 91 S.Ct. 210, and as adopted by this court, United States v. Wood, 550 F.2d 435, 442 (9th Cir. 1976); United States v. Snow, 521 F.2d 730, 734 (9th Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 III. C. 2......
  • United States v. Sharpe, No. 83-529
    • United States
    • United States Supreme Court
    • March 20, 1985
    ...v. Holmes, 680 F.2d 1372, 1373 (CA11 1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983); United States v. Wood, 550 F.2d 435, 437-438 (CA9 1976); United States v. Sperling, 506 F.2d 1323, 1345, n. 33 (CA2 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 43......
  • Request a trial to view additional results

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