United States v. Baxter, No. 71-2082 to 71-2087

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: HAMLEY and CHOY, Circuit , and SCHNACKE
• Citation: 492 F.2d 150
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Bennie BAXTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo Gomez MARRUFO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Thomas WARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Milton Norris BEASLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Antonio Orzco RICO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Estaban Gonzalez CATARINO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas RODRIQUEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cleveland PIPKINS, Defendant-Appellant. HERNANDEZ CASES. Group I Appeals.
• Docket Number: 71-2153,No. 71-2082 to 71-2087,71-2140.
• Decision Date: 15 April 1974

492 F.2d 150 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Raymond Bennie BAXTER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Rodolfo Gomez MARRUFO, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Thomas WARD, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Milton Norris BEASLEY, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Antonio Orzco RICO, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Estaban Gonzalez CATARINO, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas RODRIQUEZ, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Cleveland PIPKINS, Defendant-Appellant.
HERNANDEZ CASES. Group I Appeals.

Nos. 71-2082 to 71-2087, 71-2153, 71-2140.

United States Court of Appeals, Ninth Circuit.

February 16, 1973.

Certiorari Dismissed August 2, 1973.

Rehearings Denied October 18, 1973.

Certiorari Denied April 15, 1974.

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492 F.2d 152

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492 F.2d 154

Frank A. St. Sure (argued), William J. Zumwalt (argued), Patricia M. Doyle (argued), Gary D. Weatherford (argued), of Ferris, Weatherford & Brennan, San Diego, Cal., Jonathan K. Golden (argued), Burton Marks, Beverly Hills, Cal., Thomas J. Ryan, of Hunter, Dougherty & Ryan, Artie G. Henderson, San Diego, Cal., for defendants-appellants

James W. Meyers, Asst. U. S. Atty. (argued), Phillip W. Johnson, Sp. Asst. Atty. Gen., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before HAMLEY and CHOY, Circuit Judges, and SCHNACKE, District Judge.^*

Certiorari Dismissed August 2, 1973. See 94 S.Ct. 16.

Certiorari Denied April 15, 1974. See 94 S.Ct. 1945.

HAMLEY, Circuit Judge:

On February 5, 1969, a federal grand jury in the Southern District of California returned a two-count indictment against forty-nine individuals pertaining to the narcotics activities of Robert and Helen Hernandez. Count one charged that, beginning at a date to the grand jury unknown, and continuing to February 5, 1969, all forty-nine, and divers unknown persons, conspired to violate 21 U.S.C. §§ 173 and 174, by importing heroin and cocaine into the United States from Mexico, and by thereafter selling, concealing and facilitating the transportation and concealment of such drugs. Count two charged that, on or about December 1, 1968, all forty-nine used telephone, wire and other means of communication in San Diego County, within the Southern District of California, in facilitating the commission of, and attempting to commit the importation, concealment, and sale of heroin and cocaine, in violation of 21 U.S.C. § 174 (1964), and 18 U.S.C. § 1403(a) (1964).¹

The district court divided the forty-nine defendants into three groups for trial. Group I, with which we are here concerned, consists of Raymond Bennie Baxter, Rodolfo Gomez Marrufo, Charles Thomas Ward, Milton Norris Beasley, Antonio Orzco Rico, Estaban Gonzalez Catarino, Cleveland Pipkins, Thomas Rodriquez (the eight defendants named in the caption of this opinion) and four other defendants named in the indictment.

The jury found all eight named above guilty as charged in count one, and defendants Ward and Rico also guilty on

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count two. Concurrent sentences were imposed upon Ward and Rico. All eight of the named individuals appeal. Their appeals have been consolidated for disposition here and will sometimes be referred to as the Group I appeals.²

The evidence, considered in the light most favorable to the Government, warranted the jury in finding, beyond a reasonable doubt, the following background facts:³ From as early as 1964 through December, 1968, the husband and wife team of Robert and Helen Hernandez (Hernandezes) of Tijuana, Mexico, were in charge of an organization devoted to the smuggling of commercial quantities of heroin, cocaine and marijuana into the United States from Mexico. They had a reputation along the Mexico-California border as being the largest "dope" peddlers in Mexico.

Robert's brother, Juan (or John) Hernandez, also of Tijuana, participated in this operation by sending customers to the Hernandezes. The latter employed operatives to bring narcotic drugs to Tijuana from such interior Mexico cities as Guadalajara, Veracruz and Mexico City. From Tijuana the narcotics were smuggled across the border into the Southern District of California and then transported into the greater Los Angeles area. Once in Los Angeles, other operatives, acting as wholesale distributors, would take control of the narcotics. They would warehouse them, usually in apartments leased specifically for this purpose, until these operatives were ready to sell the narcotics to retailers.

Apparently as a security measure, the link between the wholesale distributors and the retailers was set up so that there would be no face-to-face contact between them. Instead, the Hernandezes established an elaborate scheme of codes and telephone numbers to convey the necessary information from each wholesale distributor to the retailers he served.

When a retailer needed narcotics he would call the Hernandezes' residence and place his order. The retailer's order would then be telephonically conveyed to the wholesale distributor in Los Angeles. This information was conveyed in the form of a daily "load list" containing the retailers' names in code, their coded telephone numbers and coded information regarding the quantity and type of narcotics to be delivered.

Then the distributor would take from his warehoused inventory the kind and quantity of heroin or cocaine needed to fill these orders and secretively place them in various locations in the greater Los Angeles area. On occasion, such narcotics would be left, in hiding, in public restrooms in gasoline stations, bars or restaurants, or in telephone booths. The distributor would then telephone the retailer and inform him as to the location of the narcotics.

The retailers would fetch the narcotics from the indicated location. They would usually pay for the goods with Western

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Union money orders or cashiers' checks. Occasionally they journeyed to Mexico where they would pay in cash to one of the Hernandezes or to one of the headquarters staff. The weekly gross income to the Hernandezes from this operation often ranged from eighty to one hundred thousand dollars

As a result of a telephone conversation with Helen Hernandez, Donald Lannom became a distributor for the organization in the Los Angeles area in 1966. He kept his inventory of heroin and cocaine in a rented apartment. As a distributor, Lannom would telephone Helen Hernandez at her residence twice each day, once in the morning and once in the evening. She would on these occasions, provide Lannom with the names of the retailers who had placed orders, their telephone numbers, and the nature of the order.⁴ He would then deliver the ordered narcotics to the retailers as described above.

In January, 1968, Lannom left the United States for Mexico where he continued to deal in narcotics as a member of the Hernandez organization. A major part of his duties consisted of bringing large quantities of narcotics up from the interior cities of Mexico to Tijuana. In August, 1968, Robert Hernandez was injured in a shooting incident, leaving him totally blind. Lannom then became Robert's bodyguard and chauffeur and helped maintain the Hernandez residence while the Hernandezes were away.

Wesley Richard Wright was introduced to the Hernandezes by his friend Lannom, and, starting about October 10, 1968, Wright became a part of the head-quarters staff at the Hernandez residence. Wright became the "telephone man" of the organization. He received orders on the telephone for narcotics and relayed that information to the distributor working in the Los Angeles area. As part of this function Wright would jot down the order information he received during the day on scratch pads from which he subsequently prepared the "load lists" referred to above. The Los Angeles distributor was then Roy Cohn, a defendant in the Group III trial.⁵

Wright was also required to take care of the bookkeeping for the Hernandez narcotics operation. The main book he used was known as the "customer book" (exhibit 2) and was given to Wright by Helen Hernandez. This was a small black looseleaf notebook containing coded names used by the customers (retailers), their telephone numbers, a record of the amounts of narcotics smuggled north for them and a record of the money received in return.

Wright did not debit the account for goods received until they had actually been physically delivered. However, these entries were made within a reasonable time after delivery, such as twenty-four hours. The entries in the "customer book" indicate that the sale of narcotics to retailers was in quantities of not less than one ounce of heroin or cocaine, and many orders were for several ounces.

In the period from October 1, 1968 through December 7, 1968, the Hernandez operation transferred to the retailers in Los Angeles approximately fifty-two

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and three-tenths pounds (eight hundred and thirty-seven ounces) of heroin and eight and nine-tenths pounds (one hundred and forty-two ounces) of cocaine. The wholesale value of these transactions was reflected on the Hernandezes' books at $344,725. The going price received by the Hernandezes was five hundred and fifty dollars an ounce for cocaine and three hundred and twenty-five dollars an ounce for heroin.⁶ Wright also used a columnar book (exhibit 3), in which he kept track of money and other transactions in connection with the operation

In addition to his telephone and book-keeping duties Wright also had some responsibility in arranging for the transportation of narcotics across the border to the warehouse in the United States. This...