United States v. Bey

Decision Date03 March 1976
Docket NumberNo. 75-2217.,75-2217.
Citation526 F.2d 851
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Richard BEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Harlan P. Cohen, Dallas, Tex. (Court-appointed), for defendant-appellant.

Edward B. McDonough, Jr., U.S. Atty., James R. Gough, Jr., Anna E. Stool, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant John Richard Bey and his wife Rita were charged in a two-count indictment of possessing with intent to distribute approximately 361 pounds of marihuana, and conspiracy to do the same, in violation of 21 U.S.C. §§ 846 and 841(a)(1). In the conspiracy count Oscar Joseph Benavides was named as a co-conspirator but not as a defendant. A jury trial resulted in the conviction of defendants on both counts. Only John Richard Bey appeals therefrom. We affirm.

Appellant challenges the sufficiency of evidence and further contends that the trial court erred in the following respects: in refusing to allow a continuance to enable him to secure the presence or testimony of co-conspirator-informant Benavides; in failing to suppress evidence obtained through an alleged unlawful search and seizure; and in wrongly admitting certain testimony alleged by appellant to be either hearsay or highly prejudicial. Appellant presented no evidence. Rita Bey testified on her own behalf but called no witnesses.

The evidence shows that on April 30, 1973, Oscar Joseph Benavides, at the time an informant for Dale W. Schuiteman, Special Agent for the Drug Enforcement Administration in Detroit, Michigan, telephoned Schuiteman saying that he was in Pharr, Texas with John and Rita Bey who had come down to purchase marihuana. On May 3, 1973, Horace Ayala, Special Agent for the Bureau of Customs stationed at McAllen, Texas, received information from Special Agent Pooley in Laredo, Texas, concerning defendants, their traveling companion, Benavides, and a 1967 Ford vehicle owned by Rita Bey, which prompted him to investigate their activities. Agent Ayala located the Ford at the Mag Motel at Pharr, Texas and set up a surveillance on the vehicle. On May 4, Agent Ayala observed appellant, his wife and Benavides leave the Mag Motel together in the Ford and proceed toward Rio Grande City. The vehicle was next seen entering the United States from Mexico at Roma, Texas by Falcon Heights agents who telephoned this information to Agent Ayala according to his testimony. Surveillance was again taken up and Agent Ayala later saw defendants and Benavides return in the Ford to the Mag Motel. On May 5, at approximately 3:30 a. m., Agent Ayala visited Benavides at the Dixie Court Motel in an effort to obtain information about the defendants. Agent Schuiteman testified that later that day Benavides called him to say that Agent Ayala had inquired about the activities of the Beys, that the people with whom defendants were negotiating for narcotics occupied the adjoining room, he was fearful for his life, and "the deal was off." Agent Ayala testified that later that day he saw Rita Bey enter a taxicab and proceed toward a bridge connecting with Mexico.

On the following day, May 6, Agent Ayala's vigil was fruitful. At about 10:30 a. m. he saw Rita Bey driving a white 1967 Pontiac, a vehicle which Ayala knew through investigation and reliable information to have been used to transport marihuana. The vehicle left the parking lot adjacent to the Mag Motel, and stopped in the front of the motel. John Bey got into the Pontiac and attempted to drive it. After 30 or 40 yards the vehicle again stopped. John Bey then got into the Ford and pushed the Pontiac to the Shamrock Service Station located approximately a quarter of a mile away. During this operation Rita Bey was driving the Pontiac with Benavides as a passenger. The attendant put gas into the tank of the Pontiac and with the assistance of John Bey and Benavides pushed the vehicle to the parking lot of the service station. Defendants and Benavides then left the parking lot in the Ford. At that time Agent Ayala requested assistance from other agents and the surveillance on the Pontiac was resumed. He learned that the vehicle belonged to Eva Ziegler, a person known by him to be a suspect in marihuana smuggling. Agent Green responded to a call from Agent Ayala and arrived at the scene with a dog trained in marihuana detection. The dog responded with a positive alert, indicating that the vehicle contained marihuana. During the following 2½ hours Agent Ayala noticed the Beys pass the station about three times in the Ford; each time they looked in the direction of the Pontiac. Assuming that he had been seen by the Beys and that the case had been jeopardized, Agent Ayala along with Agent Murphy followed the Ford to a grocery store. There the defendants were placed under arrest and advised of their constitutional rights. John Bey was also informed that there was an outstanding arrest warrant on him for bond-jumping. Defendants disclaimed any knowledge about the vehicle. John Bey said that he was only "helping a man push the vehicle toward the Shamrock station." The keys to the Pontiac could not be located, although Rita Bey told Agent Ayala that she had given them to her husband and further said, referring to her husband, "something to the effect that he knew everything." Agent Ayala observed in the side panels of the Pontiac what "appeared to be small packages wrapped in plastic"; he also detected the odor of marihuana. Benavides was subsequently arrested. That afternoon, Agent Murphy took the Pontiac to the Hidalgo Port of Entry lot where he unloaded 361 pounds of marihuana from the vehicle.

Rita Bey was called as a witness in her own behalf. She testified that the purpose of the trip to Pharr, Texas was to recover a Dodge Charger from Mexico for a friend of her husband. She went into Mexico with another friend of her husband whose name she did not know, but did not find the Charger. At no time, according to her initial testimony, did her husband cross the border between May 3 and May 6, 1973. She later contradicted herself and said that her husband accompanied Benavides to Laredo during that period. She further contradicted the latter statement to say that she had accompanied both of them to Laredo. When asked about her connection with the Pontiac she said she and her husband attempted to move it because a "Spanish fellow" asked them to do so as it was out of gas. She could give no other account of the Spanish stranger or his subsequent whereabouts. In regard to Oscar Benavides, Rita Bey said that she and her husband were friendly with him, they had met him in Detroit, Michigan. She testified that she had been down in the Rio Grande Valley twice before the May 1973 incidents. Out of the presence of the jury, upon questioning by the Court, she again insisted that she had been to the Valley on two former occasions. When the jury returned to the courtroom she emphatically denied ever having previously been in the Rio Grande Valley. She further denied having made any statements to Agent Ayala after she was arrested, or of having any knowledge of the marihuana concealed in the Pontiac.

Appellant's motion for continuance.

Approximately two months prior to the trial date appellant moved for a continuance because of the absence of certain unnamed witnesses. The motion failed to disclose what testimony was expected to be given, and was denied. Oscar Benavides was subpoenaed by all parties but prior to the trial date was arrested by California authorities for grand theft. When the Government learned of appellant's incarceration a Writ of Habeas Corpus Ad Testificandum was issued; however, it was...

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