United States v. Cabrera

Decision Date01 October 1969
Docket NumberNo. 26869.,26869.
Citation417 F.2d 211
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Antonio Cepeda CABRERA, Defendant Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Philip Juarez, Austin, Tex., court-appointed, for appellant.

Jeremiah Handy, Warren Weir, Asst. U. S. Attys., Ted Butler, U. S. Atty., San Antonio, Tex., for appellee.

Before AINSWORTH and GODBOLD, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge:

Antonio Cepeda Cabrera and Mrs. Guadalupe Vela were tried jointly by jury and convicted of unlawfully receiving, concealing, and facilitating the transportation and concealment of approximately 100 grams of heroin. 21 U.S.C. § 174. This appeal followed in Cabrera's case; Mrs. Vela did not appeal. For the reasons hereinafter to be given, we affirm.

A discussion of the significant issues follows:

Motion to Suppress

May 9, 1968, in Laredo, Texas, customs agent James Kuykendall met with an informant, Rogelio Hernandez, who on the same day, had advised Kuykendall that he had been hired to deliver one "Lupe," at 1107-C Burger Street, Austin, Texas, a package containing approximately 100 grams of heroin. The heroin was in a prophylactic which had been covered with a Mexican newspaper and placed in a brown paper bag.

Thereafter, Kuykendall prepared a dummy package which contained cocoa and milk sugar and about three grams of the original 100 grams of heroin.1 The dummy was wrapped in the same newspaper and placed in the same paper bag as were used for the original package.

After preparing the dummy package, Kuykendall, along with another customs agent, and the informant, drove to San Antonio, Texas, where they picked up a kit containing fluorescent powder and a light that would illuminate the powder when exposed to it. They then proceeded to Austin, Texas. Upon arrival at the Austin Police Station, Kuykendall dusted with fluorescent powder the prophylactic, which contained the dummy substance. He also dusted the Mexican newspaper, which was wrapped around the prophylactic. He placed the wrapped prophylactic in the paper bag but did not dust the bag. Thereafter, Kuykendall, the informant, and other officers went to a certain Texas truck stop in Austin and set up surveillance.

Kuykendall and the informant went to a nearby telephone, where the informant, in an effort to reach Lupe, twice dialed a number listed under the name Johnny Vela; but each time he was unable to reach Lupe. Since the informant was not available to testify in any of the proceedings in this case, Kuykendall, who had monitored the calls by placing his ear near the telephone, supplied the testimony about the calls. Kuykendall testified that in each call, a male voice was on the other end of the telephone, and only Spanish was spoken. According to Kuykendall, the informant's third call to the same number reached a woman who identified herself as Lupe. Again, only Spanish was spoken. The informant told Lupe that he was at the station with the "merchandise" that had been sent by one Arturo. Lupe replied that she soon would be there, with money, to get it.

As a result of this call, the informant, with the dummy package in his possession, assumed his position in front of the Texaco station. About one hour after the call, a two-door Pontiac Grand Prix automobile, being driven by Mrs. Guadalupe Vela, arrived at the scene. With her, were appellant, one Patrick Castro, and two children. One of the men was in the front bucket seat, beside the driver's seat; the other was in the back seat, on the right side; the two children were in the front portion of the car, apparently between the bucket seats.

The man in the rear seat got out of the car and approached the informant. After a few brief words, the man returned to his place in the right rear seat of the car. The informant then went to the driver's side of the vehicle and peered into the window for a few seconds, apparently talking to Mrs. Vela. Thereafter, the informant got into the car on the driver's side, taking a place on the rear seat. After the car had been driven about a block from the scene, the police converged on it and arrested appellant, Mrs. Vela, and Patrick Castro.2

At the time of arrest, Mrs. Vela was still driving; Castro was sitting on the right front seat; and appellant was sitting in the right rear seat. The dummy package, which had been removed from the paper bag but remained wrapped in the newspaper, was found in front of the right rear seat, wrapped in a towel. The paper bag was not found.

The three were taken to the Austin Police Station, where, after appropriate warnings, their hands and arms were subjected to a fluorescent light to see if they had handled the dummy package. No fluorescent powder was found on Patrick Castro; a few specks appeared on Mrs. Vela's arms; and appellant's hands "shone brightly."

Appellant's contention that the dummy package and its contents should have been suppressed clearly is without merit. There was more than sufficient probable cause on which to base a warrantless arrest of Mrs. Vela; and the package was admissible as an incident to that arrest. Quite obviously, and reasonably so, the arresting agent concluded that Mrs. Vela was the mysterious "Lupe," to whom the package was supposed to be delivered. The informant, whose assistance led to the events surrounding the arrests, was proven to be reliable. And with the automobile exiting from the scene, the officers had no choice but to arrest at that time.3

Likewise without merit is appellant's contention that it was error to admit into evidence that portion of the heroin that was in the original package but not placed in the dummy, and that testimony relating to what transpired in Laredo, Texas, with reference to the original package. As a rather specious basis for this contention, appellant argues that no nexus was established between the events in Laredo and the arrests in Austin, Texas. But the nexus was patent. The original package was part of the contraband that was supposed to be, and, in dummy form, ultimately was, delivered in Austin.

Finally, appellant contends that, at the motion-to-suppress hearing, the trial court erred in allowing hearsay testimony as to what had been said by the informant, who, as previously mentioned, was unavailable for testimony. This was not error. It is well settled that where an informant's reliability is established, which is the case here, hearsay may be the basis for searches with or without warrant.4

Refusal to Give Entrapment Instructions

After completion of the evidence, the trial court refused appellant's request for instructions on entrapment. This was not error.

Before such instructions should be given, there must be evidence warranting a jury issue. None existed here. Appellant's assertion in brief, that the informant could have conceived the whole scheme to trap certain unwary and innocent persons, is nothing more than suspicion, wholly unsupported by any evidence.5 See Pierce v. United States, 414 F.2d 163, (5th Cir., July 2, 1969), which contains an extremely well documented discussion of the elements of entrapment. There a government agent had contacted the defendant in a counterfeit case some 23 to 25 times before finally making a "buy" from him, and this court upheld the district court's refusal to give a charge on entrapment because the record as a whole was devoid of evidence showing that "* * * the offense would be committed by a person other than one ready to commit it." Here, likewise there was no evidence to show that Cabrera was likely innocently to have possessed the contraband (only one contact with him having been made), and, as set forth infra, the facts as to his actions were entirely adequate for the jury reasonably to infer a finding of guilt beyond a reasonable doubt. Moreover, the District Judge correctly charged the jury as to the necessary weight of circumstantial evidence in order to find guilt beyond a reasonable doubt, as well as upon all of the substantive elements necessary to have been proven before appellant could have been found guilty.

Sufficiency of the Evidence

Violation with which appellant was charged and for which he was convicted is established, prima facie, by proof of possession of the narcotic drug.6 And possession is susceptible of proof by circumstantial as well as direct evidence.7

By far the most serious question in this case is whether the evidence of possession was sufficient to support the jury's verdict and the trial court's refusal to grant motions for judgment of acquittal. Cautious as we must be in circumstantial evidence cases, such as this one,8 we agree with counsel for appellant, that there must have been more evidence of guilt than the mere presence of fluorescent powder on appellant's hands; indeed, this alone does not exclude the hypothesis that appellant, ignorant of the contents of the package, was holding it for another. But there was far more.

Of crucial importance is the testimony at trial that appellant was sitting in the right rear seat, which was the seat of the person who got out of the car, briefly talked with the informant, and returned to the car. Moreover, only a minute or so later the dummy package was found directly in front of appellant's position in the car; and the package had been removed from the paper bag and wrapped in a towel.

When these circumstances are added to those relating to the prior arrangements for delivery made by the informant with his contact, we see but one reasonable hypothesis for the jury to have drawn with respect to appellant — possession (etc.) justifying conviction.9

Accordingly, the judgment below is


GODBOLD, Circuit Judge (dissenting):

I am unable to join in an affirmance. The evidence of possession of narcotics was insufficient under numerous decisions of this and other courts which the majority neither mention nor discuss.

Fitzpatrick v. United States, 410 F.2d...

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