United States v. Carrion

• Decision Date: 29 June 1972
• Docket Number: No. 71-2425,71-2426.,71-2425
• Citation: 463 F.2d 704
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Nicholas CARRION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony CARRION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

463 F.2d 704 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Nicholas CARRION, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony CARRION, Defendant-Appellant.

Nos. 71-2425, 71-2426.

United States Court of Appeals, Ninth Circuit.

June 29, 1972.

Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., Carl E. Stewart, Orange, Cal., for defendants-appellants.

Jan Lawrence Handzlik, Asst. U. S. Atty. (argued), Eric A. Nobles, Darrell W. McIntyre, Asst. U. S. Attys., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY and KILKENNY, Circuit Judges, and MURPHY, District Judge^*

DUNIWAY, Circuit Judge:

Michael and Anthony Carrion were convicted in a jury trial of conspiring to smuggle marijuana into the United States from Mexico and to receive and conceal illegally imported marijuana, violations of 21 U.S.C. § 176a, and they appeal. We affirm.

FACTS

The jury found that appellants conspired illegally to import large quantities of marijuana from Mexico into the United States by airplane. To aid them, appellants enlisted two comrades, Ponting and Cassidy, who testified for the prosecution. Ponting testified that Anthony telephoned him twice during the summer of 1970 and offered him a job driving a truck. In late August 1970, Ponting and Michael drove a rented truck to the Agua Dulce Air Park near Los Angeles, where they met Anthony and Cassidy and unloaded a large quantity of marijuana which the latter two had just flown in from Mexico. Several days later Michael asked Ponting to meet another shipment. Ponting drove to the same airport, met Anthony and Cassidy, and transferred the shipment from the plane to the truck. Ponting received another call from Michael several days later and again drove to the airport to meet another load, but the plane never arrived. Ponting made another run to the airport on September 11 for the same purpose, but he and Cassidy were arrested by United States Customs agents at the airport and the marijuana in the plane was seized.

Cassidy testified that Anthony induced him to fly plane loads of marijuana from Mexico to the Agua Dulce Air Park in the summer of 1970. He flew to Mexico several times before his arrest on September 11 at the airport, usually accompanied by Anthony, and brought back loads of marijuana.

A. Anthony Carrion's appeal.

1. Search and seizure.

Anthony filed a motion to suppress the marijuana seized at the airport on September 11, but the trial judge rejected Anthony's theory that a conspirator has standing to challenge a search directed against a co-conspirator when the fruits of the search are introduced against him. The trial judge was right. Alderman v. United States, 1969, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176; Diaz-Rosendo v. United States, 9 Cir., 1966, 357 F.2d 124, 132, cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83.

Anthony then asked for an evidentiary hearing under Rule 41(e), F. R.Crim.P., to show that he was in fact the object of the search. The trial judge refused the hearing because Anthony was not present at the airport when the plane was searched and did not, in the motion to suppress or the supporting affidavit, allege either ownership or possession of the matter seized. The trial court correctly distinguished Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, which held that one charged with a crime that includes possession as an essential element does not have to allege possession in order to challenge the legality of the search. Possession is not an essential element of the crime of which Anthony was convicted.

Anthony argues that he alleged a possessory interest in the marijuana in essence when he requested suppression of "all items of personal property" taken from the plane. That position was properly rejected by the trial court on the ground that the term "personal property" was too vague and indefinite to be read as including an allegation of possessory interests in the marijuana. Evidentiary hearings need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that relief must be granted if the facts alleged are proved. Cohen v. United States, 9 Cir., 1967, 378 F.2d 751, 760, 761, cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215.

2. Foundation for testimony about telephone conversations.

Anthony argues that the testimony of Ponting and Cassidy concerning their various telephone conversations with a person claiming to be Anthony should have been excluded because neither witness stated that he recognized the caller's voice as that of Anthony, and therefore no proper foundation was laid for admission of the testimony. We do not agree. We decided this issue in Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, 743, cert. denied, Palermo v. United States, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498. See also Noriega v. United States, 9 Cir., 1971, 437 F.2d 435, 436, cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 648. We find no abuse of discretion here because there is abundant circumstantial evidence to support a jury finding that the caller was Anthony.

3. Limitations on scope of cross-examination.

Anthony claims that the trial judge improperly restricted his right to cross-examine government witnesses. Specifically, he objects to the refusal of the judge to permit inquiry into Cassidy's relationship with one Cliff Guttersrud, the person Anthony claims was responsible for the marijuana-smuggling scheme.

The rule in this circuit was recently stated in United States v. Haili, 9 Cir., 1971, 443 F.2d 1295, 1299:

"The scope of cross-examination is within the discretion of the trial court and limitation will not result in reversal unless it is clear that the defendant was denied his constitutional right of confrontation. Enciso v. United States, 370 F.2d 749 (9th Cir. 1967)."

The trial judge acted within the scope of his discretion in limiting cross-examination. While the questioning was undoubtedly designed to impeach the witness, the transcript reveals that appellant's counsel began to range too far afield of the issues to be determined by the jury. One duty of the trial court is to limit cross-examination at that point to prevent defense counsel from confusing the jury with a proliferation of details on collateral matters. The judge did not deprive Anthony of his Sixth Amendment rights.

4. Allegedly prejudicial behavior of the trial judge.

During the trial the presiding judge berated and disparaged Anthony's counsel on several occasions, both in and out of the presence of the jury.¹ Anthony argues (1) that these remarks by the trial judge evidenced a lack of impartiality and suggested to the jury that the defense was without merit, thereby prejudicing Anthony and depriving him of a fair trial, and (2) that the comments intimidated defense counsel and prevented effective representation of Anthony.

In a jury trial the judge should exercise caution and restraint to avoid any possibility of prejudicing the defendant in the eyes of the jury by unnecessary criticism of or hostility toward defense counsel. We have carefully examined the transcript of the trial and the comments of the trial judge.² Although the judge's remarks were unquestionably improper,³ we cannot hold that the result of those unfortunate remarks was the creation of an atmosphere so prejudicial as to prevent Anthony from receiving his constitutionally guaranteed fair trial.

We arrive at this conclusion for several reasons. First, the judge repeatedly warned the jury that his criticisms of counsel's tactics and abilities had no bearing on the guilt or innocence of the accused and should be ignored. While cautionary instructions of this nature will not always cure the effect of a trial judge's hostile behavior toward defense counsel (see United States v. D'Anna, 2 Cir., 1971, 450 F.2d 1201, 1206, and Bursten v. United States, 5 Cir., 1968, 395 F.2d 976, 983), the warnings here were given carefully and often and were sufficient to overcome the prejudicial tendency that the judge's remarks undoubtedly had. Carroll v. United States, 9 Cir., 1963, 326 F.2d 72, 83.

Second, the trial judge did not confine his caustic rebukes to defense counsel; in fact, the prosecutor was treated more harshly than defense counsel, the judge even suggesting that the prosecutor did not know the most basic rules of questioning a witness or submitting evidence.⁴ Given the more or less "even-handed" application of the judge's improper remarks, we think the jury was unlikely to think that the judge was biased against the defense.

Third, all the cases cited by Anthony in which convictions have been reversed on the grounds here asserted involved behavior by the trial judge which interfered more seriously with defense counsel's representation of his client or which more clearly demonstrated a bias against the accused. Compare, for example, Bursten v. United States, supra, and Peckham v. United States, 1953, 93 U.S.App.D.C. 136, 210 F.2d 693, 703-706, cert. denied, 350 U.S. 912, 76 S.Ct. 195, 100 L.Ed. 800.

The attitude and behavior of the trial judge here, while involving improper belittling of the prosecutor and defense attorneys, did not quite descend to the level of judicial hostility evident in the cases cited by appellant. This case is similar to those in which, although the comments of the trial judge were inappropriate, we could not say that they impaired the accused's right to a fair trial. See e. g., United States v. Allen, 9 Cir. 1970, 431 F.2d 712; Duran v. United States, 9 Cir., 1969, 413 F.2d 596, cert. denied, 396 U.S. 917, 90 S.Ct. 239, 24 L.Ed.2d 195; Justice v. United States, 9 Cir., 1969, 407 F.2d 1323, cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230; Robinson v. United States, 9 Cir., 1968, 401 F.2d 248; ...