United States v. Escobedo

• Decision Date: 11 September 1970
• Docket Number: No. 17112.,17112.
• Citation: 430 F.2d 14
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel ESCOBEDO, also known as Danny Escobedo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.2d 14 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Daniel ESCOBEDO, also known as Danny Escobedo, Defendant-Appellant.

No. 17112.

United States Court of Appeals, Seventh Circuit.

July 22, 1970.

Rehearing Denied September 11, 1970.

Thomas J. Farrell, Chicago, Ill., for defendant-appellant.

Thomas A. Foran, U. S. Atty., Robert J. Krajcir, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before MAJOR, Senior Circuit Judge, KILEY, Circuit Judge, and ESCHBACH, District Judge.¹

ESCHBACH, District Judge.

Defendant-appellant Daniel Escobedo, also known as Danny Escobedo, was found guilty by a jury under a two-count indictment charging defendant and codefendant Michael Young² with violations of 26 U.S.C. § 4742(a) and 21 U.S.C. § 176a. Under Count I, defendant Escobedo was charged with unlawfully transferring a quantity of marihuana not in pursuance of a written order form issued by the Secretary of the Treasury, in violation of 26 U.S.C. § 4742(a). Count II of the indictment charged defendant with the receipt, concealment, and facilitation of the transportation and concealment of marihuana in violation of 21 U.S.C. § 176a. Defendant was sentenced to twenty years imprisonment on each count, the sentences to be served concurrently. From the jury finding of guilty on both counts and the sentences of twenty years on each count, defendant appeals. We affirm the conviction under Count I but reverse the conviction under Count II and, as to that count, the cause will be remanded, with directions that the judgment be vacated.

Several pre-trial motions were considered by the trial court. On November 27, 1967, defendant filed a motion to strike improper matter from the caption, namely, the attachment of the alias Danny Escobedo to defendant's name, but the motion was denied. On January 26, 1968, defendant moved to consolidate three indictments returned against him, 67 CR 555, 67 CR 562, and 67 CR 564.³ The trial court granted defendant's motion as to 67 CR 555 and 67 CR 564 but denied the motion to consolidate 67 CR 562 with the other two indictments. On May 24, 1968, defendant moved to be tried under a different name and the motion was denied.

Trial of Escobedo alone on charges contained in 67 CR 562, the subject of this appeal, commenced on May 24, 1968. Defendant's oral motion to dismiss the indictment at that time on the grounds that it was based upon unconstitutional grounds was denied. Robert D. Victoria, federal narcotics agent, testified that on August 10, 1967, Daniel Escobedo delivered marihuana to him after having been given money by Victoria for that purpose. Victoria and another federal narcotics agent, William W. Raebel, also testified that at no time did they or anyone else present to Escobedo or Michael Young a written order form required under 26 U.S.C. § 4742(a) for the transfer of marihuana.

Defendant, who testified during trial, was asked on cross-examination whether he was the same Daniel Escobedo who had been convicted in the same courtroom under Indictment in Cause No. 67 CR 555 in February 1968 for violation of federal narcotic laws. Defendant was also asked whether he was the same Daniel Escobedo who had been convicted in the same courtroom under Indictment in Cause No. 67 CR 564 for the sale of heroin to agent Victoria on August 3, 1967. After defense counsel's objection to the admission of such testimony was overruled by the trial court, defendant admitted that he was the same person but denied having been guilty. An objection by defense counsel to a jury instruction drawing an inference that the marihuana had been imported was also overruled.

Defendant's first allegation of error raised on appeal attacks the constitutionality of the statutes under which convictions were obtained, 21 U.S.C. § 176a and 26 U.S.C. § 4742(a). With regard to 26 U.S.C. § 4742(a), defendant contends that he was confronted with a requirement on pain of criminal prosecution to provide information which he might reasonably have supposed would be available to prosecuting authorities and that such information would have proved a significant factor in proving guilt in any proceedings against him. As a result, defendant submits that he made a proper claim of privilege against self-incrimination which should have provided a complete defense to prosecution under § 4742(a).

In Buie v. United States, 396 U. S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969), the Supreme Court was faced with a similar factual situation and constitutional challenge to § 4742(a). The same question — the availability of the Fifth Amendment as a defense to convictions for selling marihuana without the written order form required under the law — was raised by petitioner Michael Buie. Buie was convicted of violating § 4742(a) for the sale of marihuana to an undercover narcotics agent without the required official order form. The Supreme Court concluded that there was no real possibility that Buie's purchaser or purchasers generally would have been willing or able to comply with § 4742(a) even if their seller insisted on selling only pursuant to the form prescribed therein. The Court also stated that it was quite clear in any event that Buie's customer was not a registered dealer nor was there anything to suggest that the customer would have been willing or able to get an order form had he been asked. It is also clear in this case that defendant's customer, Agent Victoria, was not a registered dealer, nor does anything in this case suggest that Victoria would have been willing or able to secure the order form.

Furthermore, this court held in United States v. Bradley, 426 F.2d 148, 7th Cir., May 13, 1970, that whether the order form requirement of § 4742(a) infringes the constitutional right against self-incrimination no longer presents an arguable issue.⁴

Defendant next contends that the presumption created by 21 U.S.C. § 176a is unconstitutional:

Whenever on trial for a violation of this subsection, the defendant is shown to have or have had marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury. 21 U.S.C. § 176a.

The Government concedes on appeal that absent the statutory presumption of § 176a, there are no facts present in this case justifying defendant's conviction under Count II for violation of 21 U.S.C. § 176a. The Government also concedes that the conviction under Count II was improper and must be reversed in light of the holding in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) that the presumption is unconstitutional. The trial court instructed the jury over defendant's objection in accordance with the statutory presumption, and therefore defendant's conviction insofar as Count II is concerned must be reversed.

On oral argument, defendant contended for the first time in his appeal that if the basis for Count II was held unconstitutional, then the conviction under Count I must also be reversed because of the prejudicial effect of Count II. Defendant has cited no authority in support of this contention, and we disagree that the reversal of Count II somehow invalidates defendant's conviction under Count I. The trial court instructed the jury separately as to each count; the essential elements required to be proved in order to establish the offense charged in Count II were enumerated separately. We think that defendant was adequately protected by the instructions and that prejudicial error did not occur as the result of the presence of Count II. See United States v. Hood, 422 F.2d 737 (7th Cir.1970). In addition, it is well settled that when the sentences imposed on multiple counts of an indictment are of equal length and are to run concurrently, the failure of proof of one or more of the counts does not require reversal if there is sufficient proof of one count. United States v. Hood, supra at 742; United States v. Smith, 253 F.2d 95 (7th Cir.1958), cert denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L. Ed.2d 1364 (1958).

The evidence, when viewed in its aspects most favorable to the Government, is that defendant Escobedo, after meeting with Victoria on several occasions, told Victoria that he could buy marihuana and sell it to Victoria for $135 per pound. Pursuant to Victoria's agreement to meet Escobedo on August 10, 1967, in order to buy five pounds, Escobedo met Victoria at a tavern and took $680 of official advance funds from him for the purchase. Escobedo then got into an automobile which was followed by agents of the Federal Bureau of Narcotics; at one point, a man in another automobile got out and talked to Escobedo. After Victoria waited in a lounge, Escobedo returned at 8:50 p.m. and told Victoria, as a prearranged signal, to go outside and look at a certain automobile to determine whether it was the kind he wanted. Victoria then went outside with Michael Young, looked over the car in which Escobedo had been riding, reached into the back seat, and took out a brown paper bag containing marihuana. At no time did Victoria or anyone else present to Escobedo or Michael Young the order form required under § 4742(a). We think that the proof was sufficient to support Count I, and as a result the failure of proof under Count II does not require reversal of Count I.

Defendant also contends that the trial court erred in admitting evidence of his prior conviction in February 1968 for violation of federal narcotic laws by selling heroin to Robert Victoria on August 3, 1967. Defendant recognizes in his brief that it is well settled in this Circuit that the Government may impeach a defendant's credibility by inquiring as to past convictions. United States v. Menk, 406 F.2d 124 (7th Cir. 1968), cert den., 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969). The rule applies even if the prior convictions are...