United States v. Estrada

• Decision Date: 23 April 1971
• Docket Number: 25938,25924 and 26023.,25945,No. 25901,25901
• Citation: 441 F.2d 873
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry E. ESTRADA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Yolando JACOBO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Garcia ROBLES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Garrison SHYNE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Jerez ROBLES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

441 F.2d 873 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Henry E. ESTRADA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Yolando JACOBO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John Garcia ROBLES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Garrison SHYNE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Jerez ROBLES, Defendant-Appellant.

Nos. 25901, 25938, 25945, 25924 and 26023.

United States Court of Appeals, Ninth Circuit.

April 23, 1971.

COPYRIGHT MATERIAL OMITTED

Luke McKissack (argued), Hollywood, Cal., Leslie A. Minkus, Palo Alto, Cal., Richard A. Walton, Hollywood, Cal., Leland Featherman, Artie G. Henderson, San Diego, Cal., for defendants-appellants.

Phillip W. Johnson (argued), Sp. Asst. to the U. S. Atty., Robert H. Filsinger, Chief, Criminal Division Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before MURRAH,^* ELY, and HUFSTEDLER, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Appellants Shyne, Estrada, Jacobo, Richard Robles, and John Robles, together with codefendants Marratto and Gonzalez, were tried under a one-count indictment charging them with conspiring from an unknown date until about February 13, 1968, to smuggle heroin and cocaine into the United States from Mexico in violation of 21 U.S.C. §§ 173 and 174. The jury found appellants guilty as charged; mistrials of their codefendants were declared after the jury failed to reach a verdict with respect to them.

We reverse the convictions of Shyne, Estrada, and Richard Robles ("Richard") for prejudicial error in admitting over objection certain items of documentary evidence. We affirm the convictions of Jacobo and of John Robles ("John").

The Government's charges linked each of the defendants to a large scale system for smuggling and distributing narcotics. At the base of the operation were Robert and Helen Hernandez who supplied major quantities of narcotics from Tijuana, Mexico, to wholesalers and retailers in the Los Angeles area. The drugs were initially carried across the border by some unidentified women and later by a Government witness, Archibald Palma. Palma, in turn, delivered the drugs to Lannom, a narcotics wholesaler, who abandoned his calling during the course of the operation to become a Government informant. Lannom telephoned the Hernandez residence twice daily to obtain an encoded list of persons who had ordered narcotics, their telephone numbers, and the types and quantities of narcotics ordered. Thereafter he telephoned the buyers and told them where he had hidden their caches. Narcotics purchasers paid for the deliveries by sending telegrams or money orders to the Hernandezes.

The Government intercepted Palma on August 6, 1967, during one of his smuggling sorties and thereupon seized about 8 pounds of narcotics. Palma also had in his possession two safe deposit keys. A search of the box pursuant to a warrant produced an encoded list of narcotics purchasers, their phone numbers, and their orders for narcotics.

Palma decoded the telephone numbers. Records of telephone companies showed several calls placed to the Hernandez residence from the locations of the decoded phone numbers. An alias or code name appeared beside each phone number on the Palma list. Records of local utility companies identified the resident of each address from which the Hernandez calls were made. The alias "Pelon" appeared beside a phone number located at the residence of a Rachel Robles; the name "Richard" corresponded to a phone listed in the name of "J. Hernandez" located at an address where a Richard Robles received electric service; the name "Henry" appeared beside a number located at Bernice Florence's residence. Although Jacobo's name or alias did not appear on Palma's list, Palma identified her in court as a person to whom he personally had delivered 100 ounces of heroin. Palma also identified John and Marratto. He could not identify the remaining defendants.

Sometime after Palma began transporting narcotics, Lannom was convicted of a marihuana offense. In January 1968, he jumped bail and fled into Mexico where he began working for the Hernandezes in their home. Richard Wright also worked there handling telephone orders. Lannom and Wright left the narcotics trade in late December 1968, contacted federal officers, and surrendered at the boarder.

Over objection, the Government introduced money orders payable to Hernandez and variously signed "Gary Shyne" or "Henry Estrada," and one money order, similarly payable, signed "Richard Robles." The Government's handwriting expert could not identify the handwriting on the orders signed "Gary Shyne." In Estrada's case, the Government witness testified that the signature on a letter written by one Henry Estrada from the San Diego County jail to the United States Commissioner was written by the same person who signed the name "Henry Estrada" to the questioned money orders. But there was no evidence that that person was the defendant Henry Estrada. The Government offered no evidence to prove that the defendant Henry Estrada was ever incarcerated in San Diego. No circumstantial evidence was offered to connect Estrada to the writer of the letter or to the signatory of the money orders. As to Richard Robles, the Government's expert witness had two handwriting exemplars prepared by a Richard Robles in 1958 and 1960. He testified that the same person wrote the exemplars and the signature on the money order, but there was no evidence that defendant Richard Robles wrote either the exemplars or the signature on the money order. The two exemplars bear the fingerprints of the person who prepared them, but the Government offered no evidence identifying the fingerprints.

None of these money orders was admissible, because the Government failed to lay the requisite foundation by proof of its authenticity. To lay the foundation, the Government had to introduce evidence sufficient to sustain a finding that each of the money orders was signed by the person against whom the documents were sought to be admitted. (C. McCormick, Evidence 395 (1954); 7 J. Wigmore, Evidence §§ 2128, 2130 (3d ed. 1940).) The Government produced neither direct nor circumstantial evidence to authenticate the writings.

Error in admitting the challenged money orders was not harmless. Aside from the money orders, evidence tending to identify Richard, Estrada, and Shyne as participants in the narcotics traffic was conflicting and uncertain. Similar, although somewhat more convincing, testimony was introduced against the codefendants Marratto and Gonzalez without the offer of any money orders, the jury was unable to reach a verdict as to them, and mistrials were declared.

We turn to John's appeal. His first contention is that the court erred in denying his motion to suppress evidence claimed to be the fruit of an illegal search.

On April 10, 1968, federal narcotics agents arrived at the residence of John Robles. They were carrying an arrest warrant issued February 14, 1968. After announcing that they had a warrant for Robles' arrest and being denied entrance, the officers forced the door and made the arrest. The officers then conducted a search of the premises. In a bedroom night stand, they found a receipt for a cashier's check payable to Hernandez and a postcard addressed to John Robles that began, "Look here Brother Pelon." Elsewhere in the bedroom, they found a slip of paper bearing the name "Yolie," together with Yolando Jacobo's phone number. In a photograph album stored in a closet, they found two pictures of Lannom.

Were the rule of Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 applicable to searches conducted before the Chimel decision, this search incident to John's arrest would have been invalid, but we have held to the contrary in Williams v. United States (9th Cir. 1969) 418 F.2d 159, cert. granted 397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 394 (1970). Matching this search against the pre-Chimel standards of United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 and Harris v. United States (1947) 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, we hold the search valid. (See also Jack v. United States (9th Cir. 1967) 387 F.2d 471, 473-474, cert. denied 392 U.S. 934, 88 S.Ct. 2299, 20 L. Ed.2d 1393 (1968).)

He also complains that certain of the testimony of Wright concerning transactions between him and John should have been stricken because those transactions occurred after the alleged conspiracy had ended. There was no error in admitting the challenged portions of Wright's testimony, because that testimony related to a conspirator's acts tending to prove the existence of the conspiracy and, as such, the evidence was admissible against both the actor and his coconspirators even if the conspiracy had terminated at the time those acts took place. (Lutwak v. United States (1953) 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593; United States v. Bennett (2d Cir.) 409 F.2d 888, 893, cert. denied sub nom. (1969) Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101.)

John next assigns as error the introduction of four of seven cashier's checks offered against him. A bank teller testified that John purchased three of the checks from her. The bank's records indicate that John purchased all seven checks. On two of the checks the address listed for the purchaser is the same as that of the residence where John was arrested. A receipt for one of the questioned checks was found in the search of John's home. The direct and circumstantial evidence adequately supplied the foundation for the admission of all the checks.

His final evidentiary challenge is equally unavailing. He says that there was inadequate foundation for the admission against him of telephone records relating to a telephone listed in Rachel Robles' name because there was no...