United States v. Gomez

• Decision Date: 21 March 1972
• Docket Number: No. 71-1352.,71-1352.
• Citation: 457 F.2d 593
• Parties: UNITED STATES of America, Appellee, v. Bernardo Tovar GOMEZ, a/k/a Jorge Arturo Gaviria-Ochoa, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

457 F.2d 593 (1972)

UNITED STATES of America, Appellee, v. Bernardo Tovar GOMEZ, a/k/a Jorge Arturo Gaviria-Ochoa, Appellant.

No. 71-1352.

United States Court of Appeals, Fourth Circuit.

Argued December 6, 1971.

Decided March 21, 1972.

Bruce C. Bereano (Court-appointed counsel), Washington, D. C., for appellant.

David H. Hopkins, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on the brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.

BOREMAN, Senior Circuit Judge:

On October 7, 1970, Pan American Flight 542 arrived at Dulles International Airport in Virginia after a nonstop flight from Guatemala City. All passengers were presented for customs inspection and those who were to continue to the termination point of the flight, Kennedy Airport, New York, would then reboard the plane. Appellant, a Columbian national, who had boarded the flight in Bogota, presented to Immigration Officer Turnage a Columbian passport in the name of Dr. Bernardo Tovar-Gomez, and a control document indicating his intent to visit one Rosa Giraldo in New York. Proceeding through customs appellant was directed by a Customs Inspector, Greenhouse, to empty the pockets of his jackets. After the appellant had pretensively done so, Greenhouse personally inspected the jacket and found it to contain an item not produced by appellant—a small packet of aluminum foil containing a white powder which was shown by a field chemical test to be composed of the drug cocaine.

Appellant was then directed aside to an inspection room where he was completely searched and then questioned by Agent Julian Lindenauer of the Customs Agency Service, who spoke fluent Spanish. In response to a question directed by Lindenauer the appellant stated that he was not Gomez but Jorge Arturo Gaviria-Ochoa. At this point appellant was placed under arrest and given a standard Miranda warning. Sometime during the course of the conversation which followed Lindenauer was informed by an official that a suitcase which the appellant was carrying had been found to contain a false bottom in which five pounds of cocaine were secreted. Appellant denied any knowledge of the contents of the false bottom, stating that the suitcase had been given to him by a recent acquaintance, Juan Arango, in Bogota. He admitted taking the small packet, "out of curiosity," also from Arango. He further stated that he had received from Arango the false passport, his round trip ticket to the United States, and three hundred American dollars. He denied having been in the United States before and stated that Rosa Giraldo was a fictitious person.

Appellant was indicted as Bernardo Tovar-Gomez a/k/a Jorge Arturo Gaviria-Ochoa, and was convicted by a jury of the knowing importation into the United States of a narcotic drug, cocaine, in violation of 21 U.S.C. § 174.

At trial Lindenauer was called as a witness and undertook to testify as to statements made to him by appellant during the interrogation at Dulles Airport. Appellant's counsel objected to the admission of the inculpatory statements for the reason that they were involuntarily made to Lindenauer. Government counsel then advised the court that the prosecution was prepared to conduct an Inman hearing and it appears that proceedings were held out of the presence of the jury. Appellant testified before the court that when Lindenauer was momentarily absent from the room in which the interrogation was being conducted an "officious looking man in a blue shirt" warned or threatened appellant that if he did not talk or tell the truth he could "get twenty to twenty-five years." He further stated that he then made additional statements, some inculpatory and some exculpatory, to Lindenauer. Defense counsel then renewed his objection to the admission in evidence of any statement made by the appellant during the period of questioning which followed the intimidating warning.

The court advised the parties that, if the statements to Lindenauer were found to have been made involuntarily, all of them, both inculpatory and exculpatory, would be excluded. The court was attempting to explain the result of a possible ruling in appellant's favor and made the unequivocal statement "It is either all admissible or none of it is." At that point defense counsel requested the opportunity to confer with his client and shortly thereafter stated: "Your Honor, after conferring with my client I would like to withdraw my objection." The judge made no ruling on the voluntariness of appellant's statements to Lindenauer but did indicate that, but for the withdrawal of the objection, he would have ruled at that stage of the proceedings that the statements were voluntarily made.

The appellant urges that the trial court erred in ruling that the appellant's damaging admissions made upon arrest at the time of his arrival into the United States were voluntarily made¹ and that the court erred in failing in its charge to the jury to submit the issue of voluntariness of the appellant's admissions for ultimate determination by the jury. To support this contention he relies upon two decisions of this court, United States v. Inman, 352 F.2d 954 (4 Cir. 1965), and Mullins v. United States, 382 F.2d 258 (4 Cir. 1967). Perhaps as an over-simplification of the holding in these cases it may be said that together they stand for the proposition that the trial court must make a threshold determination in a hearing conducted out of the presence of the jury of the voluntariness of profferred statements or admissions and, if found to have been voluntarily made and admissible in evidence, must advise the jury in its charge that before giving any weight to such statements or admissions the jury must be satisfied beyond a reasonable doubt that the statements or admissions were made voluntarily. The appellant emphasizes that these cases specifically direct that these procedures should be followed by the trial court even in the absence of an objection to the admission of the statements or in the absence of a request for a specific instruction to the jury as to voluntariness.

We reach the conclusion, however, that in the circumstances of this case appellant's reliance upon Inman and Mul...