United States v. Hernandez, 30339.

• Decision Date: 05 April 1971
• Docket Number: No. 30339.,30339.
• Citation: 441 F.2d 157
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 157 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Paul HERNANDEZ, Defendant-Appellant.

No. 30339.

United States Court of Appeals, Fifth Circuit.

April 5, 1971.

COPYRIGHT MATERIAL OMITTED

Clyde W. Woody, Marian S. Rosen, Woody & Rosen, Houston, Tex., for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., Edward B. McDonough, Jr., Raul A. Gonzalez, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Before GOLDBERG and DYER, Circuit Judges, and GROOMS, District Judge.

GROOMS, District Judge:

Appellant, Paul Hernandez, along with Santos Costillo Fernandez and Robert Munoz, was charged in a four-count indictment with violating Section 174 of Title 21 United States Code, relating to the unlawful importation, receipt, transportation, and concealment of eight pounds of heroin, and for conspiracy to commit those offenses. Prior to the trial of appellant, his co-defendants and co-conspirators entered pleas of guilty on separate criminal informations charging a violation of Section 4704(a) of Title 26 relating to the unlawful purchasing, selling, dispensing, or distributing of narcotic drugs except in or from the original stamped package.

Appellant, tried singly, was convicted on all four counts, and was sentenced to nine years on each count. The sentences run concurrently. After appellant's conviction the indictment was dismissed as to Fernandez and Munoz and sentences were then imposed on them on the informations.

Although this in forma pauperis record exceeds fifteen hundred pages the following with other facts presently appearing will suffice to pinpoint the alleged errors.

After receiving information that there was a large quantity of marijuana or heroin in Reynosa, Mexico, which would be smuggled into the United States, Customs agents stationed themselves at the port of entry at Hildalgo and began their surveillance of the vehicle involved and its two occupants. The agents followed the car to San Juan, Texas, where they stopped the car, conducted a search, and placed Fernandez and Munoz under arrest. There was recovered from the person of Munoz a quantity of heroin, and from the car four plastic bags containing heroin. After first denying knowledge of the contraband, Munoz told the agents that he had been contacted on Sunday, April 27, 1969, at the home of the appellant, Paul Hernandez, at which time appellant asked him if he wanted to make Five Hundred Dollars, that he gave an affirmative answer, and that appellant then told him to go to McAllen, Texas, obtain a room at a named motel and that a quantity of heroin would be delivered to him to bring to Houston, and that upon his arrival to call appellant at CA 6-8032 for further instructions. Fernandez told the agents Munoz was to receive $500.00, that he was asked to make the trip, that Munoz told him that he would give him one-half of whatever he got, that he had not been in on the deal originally with Hernandez. The Court permitted the two agents to give testimony as to these statements of Munoz and Fernandez.¹ The Court also admitted testimony of Fernandez and Munoz as to acts and statements of appellant after the arrest of the former. The action of the Court in admitting such testimony is made the basis of Specifications of Error One, Four and Seven.

Arrangements were made between Munoz and Fernandez with the agents in McAllen to convoy the heroin to appellant in Houston. Upon arrival in Victoria at 2:20 a. m. Munoz called appellant's number CA 6-8032 in Houston. The call was witnessed by the agents and overheard by Agents Rizzo and Wilson. Munoz inquired as to what he was to do with "the stuff" and was told to go to a motel, and call from there. The convoy continued to Houston and at 5 a. m. arrived at a motel where three rooms were engaged by Agent Rigsby. Soon thereafter Munoz accompanied by Agent Wilson called CA 6-8032, advising that he was in Room 33 at the named motel. Munoz was told to wait for Paul. About fifty-five minutes later appellant arrived, parked his car and entered Room 33. After instructions to Munoz to follow him four or five blocks, appellant left Room 33. The two vehicles left the motel, but appellant, becoming aware of surveillance, refused to take delivery. Shortly thereafter Munoz called appellant at CA 6-8032 and was instructed to change motels and to call him at 5 p. m. After changing motels Munoz called appellant twice and was given his room number. In the first conversation Munoz told him that he had placed "the stuff" in a locker box downtown^1A and that he had the key with him. In the second conversation Munoz told him that he would meet him either at the room or in the motel parking lot and would deliver to him the key to the locker. In a later call from appellant to Munoz appellant told Munoz that he would be at the parking lot in about five minutes to receive the key. Very shortly appellant came to the parking lot where Munoz met him and apparently delivered to him the key. Surveillance was immediately set up on the locker but was discontinued after it was concluded that appellant was not going to take delivery of the heroin. Appellant's arrest followed on May 5, 1969.

Unknown to appellant one or more of the agents were present with Munoz when the several telephone conversations occurred.

Even though appellant was unaware that one or more of the Customs agents were listening to at least one end of the several telephone conversations between Munoz and himself, the agents could give their testimony as to such parts of the conversations overheard by them. Rathbun v. United States, 355 U. S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134.

In Rathbun a police officer used a telephone extension in an adjoining room. This was claimed to be a violation of Section 605 of the Federal Communications Act, 47 U.S.C.A. 605. The court said:

"* * * The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. * * * The conduct of the party would differ in no way if instead of repeating the message he held out his handset so that another could hear out of it. * * * Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation." (Emphasis supplied)

Upon appellant's motion the trial court found that no evidence was obtained or uncovered by electronic eavesdropping or bugging. Its findings are sustained by the evidence.²

Equally unavailing is the contention that the court erred in permitting Munoz and Fernandez to testify as to acts of the appellant and conversations between them and the appellant.

The Specification of Error predicated upon the testimony of the Customs agents, as to statements made by Munoz and Fernandez after their arrest relating to their prior conversations with appellant, presents the crucial controversy of this appeal.

At this late date it cannot be controverted that confessions or admissions by one co-conspirator must be in furtherance of the conspiracy and when made by him after his apprehension are not in furtherance of the criminal enterprise. Fiswick v. United States, 329 U. S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196; Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213.

In Krulewitch v. United States, 336 U.S. 440, 443, 69 S.Ct. 716, 718, 93 L.Ed. 790, the court observed that the rule that,

"* * * hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been scrupulously observed by federal courts."

The Court has adhered strictly to this rule. Reference to only two decisions will suffice. Scarborough v. United States, 5 Cir., 232 F.2d 412; and Mosley v. United States, 5 Cir., 285 F.2d 226. In the former case the court admitted evidence of a Government agent as to statements of a co-conspirator after his arrest. This evidence was later excluded. The court stated that it was horn book law that such statements were inadmissible, and that under the peculiar circumstances its prejudicial effect could not be removed.

In briefs appellant relies upon, and appellee attempts to distinguish, Evans v. Dutton, 400 F.2d 826 (5 Cir.). However, since the briefs were published that case has been reversed, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210. Dutton involved testimony admitted under a Georgia statute, which allows a co-conspirator's out-of-court statement made during the concealment phase of the conspiracy. The testimony objected to related to a statement attributed to a co-conspirator implicating defendant, made after the co-conspirator's arrest and arraignment. The co-conspirator did not testify. The court refused to declare the statute invalid merely because it did not square with the more restricted hearsay exception applicable in federal conspiracy trials, saying:

"Appellee does not challenge and we do not question the validity of the coconspirator exception applied in the federal courts.

"That the two evidentiary rules are not identical must be readily conceded. It is settled that in federal conspiracy trials the hearsay exception that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. Lutwak v. United States, 344 U.S. 604 73 S.Ct. 481, 97 L.Ed. 593; Krulewitch v. United States, 336 U.S. 440 69 S.Ct. 716."

Both parties rely upon California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. That case involved a California statute which provides that "evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770."³ A...