United States v. Jiminez-Lopez, 26149.
| Decision Date | 23 February 1971 |
| Docket Number | No. 26149.,26149. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel JIMINEZ-LOPEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pedro JIMINEZ-LOPEZ, Defendant Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jo Ann D. Diamons (argued), Tucson, Ariz., for appellants.
Ann Bowen (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Tucson, Ariz., for appellee.
Before MADDEN,* Judge of the United States Court of Claims, MERRILL and HUFSTEDLER, Circuit Judges.
A federal grand jury at Tucson, Arizona, returned an indictment against the appellants. Count I charged them with a violation of 21 U.S.C. § 176a by having knowingly and with intent to defraud the United States, received, concealed and facilitated the transportation and concealment of approximately 850 pounds of marijuana, at approximately 25 miles north of Sasabe, Arizona, after the marijuana had been imported into the United States contrary to law, i. e. without the marijuana having been declared and presented for inspection to a United States Customs Officer at the port of entry as required by 19 U.S.C. § 1461. Count II charged appellant Juan Manuel Jiminez-Lopez, hereinafter Juan Manuel, with violation of 8 U.S.C. § 1325 in that he was an alien and had entered the United States from Mexico at a time and place other than as designated by U.S. Immigration Officers, i. e. near Sasabe, Arizona, and after such entry did elude examination and inspection by U.S. Immigration Officers until he was apprehended in Arizona. In Count III of the indictment, the appellant Pedro Jiminez-Lopez hereinafter Pedro, was charged with a violation of 8 U.S.C. § 1325, similar to the charge recited above, against Juan Manuel.
Juan Manuel pleaded guilty to Count II and Pedro pleaded guilty to Count III of the indictment. Each was sentenced to six months imprisonment on his plea of guilty.
On May 20, 1970, the appellants were tried in a jury trial on Count I of the indictment. The jury returned a verdict of guilty as to each appellant. The court entered judgments on the verdicts and sentenced each appellant to seven years imprisonment, the sentences to run concurrently with the six month sentences previously imposed. They were granted leave to appeal in forma pauperis and did so. The issues presented on the appeal as stated by the appellants, are:
The issues as recited above will become more understandable as the discussion develops.
Juan Manuel testified at the trial that he is a citizen of Mexico, and lived at Altar, Sonora, in that country; that he owned his own truck; that while in Santa Ana on the afternoon of March 17, 1970, on business, he met Juan Manuel Medina whose business was "taking things from here to there". Medina told Juan Manuel that he wanted Juan Manuel to drive a truck for him "through the fence" for 5,000 pesos which is $400.00 American money. Medina told him he would be carrying contraband but did not tell him what it was. Juan Manuel agreed to do what Medina requested because it appeared to him to be easy and he needed the money. Arrangements were made to meet at six o'clock. Juan Manuel was not to use his own truck; Medina was to load the truck which Juan Manuel was to drive to Tucson. They met at six o'clock. Medina told Juan Manuel that he, Medina, would meet him, or get someone to meet him, at a market, by giving a signal on Ajo Way, at the approach to Tucson; that whoever would meet Juan Manuel there would get him back to Mexico.
When Juan Manuel took charge of the loaded truck, he drove to Altar, where he lived. He saw hay in the back of the truck but he did not open the truck. He stopped in Altar and asked his brother Pedro (the co-appellant herein) to go with him to Tucson, "so that if something happened on the way he wouldn't be by himself." He told Pedro nothing more than that they were going to Tucson. They left Altar between nine and ten in the evening. Juan Manuel drove all the way. When they reached the border Pedro lowered the wires of the border fence, the truck was driven across the border, Pedro put the wires back in place and the journey toward Tucson was resumed. They were stopped at about 2:00 A.M., about 30 miles from Sasabe and were asked for their passports. After some conversation they were asked to get into the official patrol car. They did so and were taken to a Customs Station, to which the truck was also taken.
Testimony given by customs officials was to the effect that the truck driven by Juan Manuel contained some 850 pounds of marijuana, packaged in small packages of the shape and size typical for the handling of marijuana, the packages being concealed by being covered by several bales of hay and a considerable quantity of loose hay. A Government witness with some expertise in the subject, placed a value of $70,000.00 to $90,000.00 on the marijuana in the load.
There is no issue in this appeal regarding the sufficiency of the evidence to support the conviction of Juan Manuel. We will now repeat and discuss the first issue raised by the appellants. It is:
Did the court, by allowing Government counsel to ask why the wrappers were not sent for fingerprint examination and had heard what the answer was going to be, commit prejudicial error?
The customs officials had questioned the appellants after a Miranda type warning which warning the trial judge had held, in a suppression hearing before the trial, to be, in the circumstances, inadequate. The answers were therefore suppressed. In the cross-examination by appellants' counsel of a government witness, Cavitt, the witness was asked whether he had sent a certain one of the packages containing marijuana to the government's fingerprint experts for examination. The question was relevant to the issue of whether Juan Manuel or Pedro or both were aware that there was marijuana in the truck. This was, and still is, with regard to Pedro, a debatable issue in the case but it could have been eliminated as an issue if Pedro's fingerprints had been found on the package of marijuana. Cavitt's answer to the question was "I did not". On redirect examination of Cavitt by government counsel, counsel, outside the hearing of the jury, obtained the consent of the court to ask Cavitt why he had not submitted the package for examination for fingerprints, and to receive his answer which would be "I did not submit them (sic) because of statements from the defendant". Counsel for the appellants objected to the proposed question and answer; the objection was overruled; the question was asked; the answer was "Because of a statement made by Juan Manuel". That was the end of the dialogue. Counsel and the court correctly assumed that the "statement" referred to by the witness Cavitt was something that Juan Manuel had said in answer to questions asked him during the interrogation which took place after the inadequate Miranda warning referred to above.
In this appeal the appellants' first issue, as we have seen, is that the admission of the reference of the witness to a statement which had been suppressed in the pre-trial hearing was erroneous and prejudicial. The government urges that, in the circumstances, the question and answer were proper. It says that the appellants brought the incident out by asking the witness Cavitt, on cross-examination, whether he had had the package examined for fingerprints. The government says that that question was asked for the purpose of discrediting the witness by showing that he had, apparently, made a less than thorough investigation of the case which the government was about to bring against the appellants. We think it is obvious that appellants' counsel asked the question to bring out the fact that the appellants' fingerprints were not found, nor even looked for, on the package, and to suggest the inference that they weren't even looked for because it was feared that none would be found if they were looked for. We have already adverted to the importance which...
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...(2000). But I would note that some courts have applied a harmless error analysis to a law of the case issue. See United States v. Jiminez-Lopez, 437 F.2d 791 (C.A.9, 1971), and State v. Bradford, ___ Ohio App.3d ___, ___ N.E.2d ___, 2005 WL 1009821 (2005), lv. pending 106 Ohio St.3d 1532, 8......
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U.S. v. Estrada-Lucas
...evidence at first trial rebutted presumption of sanity, but evidence at second trial was insufficient to do so); cf. United States v. Jimenez-Lopez, 437 F.2d 791 (9th Cir.), cert. denied, 402 U.S. 1010, 91 S.Ct. 2195, 29 L.Ed.2d 432 (1971) (pretrial order suppressing evidence was law of the......