United States v. King

• Decision Date: 07 February 1973
• Docket Number: 71-1029 to 71-1031.,No. 71-1256,71-1088,71-1256
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles KING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Manuel RODRIGUEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert BUTLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ted Dean BUTLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vincent ARIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

472 F.2d 1 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Charles KING, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Manuel RODRIGUEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Robert BUTLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ted Dean BUTLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Vincent ARIAS, Defendant-Appellant.

Nos. 71-1256, 71-1088, 71-1029 to 71-1031.

United States Court of Appeals, Ninth Circuit.

August 24, 1972.

As Amended on Denial of Rehearing February 7, 1973.

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Morris Lavine (argued), Norman J. Kaplan (argued), Barry Tarlow (argued), Eli Blumenfeld (argued), Los Angeles, Cal., for defendants-appellants.

Irving Prager, Asst. U. S. Atty. (argued), George G. Rayborn, David R. Nissen, Asst. U. S. Attys., Robert Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before BARNES, ELY and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Appellants Robert Butler and Ted Dean Butler (unrelated) were charged both with conspiracy to possess for sale and to sell dangerous drugs (amphetamine tablets and barbiturate capsules) in violation of 21 U.S.C. § 331(q) and 18 U.S.C. § 371, and with conspiracy to conceal, transport and sell heroin, in violation of 21 U.S.C. § 174 and 18 U.S.C. § 371. Appellants Vincent Arias, Manuel Rodriguez and Charles King were charged only in the conspiracy to possess for sale and to sell dangerous drugs.

The trial court, after defense motions, severed the trial on the dangerous drug count from the trial on the count relating to heroin. The jury returned a guilty verdict as to each defendant at the conclusion of both trials. Appellants together charge sixty-two errors in this appeal.

TRIAL OF THE BUTLERS ON THE HEROIN COUNT

The Butlers allege error of constitutional dimensions based upon the introduction into evidence of various taped telephone conversations that took place between them and John Durden, a cooperating, unindicted co-conspirator.¹ With Durden's consent, the recordings were made by connecting the telephone he was using with a tape recorder. There is no error. In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Supreme Court approved the testimony of government agents who related warrantless electronically monitored conversations between the defendant and a consenting informant, and stated that the Fourth Amendment ". . . affords no protection to `a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.'" 401 U.S. at 749, 91 S.Ct. at 1125. See also Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Lopez v. United States, 373 U.S. 427, 438-439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

The Butlers further contend that their rights to counsel and to be free from self-incrimination were violated by the unseen and unheard monitoring of their conversations. They present the interesting argument that, since Durden was calling them at the request of government narcotics agents, they had a right to be warned of their right to counsel before they spoke, citing Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Appellants have failed to appreciate the rationale of the holdings in those cases. Aside from other reasons at the time of the recorded telephone calls, the record does not demonstrate appellants had been indicted and were represented by counsel as in Massiah; nor are the facts of this case comparable with Escobedo where the investigation had reached the "accusatory" phase, the defendant had been arrested and his request for an attorney denied. In this case, appellants were clearly suspected of criminal activity and were being investigated. To grant a right to counsel under such circumstances, including a right to advice of such a right, would be to mutate a constitutional right into a denial of the right of the public to have criminal activity thwarted. There is no right to counsel while one is committing a crime. Grier v. United States, 345 F.2d 523, 524 (9th Cir. 1965).

The Butlers also assert that the trial court committed reversible error by allowing the jury to hear tapes of and simultaneously read transcripts of Durden's half of the recorded conversations, contending that "a great mass of prejudicial hearsay" was thereby allowed into evidence. No particulars of the "great mass" were pointed out by counsel. While it is true that a few of Durden's statements contained narrative statements of events not strictly in furtherance of the conspiracy, none of those statements could reasonably be said to be so prejudicial as to constitute reversible error. The court made a very meticulous effort to excise all such narratives which, in its judgment, could be construed to be irrelevant, and refused to allow the transcripts into evidence, thereby avoiding any potential reinforcement of Durden's half of the conversations. For the Judge to have excised all of Durden's half of the discussions would have rendered the recorded conversations, which were legitimate evidence, unintelligible.

Except as indicated later, we find the remainder of the arguments raised by the Butlers regarding the trial on the heroin count to be devoid of merit.

THE DANGEROUS DRUG TRIAL

I

All of the appellants claim that they were prejudiced by misconduct of the prosecutor. The principal witness for the government was John Durden who had been caught by federal narcotics agents and apparently decided to cooperate by assisting the agents in their efforts to secure evidence against his fellow conspirators in hopes of receiving lenient treatment for himself.² During the course of the trial, Durden's credibility was frequently and vigorously attacked. One of the principal lines of assault comprised asking Durden whether in fact the pending indictment against him was going to be dismissed in consideration of his testimony against the defendants. To this question, he answered "no."

Appellants argue that, by allowing such testimony to go uncorrected, the prosecutor was acquiescing in the knowing use of false evidence in the manner forbidden by Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and more recently condemned in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, such an argument is based upon the premise that a promise of dismissal had definitely been made to Durden and that this alleged promise was known to the prosecution. The government has at all times denied such a promise, and there is no evidence in the record to the contrary.

As a corollary to their "false evidence" argument, appellants contend that the trial court committed reversible error by not allowing them to argue to the jury that Durden's testimony was not worthy of belief since he had been promised a dismissal if he testified against the defendants. The trial judge stated he would allow counsel to argue that Durden had great expectations of a dismissal as anyone in a similar position would have. Under the circumstances, it was not unduly restrictive to prevent counsel from arguing that a dismissal was in fact forthcoming.

II

All of the appellants challenge the admission into evidence against them of certain items seized by the police: a ledger taken from the purse of Mrs. Rodriguez, the wife of co-defendant Manuel Rodriguez, various scraps of paper with writing thereon taken from a trash container in front of the home of Leo Lovato, an indicted co-conspirator who fled before the trial, and two ledgers and some papers seized from a footlocker found in the garage of Leo Lovato. The bases of attack are that the items were secured by illegal searches and seizures and should have been suppressed and that the items lacked any foundation or authentication and were inadmissible.

As to the search of Lovato's trash container and locker, the trial court correctly ruled that the Butlers and Arias lacked standing to move for suppression.³ Neither the Butlers nor Arias had any proprietary interest in the items in question, nor were they persons against whom the searches in question were directed. Alderman v. United States, 394 U.S. 165, 173-175, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Shea, 436 F.2d 740 (9th Cir. 1970); United States v. Toliver, 433 F. 2d 867 (9th Cir. 1970), cert. denied, 401 U.S. 913, 91 S.Ct. 882, 27 L.Ed.2d 812 (1971).

Regarding the ledger book seized from Mrs. Rodriguez, both appellant Rodriguez and his wife submitted affidavits in connection with the pre-trial motion to suppress, swearing that the ledger book belonged to Manuel Rodriguez. Assuming, without deciding, that Rodriguez did have standing to move to suppress, examination of the circumstances surrounding the seizure reveals that the police did not overstep the bounds set by the Fourth Amendment. Rodriguez was arrested pursuant to information that there was a warrant for his arrest for federal narcotics laws violations. At that time Rodriguez was sitting in a car in a parking lot along with his wife and son; the latter was in the driver's seat. After the arrest of Rodriguez, he and his son were questioned regarding the registration of the vehicle. The son said the car belonged to his father, whereas Rodriguez stated that he had borrowed the vehicle from a friend. A radio check revealed that the license plates on the vehicle were registered to another vehicle. Mrs. Rodriguez and the son were questioned further regarding the vehicle's registration and, upon their failure to give a satisfactory explanation, were placed under arrest for suspicion of grand theft auto. Pursuant to that arrest, Mrs. Rodriguez was...