United States v. Ledesma

• Decision Date: 21 May 1974
• Docket Number: No. 73-1583,73-1582.,73-1583
• Parties: UNITED STATES of America, Appellee, v. Jim Ladesma [LEDESMA], Appellant. UNITED STATES of America, Appellee, v. Oscar Venicio QUIROZ-SANTI, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.2d 36 (1974)

UNITED STATES of America, Appellee, v. Jim Ladesma LEDESMA, Appellant. UNITED STATES of America, Appellee, v. Oscar Venicio QUIROZ-SANTI, Appellant.

Nos. 73-1583, 73-1582.

United States Court of Appeals, Ninth Circuit.

May 21, 1974.

COPYRIGHT MATERIAL OMITTED

Martha Goldin (argued), Alan Saltzman, of Saltzman & Goldin, Hollywood, Cal., for appellant in 73-1583.

Michael Kenney, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellee in 73-1583.

Carl E. Stewart (argued), of Eilers, Stewart, Pangman & Millar, Newport Beach, Cal., for appellant in 73-1582.

Michael Kenney, Asst. U. S. Atty. (argued), D. Henry Thayer, Eric A. Nobles, Asst. U. S. Attys., William D. Keller, U. S. Atty., for appellee in 73-1582.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and THOMPSON,^* District Judge.

OPINION

ALFRED T. GOODWIN, Circuit Judge:

Jim Ledesma and Oscar Venicio Quiroz-Santi appeal their convictions for conspiring to possess and distribute cocaine in violation of 21 U.S.C. § 846 and for possessing, with intent to distribute, cocaine in violation of 21 U.S.C. § 841(a)(1). They assert errors in the admission of evidence and also seek reversals for insufficiency of the evidence. We affirm both convictions.

In November, 1972, Nancy Pena of North Hollywood, California, received a letter from her adopted sister, Isabelle Soto, an unindicted co-conspirator living in Chile. Soto requested a telephone number at which Pena could be reached. Pena had no telephone of her own, so she sent Soto the number of a friend and neighbor, Dora Acerbi. Beginning early in December, Pena received a series of calls on Acerbi's telephone from Soto, in which the two discussed Soto's plan to visit Pena in Los Angeles. Later, Soto canceled these travel plans, but said that instead, she would be sending presents for Pena's children.

On December 1, 1972, a trunk from Chile arrived at the Los Angeles airport addressed to Pena. A routine customs inspection revealed over 22 pounds of cocaine concealed under a false bottom in the trunk. When Pena arrived at the airport to claim the trunk, she was arrested by Customs agents. After deciding that Pena probably had no knowledge of the cocaine smuggling, the agents sought and received her cooperation in their investigation. At their request she called Soto in Chile to report the arrival of the trunk. Soto called back later that day to advise Pena to save the trunk until she could reclaim it. Both these conversations were recorded by the government, with Pena's permission.

Meanwhile, Customs Agents removed most of the cocaine and replaced it with a filler that resembled cocaine, leaving only a sufficient quantity of the drug to serve, if needed, as evidence.

On December 8, Pena received another call from Soto in which Soto told Pena that two men, whose names were Benevadas and Castro, would pick up the trunk shortly.

On the afternoon of December 11, Pena's neighbor, Acerbi, received a telephone call from Ledesma seeking Pena's new address. Acerbi gave Ledesma the address, and that evening Ledesma arrived in a taxi at Pena's apartment. Quiroz-Santi followed Ledesma in a rented automobile, and remained in his car. After undercover agents had returned with the trunk, it was loaded into Ledesma's waiting taxi. Ledesma, still followed by Quiroz-Santi, then returned to their motel room in Hollywood. The trunk was stored in the room, and Ledesma and Quiroz-Santi left the motel and did not return until early the next morning.

That afternoon, after Quiroz-Santi had bought a lock for the trunk, he and Ledesma took the trunk to a railway-express office and arranged to have it shipped to Ledesma, under an assumed name, in New York City. Ledesma and Quiroz-Santi were arrested that evening. Customs agents also seized the trunk at the railroad station. Two days later, with a search warrant, the agents searched the trunk and discovered that the false bottom and the concealed cocaine had not been disturbed.

Ledesma and Quiroz-Santi testified in their defense. They said they had come from New York on a vacation and had met a man in a cocktail bar who asked them to pick up a trunk of his from a friend and to send it on to New York. He agreed to pay Ledesma $150 and to assist him in finding a rent-controlled apartment back in New York in exchange for Ledesma's assistance. Ledesma consented. Quiroz-Santi did not take an active part in the conversation, but did assist Ledesma in claiming and attempting to forward the trunk. Both Ledesma and Quiroz-Santi denied any knowledge that cocaine was hidden in the trunk.

Both defendants object to the admission in evidence of the trunk and the cocaine contained within it, and of the recorded conversations between Soto and Pena. Both also claim that in any event the evidence was insufficient to support their convictions.

I. The Trunk

Although the trunk was not searched the second time until after a search warrant had been obtained, it was lawfully seized by government agents at Customs, and remained subject to governmental seizure and control thereafter while it was being used as bait. See 21 U.S.C. § 881(a)(3).

There was no prejudicial error in refusing to grant Quiroz-Santi an evidentiary hearing on his motion to suppress. Rule 41(e), Federal Rules of Criminal Procedure, provides that the court "shall receive evidence on any issue of fact necessary to the decision of the motion." Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required. Cohen v. United States, 378 F.2d 751, 760-761 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967).

In the present case we need not decide whether Quiroz-Santi's motion met the Cohen standard. Although a pretrial evidentiary hearing could have been conducted, the Customs agents involved in the seizure testified at the trial. Quiroz-Santi examined them thoroughly on the circumstances surrounding the surveillance of the defendants and the trunk. While the practice of consolidating the suppression hearing with the trial is not to be commended in all cases, the defendants here were not prejudiced by the denial of a separate hearing, and no reversible error occurred.

As property subject to forfeiture, see 21 U.S.C. § 881(a)(3), the trunk was properly seized by Customs agents when they took possession of it from the railway-express office at which it had been left. See 21 U.S.C. § 881(b)(4); cf. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Although we need not decide whether the agents could have entered a private residence without a warrant in order to seize the trunk, we have no difficulty in holding that they acted properly in seizing a trunk, known to have been used to smuggle cocaine, from a railroad shipping office. Since the seizure was legal, the motion to suppress was correctly denied, and the trunk and its contents were properly admitted into evidence.

II. The Soto-Pena Conversations

Ledesma and Quiroz-Santi also objected on hearsay grounds to the admission of testimony and transcriptions of telephone conversations between Nancy Pena and Isabelle Soto. The government counters by arguing that Soto's statements were properly admitted as those made by a co-conspirator during the course of the conspiracy.

Before out-of-court conversations of a co-conspirator may be used as evidence against a defendant, there must be proof from a source apart from the statement: (1) that a conspiracy existed, and (2) that the member against whom the conversation is introduced had knowledge of and participated in the particular conspiracy alleged. See Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972); United States v. Bentvena, 319 F.2d 916, 949 (2d Cir. 1963). In United States v. Griffin, 434 F.2d 978, 983-984 (9th Cir. 1970), cert. denied sub nom. Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), we quoted with approval from United States v. Ragland, 375 F.2d 471 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968), where Judge Waterman of the Second Circuit wrote:

"* * * Once some conspiracy, agency or concert of action is independently shown * * *, hearsay statements made in furtherance of such relationship * * * are admissible. However, the independent evidence need not, as appellant suggests, be so clear and convincing as to compel, absent contradiction, a finding of the fact sought to be proved.

"The threshold requirement for admissibility is satisfied by a showing of a likelihood of an illicit association between the declarant and the defendant although it might later eventuate that the independent evidence so admitted proves to be insufficient to justify submitting to the jury the issue of defendant\'s alleged guilty involvement with declarant * * *. In determining preliminary questions of fact relating to admissibility of the hearsay the trial judge has wide discretion * * * and need only be satisfied, if he accepts the independent evidence as credible, that that evidence is sufficient to support a finding of a joint undertaking * * *.

"Moreover, the independent evidence of illicit association may be totally circumstantial * * *. Nor is it necessary in this circuit that such independent evidence be inconsistent with all reasonable hypotheses of innocence, as appellant suggests, * * * to legitimate its admissibility * * *." 375 F.2d at 476-477. (Emphasis in original.)

The foundation evidence here meets this standard. First, there was independent proof that a conspiracy existed. We note that the 22 pounds of cocaine contained in the trunk was the equivalent of some 100,000 dosages and...