United States v. Lugo-Baez

• Decision Date: 20 June 1969
• Docket Number: No. 19378.,19378.
• Citation: 412 F.2d 435
• Parties: UNITED STATES of America, Appellee, v. Gilberto LUGO-BAEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

412 F.2d 435 (1969)

UNITED STATES of America, Appellee, v. Gilberto LUGO-BAEZ, Appellant.

No. 19378.

United States Court of Appeals Eighth Circuit.

June 20, 1969.

John L. Boeger, St. Louis, Mo., for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., on the brief.

Before MATTHES, MEHAFFY and LAY, Circuit Judges.

MEHAFFY, Circuit Judge.

Gilberto Lugo-Baez, defendant, was convicted by trial to a jury on each count of a two-count indictment charging him with unlawfully transporting heroin from Los Angeles, California to St. Louis, Missouri in violation of 26 U.S.C. § 4724(b) and with unlawfully concealing heroin imported illegally into the United States in violation of 21 U.S.C. § 174.¹ The trial court sentenced defendant to a term of eight years on each count. We affirm the judgment of conviction.

Broadly stated, defendant here asserts as grounds for reversal:

(a) The impropriety of the trial court's denial of his motion to suppress evidence of the heroin seized from the undergarments of Amparo Del Castillo-Angulo, defendant's girl friend who accompanied him to St. Louis from Tijuana, Mexico, during the simultaneous arrest and search of defendant and Angulo. It is contended that defendant had standing to challenge the search of Angulo as the officers lacked probable cause for her arrest, and consequently the search was violative of the Fourth Amendment;

(b) The insufficiency and vagueness of the indictment as it did not allege willfulness, an essential element of the crime;

(c) The insufficiency of the evidence to support the conviction of defendant as an aider and abettor; and

(d) The statutes under which defendant was convicted are constitutionally invalid because they violate defendant's Fifth Amendment rights.

A pretrial hearing was held upon the motion to suppress. Richard M. Patch, an agent of the Federal Bureau of Narcotics, testified at this hearing as well as at the trial. In the former, he testified that he received a call from a named reliable informant who had been assisting the Government for some time, advising him that she had received a long distance telephone call from a person who gave the name of Gilbert. Gilbert explained that he had gotten her number from a friend of hers in Los Angeles who told him that she was a narcotics dealer in St. Louis. The informant told "Gilbert" in the first telephone conversation that she was interested in buying ten or twelve ounces of heroin but would first have to check with her "old man," and that she would have to call him back. Gilbert gave her his Los Angeles telephone number and told her to ask for Room 10. The Government ascertained that this number was that of a motel in Los Angeles. The informant immediately notified Agent Patch and on the following day he called the telephone number in Los Angeles and talked to someone in Room 10 who told him that Gilbert was in Tijuana, Mexico to get some "stuff." "Stuff" in the jargon of narcotics peddlers and users means heroin.² Again, on December 10 and 11, Agent Patch made unsuccessful attempts to communicate with Gilbert by telephone.

On December 12 Agents Patch and Hoerner were at the informant's residence when Gilbert called shortly after six p. m. St. Louis time and talked to Patch, assuming that he was the informant's "old man." Gilbert advised that he was at the Los Angeles Airport and was bringing approximately ten ounces of heroin to St. Louis. Gilbert told Patch that he had plane reservations on TWA Flight 96, which would arrive in St. Louis at 11:40 p. m., and that he also was on stand-by on Flight 78, which would arrive in St. Louis at 9:40 p. m. St. Louis time. (There appears to be a clerical error as to the exact arrival time of this flight as there is testimony that its arrival time was 9:40 p. m. and also 10:40 p. m.) Gilbert described himself and what he would be wearing and advised that he would be accompanied by his girl friend, who he also described, and said she would be attired in a green slack suit.

Agent Patch and local officers went to the airport in time to meet the first plane and recognized defendant and Angulo as they deplaned from the descriptions furnished by Gilbert. The officers watched the two as they went to the baggage area to receive their luggage and then arrested them. Finding nothing in a cursory search, they were taken into the police office at the airport where their luggage was searched and a more thorough search of their persons was conducted. Angulo was taken by a policewoman into a separate room in the police office and the search there produced a package wrapped in a cellophane bag, the contents of which were determined by chemical analysis to be heroin in substantially the amount Gilbert had advised he would bring to St. Louis.

Codefendant Angulo testified that she had lived several days with defendant in a hotel in Tijuana, Mexico, and that on December 12 they left Tijuana and drove to San Diego, California in defendant's car; from San Diego they went by plane directly to the Los Angeles Airport where she saw defendant make a telephone call which he said was to someone in St. Louis who was expecting them to bring a package. He gave her the package and she went into the ladies' room and hid it in her underclothing, but professed that she did not look at it. She assumed something was wrong because she was to hide the package in her clothing. Angulo's trial was set for a future date, and the record here does not show what disposition has been made of her case. Angulo could not speak English and testified through an interpreter. Defendant did not testify nor offer any evidence in his defense.

It is first asserted that the trial court erred in overruling defendant's motion to suppress as the heroin seized from the codefendant and introduced in evidence was the result of a warrantless and unlawful search for the reason that the officers lacked probable cause. As a preliminary, defendant cites and analyzes cases on defendant's standing to challenge the search, and the Government also presents its argument based on analysis of cases cited by defendant as well as other cases, none of which we think has any bearing on the issue here because common sense dictated that under the circumstances in this case the officers had probable cause to arrest both defendant and Angulo and simultaneously to search them, and indeed would have been derelict in their duty had they failed to act as they did. We realize that the time element is not the decisive factor in the reasonableness of a warrantless arrest and search, but nonetheless point out that Gilbert's call to Agent Patch was a few minutes after six p. m. and it is doubtful that the officers could have had time to prepare the necessary affidavits and obtain warrants from a magistrate and then proceed to the airport in time to be there upon arrival of the first of the two flights defendant had said they might take. Indeed, they arrived on the earlier nonstop flight from Los Angeles.

We have often and recently stated the general rule on the standard of probable cause applicable for a warrantless arrest. In Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), this court, speaking through Judge Blackmun, said:

"The Supreme Court and this court on many occasions have enunciated the standard of probable cause applicable for a warrantless arrest. `Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.\' (Citations omitted.)"

It is settled law that a search incident to a lawful arrest is legal.³ This is a much stronger case on the facts than was Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), where the Court held there was probable cause for an arrest when a reliable, paid informant told the narcotics agent that Draper was peddling narcotics, had gone from Chicago to Denver, and would return on the morning of the 8th or 9th by train, describing his dress, his walk, and the fact that he would be carrying a tan zipper bag. In the instant case, we have not only the information furnished the narcotics agents by a reliable and named informant, but also the numerous telephone calls, and particularly the one from defendant advising that he was leaving Los Angeles accompanied by his girl friend, giving their descriptions, the numbers of the flights, etc., for the delivery of the narcotics. The information furnished by defendant himself strongly buttresses the information obtained by the informant, either of which in our view would be sufficient to justify warrantless arrests of both defendant and codefendant and their immediate search incident to their lawful arrests.

It is next asserted that the trial court erred in overruling defendant's motion to dismiss which was based on the ground that the indictment was insufficient and vague as it failed to allege an essential element (willfulness) of the crime for which defendant was convicted. Neither of the statutes under which defendant was convicted contains the word "willfulness" and the indictment on each count was framed in the words of the respective statute.⁴

All that is required under Fed.R.Crim. P. 7(c) is that the indictment be a plain, concise and definite written statement of the essential facts constituting the offense charged. This we noted in Rood v. United States, 340 F.2d 506, 510 (8th Cir. 1965), cert. denied, 381 U.S. 906, 85 S.Ct. 1452, 14 L.Ed.2d 287 (1965), where we said:

"An indictment is deemed good when it informs the accused of the offense with which he is charged with sufficient specificity to enable him to prepare his defense and to avoid the danger of the accused being again prosecuted for the same offense."

In Rood, we quoted from Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959), wherein the Supreme Court observed that:

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