United States v. Martinez, 23769-23771.

• Decision Date: 18 June 1970
• Docket Number: No. 23769-23771.,23769-23771.
• Citation: 429 F.2d 971
• Parties: UNITED STATES of America, Appellee, v. John Marez MARTINEZ, Appellant. UNITED STATES of America, Appellee, v. Manuel A. ROJAS, Jr., Appellant. UNITED STATES of America, Appellee, v. Carlos Perez HAMILTON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

429 F.2d 971 (1970)

UNITED STATES of America, Appellee, v. John Marez MARTINEZ, Appellant.

UNITED STATES of America, Appellee, v. Manuel A. ROJAS, Jr., Appellant.

UNITED STATES of America, Appellee, v. Carlos Perez HAMILTON, Appellant.

Nos. 23769-23771.

United States Court of Appeals, Ninth Circuit.

June 18, 1970.

Thomas A. Zlaket (argued for #23769), Leon Thikoll (argued for #23770), James Johnston, Gilbert Gonzales (argued for #23771) Tucson, Ariz., for appellants.

JoAnn D. Diamos (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Tucson, Ariz., for appellees.

Before HAMLEY, BROWNING and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

John Marez Martinez, Manuel A. Rojas, Jr., and Carlos Perez Hamilton, were jointly tried before a jury and convicted on the various narcotic charges set forth in the joint indictment summarized in the margin.¹ They have prosecuted separate appeals which we have consolidated for argument and disposition.

We first summarize the evidence tending to support the conviction. About 8:00 p. m. on September 12, 1968, one day prior to the count one narcotics transaction, Phillip Jordon, an agent of the Bureau of Narcotics and Dangerous Drugs, went to Rojas' home in Tucson, Arizona. Giving his name as Victor (Vic) Forti, Jordan told Rojas he was looking for Julian and Tony, two narcotics addicts, in order to purchase some heroin. Rojas called Martinez, who was sitting in another room of Rojas' home, and introduced him to "Victor Forti." Jordan repeated his story to Martinez, adding that he wanted to take some heroin back to the West Coast.

Jordan then asked Rojas if the latter could sell him some heroin since he could not locate Julian or Tony. Rojas asked Martinez if it would be possible to get some heroin that night. Martinez replied that he would try. Rojas then instructed Martinez to get the heroin and told Jordan to return to Rojas' house about 9:30 p. m. At approximately 9:45 that evening, Jordan went back to Rojas' home and was met by Martinez outside the house.

Martinez told Jordan that everything was ready and that he would be able to sell the heroin. He said, however, that he wanted to see the money first. Some discussion ensued, and it was finally agreed that if Jordan decided to purchase the heroin, he would meet Martinez at the latter's Tucson apartment. At approximately 11:00 o'clock that evening, Jordan met Martinez at the latter's apartment. There were further negotiations between Jordan and Martinez, and Jordan gave Martinez two hundred dollars. Martinez left his apartment, returned about 3:15 a. m., and handed Jordan a package containing 9.8 grams of heroin.

About 10:30 p. m. on September 17, 1968, Martinez telephoned Jordan at Tempe, Arizona. Martinez told Jordan that he had received a shipment of four or five ounces of heroin and asked if Jordan wanted to buy any of it. As a result of this telephone call, Jordan went to Martinez' apartment at about 1:00 p. m. on September 18, 1968. As Jordan was walking up to the door, Martinez and Rojas drove up. All of them went into Martinez' apartment.

While they were discussing a sale of two ounces of heroin to Jordan, Rojas asked Jordan if he would be interested in thirty ounces. Rojas stated that he was going to receive that amount the following week. Rojas added that the heroin was pure uncut, direct from the laboratory at Santa Ana, Mexico. Jordan said he could take about twelve or fifteen ounces. It was agreed that, as to the prospective purchase, Martinez and Rojas would telephone Jordan on September 23, 1968.

Concerning the two-ounce purchase Jordan was attempting to make on September 18, 1968, Martinez and Rojas told Jordan to come back to the apartment at 4:30 p. m. on that day. Martinez then asked Jordan whether the latter wanted to buy any marijuana. There was some discussion about this, and Jordan stated that he would let Martinez and Rojas know whether he wanted any marijuana when they called him on September 23rd. Martinez and Rojas then left.

Jordan went back to Martinez' apartment at the appointed time the next afternoon. A half hour later Martinez arrived with another person, introduced to Jordan by Martinez as Emilio Ruiz, the source of Martinez' and Rojas' supply.² Ruiz handed Jordan a rubber container holding 38.1 grams of heroin, for which Jordan gave Martinez and Ruiz $850. It was then agreed that Martinez and Ruiz would telephone Jordan at Tempe on September 23, 1968. There was also some discussion about the price of marijuana at this time, but no transaction was agreed upon.

About 10:30 on the night of September 23rd, Jordan, at his home in Tempe, received a collect telephone call from Martinez. As a result of this call, and another collect telephone call from Martinez at 4:00 a. m. on September 24th, Jordan agreed to meet with Martinez on the morning of September 25. At 11:30 that morning, Jordan arrived at Martinez' apartment. He found a note reading, "Vic, I will be back in twenty minutes, John." About 11:55 a. m. Martinez drove up with another person whom Jordan recognized as Carlos Hamilton.

Jordan made it appear that he did not want to meet Hamilton, but Martinez told him he did not have to worry about Hamilton, as the latter was in on the deal with Martinez, Ruiz and Rojas. Jordan asked Martinez for the heroin. Martinez walked into the bathroom and returned with a plastic bag holding five rubber containers holding a total of 107.9 grams of heroin.

Martinez handed the package to Jordan and, with Hamilton, assisted Jordan in opening it. Jordan then asked Hamilton if he could purchase ten more ounces of heroin. Hamilton replied that he and Martinez would have to sell five ounces to Jordan first, and then, in about seven hours, they could sell him ten ounces more. There was further discussion, and Hamilton told Jordan that after the latter had paid Hamilton for the five ounces, they would guarantee Jordan at least ten or fifteen more ounces that night.

The three then walked to Jordan's car where he said he had the money hidden in the trunk and where he wanted to hide the heroin. Jordan gave a signal and, with the assistance of another Bureau agent who had been maintaining surveillance, placed Hamilton and Martinez under arrest. Rojas was arrested that afternoon. Defendants did not, with regard to any of these transactions, ask for a written order form from Jordan issued in blank by the Secretary of the Treasury or his delegate.

All three of the defendants testified and offered other evidence. Rojas denied any participation in the narcotics transactions. He also offered evidence to the effect that Mrs. Rojas had ordered Jordan off their premises on September 12, 1968; that Rojas warned Martinez not to deal with Jordan; and that he went to Martinez' apartment early on September 18, to fix the evaporative cooler, but was elsewhere later in the day. Hamilton offered testimony tending to minimize his association with the other defendants and denied any participation in the transactions. Martinez testified that he participated in the transactions only after Jordan persisted in his efforts to buy heroin, and "flashed" a roll of bills at him.

Defendants contend that 21 U.S.C. §§ 173 and 174, as applied to their alleged trafficking in heroin, are unconstitutional under the rationale of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). This contention is foreclosed by Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). Defendants also assert that 26 U.S.C. § 4705, as applied to them, is unconstitutional under the rationale of Leary. This contention is disposed of by Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969).

All three defendants argue that the trial court erred in denying their respective pretrial motions for separate trials.³

All of the defendants took the witness stand in their own defense and were subjected to cross-examination. There was accordingly no confrontation problem such as the Supreme Court dealt with in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But defendants argue that considerations of justice and fairness entitled them to severance.

Martinez emphasizes the complexity and variety of the issues and urges that his entrapment defense "got lost in the shuffle." He calls special attention to the court's instructions concerning the conspiracy count, the effect to be given to evidence in a case involving multiple defendants, and the charge of "aiding and abetting." Martinez asserts that these instructions, augmented because of the joint trial, were too confusing and complicated for lay jury members to grasp.

Rojas does not suggest any special considerations which made severances necessary. Hamilton asserts that because he was charged only under the third and fourth counts, he was prejudiced by the evidence pertaining to counts one and two. In this connection he urges that no testimony was offered tending to show that the conspiracy with which he was charged (count four) involved him in the first two transactions.

Absent some special problem such as that dealt with in Bruton, the granting or denial of a motion for the separate trial of jointly-indicted defendants rests within the sound discretion of the trial court. Loux v. United States, 389 F.2d 911, 920 (9th Cir. 1968). Moreover, as recently pointed out by this court in Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968), there is a substantial public interest in the joint trial of persons charged with committing the same offense or with being accessory to its commission.

These three codefendants were tied together by the conspiracy charge. In addition, Martinez and Rojas were charged on all three substantive counts. It is quite true, as Hamilton argues, that he was not charged under counts one and two. But the jury was carefully instructed that Hamilton was charged only under counts three and...