United States v. McCormick

• Decision Date: 31 October 1972
• Docket Number: No. 72-1271.,72-1271.
• Citation: 468 F.2d 68
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Stephen McCORMICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

468 F.2d 68 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Michael Stephen McCORMICK, Defendant-Appellant.

No. 72-1271.

United States Court of Appeals, Tenth Circuit.

October 10, 1972.

Rehearing Denied October 31, 1972.

COPYRIGHT MATERIAL OMITTED

Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on brief), for appellee.

Nathan Davidovich, Denver, Colo., for appellant.

Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Michael Stephen McCormick was convicted by a jury of knowingly and intentionally possessing marijuana in violation of 21 U.S.C. § 844. It was a lesser included offense within Count II of the indictment which jointly charged McCormick and one Robert Dan Sanchez with knowingly and intentionally possessing marijuana with intent to distribute same in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Count I charged them jointly with knowing and intentional importation of marijuana in violation of 21 U.S.C. §§ 952(a), 960(a) (1) and 18 U.S.C. § 2. After his motion for a separate trial was granted, McCormick was found not guilty on the two principal counts. He was placed in the custody of the Attorney General for a term of one year on the condition that he serve six months in a jail or treatment type institution, with probation to follow.

On appeal, the evidence is viewed in the light most favorable to the Government to determine whether the evidence, direct and circumstantial, coupled with all reasonable inferences, is substantial in justification of the finding of guilty beyond a reasonable doubt. United States v. Ireland, 456 F.2d 74 (10th Cir. 1972); Chapman v. United States, 443 F.2d 917 (10th Cir. 1971). We proceed to review the evidence in this light.

On November 30, 1971, a 1968 G.M.C. van driven by Sanchez, with McCormick seated in the right front passenger seat, erratically approached a U. S. Immigration and Naturalization Border Patrol checkpoint near Truth Or Consequences, New Mexico, some 98 miles from the Republic of Mexico border. At about 9:45 a. m. Agent Goad and Agent Ford, both Border Patrol and U. S. Customs Inspectors, approached the vehicle. Goad approached from the open window on Sanchez's driver's side and asked Sanchez and McCormick about their citizenship. He looked into the van from the open window but could not obtain a good view. Goad saw a plaid clothes bag and part of what appeared to him to be a large black tarpaulin. Ford was standing near the passenger-side window which had been rolled down about half way. Ford testified that he detected the odor of marijuana from within the vehicle. Ford directed Goad to take the van to a siding for inspection to see "what was under the big plastic bag" in the rear of the van. Ford proceeded to process two vehicles which were waiting behind the van. This required about one minute. He returned to the van. Goad had entered the rear of the van. He noticed an object which he described as a plastic beanbag type chair, about four feet in diameter, capable of concealing at least two aliens. Goad tried to lift the plastic object and in so doing he picked up a cigar-shaped object about a foot long and six inches wide, wrapped in light cellophane paper. When Ford arrived, Goad informed him that he felt the object under the plastic cover. Ford then reached into the van and attempted to lift the beanbag plastic object. He found it to be tied together in a "big-ball" shape. When he grabbed, he pulled out a paper-wrapped brick object. He opened it and determined that it was marijuana. Ford placed both Sanchez and McCormick under arrest. Further search of the van disclosed the presence of some 164 bricks, equalling about 1,400 pounds of marijuana. Some of the bricks under the plastic cover, wrapped in light colored cellophane, had broken on the ends and were "leaking". Ford, immediately following the arrests, fully informed Sanchez and McCormick of their Miranda rights. Both acknowledged that they understood his advisements. Ford then phoned U. S. Customs officials in El Paso, and the Narcotics Section of the New Mexico State Police, advising of the arrests.

Louis Fraustro, a narcotics agent with the New Mexico State Police, arrived at the checkpoint about noon. He spoke with Goad and Ford and observed each of the items removed from the van, including an airline flight bag from which one marijuana brick and $165 had been recovered. Fraustro fully advised Sanchez and McCormick separately of their rights before interrogating them and they acknowledged that they understood. Sanchez first denied any knowledge of the marijuana but later stated that all of it belonged to him. He told Fraustro that he had placed the marijuana brick in McCormick's flight bag during a stop at a rest area, without McCormick's knowledge. McCormick first denied knowledge of the marijuana but Fraustro testified that later McCormick called him back, at which time McCormick said that the marijuana brick recovered from the flight bag was his and that he had paid Sanchez $150 for it. This interrogation occurred about 2:30 p. m. Fraustro was aware that Sanchez and McCormick were being held for arrival of U. S. Customs agents and that neither had been taken before a magistrate before he questioned them.

Reuben Gomez, Special Agent with the U. S. Customs Service, stationed in Albuquerque, New Mexico, arrived at the checkpoint accompanied by Customs Agent Voliva about 3:00 p. m. He first conferred with Agent Cecil, in charge of the check-point station, and then with Agents Goad and Ford. He viewed each of the marked items recovered from the van. He then interrogated Sanchez and McCormick after fully advising them of their rights, which each acknowledged that they understood. Gomez testified that Sanchez claimed all of the marijuana in a deal he had made with one Manuel Rivera; that Sanchez had picked McCormick up near Las Cruces as a hitchhiker; and that Sanchez had placed both the marijuana brick and the $165 in McCormick's flight bag at a rest area without McCormick's knowledge. Gomez testified that the total of the marijuana bricks amounted to about 1,400 pounds and that Sanchez stated that he was to receive 75 bricks and $700 from Rivera upon delivery. McCormick did not acknowledge to Gomez that the brick found in his flight bag belonged to him.

Gomez and Cecil transported Sanchez and McCormick to Las Cruces where Gomez attempted to contact Magistrate Meninegar about 5:00 p. m. He was informed that Meninegar was out of town. Sanchez and McCormick were detained and taken before Magistrate Meninegar the following morning.

McCormick alleges error in: (1) the admission of certain Government exhibits seized by reason of the alleged illegal search and seizure; (2) admission into evidence of certain inculpatory admissions without proper Fifth and Sixth Amendments advisements, obtained in violation of Rule 5(a) of the Federal Rules of Criminal Procedure; (3) refusal of the Court to admit into evidence an exculpatory statement by Sanchez exonerating McCormick; (4) lack of proper and sufficient voir dire examination; (5) failure in instructing and failure to give certain instructions; and (6) failure to hold 21 U.S.C. § 844 unconstitutional.

I.

McCormick argues that Agent Goad, who had detected no odor of narcotics and who was searching only for aliens, had no cause to search further for aliens when he grasped the cigar-shaped object from the black plastic cover. However, nothing in this record supports this argument. Agent Goad, who had been employed with the service for some seven months, had smelled marijuana on only one prior occasion. Goad grasped the plastic cover to determine "what was undernearth it". He did not grasp any other portion of the cover after detecting the brick-like object. He testified that he had felt only the top surface and that he was attempting to remove the cover. After Goad informed Ford of the object he felt under the cover, Agent Ford entered the van and proceeded with the search. It is obvious that Goad, who did not identify the brick object as marijuana, would nonetheless have proceeded to remove the plastic cover in his search for illegal aliens if Agent Ford had not taken over the search at that point.

Title 8 U.S.C. § 1357(a) (3) empowers agents of the Border Patrol to search any vehicle, without warrant, for aliens "within a reasonable distance from any external boundary of the United States". Goad and Ford, as authorized U. S. Customs agents, were empowered to be alert for violations of 21 U.S.C. § 960(a) relating to importation of narcotic drugs into the United States. We have held that 100 air miles from any external boundary of the United States meets the term "reasonable distance" as used in 8 U.S.C. § 1357(a) (3). Roa-Rodriguez v. United States, 410 F.2d 1206 (10th Cir. 1969). Roa-Rodriguez reversed the conviction of Rodriguez for unlawful importation of narcotics, holding that the inspection of the trunk of the vehicle for illegal aliens did not constitutionally justify Agent Cheadle's search of a jacket found which, upon inspection, disclosed two packages containing about 11 ounces of heroin, when Cheadle had nothing more than a mere suspicion that narcotics might be secreted therein. In United States v. Saldana, 453 F.2d 352 (10th Cir. 1972) and United States v. Granado, 453 F.2d 769 (10th Cir. 1972), the actions of Border Patrol agents well beyond the 100 mile limit, under facts similar to those here in effecting brief detentions and investigations, anchored to suspicious behavior which, while not meeting the "probable cause" requirements for a search or arrest warrant, were nevertheless held to be constitutionally justified under the objective test standard applied in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 29 L.Ed.2d 889 (1968).

Goad had probable cause to search the plastic covered object for the presence of illegal aliens....