United States v. Pentado

• Decision Date: 18 July 1972
• Docket Number: No. 71-1612.,71-1612.
• Citation: 463 F.2d 355
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco PENTADO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

463 F.2d 355 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Francisco PENTADO et al., Defendants-Appellants.

No. 71-1612.

United States Court of Appeals, Fifth Circuit.

June 7, 1972.

Rehearing and Rehearing Denied July 18, 1972.

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Milton E. Grusmark, Miami Beach, Fla., for Alonso and Pentado.

Sam W. Kleinfeld, Richard M. Gale, Miami, Fla., for Rosquette and Noa.

Gino P. Negretti, Miami, Fla., for Ochoa, Patino and Lieros.

Robert W. Rust, U. S. Atty., Harold F. Keefe, Miami, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 18, 1972.

LEWIS R. MORGAN, Circuit Judge:

Appellants Rafael Patino, Benito Alonso, Manuel Noa, Eduardo Ochoa, Francisco S. Pentado, Rene A. Rosquette, and Claudine Lieros appeal from their joint trial and jury conviction for trafficking in heroin contrary to 21 U.S.C. § 174 and 26 U.S.C. §§ 4704(a) and 4705(a). All seven appellants contend that the jury was improperly constituted; that heroin was seized as a result of an illegal search; that certain firearms were erroneously admitted into evidence; and that the court improperly instructed the jury on the issue of conspiracy. Appellants Alonso and Pentado argue that the evidence against them was insufficient to sustain their convictions and that the trial court erroneously refused to sever appellant Ochoa who asserted the defense of entrapment during the trial. Appellants Rosquette, Noa, and Patino claim they were arrested without probable cause. Appellant Rosquette contends individually that the evidence was insufficient to sustain his conviction and that his right to a fair trial was violated by a prejudicial statement from a government witness. And finally, appellant Noa contends he was also prejudiced by the statement concerning Rosquette. After considering each of these assignments of error we affirm the holding of the district court.

The events which led to the arrest of defendants began on November 20, 1970, when federal agent Peter Scrocca of the Bureau of Narcotics and Dangerous Drugs (BNDD) met with defendant Ochoa in New York City to negotiate the purchase of some narcotics. Acting in an undercover capacity, agent Scrocca agreed to purchase 20 kilograms (45 pounds) of heroin from Ochoa at a later date. The price was to be $360,000.00.

Pursuant to Ochoa's instructions, agent Scrocca went to Miami, Florida, and placed a telephone call to Ochoa on December 1, 1970, at the Sandman Motel. After several conversations it was agreed that undercover agent Heyman, also of the BNDD, would meet Ochoa and take him to Howard Johnson's Restaurant on Miami Beach where they would meet with agent Scrocca to finalize the transaction. At the meeting, attended by Scrocca, Heyman, Ochoa, and defendant Claudine Lieros, the parties decided that agent Heyman would accompany Ochoa to the place where the heroin was located so Heyman could test the heroin before making the purchase.

Pursuant to this plan, Heyman, Ochoa and Lieros left the restaurant together and drove to the corner of Southwest 8th Street and 57th Avenue. Once the automobile was parked, Ochoa got out of the vehicle and told Heyman he was leaving to meet his "connection". When Ochoa returned he was in another automobile and accompanied by defendants Rosquette, Noa and Patino. Ochoa and Patino entered Heyman's automobile and, with Lieros, they drove to the Sandman Motel.

After receiving a telephone call from agent Scrocca, Heyman, Ochoa, Patino and Lieros left the motel and drove toward a residence at 1020 Northwest 31st Avenue. The party arrived at the address at approximately 1:00 A.M. on December 2, 1970.

Heyman entered the front of the house through an enclosed porch where he observed defendants Alonso and Pentado standing and watching. As he proceeded toward the living room, Heyman saw Rosquette and Noa and remarked to Patino, "What is this, a convention?" Patino laughed and replied, "No, these are part of the people involved in the deal".

Agent Heyman, Ochoa, Patino, Rosquette and Noa then walked out of the main house and into a separate guest house in back of the residence. In the kitchen of the guest house, agent Heyman began weighing and testing the heroin which was contained in small bags inside a styrofoam tub. While this process was going on Ochoa, Patino, Rosquette and Noa were either in the kitchen helping agent Heyman or sitting in the living room which opened directly into the kitchen.

When agent Heyman finished checking the heroin he returned to the main house and telephoned agent Scrocca to inform him to bring the money to the corner of Northwest 31st Avenue and 11th Street. Heyman then drove his government-owned vehicle into the driveway of the residence where Ochoa and Patino loaded the tub of heroin into the automobile.

At this point agent Heyman, Ochoa and Patino left the residence in another car to meet agent Scrocca and pick up the money. After the $360,000.00 was exchanged Ochoa remained with Scrocca while Heyman returned to the residence with Patino.

The transaction completed, federal agents closed in and began making arrests. Ochoa was arrested as he climbed into agent Scrocca's automobile. Lieros, Pentado and Alonso were arrested at the residence shortly after agent Heyman returned. Noa, Rosquette and Patino left the residence in an automobile and, after driving a few blocks, they were arrested by an officer of the Miami Police Department acting under instructions from federal agents.

Defendants were tried jointly before a jury and convicted on all counts of a five-count indictment. In substance Count I alleged a conspiracy to violate 21 U.S.C. § 174 by an agreement to import and sell heroin; Counts II and III charged defendants with the acts of importing, receiving and selling the heroin in violation of 21 U.S.C. § 174; and Counts IV and V related to selling heroin not in a stamped package and without a written order from Secretary of the Treasury, contrary to the provisions of 26 U.S.C. §§ 4704(a) and 4705(a).

The Jury Selection Plan

Appellants initially contend they were denied trial by a jury of their peers because persons of Spanish ancestry were systematically excluded from the jury list. Appellants immigrated to the United States from Cuba, and if their contention were true, the convictions in this case might have to be reversed. See Whitus v. Georgia, 1967, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. However, the burden is on appellants to demonstrate the exclusion of any particular group from jury service¹ and an examination of the record reveals no evidence of any exclusionary policy or practice. To the contrary, the Clerk of the United States District Court for the Southern District of Florida testified that no persons of Spanish ancestry, or any other cognizable groups, were excluded from jury duty. And finally, a jury selection plan substantially similar to the plan attacked here was approved by the court in United States v. Kuhn, 5 Cir. 1971, 441 F.2d 179.

Appellants further contend that the jury selection plan denied them equal protection of the law because citizens between the ages of 21 and 24 are excluded in certain years due to the fact that the jury wheel is refilled at five-year intervals. This same contention was specifically rejected by this court in United States v. Kuhn, supra. And for any matters not strictly within Kuhn, there was no showing of a substantial non-compliance in that, considering the population of the District and the size of the master wheel, it was "practicable" (as the Plan phrases it) to have added the names of newly registered voters or that the absence of them could have produced any substantial effect on the fair cross-section concept.

Search and Seizure

Appellants' search and seizure claim concerns the 20 kilograms of heroin which Ochoa and Patino placed in the government-owned vehicle driven by agent Heyman. After the arrests were made, the vehicle was driven to police headquarters and the contraband removed. Appellants contend the government should have secured a search warrant before removing the narcotics from the automobile and that the heroin should have been excluded as evidence.

In support of this argument appellants cite the cases of Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, and Dyke v. Taylor Implement Mfg. Co., 1968, 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, for the proposition that a warrantless search of an automobile is improper once the accused is in custody. However, Preston and Dyke quite obviously involved automobiles belonging to or possessed by the defendants themselves. In the case at hand the evidence was removed from a vehicle owned by and in the exclusive possession of the government. We have discovered no case which would apply the Fourth Amendment in such an extreme situation and appellants' argument in this regard is totally without merit.

Admission of Firearms

At the trial the court admitted into evidence three firearms: a .22 caliber revolver found in an open dresser drawer in the main house; a .357 magnum revolver which defendant Noa voluntarily handed to police officers when arrested; and a Browning 9-millimeter pistol which was found underneath the front seat of the automobile in which Noa, Rosquette and Patino were arrested. Appellants claim the admission of these weapons was highly prejudicial to their case and not relevant to the issue of guilt or innocence of the crime charged.

We disagree. The trial court has great latitude in passing on the admissibility of evidence, and its determination must be considered an act of discretion not to be disturbed absent a clear showing of abuse. See Wangrow v. United States, 8 Cir.1968, 399 F.2d 106. Appellants in this case were charged with selling 45 pounds of narcotics worth approximately $360,000.00. It is certainly fair to assume that...