United States v. Puchi
| Decision Date | 07 June 1971 |
| Docket Number | No. 25264.,25264. |
| Citation | 441 F.2d 697 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alfredo PUCHI, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John J. Flynn (argued), Scott E. Little, of Lewis, Roca, Beauchamp & Linton, Phoenix, Ariz., for defendant-appellant.
Ann Bowen (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.
Before JERTBERG, BROWNING and TRASK, Circuit Judges.
By grand jury indictment filed on April 29, 1969, appellant Alfredo Puchi, Jr., and Joe "Doe" were accused of violating various sections of the Internal Revenue Code relating to unlawful possession, transportation, sale and relanding of non-tax and duty paid liquor. The individual referred to in the indictment as Joe "Doe" is Jose Cruz Velez, a resident and National of the Republic of Mexico.
Following trial to a jury, appellant was convicted on Count II of the indictment which reads:
"On or about the 4th day of April, 1969, in the District of Arizona, ALFREDO PUCHI, JR. and JOE "DOE" wilfully and knowingly did sell a quantity of distilled spirits required to be stamped under the provisions of Section 5205(a) (2), Title 26, United States Code, that is, ten (10) cases which contained one hundred twenty (120) one-fifth gallon bottles of whiskey, that is, sixty (60) bottles of Haig & Haig Scotch whiskey, and sixty (60) bottles of Seagrams V. O. whiskey, the immediate containers thereof not having affixed thereto stamps evidencing the determination of the tax thereon or indicating compliance with the provisions of § 5205(a) (2), Title 26, United States Code, all in violation of 26 U.S.C. § 5604(a) (1) and 18 U.S.C. § 2,"
and was acquitted of the charges set forth in Counts I and III of the indictment.1
He was committed to the custody of the Attorney General for imprisonment for a period of one year and fined in the sum of $10,000. The execution of the sentence of imprisonment was suspended for a period of two years on condition that he violate no laws of the United States or of any state, and that he pay the fine within sixty days from the date of sentence.
26 U.S.C.A. § 5205(a) (2) provides:
26 U.S.C.A. § 5604(a) (1) provides:
Appellant concedes in his reply brief that the evidence at the trial is sufficient to sustain the conviction of appellant on Count II. This fact obviates the necessity of setting forth in extenso a statement of the evidence at the trial.
Appellant was the secretary and treasurer of Imports-Exports, Inc., located at Nogales, Arizona. The business of the bonded warehouse was to import from abroad liquor and other items for exportation from the United States. When merchandise is so imported to a bonded warehouse, the Government does not require that duties or taxes on the imported merchandise be collected or paid. Such a warehouse is required to post a substantial bond to insure that in the event of breakage, loss, theft, or other event causing unaccountability of the imported items, the Government would receive the taxes and duties which would normally be due. Merchandise imported from abroad is shipped directly to the warehouse where it is stored under lock and key and under the constant surveillance of a Customs Agent. When the merchandise is to be exported from the United States, it is transferred to a sealed vehicle for transportation either to the airport in Nogales or to the United States-Mexico border. The Customs Agent accompanies the merchandise in the sealed vehicle at all times and when the goods have been either loaded into an aircraft or crossed into Mexico, certifies to that fact and signs or initials documents so reflecting it.
The arrest of appellant on April 4, 1969, arose out of a transaction which many Government agents witnessed, in which Joe "Doe" sold certain non-tax and duty paid liquor to James C. Mitchell, a private citizen, who was the operator at the Tidelands Motor Inn, located at Tucson, Arizona. Arrangements for the purchase and sale had been made on April 3, 1969, in a telephone conversation between Mitchell and appellant, which was tape recorded with the consent of Mitchell by Customs Agent Dennis.
The taped recorded conversations mentioned above occurred on March 25, and April 3, 1969, between appellant and Mitchell. Prior to the first recorded conversation Mitchell had engaged in conversations with appellant concerning the purchase of liquor and liquor prices, and had visited with appellant at the bonded warehouse in Nogales, Arizona. Mitchell had also discussed with the local law enforcement officers and United States Customs Agents the subject of liquor which was being brought into the United States illegally, and Mitchell visited with Customs Agent Dennis at Nogales where the same subject was discussed.
On March 25, Agent Dennis visited Mitchell and stated that he had brought with him a tape recorder. Agent Dennis asked Mitchell to place a call to appellant's bonded warehouse at Nogales. Mitchell agreed to allow the Customs Agents to tape the conversation, and it was recorded. Appellant was unaware of the taping of the conversation.
On April 3, Customs Agents, including Agent Dennis, visited with Mitchell and asked Mitchell to make another call to appellant at Nogales. The conversation again was taped with the consent of Mitchell. Again appellant was unaware of the taping of the conversation.
On April 4, 1969, Mitchell went to Nogales and there met Jose Cruz Velez who drove him to a residence on the American side of the border where the liquor described in the indictment was exchanged for $630.00.
Appellant's pretrial motion to suppress the taped conversations was denied. These taped recordings and agreed transcripts of their contents were admitted in evidence at the trial. At the trial the tapes were played to the jury at the request of appellant's counsel.
Appellant's motion to suppress the taped conversations was based primarily on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and United States v. White, 405 F.2d 838 (7th Cir. 1969), cert. granted 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969).
In White, supra, the court held that the Fourth Amendment bars from evidence the testimony of government agents who related certain conversations which occurred between the defendant and a government informant, which the agents overheard by monitoring the frequency of the radio transmitter carried by the informer and concealed on his person. On certiorari, the Supreme Court reversed and held that the admission of the testimony of the government agents is not barred by the Fourth Amendment. United States v. White, 401 U.S. ___, 91 S.Ct. 1122, 28 L.Ed.2d 453, (decided April 5, 1971).
Hence there is no validity in appellant's contention in this case that the admission into evidence of the telephone conversations with Mitchell, which were monitored by Customs Agent Dennis without appellant's knowledge or consent, violated his rights under the Fourth Amendment.
Appellant's other contention in respect to the admission of such evidence is that such admission violates Public Law 90-351, Title III, 18 U.S.C.A. § 2510 et seq., and in particular argues that Sec. 2515 of Title 18 bars the use of the recordation in evidence.
In our view the provisions of such law do not preclude the use of intercepted communications when one of the parties thereto consented to the interception. We note that the Supreme Court in White, supra, states:
"Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, § 2510 et seq., 82 Stat. 197, 212 et seq., and * * *."
We find no error on the part of the district court in the admission of such evidence.
As above noted, indicted with appellant as Joe "Doe" was Jose Cruz Velez, a Mexican National residing in Nogales, Mexico, which is located across the border from Nogales, Arizona. Upon the return of the indictment, a bench warrant for Velez' arrest was issued. It was never served because of his absence from the United States. He remains subject to arrest on his return.
Two weeks before the trial date appellant moved the district court for an order to take the deposition of Velez outside the United States, pursuant to the provisions of Rule 15(a) of the Federal Rules of Criminal Procedure.
We first note that Rule 15 (a) in relevant part states:
"If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition * * *, the court * * * may * * * order that his testimony be taken by deposition *...
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U.S. v. King
...24 L.Ed.2d 690 (1970). This Court has also upheld the replaying of tape-recorded evidence two times during deliberation. United States v. Puchi, 441 F.2d 697 (9th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971). We have been directed to no case where this Court has foun......
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U.S. v. Abascal
...evidentiary purpose of these tapes, their exclusion did not substantially prejudice the fairness of Abascal's trial. United States v. Puchi, 441 F.2d 697, 702 (9th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 The other points urged in the appellants' petitions for rehearing......
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Holmes v. Burr
...in On Lee, Rathbun, and Lopez, are not unconstitutional, and therefore remain binding on the federal courts. United States v. Puchi, 441 F.2d 697 (9th Cir. 1971), cert. denied 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 Each of these cases is in certain respects factually similar to the matter......
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United States v. King
...See Holmes v. Burr, 486 F.2d 55, 60 (9th Cir.), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973); United States v. Puchi, 441 F.2d 697, 700 (9th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 21 In Katz, the government tape-recorded the defendant's telephone c......