United States v. Rodriguez

• Decision Date: 24 April 1974
• Docket Number: Crim. No. 73-H-7.
• Citation: 375 F. Supp. 589
• Parties: UNITED STATES of America v. Frank Villareal RODRIGUEZ et al.
• Court: U.S. District Court — Southern District of Texas

375 F. Supp. 589

UNITED STATES of America v. Frank Villareal RODRIGUEZ et al.

Crim. No. 73-H-7.

United States District Court, S. D. Texas, Houston Division.

April 24, 1974.

COPYRIGHT MATERIAL OMITTED

Anthony J. P. Farris, U. S. Atty., Ronald J. Waska, Asst. U. S. Atty., Houston, Tex., for plaintiff.

John H. Miller, Sinton, Tex., Fred H. Dailey, Jr., Alfano & Dailey, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

Defendants Frank Villareal Rodriguez, Carlos Gomez Castillo and Teodoro Jardon Tobar were convicted in this Court on September 7, 1973, of possession with intent to distribute 376 pounds of marijuana in violation of Title 21, United States Code, Section 841(a)(1). The case is presently before the Court for consideration of the defendants' motion for a new trial.

The motion is premised upon several allegations of error. The defendants claim that:

1. the indictment should have been dismissed due to the failure of the Court to try the defendants, who have been released upon bail, within 90 days of arraignment;

2. Government Exhibits 2 and 3 should have been suppressed as the fruits of an unlawful search and seizure;

3. the defendants' Motion in Bar should have been granted as the defendants were twice placed in jeopardy due to the refusal of the Court to require further jury deliberations after the jury indicated it could not reach a verdict;

4. the defendants should have been awarded a Judgment of Acquittal upon the failure of the Government to establish a chain of custody with regard to Exhibit No. 3;

5. the Court erred in instructing the jury that it could infer from the quantity involved that the defendants possessed the controlled substance in question with the intent to distribute it;

6. the verdict, with regard to each individual defendant, was not supported by substantial evidence.

Defendants' first contention is without merit. Immediately prior to trial, defendants moved to dismiss the indictment pursuant to Rule 48(b), Fed.R. Crim.P., averring that the length of time between their arraignment on February 12, 1973, and their trial setting on July 9, 1973, was prejudicial. They claim now that the indictment should be dismissed as it did not follow the guidelines set forth by the Plan for Achieving Prompt Disposition of Criminal Cases in the United States District Court for the Southern District of Texas.

A consideration of the law and facts indicates that the defendants are not entitled to relief pursuant to Rule 48(b), Fed.R.Crim.P., or the Plan adopted by this District pursuant to Rule 50 (b), Fed.R.Crim.P. Rule 48(b) provides for dismissal whenever there is unnecessary delay in bringing a defendant to trial. It cannot be said in this instance that the length of time between the indictment and trial justifies such a dismissal. The defendants have not been denied their Sixth Amendment right to a speedy trial. Here, the length of delay was not presumptively prejudicial; the delay was occasioned solely by the extremely congested docket of this Court; the defendants failed, prior to the trial date, to request an earlier trial; the defendants have shown no prejudice accruing from the delay, such as the loss of vital witnesses. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed.2d 101 (1972).

The Plan for the United States District Court for the Southern District of Texas for Achieving Prompt Disposition of Criminal Cases provides that trial shall commence within 90 days after a plea of not guilty if the defendant is not in custody. In this instance, the case was called for trial 150 days after the defendants entered pleas of not guilty, with trial commencing 21 days thereafter. The delay was not the fault of the prosecutor or the defense attorneys; rather, it was the result of the unavoidably congested docket of the Court. Provision for such a delay is contained in the Plan, which provides for a continuance for "any period of delay occasioned by exceptional circumstances".

In their second allegation, defendants challenge the denial by the Court of their motion to suppress, claiming that the Court's application of the "plain view" doctrine was erroneous. A review of the transcript of the suppression hearing convinces this Court that its original decision to deny the motion to suppress was based upon insubstantial evidence presented at the evidentiary hearing. To support its contention that the evidence was legally seized, the Government offered only the testimony of one of the agents involved in the arrest and seizure. The agent testified that he proceeded to the Jimenez home as the result of a telephone call from a known informer. However, testimony regarding the contents of this conversation was stricken by the Court upon the objection of the defendants that it was hearsay. Later, the agent testified that the decision to enter the house was based upon a conversation with the informer who had consulted with him immediately upon leaving the residence. The contents of this conversation were likewise stricken by the Court upon the defendants' objection. It is the opinion of this Court that the mere testimony of the Government agent that he held a conversation with a reliable informer without evidence of the details of that conversation is insufficient to prove probable cause or exigent circumstances. See, e. g., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The details of these conversations upon which the agents relied in entering the house must be presented to the Court to enable it to determine if the agents did in fact have probable cause.

However, it is also the opinion of this Court that the hearsay testimony of the agent, which was necessary to show probable cause, was excluded improperly. While hearsay is usually inadmissible in proving guilt, it is admissible to prove probable cause. Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); see United States v. Rodgers, 442 F.2d 902 (5th Cir. 1971). See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Thus, the evidence of the informer's conversation with the Government agents, which was later admitted in the trial of this matter as the direct testimony of the informer himself, should have been available to the Court in determining the admissibility of the seized evidence.

The Court finds itself faced, therefore, with a unique procedural question of whether to grant a new evidentiary hearing, to grant a new evidentiary hearing and a new trial, or to reconsider the motion to suppress based upon the excluded evidence that was presented later at the trial. If the testimony that was improperly excluded was not otherwise available to the Court, the inclination would be to pursue one of the former courses of action. However, because the contents of the conversation were presented to the Court through the testimony of the informer himself while under oath and subject to cross-examination during the trial of this matter, this Court believes that to require a new hearing or trial would be a waste of time and energy and an unnecessary inconvenience to the defendants, counsel and the Court. Therefore, the Court will reconsider the motion to suppress based upon the evidence presented at the trial.

The agents, at the time of their initial entry, had probable cause to arrest the defendants based upon the information given by the informer at the scene. At the trial, Michael Bethaney, an informer working with government agents, testified that on the evening of the defendants' arrest he had been contacted regarding the purchase of a large quantity of marijuana. Testimony indicated that he then met with the officers, informed them that a sale was to take place imminently and led them to the house of defendant Jimenez. Agents Chadwick and Garrison testified that they observed the informant enter the house, remain for approximately 20 to 30 minutes and then depart to consult with the agents. Bethaney then informed the agents of the number of people in the house, the number of pounds of marijuana involved and the fact that a sale and possible removal of the contraband was to take place imminently. Because the agents in this case knew that the informer had obtained his information from personal observation, and because he related his observations of the circumstances within the house with specificity, they were justified in inferring that his information was reliable and using it as grounds for determining probable cause. See Aguilar v. Texas, supra; United States v. Squella-Avendano, 447 F.2d 575, 580 (5th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L. Ed.2d 369 (1971).

The Court's inquiry must then focus upon whether the circumstances were of such exigency as to warrant the agents forcibly entering the residence in order to effectuate that arrest. The circumstances under which a warrantless, forcible entry into a residence at night for the purpose of arresting an occupant will be valid have been carefully considered and delineated in Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 392 (1970): the offense involved is a grave one; there was a clear showing of probable cause that the suspects committed the crime involved and that they still occupied the premises; there was a strong likelihood of escape; the seeming flight of the suspects upon the announcement of the agents' identity justified the forcible entry. See United States v. Mapp, 476 F.2d 67, 74 (2d Cir. 1973); United States v. Wylie, 149 U.S.App.D.C. 283, 462 F.2d 1178, 1183 (1972); United States v. Davis, 461 F.2d 1026 (3d Cir. 1972); United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971); Kleinbart v. United States, 142 U.S. App.D.C. 1, 439 F.2d 511 (1970); Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970). See also United States v. Squella-Avendano, supra.

In their decision to...