United States v. Sanchez, 30754.
| Decision Date | 30 September 1971 |
| Docket Number | No. 30754.,30754. |
| Citation | 449 F.2d 204 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Enrique SANCHEZ and Juan Vela Martinez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James H. Wallenstein, Dallas, Tex. Court-appointed for defendants-appellants.
Anthony J. P. Farris, U. S. Atty., James R. Gough, Raul A. Gonzalez, Theo W. Pinson, III, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Before COLEMAN, SIMPSON, and RONEY, Circuit Judges.
This is an in forma pauperis appeal from a conviction of (1) conspiracy to smuggle marijuana into the United States in violation of 21 U.S.C. § 176a1 and (2) smuggling marijuana into the United States in violation of the same statute. Five defendants were originally indicted under these counts and under an additional count of transporting and concealing marijuana without having paid a transfer tax in violation of 26 U.S.C., § 4744(a) (2). Two defendants, Victor Martinez Garza and Juan Martinez Villarreal, pleaded guilty to the violation of the tax count and were not tried on the other counts. The remaining three were tried on the conspiracy and smuggling counts. Roberto Longoria was acquitted. Enrique Sanchez and Juan Vela Martinez were convicted on both the conspiracy and smuggling counts. They were sentenced to six years concurrent on each count.
Sanchez and Martinez appeal and raise the following specifications of error:
We note that Sanchez had no standing to raise this issue, so the point applied only to Martinez.
This point applied to both appellants.
Only Martinez has standing to raise this issue.
We affirm the convictions of both appellants on both counts.
The evidence is to be viewed in the light most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Williams v. United States, 5 Cir., 1968, 404 F.2d 493; Posey v. United States, 5 Cir., 1969, 416 F.2d 545.
On March 7, 1970, Juan Martinez Villarreal, Victor Martinez Garza, Enrique Sanchez, and Roberto Longoria left Corpus Christi, Texas, for Monterrey, Mexico. They travelled in two vehicles, a 1960 Ford Ranchero and a 1964 Ford station wagon. The purpose of the mission was to pick up a quantity of marijuana. After checking into a hotel in Monterrey, Sanchez and Longoria took the Ford Ranchero to an unknown location where they left it and returned to the hotel.
On March 9, 1970, the four men got into the station wagon and went to a parking lot at a shopping center. Sanchez and Longoria walked into an alley and returned thirty minutes later with the Ranchero. Villarreal and Garza got into the Ranchero and were instructed by Sanchez to take the Ranchero to Villarreal's apartment in Corpus Christi. Sanchez and Longoria returned to the United States in the station wagon.
Shortly before noon on March 9, 1970, Garza and Villarreal were stopped at Hidalgo, Texas, for the customary border inspection. Although they declared only two bottles of liquor and a guitar, suspicious customs officials searched the Ranchero and found beneath the rear floor deck a large plastic bag containing about sixty-four (64) pounds of marijuana. Garza and Villarreal first denied participating in a conspiracy to smuggle marijuana, but later confessed to the conspiracy and implicated Sanchez and Longoria. Armed with promises of cooperation from Garza and Villarreal, customs officials replaced the plastic bag, now containing forty-six (46) pounds of marijuana, beneath the rear floor deck of the Ranchero.
Two customs agents, Ramiro Villarreal and Bruce Van Matre, escorted Garza, Juan Martinez Villarreal, and the Ranchero to Juan Martinez Villarreal's apartment in Corpus Christi, arriving there about 7:00 o'clock, p. m. The agents accompanied Garza and Villarreal into the apartment and concealed themselves, Ramiro Villarreal behind a bed and Van Matre in a closet.
About 8:45 p. m. Juan Vela Martinez, one of the appellants, who had been on the trip to Mexico, entered Juan Martinez Villarreal's apartment and asked to be allowed to take the Ranchero and the marijuana to his residence. Juan Martinez Villarreal and Garza were, understandably, quite reluctant to agree to Martinez's request. In order to persuade them, Martinez said that some people from Houston were waiting for him, and that if it rained the load would get wet and ruin. He said that this must be their first trip and that if they had any questions about him they could call Sanchez, the other appellant who had also been to Mexico. He gave them Sanchez's telephone number. After much discussion Agent Villarreal signaled to Garza and the other Villarreal to release the Ranchero. They obeyed his order. Martinez, Juan Martinez Villarreal, and Garza left the apartment.
The customs agents had removed the rotor from the distributor of the Ranchero and it would not crank, therefore, Martinez and an individual who was later identified as his brother hooked the vehicle to their car, a 1964 Ford, and towed it to Martinez's home. Customs agents had followed the cars to Martinez's home and placed the Ranchero under surveillance. About 10:45 p. m. a 1968 Pontiac drove up to the Martinez home. Shortly thereafter, two agents saw someone taking a large box from the garage to the Pontiac. Fearing loss of the marijuana, the customs officials decided to enter the premises, arrest Martinez, and retake the marijuana. Several local police and customs officers entered Martinez's yard by the front gate and began to search the Ranchero, the garage, and the curtilage. Martinez was arrested. Three bags containing marijuana were found in a neighbor's yard, adjacent to the fence which surrounded Martinez's property. The officers had no warrant for arrest or search.
Upon hearing a remark by a city police officer that the bags looked like they contained about sixty-five (65) pounds of marijuana, Martinez volunteered, . Sanchez was arrested on April 8, 1970.
The defendants claimed that their actions were consistent with an unsuccessful attempt to sell the Ranchero in Mexico, and Martinez denied having made any self-incriminating statements concerning the bags that were found near his home.
Under the first specification of error, it is claimed that the marijuana seized near the home of Juan Vela Martinez was found as the result of an invalid search and, therefore, inadmissible in evidence. No motion was made in advance of the trial to suppress this evidence nor was any objection made at the time that the marijuana was offered in evidence, as required by Rule 41(e) of the Federal Rules of Criminal Procedure. In the absence of such a motion or objection the question of its admissibility will not be considered on appeal, Matthews v. United States, 5 Cir., 1969, 407 F.2d 1371; United States v. McCarthy, 9 Cir., 1970, 430 F.2d 1289:
It is not to be forgotten, however, that the officers had already lawfully seized the marijuana at the border, had followed it to Corpus Christi while it was being transported in the Ranchero, and had followed the Ranchero to Martinez's house. Thus, it had been in their actual or constructive control all that time. Except for fleeting interruptions it had been under their direct observation for the same period. Moreover, the officers were lawfully on Martinez's property for the purpose of arresting him for the commission of a felony which, of their own knowledge, they knew to be in progress. Additionally, the marijuana was not on his property, but could be seen on adjacent property.
For reasons already stated, we do not find it necessary to decide the validity vel non of the search. We reiterate that the point could not have inured to the benefit of Sanchez, who had no right of possession to the curtilage of Martinez or the property next door.
Appellants claim that the District Court committed error in not granting a mistrial following testimony by the prosecution which they say was irrelevant and prejudicial.
This testimony occurred during the direct examination of Earl W. Simmons, a special agent of the United States Customs Bureau, by the United States Attorney.
During direct examination, Agent Simmons related that upon being advised that the recipients of the marijuana were to be Enrique Sanchez and Roberto Longoria, he went to check their residences. The following exchange then took place between the United States Attorney and Agent Simmons:
No objection was made to this testimony when it was first...
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