United States v. Sanchez

• Decision Date: 25 June 1973
• Docket Number: Cr. 4-1211.
• Citation: 380 F. Supp. 1260
• Parties: UNITED STATES of America v. Jaime Lerma SANCHEZ and Carlos Guillermo Salinas, Jr.
• Court: U.S. District Court — Northern District of Texas

380 F. Supp. 1260

UNITED STATES of America v. Jaime Lerma SANCHEZ and Carlos Guillermo Salinas, Jr.

Cr. 4-1211.

United States District Court, N. D. Texas, Fort Worth Division.

June 25, 1973.

Phil Burleson, Dallas, Tex., for defendants.

Conard Florence, Asst. U. S. Atty., Fort Worth, Tex., for the Government.

OPINION ON MOTION FOR NEW TRIAL

BREWSTER, District Judge.

The defendants have filed a motion for new trial urging twelve grounds. Some of them will be discussed in this opinion.

Complaints of Rulings Prior to Trial

Grounds 3 through 7 complain of certain rulings of Judge Eldon Mahon prior to the trial.

Chief Judge Brewster and Judge Mahon are located at Fort Worth. Judge Brewster takes responsibility for a good part of the trials in Fort Worth, because Judge Mahon has a large part of the docket in Dallas formerly handled by Judge Estes before he became a Senior Judge on July 1, 1972. The case sub judice was designated to be tried before Judge Brewster. He handled all arraignments, and set the trial date.

Thirteen defendants were indicted; but one of them was in custody of the authorities of the Republic of Mexico in Nuevo Laredo, and the United States never got jurisdiction over him. Ten of the remaining twelve pleaded guilty, and only Lerma and Salinas were left for trial.

After the trial date on Lerma and Salinas was set, those defendants filed some pre-trial motions which required hearing and action at a time when Judge Brewster was to be out of the state at a Chief Judge's meeting. Judge Mahon heard such motions for Judge Brewster, and complaint is made of some of his rulings at the hearing.

The first complaint is that Judge Mahon overruled these defendants' motion to transfer this case to the Laredo Division of the Southern District of Texas. The reason given was that all transactions involving these defendants allegedly occurred in that Division.

Venue in this case is determined by Rule 18, F.R.Crim.P., which provides that "the prosecution shall be had in a district in which the offense was committed."

It has long been the law that in federal courts venue of prosecution for conspiracy lies in the district where the agreement was made or an overt act in furtherance of the conspiracy was committed. Hyde v. United States, 225 U.S. 347, 363, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); Miller v. Connally, 5 Cir., 354 F.2d 206, 208 (1965); Bellard v. United States, 5 Cir., 356 F.2d 437 (1966), cert. den., 385 U.S. 856, 87 S.Ct. 103, 17 L. Ed.2d 83; United States v. Williams, 5 Cir., 424 F.2d 344 (1970): Rule 18, F.R. Cr.P.

The conspiracy here involved covered a wide territory from the Texas-Mexican border to Kansas City, Kansas. The government's evidence supported the theory that Lerma and Salinas were large suppliers near the top of a dope ring that could furnish cocaine in big lot quantities; that the defendant, Laurel, was one of their jobber outlets; that Laurel sold the cocaine obtained from them to wholesalers in the area of the University of Texas at Austin, Texas Christian University at Fort Worth, and University of Texas at Arlington.¹ While the conspiracy "agreement" between Laurel, Lerma and Salinas may have been formed in the Laredo Division of the Southern District, several of the other defendants joined in the conspiracy in Fort Worth and Dallas. Many of the overt acts alleged in the indictment occurred in the Fort Worth-Dallas area, which is in the Northern District of Texas. Laurel was arrested at the Dallas airport as he was bringing in a large quantity of cocaine to complete a sale. The defendants, Branum and wife, Garnett, Speake and Ray were arrested in a motel room at Arlington, Texas, as they prepared to consummate a sale of two pounds of cocaine to government undercover agents for the wholesale price of $26,400.00.² Under those circumstances, venue was properly laid in the Northern District of Texas.

While the indictment was returned into the Fort Worth Division, the case was tried in the Abilene Division.³ At the time of the arraignments, there was not enough time left to get the case to trial in Fort Worth before Judge Brewster went to Abilene for the May docket there. Judge Mahon already had a full setting for May. These defendants were in jail, and Judge Brewster inquired of their counsel in open court if they wanted the case tried in Abilene where it could be reached in May. Counsel for Lerma and Salinas stated they consented to the trial in Abilene.⁴

What these defendants actually wanted was to get the case transferred to the city where they lived and possibly had some influence. Residence of the defendants is not a relevant factor. United States v. Valle, D.C.S.D.N.Y., 16 F.R.D. 519 (1955).⁵

The other complaints directed at Judge Mahon's rulings relate to discovery. The practice in the Fort Worth Division to require the government to give much more information than the law requires is long established and rather well known in judicial circles. During his four years as United States Attorney here before going on the bench about a year ago, Judge Mahon followed that practice in criminal cases in this Court. He became a believer in it, and has established it in cases in his Court. The practice is very informal. The United States Attorney is required to show his entire file and make a complete disclosure to defense counsel in all but the most exceptional cases.⁶ A limited disclosure is made where the file also contains matters relating to investigation of unrelated offenses,⁷ or where there is a question about whether the identity of the informer should be revealed. Those decisions are not left to the United States Attorney. Under the practice, he must secure the approval of the judge to make less than a full disclosure.

Such a practice results in making available to defense counsel in advance of the trial not only statements he could not get under the criminal discovery rules, but also reports of the investigative officers. Those reports are valuable because they summarize the government's case and usually indicate how the evidence will be used to prove the offense.

Judge Mahon left it to the parties to proceed under this practice, knowing that almost invariably it works out all discovery and bill of particular problems.

When the motion for new trial was presented to Judge Brewster, he inquired of defense counsel what he had failed to get. He said that his only complaint about discovery was that he was not given the statement of the defendant, Laurel, until Sunday⁸ before the case went to trial on Monday. That was considerably earlier than he could have obtained the statement if he had been held to what the law allowed him. Under 18 U.S.C. § 3500, he was not entitled to it until after Laurel testified on direct examination.

There is nothing in the record to indicate that the government knew, prior to the date it gave the statement to defense counsel, that Laurel would actually testify. The indications were to the contrary. It had permitted him to remain in the same cell block in jail with Lerma and Salinas for some time. During that period, Lerma and Salinas did not suspect that he would be a witness against them, for they were congenial with him. The first indication of suspicion that he would be a government witness came after he was separated from them shortly before the trial, when Salinas' uncle called Mrs. Laurel and told her that "it would not help" Laurel if he testified for the government.

Cases involving substantial traffic in dope are ones where this Court does not require disclosure in advance of the trial of matters that may affect the welfare of witnesses. A man who would traffic dope into schools would not hesitate to threaten or harm a witness if he thought he could help his defense by doing so.

Prior to the trial, the United States Attorney gave to defense counsel a Xerox copy of all of the government⁹ file except a few small portions dealing with unrelated conspiracies involving other persons which were excerpted. A Xerox copy of the complete file was furnished the Court with the excerpts properly identified. The Court examined the entire file en camera and concluded that the excerpts related to matters having no possible relevance, and did not require such excerpted matters to be furnished to the defense. That file is being sealed and made a part of the records in this case for examination by the appellate court. That was the practice followed by this Court in United States v. Ramzy, 5 Cir., 446 F.2d 1184 (1971), where Chief Judge Brown said at p. 1187:

"Finally, we reject the argument that the defense was prejudiced by the denial of access to a small portion of the government's file. The Trial Court, in fact, was extraordinarily generous in its allowance of discovery, and after examining the excluded material we have found that it contains nothing that could possibly have materially aided the defendant in the preparation of his case."

Qualifications of Juror and Misconduct of Jury

The motion for new trial alleges misconduct of the jury as follows:

"The jury received unsworn testimony and new evidence of a material nature during their deliberations when the foreman, Mr. J. C. Teague, told the other jurors that he had previously been convicted of transporting beer and wine in a dry area and told the other jurors how two friends of his asked him to get the beer and wine (48 — quarts of can beer and 56 — 4/5 's of wine) in a wet area and bring it back to them in a dry area; that the two friends paid him (Teague) to so transport the beer and wine; that he (Teague) was arrested and prior to the actual arrest, it was agreed between the three men that Teague would take the blame for all the beer and wine; that Teague told the police it was his beer and wine (and did not tell the police that the beer and wine was bought for the two friends, with money from the two friends and that he was being paid to transport the beer and wine), all as more

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