United States v. Soto
| Decision Date | 06 May 1958 |
| Docket Number | No. 12131.,12131. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph SOTO and Gilberto De Leon, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John Gannon, Anna R. Lavin, Chicago, Ill., for appellants.
Robert Tieken, U. S. Atty., John F. Grady, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.
Before FINNEGAN, HASTINGS and PARKINSON, Circuit Judges.
After trial by jury and its verdict of guilty Soto and De Leon, defendants-appellants, appealed seeking reversal of the judgments of conviction grounded on counts three and four of a multiple count indictment, filed May 2, 1957, having this framework:
Narcotic
Count Statutory Violation Buyer Drugs Defendants
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1. | I.R.C. 1954, § 4705(a) | Sale 2/7/57 | Singer | 18 grains | Olivo
| | | | Heroin |
2. | 21 U.S.C. § 174 | Concealing | ------ | Same | Olivo
| | 2/7/57 | | |
3. | I.R.C. 1954, § 4742(a) | Sale 3/18/57 | Singer | Heroin | Del Rio, Olivo
| | | | 10 lbs. | Moody
4. | 21 U.S.C. § 174 | Concealing | ------ | Same | Same
| | 3/18/57 | | |
5. | I.R.C. 1954, § 4742(a)1 | Sale 4/22/57 | Singer | 56 lbs. | Soto, De Leon
| | | | Marihuana | Olivo
6. | 21 U.S.C. § 176a2 | Concealing | ------ | 56 lbs. | Soto, De Leon
| | 4/22/57 | | Marihuana | Olivo
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Counts three and four were dismissed on motion of the government, Moody and Del Rio were granted a severance, and the cause proceeded June 11, 1957 to trial on the remaining counts, and the verdict was returned June 17, 1957; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 was decided June 3, 1957. Counsel for the two appellants claim reversible errors are present because: (1) the trial judge sustained, or countenanced, the prosecution's refusal "to turn over reports of testifying agents"; denied Soto and De Leon a severance, and refused to grant the defense motion for a directed verdict, (2) there were prejudicial remarks made by the prosecutor and government witnesses, and, (3) the evidence fails to support the verdict.
From what has already been stated it is apparent that counts three and four charge Olivo, Moody and Del Rio with a marijuana transaction of March 18, 1957, without naming either of the two defendant-appellants now before us. When the present case went to trial Olivo was defending on counts 1, 2, 5 and 6, but he alone was accused in counts 1 and 2 and with Soto and De Leon on the fifth and sixth counts. Singer's testimony, given for the government in his capacity as a treasury enforcement agent, concerned purchases of heroin: (1) from Olivo on February 7, 1957 — the subject-matter of counts 1 and 2 and, (2) the marijuana transaction on April 22, 1957 involving Olivo and his co-defendants Soto and De Leon under counts 5 and 6.
The dismissal of counts 3 and 4 charging Olivo and, the Del Rio-Moody severance, precluded testimony by Singer regarding the March 18, 1957 transaction and, for those reasons, he related nothing about it.
To maintain its proof under the counts in issue the government, through the testimony of several federal narcotics agents, including Bernard Singer, and appellant's co-defendant Reynolds Olivo, showed inter alia, the following. After some negotiations of Singer with Olivo during the week prior to the indictment date, April 22, 1957, Olivo agreed to sell Agent Singer roughly 50 pounds of marijuana at seventy dollars per pound, and for that purpose Singer went to Olivo's house, 1408 West Harrison Street, Chicago, at 7 P.M. On his arrival in a government vehicle, Singer observed Olivo standing in front of his house talking with Soto and De Leon, waited for several minutes until those two appellants departed and until Olivo joined Singer. Following Olivo's directions, Singer drove to a point in the vicinity of 84th and Burley Streets, on Chicago's south side, where Olivo got out of the government vehicle and disappeared from Singer's view. Subsequently Soto and De Leon walked past Singer's automobile in the same direction taken by Olivo, and they also got out of Singer's sight, only to reappear several moments later, again passing Singer. Afterward, Olivo returned and told Singer to drive to 90th and Burley Streets, where, after waiting a few minutes, Singer asked, Olivo replied, "Yea(h), but I am not sure that I have got the right street corner." Five minutes later, when a Plymouth automobile came in view, Olivo said, "Well, there they go," and he directed Singer to follow that car. Following the Plymouth led back to 84th and Burley where both cars, the Plymouth and government vehicle, were there parked. Soto and De Leon got out of the Plymouth, went to the rear of it and opened the car trunk; Olivo asked Singer where he wanted the marijuana. Telling him to put it in the trunk, Singer then opened the government car trunk. Soto and De Leon removed three gunny sacks (containing 56 pounds of marijuana according to counsel's stipulation3 in the trial court) from the Plymouth and placed them in the trunk of the Singer vehicle. After opening one package from each sack, Singer signaled several other agents waiting in the vicinity, and when they arrived Olivo, Soto and De Leon were arrested. This transfer of marijuana was made without a written order and the overt acts, just described, of Soto and De Leon are undisputed and witnessed. Olivo readily admitted the sale and transfer during his testimony given below. The defense of Soto and De Leon consisted solely of examining the government witnesses.
On cross-examination Singer testified that he made "routine" reports to the Bureau of Narcotics; that there were a "number of reports" made in this case. When this government witness was examined by counsel defending Olivo the following exchange, urged as the foundation for production of these reports, took place:
Appellate counsel, acting on behalf of Soto and De Leon, press on us the parallel manifestations of policy they think are found in both Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 and Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.4 At the outset, however, we underscore the uncontroverted evidence of possession, and concealment established on the record before us, and stress that this is a record barren of any firm showing of relevancy regarding "disclosure of an informer's identity, or of the contents of his communication." Indeed Mr. Justice Burton, delivering the Roviaro majority opinion wrote: "we believe that no fixed rule with respect to disclosure is justifiable." 353 U.S. 53, 77 S.Ct. 623, 628. It must be remembered that the unidentified informer in the Roviaro case was a material witness. An examination of the circumstances under which the Supreme Court made some statements in Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, quoted to us by defense counsel in the current appeal illustrates how in-apposite their use by these defendants is to the instant question. In Roviaro the government, having virtually abandoned its position on Count 1 26 U.S.C. § 2554 (a), was struggling to maintain the conviction on Count 2, charging illegal transportation of narcotics under 65 Stat. 767, 768, 21 U.S.C.A. § 174, by reasoning that: "* * * the identity of the informer, in the circumstances * * * has no real bearing on that charge and is therefore privileged." 353 U.S. 53, 59, 77 S.Ct. 623, 627. The...
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