United States v. Valdivia

• Decision Date: 15 April 1974
• Docket Number: and 71-2141.,No. 71-2093—71-2096,71-2093—71-2096
• Citation: 492 F.2d 199
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry Contreras VALDIVIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roy COHN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Warren Lonnel HARRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee. v. Carl TURNER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Joseph FREEDMAN, Defendant-Appellant. Hernandez Cases. Group III Appeals.
• Court: U.S. Court of Appeals — Ninth Circuit

492 F.2d 199 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Harry Contreras VALDIVIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Roy COHN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Warren Lonnel HARRIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee. v. Carl TURNER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Joseph FREEDMAN, Defendant-Appellant.

Hernandez Cases.

Group III Appeals.

Nos. 71-2093—71-2096, and 71-2141.

United States Court of Appeals, Ninth Circuit.

February 16, 1973.

Rehearing Denied October 18, 1973.

Certiorari Denied April 15, 1974.

Frank A. Rockwell (argued), San Diego, Cal., Jonathan K. Golden (argued), Burton Marks, Beverly Hills, Cal., Roger S. Hanson (argued), Woodland Hills, Cal., Rembert T. Brown (argued), La Mesa, Cal., for defendants-appellants.

James W. Meyers, Asst. U. S. Atty. (argued), Phillip W. Johnson, Special Asst. Atty. Gen., Harry D. Steward, U. S. Atty, San Diego, Cal., for plaintiff-appellee.

Before HAMLEY and CHOY, Circuit Judges, and SCHNACKE,^* District Judge.

Rehearing Denied in Nos. 71-2094-71-2096 October 18, 1973.

Certiorari Denied April 15, 1974. See 94 S.Ct. 1945.

HAMLEY, Circuit Judge:

This case involves the so-called Hernandez narcotics conspiracy. The general background of that conspiracy is developed in detail in our opinion, filed today, in United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973). In that opinion we noted that the district court had divided the forty-nine defendants named in a two-count indictment into three groups for trial.

The Baxter decision deals with the appeals arising from one of these trials, which we have labeled the Group I appeals. The decision of this court, filed today in United States v. Murray, et al., 492 F.2d 178 (9th Cir. 1973), deals with the appeals arising from another of these three trials, and has been labeled the Group II appeals. The appeals now before us arise from the third of these trials, and our decision herein has been labeled the Group III appeals.¹

The defendants involved in the Group III trial were Harry Contreras Valdivia, Roy Cohn, Warren Lonnel Harris, Carl Turner, William Joseph Freedman, Herbert Cox, Jr., Marion Hawkins and H. S. Sanford. The charges against Sanford and Hawkins were severed for separate trial. The jury found Cox not guilty on both counts. The jury found the remaining five defendants guilty on both counts.² Each has appealed and we have consolidated their appeals for disposition in this court.

I. Proof of Conspiracy and Severance for Trial

Some of the defendants involved in this appeal contend that the evidence is insufficient to establish that they participated in a single over-all conspiracy of the kind charged in the indictment.

At the outset of section I of our opinion in the Group I appeals, United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973), filed today, we discussed the general considerations to be borne in mind in dealing with challenges to the sufficiency of the evidence to support conspiracy charges. What we there said is equally applicable here and will serve as an introduction to our discussion of the sufficiency of the evidence to support the conspiracy charges against defendants who have raised the question. We also note that the evidence pertaining to the background facts of the single over-all conspiracy as introduced in this Group III trial, is essentially the same as that introduced at the Group I trial, summarized in the Baxter opinion.

Defendant Cohn. Although Cohn does not specifically question the sufficiency of the evidence supporting his conviction on the conspiracy count, he does adopt all of the arguments raised by other appellants in the Hernandez Cases. We deem this sufficient, under the special circumstances of this case,³ to challenge the sufficiency of the evidence, but we conclude that Cohn's contention is without merit.

Cohn was the Hernandezes' distributor in the Los Angeles area. He was frequently in contact with the leaders of the Hernandez organization in Tijuana. Orders from retailers in the Los Angeles area were given to Cohn by Richard Wright. Cohn would then receive the smuggled narcotics and "fill" the customers' orders. Thus, Cohn knew both the existence and size of the Hernandez operation, and there is sufficient evidence to prove his participation in a single, over-all conspiracy. There is no variance between the crime charged in the indictment and the proof at the trial.

Defendant Harris. The jury could reasonably have found the facts to be as follows with regard to Harris' connection with the over-all Hernandez narcotics operation: A page in the Hernandez "customer book," exhibit 601, is headed "LYNIL-J. A. WHITE" and "753-2036." Richard Wright testified that "Lynil" was the name this customer used when calling to order narcotics and "J. A. White" was the name he employed in sending telegrams, checks or money orders to the Hernandezes. This page of the "customer book" shows that "LYNIL-J. A. WHITE" was charged three hundred twenty-five dollars an ounce for heroin and five hundred fifty dollars an ounce for cocaine. The entries on that page reflect sales of over a pound of heroin and two ounces of cocaine, with a sales value of $6,525.00, during a fifty-three-day period in October and November, 1968.

Telephone number 753-2036 was listed to Harris' wife, Elizabeth Harris, at their residence in Inglewood, California. United States Customs agents arrested Harris at this residence on December 17, 1968. The agents found two address books, with handwritten entries made by Harris, at the scene of his arrest. Both books contained the Juan Hernandez telephone number in Tijuana, Mexico, and telephone number 384-8035, which was the "subtract-from-ten" code for the Hernandezes' main number in Tijuana.

Two Bank of America cashier's checks, payable to Robert Hernandez, and the applications therefor, were admitted as evidence at the trial. The first, which Robert Hernandez negotiated, was dated April 17, 1968, and was in the amount of $4,875.00. This check was signed "James L. Brown." The second, dated December 9, 1968, was in the amount of five hundred fifty dollars. It was signed "J. A. White." Richard Wright turned this check over to Government agents before it could be negotiated by Hernandez. Envelopes addressed to Robert Hernandez, with Wright's notations on the back, were also introduced. A handwriting expert testified that the signatures on the application forms and the addresses on the envelopes, were all written by defendant Harris.

Other evidence establishing Harris' identity as "LYNIL-J. A. WHITE" is a recorded telephone conversation of December 7, 1968, between Wright and Hernandez-distributor Roy Cohn. In this conversation, Wright instructed Cohn as to an order from "Lynil." The telephone number which Cohn was to call was that listed to Harris' wife.

The direct and circumstantial evidence discussed above shows that Harris was in contact with the Hernandezes' main headquarters in Tijuana, with Juan Hernandez in Tijuana, with Wright while Wright was a Hernandez operative, and with Roy Cohn.

Having in mind the background evidence pertaining to the over-all conspiracy, which was similar to that reviewed in the Group I appeals opinion, and the evidence which relates specifically to Harris, as summarized above, we are of the view that the jury could reasonably find that Harris must have known that other retailers, in addition to himself, were involved with the Hernandez organization in a broad plan for the smuggling, distribution and retail sale of narcotics. The jury could also reasonably find that Harris must have realized that the benefits he and the other retailers derived from the operation were dependent upon their mutual participation therein.

These basic findings are ample to support the jury determination that Harris, in effect, agreed to participate in the over-all scheme, and did participate therein. See Blumenthal v. United States, 332 U.S. 539, 557, 558, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Friedman, 445 F.2d 1076, 1079 (9th Cir. 1971); Daily v. United States, 282 F.2d 818, 820 (9th Cir. 1960).

We therefore hold the evidence sufficient to establish the existence of the over-all narcotics conspiracy, as charged, and Harris' participation therein.

Defendant Freedman. The jury could reasonably have found the facts to be as follows concerning Freedman's connection with the over-all Hernandez narcotics operation: A page in the Hernandez "customer book," exhibit 601, is headed "Louie Bigg," "Louie or Bill," "278-1128," "466-0413." One of these telephone numbers, 278-1128, was listed to Freedman at his Los Angeles residence. United States Customs agents arrested Freedman at this residence on December 17, 1968. Exhibit 641 shows four telephone calls made from that telephone, within an eight-day period, to the Hernandezes' main number in Tijuana.

The other telephone number found on the "Louis or Bill" page of the "customer book" was listed to a "Pamela Harvey," whose real name was Pamela Buek. She had that telephone in her Hollywood, California, apartment during October and November, 1968. Louis Hattem, an indicted co-conspirator in this case, lived with her for a period of time and he used that telephone. She never called Tijuana while she had that telephone. Yet telephone company records show that a call was made to the main Hernandez number in Tijuana.

In the fall of 1968, both Hattem and Freedman journeyed to the Hernandez residence in Tijuana to talk to Robert Hernandez. Hattem was an old customer of the organization and he introduced Freedman as his "partner," and told Hernandez that they had come down to buy marijuana and cocaine. A handwritten telephone book found in Freedman's apartment had an entry "Lou H. 466-1502," which is the same number as that of...