United States v. Valencia, 73-1653.

• Decision Date: 01 February 1974
• Docket Number: No. 73-1653.,73-1653.
• Citation: 492 F.2d 1071
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando Martinez VALENCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

492 F.2d 1071 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Armando Martinez VALENCIA, Defendant-Appellant.

No. 73-1653.

United States Court of Appeals, Ninth Circuit.

February 1, 1974.

Leon Thikoll, Thikoll & Johnston, Tucson, Ariz. (argued), for defendant-appellant.

William C. Smitherman, U. S. Atty., Daniel Knauss, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.

Before MERRILL and WALLACE, Circuit Judges, and CONTI, District Judge.^*

OPINION

MERRILL, Circuit Judge:

Appellant has been convicted of importation of narcotics and of conspiracy to import narcotics. He has received consecutive sentences. The principal question upon appeal is whether the two offenses were identical, with the result that appellant has twice been placed in jeopardy, receiving consecutive sentences for identical offenses.

Count I of the indictment read:

"That on or about May 4, 1972, at the Port of Entry, Nogales, in the District of Arizona, ARMANDO MARTINEZ VALENCIA did knowingly and intentionally import into the United States from Mexico approximately five (5) ounces of a Schedule I narcotic drug controlled substance, to-wit: heroin, in violation of Title 21, United States Code, Section 952(a)."

Count III read:

"That on or about May 4, 1972, at Tucson, in the District of Arizona, and elsewhere, ARMANDO MARTINEZ VALENCIA, the defendant herein, Christine Lucille Spriggs and diverse other persons whose names are unknown to the Grand Jury, did wilfully and knowingly combine, conspire, confederate and agree together and with each other to import into the United States from Mexico approximately five (5) ounces of a Schedule I narcotic drug controlled substance, to-wit: heroin, in violation of Title 21, United States Code, Section 952(a), all in violation of Title 21, United States Code, Section 963."

The facts as recited by appellant are as follows:

"It was the theory of the prosecution that Christine Spriggs conspired with VALENCIA in Tucson, Arizona, to illegally import into the United States a quantity of heroin. A motor vehicle was provided to Christine Spriggs by VALENCIA, and she was instructed that the heroin would be given to her in Nogales, Mexico, by VALENCIA; and she should then cross the border with that heroin and drive it up to Tucson. On May 4, 1972, Miss Spriggs went to Nogales, Mexico, and in a bakery was handed a quantity of heroin by ARMANDO VALENCIA.

She went to the port of entry and was subjected to a strip search, perhaps even amounting to a body cavity search, and the heroin was discovered. A few minutes later ARMANDO VALENCIA came through the port of entry and was detained as a suspect but then released. Customs Agent, Wayne Brown, after speaking with Christine Spriggs, determined that she had come down in a certain motor vehicle, obtained a description of that vehicle and caused it to be searched and registration documents in the name of VALENCIA were taken.

At some time after her arrest, Christine Spriggs told the United States customs agents that she had been working with ARMANDO VALENCIA and would testify against him if he were to be charged with the offense. ARMANDO VALENCIA was then arrested in Tucson, Arizona, and held for trial."

It is conceded that appellant did not, by his own act, import narcotics under count I. His liability is founded on 18 U.S.C. § 2.

"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."

Appellant contends that the substantive offense with which he was charged was one that cannot be effectuated without the concerted activity of two persons; that when such is the case those two persons cannot be charged, in addition to the substantive offense, with conspiracy for engaging in or having agreed to engage in the concerted activity.

The law, however, is otherwise. It may be conceded that the typical case under § 2 is one of knowing concert of action pursuant to agreement. However, it is not the only case. As to § 2(a), it is stated in Pereira v. United States, 347 U. S. 1, 11-12, 74 S.Ct. 358, 364, 98 L.Ed....