Jose CAZARES-RAMIREZ and Jose Felix Nandin, Appellants, v. UNITED STATES of America, Appellee.
No. 25010.
United States Court of Appeals Fifth Circuit.
Jan. 7, 1969.
Rehearing Denied Feb. 28, 1969. Rehearing Denied March 20, 1969.
406 F.2d 228
For the reasons stated the Commission‘s order will be affirmed and enforced.
Jeremiah Ingels Rhodes, John W. Claybrook, Eagle Pass, Tex., for appellants.
Reese Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before THORNBERRY and SIMPSON, Circuit Judges, and ATKINS, District Judge.
SIMPSON, Circuit Judge:
Jose Cazares-Ramirez and Jose Felix Nandin, were jointly indicted,1 tried and convicted before a jury for violation of
We affirm the conviction as to Cazares-Ramirez. As to Nandin, the other two members of this panel affirm in a separate opinion prepared by Judge Thornberry. The writer of this opinion viеws the evidence as insufficient to support Nandin‘s conviction and would reverse and render.
Viewed in the light most favorable to the government3 the evidence showed that on the afternoon of November 1, 1966, Customs Agent Sam Schwartz, acting in an undercover capacity and posing as a Dallas dope peddler, met with the appellants in the parking lot directly behind the Merchant‘s Cafe on Main Street in Eagle Pass, Texas. Schwartz was introduced to the appellants by an infоrmant, who sat in the automobile in the parking lot during this initial interview but was not further involved in the case. Cazares-Ramirez told Schwartz that he had 30 ounces of white heroin which he wished to sell for $450.00 an ounce and that he would accept $13,500.00 for the entire 30 ounces. Cazares-Ramirez told Schwartz that the heroin would be good heroin, fifty percent pure or better. Nandin took almost no part in the conversation, but at this point he told Schwartz that the white heroin would be good quality and that the weight would be correct. Cazares-Ramirez told Schwartz that if he preferred brown heroin he had approximately one and one-half kilos he would sell for $350.00 per ounce. Schwartz stated that he preferred to buy the white heroin and a price of $13,000.00 for the 30 ounces was agreed upon. Schwartz insisted that delivery be made in the United States, to which Cazares-Ramirez agreed. Schwаrtz stated that he was tired and asked where he could obtain a room. One of the appellants suggested the Holly Inn Motel, Eagle Pass, Texas, and the other agreed that this was a good place. Schwartz asked when delivery would be made and Cazares-Ramirez replied that he would bring the heroin to Schwartz‘s room the following afternoon. Schwartz stated that he preferred that delivery be made before noon to save him from having to pay for another day at the motel, and this was agreed to by Cazares-Ramirez, who then asked Schwartz if he wanted the heroin in one large package or if he preferred to have it in smaller packages. Schwartz indicated that he preferred that it be
THE APPEAL OF JOSE CAZARES-RAMIREZ
The questions raised by this appellant on apрeal, stated by him as four separate points, resolve themselves into two questions: (1) whether or not the evidence shows unlawful entrapment, and (2) by reason thereof whether or not the district court erred in denying motion for judgment of acquittal.
In Jasso v. United States, 5 Cir. 1961, 290 F.2d 671, this Court had occasion to cite with approval the guidelines laid down by United States v. Sherman, 2 Cir. 1952, 200 F.2d 880, (per Learned Hand, J.) for determining the propriety of inducements to commit crime. The holding was that such inducements by government agents were proper where (1) there was an existing course of similar criminal conduct, (2) the accused had already formed a design to commit the crime, or (3) his willingness to do so was evidenced by ready compliance. Here it appears that this appellant readily offered to supply large quantity of heroin as soon as agent Schwartz was introduced as a dope peddler by the informant. He was patently ready and willing to violate the law upon being given the opportunity to do so by the offer of the government agent to purchase the heroin. In further proof that the criminal design or purpose existed in his mind at the time that he was given the opportunity to violate the law it was established that he could furnish either white or brown heroin and that he would sell one and one-half kilos of brown heroin at $350.00 per ounce. The search of his сar after his arrest uncovered an additional fourteen ounces of heroin and a set of balance scales suitable for weighing narcotics in gram weights. See Reece v. United States, 5 Cir. 1942, 131 F.2d 186; Walker v. United States, 5 Cir. 1962, 301 F.2d 94, and Washington v. United States, 5 Cir. 1960, 275 F.2d 687.
Cazares-Ramirez asserts that the court below erred in overruling his motion for judgment of acquittal. Except when the facts are undisputed and cannot admit of any other conclusion, entrapment is a question to be resolved by the jury. See Sorrells v. United States (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States (1958) 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Lopеz v. United States (1963) 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; Accardi v. United States, 5 Cir. 1958, 257 F.2d 168, cert. denied 358 U.S. 883, 79 S.Ct. 124, 3 L.Ed.2d 112; Coronado v. United States, 5 Cir. 1959, 266 F.2d 719; and Suarez v. United States, 5 Cir. 1962, 309 F.2d 709, 710. There was sufficient evidence to establish that Cazares-Ramirez was not entrapped, and there was sufficient evidence to support the jury‘s verdict of guilty. As to this appeal, the judgment of the district court is affirmed.
THE APPEAL OF JOSE FELIX NANDIN
As to this appeal the members of this panel are in disagreement. The author of this opinion would reverse for the reasons set forth hereinafter. Judges Thornberry and Atkins, а majority of the panel, affirm the conviction of Nandin for reasons set forth in Judge Thornberry‘s separate opinion. The remainder of this opinion then is my dissent from this majority holding.
The theory of the government‘s case as to this defendant was predicated on the presumption provided in the closing paragraph of
“Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”
The effect of the presumption is such that a jury is justified in presuming that heroin has been illegally imported into the United States and that the defendant knew of its illegal importation when it is established beyond a reasonable doubt that the defendant has рossession of the narcotic drug. It is clear that constructive possession is sufficient. See United States v. Malfi, 3 Cir. 1959, 264 F.2d 147; United States v. Santore, 2 Cir. 1959, 290 F.2d 51; Cellino v. United States, 9 Cir. 1960, 276 F.2d 941; Green v. United States, 9 Cir. 1960, 282 F.2d 388; United States v. Hernandez, 2 Cir. 1960, 290 F.2d 86; United States v. Mills, 3 Cir. 1961, 293 F.2d 609; United States v. Jones, 2 Cir. 1962, 308 F.2d 26; Lucero v. United States, 8 Cir. 1963, 311 F.2d 457; Mack v. United States, 8 Cir. 1964, 326 F.2d 481; Brothers v. United States, 9 Cir. 1964, 328 F.2d 151; United States v. Ramsey, 2 Cir. 1966, 374 F.2d 192; Amaya v. United States, 10 Cir. 1967, 373 F.2d 197; Moody v. United States, 9 Cir 1967, 376 F.2d 525.
The co-defendant‘s admission of illegal importation of the heroin was stricken by the trial court as hearsay evidence as far as Nandin was concerned and there was no other evidence that Nandin knew that the heroin was illegally imported. The question is whether the evidence was sufficient to support the statutory presumptiоn, based on constructive possession, since the evidence failed to show any actual possession of the heroin by Nandin.
The government urges that we follow Cellino v. United States, 9 Cir. 1960, 276 F.2d 941,4 as warranting the application of the presumption by reason of constructive possession. In Cellino the defendant was approached by an undercover agent for the purpose of purchasing heroin. He stated that he did not have any but that he could take the prospective рurchaser to the man that did.
“He took them to a place where very shortly they were contacted by Bruno. True, Bruno negotiated the sale and received payment in appellant‘s absence; but prior to delivery Bruno directed the purchasers to the drug-
store where they found appellant. There appellant vouched for Bruno, assuring the purchasers that Bruno would be back with the narcotics. Within a few minutes Bruno сame to the drugstore and delivered the heroin in appellant‘s presence.” Cellino v. United States, supra, at page 946.
In conclusion, the Court said:
“It is our conclusion that the circumstantial evidence of dominion and control is sufficient to justify a finding by the jury of constructive possession in appellant within the meaning of Section 174.” Cellino v. United States, supra, at page 946.
The en banc decision of the Second Circuit in United States v. Santore, 2 Cir. 1959, 290 F.2d 51, upheld the conviction of one Lo Piccolo predicated upon the application of the presumption under the following facts:
“As to * * * Lo Piccоlo * * * there [was no] eyewitness testimony that he had actual physical possession of the heroin. However, Lo Piccolo‘s control over the arrangements for the particular sale is attested to by the visits Casella made to his apartment both before and after reporting to the agents how delivery would be made. It appears possible, if not probable, that the narcotics were brought to Lo Piccolо‘s apartment by Iguazio Orlando, the courier for the conspiracy, and never left his possession before they were deposited in the agent‘s hotel room. The proof points clearly, however, to Lo Piccolo‘s supervision over the entire errand, even to the extent of his accompanying Orlando to the hotel and waiting outside in his car (which was used for the trip) while Orlando deposited the goods in the room.” United States v. Santore, supra, at page 76.
The Ninth Circuit held the presumption applicable in Brothers v. United States, 9 Cir. 1964, 328 F.2d 151, where the following transpired. The defendant met with an undercover government agent at a bar for the purpose of selling heroin to the agent. The purchase price was paid at the bar and the buyer and seller left on foot. The seller stepped over to the curb and told the agent to pick up a Lucky Strike cigarette package, look inside and see if five capsules were there. Five capsules сontaining heroin were inside the cigarette package. In affirming the conviction the Court stated:
“When [defendant], having arranged to sell five capsules of heroin hydrochloride to [Government agent], took the latter with him on a walk up the street, pointed to a package by the curb, and told [government agent] to pick it up and see if it did not contain five capsules, he exerted effective dominion and control over that package and the narcotics contained therein.” Brothers v. United States, supra, at 155. See also White v. United States, 9 Cir. 1963, 315 F.2d 113.
The appellant Nandin, on the other hand, places his reliance upon United States v. Jones, 2 Cir. 1962, 308 F.2d 26. There the evidence was held legally insufficient to serve as a predicate for application of the statutory presumption.
In Jones, the defendant acted as a go-between for the seller and the undercover government agent. He offered to introduce the agent to his “connection, who deals good stuff.” The meeting was arranged and a sale took place. Jones did not appear to have anything to do with setting the price and the seller told the agent not to deal with anyone else in the future other than the seller himself or his associate (not the defendant Jones). The Second Circuit reversed, reasoning with respect to the concept of possession:
“The term hаs been interpreted by the courts to encompass power to control the disposition of drugs as well as mere physical custody. * * * We have said, moreover, * * * that one having a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their
production, without difficulty, to a customer as a matter of course may be held to have constructive possessiоn. But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug delivered and cannot be said to have possession of it.” United States v. Jones, supra, 308 F.2d at page 30.
I agree with the Third Circuit in Mills, supra, that Cellino, supra, represents the outside limit of “tenuous influence of possession.” I view the facts relied on by the government here to constitute proof of possession as being weaker than those in Cellino. I think that Nandin was no more than “a casual facilitator of the sale“,5 who may not be said to have had any real connection with it, or even the most tenuous constructive possession. The circumstances relied on to show constructive possession were his statement that the white heroin would be good stuff and that the weights would be сorrect, his recommendation of the motel, and the fact that he accompanied Cazares-Ramirez to the motel at the time the delivery was made. In essence this amounts to no more than proof of presence and guilty knowledge which are clearly insufficient to establish the required constructive possession.
I have no quarrel with the majority holding that constructive possession is sufficient to activate the statutory presumption, as indicated supra, page 231. I have no fault to find with the holding in Smith v. United States, 5 Cir. 1967, 385 F.2d 34, 38, and Garza v. United States, 5 Cir. 1967, 385 F.2d 899, the two cases upon which the majority relied. In both Smith and Garza the circumstances indicating guilt were considerably stronger than the circumstances relied upon to implicate Nandin. In holding that the evidence was sufficient to support the jury verdict of guilty as to Nandin I am convinced that the majority approves an impermissible pyramiding of inferences. The circumstances here present are simply not strong enough to exclude the reasonable hypothesis of innocence. In both Smith and Garza the reverse was true.
The conviction as to Nandin should be reversed and set aside upon the authority of Jones, supra. I think the district court should have granted Nandin‘s motion for judgment of acquittal, and would reverse and render here.
I respectfully dissent from the affirmance of Nandin‘s conviction.
THORNBERRY, Circuit Judge:
Judge Atkins and I concur in Judge Simpson‘s view that the conviction of Cazares-Ramirez must be affirmed and, аcting as a majority, we also affirm the conviction of Jose Felix Nandin. As Judge Simpson has indicated, he would reverse Nandin‘s conviction for insufficiency of evidence.
In Smith v. United States, 5th Cir. 1967, 385 F.2d 34, 38, this Court defined constructive possession as follows:
“Possession” within the meaning of the statute may be either actual or constructive, constructive possession being dominion and control over the illegal drug. Such possession need not be exclusive, but may be shared with others, and is susceptible of proof by circumstаntial as well as direct evidence. * * *
This definition was adopted in Garza v. United States, 5th Cir. 1967, 385 F.2d 899. In each of these cases, we held the presumption of
The inferences reasonably to be drawn from the evidence arе entirely consistent with guilt, i. e., with constructive possession which brings the presumption of guilt into play, and are inconsistent with every reasonable hypothesis of innocence. As we have said many times, the question for the appellate court is whether the jury might reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt. See O‘Connell v. United States, 5th Cir. 1968, 402 F.2d 760 [October 28, 1968] and authorities cited therein. In the case at bar, the only hypothesis of innocence would be that while Nandin was present at all the critical times and obviously had guilty knowledge, he was merely a disinterested observer who did not share control over the drugs and did not have a financial interest in the sale. That he was merely a disinterested observer or casual facilitator seems to us such a remote possibility that we believe the jury could reasonably rеject it and could decide the only reasonable inference to be that the two men who brought the heroin from the car to the motel room shared control over it.
The dissent relies on United States v. Jones, 2d Cir. 1962, 308 F.2d 26 where the evidence was held insufficient to support the statutory presumption. There, however, the defendant was nothing more than a go-between or casual facilitator. The most the jury could possibly infer was that he knew a man who sold drugs. The seller‘s statement to the undercover agent that in the future he should deal with the seller directly indicated that the defendant did not have a working relationship with the seller and did not share dominion and control over the drugs. In the case at bar, on the other hand, there is no evidence of this kind to negative the inference that Nandin shared dominion and control. The jury could reasonably interpret all the evidence to point toward a working relаtionship between the two appellants.1
We have considered Nandin‘s remaining contentions as to the district court‘s charge and find them to be without merit. Therefore, the convictions of Cazares-Ramirez and Nandin are in all things affirmed.
Rehearing denied.
SIMPSON, J., dissents.