United States v. Jesus Reyes Mendoza

473 F.2d 692
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 12, 1973
Docket71-3146
StatusPublished
Cited by55 cases

This text of 473 F.2d 692 (United States v. Jesus Reyes Mendoza) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jesus Reyes Mendoza, 473 F.2d 692 (5th Cir. 1973).

Opinions

CLARK, Circuit Judge:

Jesus Reyes Mendoza, Gregorio Reyes Mendoza, Jr., Bias Tamaz Martinez, Arturo Reyes Mendoza, and Oscar Reyes Mendoza appeal from three convictions for violating 21 U.S.C. § 176a, which deals with the importation, receipt, concealment, and sale of marijuana and from one conviction for conspiring to violate the same statute. All appellants except Oscar Reyes Mendoza (Oscar) are proceeding in forma pauperis with court-appointed counsel. Retained counsel for Oscar has filed a separate brief and was permitted separate oral argument.

Double Jeopardy

Although separate counsel proceed on somewhat different theories, all appellants contend they were twice placed in jeopardy. The facts claimed to support this argument are as follows:

First, after the first four appellants were indicted on these charges, that indictment was dismissed and a new indictment was drawn naming three additional defendants (including Oscar). This new indictment was identical to the [694]*694first except that additional overt acts were alleged under the conspiracy count. This dismissal and reindictment does not constitute double jeopardy since at that time no jury had been sworn. Penn v. United States, 401 F.2d 336 (5th Cir. 1968).

Second, it is urged that the government at the time of the trial had elected to punish the defendants by forfeiting their automobiles. Arguably this forfeiture constituted a criminal punishment. If that were accepted, then it would follow that appellants were twice punished for their crime. The cases cited in support of this argument, however, including United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), are inapposite. They merely stand for the principle that the safeguards secured by the Constitution, such as protection against self-incrimination, are available to one whose property is forfeited. In no reasonable sense can it be said that these cases undertake to make forfeiture proceedings the equivalent of criminal prosecutions for double jeopardy purposes.

Third, Oscar alone contends that the defendants were twice placed in jeopardy because they were twice arraigned after the jury was sworn. The record shows that during the reading of the indictment the names of two of the seven defendants indicted, whose trials had been severed, were omitted. After objection was made, the indictment was read in its original tenor including the names of all seven originally indicted defendants. At most there was a momentary interruption of the trial due to this technical error. None of the appellants suffered any prejudice or delay as a result of its correction. See United States v. Bringhurst, 468 F.2d 604 (5th Cir. 1972). Indeed, Oscar concedes in his brief “that a trial judge could conceivably have the authority to stop a trial and permit the Government to amend an indictment and to rearraign a defendant; such termination of the trial, of course, would require the impaneling of a new jury, and if such new impanelment occurred then the exception would exist without dilutement of a defénd-ant’s rights under the Fifth Amendment.” Oscar’s contention is that the incorrect first reading of the indictment was such an event that the trial should have been terminated and the process begun ab initio. The Supreme Court in Lovato v. New Mexico, 242 U.S. 199, 202, 37 S.Ct. 107, 108, 61 L.Ed. 244 (1916), where almost precisely the opposite contention was raised, used the following language:

[ W] e think the contention that the accused was twice put in jeopardy is wholly without merit. Under the circumstances there was, in the best possible view for the accused, a mere irregularity of procedure which deprived him of no right. Indeed, when, it is borne in mind that the situation upon which the court acted resulted from entertaining a demurrer to the indictment after a plea of not guilty had been entered and not withdrawn, it is apparent that the confusion was brought about by an overcautious purpose on the part of the court to protect the rights of the accused. Whether or not, under the circumstances, it was a necessary formality to dismiss the jury in order to enable the accused to be again arraigned and plead, the action taken was clearly within the bounds of sound judicial discretion.

Here, the mere omission of two names from the indictment would not justify the unnecessary formality which Oscar urges this court to require.

The Indictment

We reject the contention that the reading of the indictment in its original and correct form, after the first improper reading, constituted an amendment to the indictment as returned by the grand jury. Nor is there any merit in the argument that the first count of the indictment was invalid since it [695]*695didn’t allege the infractions of the law were committed “with intent to defraud.” It is well established that it is not necessary in a conspiracy count that the object of the conspiracy be described in the detail required in an indictment for the substantive offense itself. See, e. g., United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971); United States v. Fischetti, 450 F.2d 34, 40 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S. Ct. 1290, 31 L.Ed.2d 478 (1972); Walker v. United States, 342 F.2d 22, 27 (5th Cir.), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965). We think that the indictment charging that the defendants “did unlawfully, willfully, and knowingly conspire with each other .” to commit certain violations of Section 176a is a sufficient allegation of intent and served as fair notice to the defendants.

Jury Instructions

Appellants assert error in that the trial court refused to instruct the jury that the acts and statement of the conspirators must have been in furtherance of the conspiracy to be admissible against all co-conspirators. Counsel, however, have not been able to point out in their briefs or in response to questioning on oral argument any acts or statements admitted into evidence which were not in furtherance of the conspiracy. Thus, even if there were any error in the trial court’s instruction, it was harmless to the defendants in this case. Nor is there any error in the court’s refusal to exclude from the jury’s consideration as to the substantive counts the evidence admitted under the co-conspirator exception to the hearsay rule. This exception is generally applicable to criminal prosecutions and not limited to prosecutions for conspiracy. United States v. Johnson, 466 F.2d 508 (5th Cir. 1972); United States v. Cox, 449 F.2d 679 ,(10th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972); United States v. Jones, 438 F.2d 461 (7th Cir. 1971); United States v. Williams, 435 F.2d 642 (9th Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1241, 28 L.Ed.2d 533 (1971); Mc-Gregor v. United States, 422 F.2d 925 (5th Cir. 1970); see United States v. Fischetti, supra, 450 F.2d 34, at 40-41.

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473 F.2d 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jesus-reyes-mendoza-ca5-1973.