United States v. Ralph Hernandez

962 F.2d 1152, 1992 WL 116496
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 3, 1992
Docket91-4502
StatusPublished
Cited by66 cases

This text of 962 F.2d 1152 (United States v. Ralph Hernandez) 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. Ralph Hernandez, 962 F.2d 1152, 1992 WL 116496 (5th Cir. 1992).

Opinion

GARWOOD, Circuit Judge:

Defendant-appellant Ralph Hernandez (Hernandez) appeals his conviction, following a jury trial, of one count of conspiracy to distribute marihuana and four counts of possession of marihuana with intent to distribute. He challenges the sufficiency of the evidence, complains of the denial of his request for a severance, claims a fatal variance between the indictment and the evidence, and contends that a witness was improperly allowed to assert her privilege against self-incrimination. He also challenges his sentence. We affirm.

Facts and Proceedings Below

In January 1989, the police in Plano, Texas began an investigation of a man named John Bass (Bass) on suspicion of drug trafficking. Their investigation entailed almost daily surveillance during the early months of 1989.

On the afternoon of April 4, 1989, Bass left his home and drove a pickup truck to the parking lot of a local Bennigan’s restaurant. A short time later a woman arrived in a rented Ryder van. Bass got into the passenger side of the van and conversed with the driver, whom the police later determined to be Denise Pero (Pero). Soon thereafter a white Lincoln Continental pulled into the parking lot, and Bass went over to talk with the driver, later determined to be defendant-appellant Hernandez. Bass then got back into his pickup truck and drove away. Hernandez got into the van with Pero, and they drove to a Holiday Inn in McKinney, Texas, about fifteen miles north of Plano.

About ten minutes later, Bass arrived driving the pickup truck. Pero dropped Hernandez off at the Holiday Inn, and followed Bass further northward on the highway. About five miles away, they stopped at a service station, filled the vehicles with gas, and switched vehicles: Bass continued on in the Ryder van, and Pero drove back toward McKinney in Bass’s pickup truck. Bass drove the van to a ranch near Trenton, Texas belonging to his brother-in-law Scott King (King), and pulled the van into King’s garage. When Bass left King’s house and drove the van back onto the highway, the police arrested him and took custody of the van. They detected a strong odor of raw marihuana in the van and found a partially smoked marihuana cigarette in the ash tray. In the back of the van were a suitcase and a cardboard box sealed with duct tape. After obtaining a search warrant, they opened the box in the back of the van and found a set of heavy-duty scales. In the suitcase were a number of smaller duffel-type bags. The police obtained and executed a search warrant on King’s residence in the early morning hours of April 5. They found in the garage eight large boxes containing marihuana — with a total net weight of slightly less than 300 pounds — and another large triple-beam scale. In the house itself they found $8,050 in currency, several loaded handguns, and several plastic bags containing marihuana. Pero and Hernandez were arrested in the Bennigan’s parking lot on the evening of April 4.

Bass cooperated with the government and provided information about his drug trafficking activities dating back to 1986.

On August 15, 1990, Hernandez and eight other persons, including Pero, were named in a 35-count indictment. Hernandez was named in five counts: (1) Count 1, charging all nine defendants with conspiring, from October 1986 to the date of the indictment, to distribute, and possess with intent to distribute, in excess of 1,000 kilograms of a substance containing a detecta *1155 ble amount of marihuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(vii); (2) Count 6, charging Hernandez and Pero with possession with intent to distribute, and distribution of, between 180 and 200 pounds of marihuana on or about November 29, 1988; (3) Count 11, charging Hernandez, Pero, and two others with possession with intent to distribute, and distribution of, 200 pounds of marihuana on or about January 29, 1989; (4) Count 14, charging Hernandez, Pero, and one other defendant with possession with intent to distribute, and distribution of, 200 pounds of marihuana on or about March 9, 1989; and (5) Count 16, charging Hernandez and Pero with possession with intent to distribute, and distribution of, approximately 315 pounds of marihuana on or about April 4, 1989.

By the time of trial, Pero and several others named in the indictment had entered into plea agreements, and Hernandez was tried jointly with four codefendants. The district court denied his pretrial motion for a severance. Bass’s trial testimony described the overall operations of the conspiracy. He testified that marihuana brought into the country in El Paso was brought by courier to him in Plano (a small town near Dallas). Bass utilized a number of locations, including the rural homes of King and of one Fred Harrington (Harrington), to inspect and weigh the marihuana, and to store it until it could be sold to various persons who distributed it in Ohio, Indiana, and Mississippi. Bass testified that in the spring of 1988 Pero called him and told him that she could bring some marihuana to Dallas, if he was interested in selling it. Bass was receptive, because he was experiencing difficulties with one of his regular suppliers, and he began to purchase marihuana regularly from Pero. He testified that on one occasion in September or October of 1988 she was accompanied by Hernandez, whom Pero said worked for the man who actually owned the marihuana- and was there to ensure that all of the money was paid and returned safely to the owner. Hernandez helped load the marihuana into Bass’s car on that occasion. Bass testified that thereafter during the fall of 1988, Hernandez accompanied Pero several times on the drug transactions, that he participated in the delivery of the marihuana, and that on at least one occasion Bass paid Hernandez directly.

Bass stated that on the day of his arrest, April 4, 1989, he had met with Pero and Hernandez at the Bennigan’s restaurant and told them to go to the Holiday Inn in McKinney. At the Holiday Inn he suggested to Pero that in order to avoid attracting attention, Hernandez remain there while the two of them drove the van containing the marihuana to King’s ranch.

After the seventh day of the trial, at which point Bass was testifying for the government during its case-in-chief, Hernandez’s four codefendants pleaded guilty. At the beginning of the court proceedings the next morning, the district court instructed the jury as follows:

“Ladies and gentlemen of the jury, you will notice that the Defendants, Fred Joseph Harrington, Brigitte Gaon Harrington, Stanley Diers and Morris Patterson are no longer present in Court.
The reason these Defendants are not [sic] longer present'here in Court is because of a ruling made by this Court. The reasons for the Court’s ruling are not your concern. The absence of these Defendants should not be considered by you as affecting in any way your determination of the guilt or innocence of the Defendant, Ralph Hernandez who remains in Court.”

A short time later, Hernandez unsuccessfully moved for a mistrial, arguing that notwithstanding the court’s instruction, it was perfectly cléar to the jury that the other defendants had pleaded guilty, and that it unfairly prejudiced his defense.

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Cite This Page — Counsel Stack

Bluebook (online)
962 F.2d 1152, 1992 WL 116496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ralph-hernandez-ca5-1992.