United States v. Telesforo Ray Gomez, and Cayetano Morin-Degollado

529 F.2d 412
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 26, 1976
Docket75--2415
StatusPublished
Cited by48 cases

This text of 529 F.2d 412 (United States v. Telesforo Ray Gomez, and Cayetano Morin-Degollado) 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. Telesforo Ray Gomez, and Cayetano Morin-Degollado, 529 F.2d 412 (5th Cir. 1976).

Opinions

RONEY, Circuit Judge:

Defendants, Telesforo Ray Gomez and Cayetano Morin-Degollado, appeal from their convictions for conspiracy to distribute, 21 U.S.C.A. § 846, and knowingly and intentionally distributing and possessing with intent to distribute, 21 U.S. C.A. § 841(a)(1), approximately 460 pounds of marijuana. These six points are alleged on appeal: (1) prejudicial error in admitting an agent’s hearsay testimony as to what an informant told him; (2) error in denial of motion to suppress evidence; (3) insufficient evidence; (4) improper conduct of trial judge; (5) improper admission into evidence of a gun; and (6) improper jury instructions. Deciding against defendants’ arguments, we affirm.

The Facts

There were five original defendants: the two appellants and Josué Morin-De-gollado, Saloma Gonzalez-Serrano and David William Howison.

On December 21, 1974, Special Drug Agent Murray received a tip from a reliable, unidentified informant, that a large quantity of marijuana would be picked up later that night. The location given was a well known smuggler’s border crossing point near La Militar Tavern in Penitas, Texas, close to the United States-Mexiean border. Although the informant did not name those involved, he did relate that the contraband was to be picked up in a 1968 Chevrolet pickup truck with sideboards, bearing a 1974 Texas license plate, DJ 9481, and that the owners of the marijuana would be in the area and driving a 1974 red Ford sedan, license number VCY 381. This car was later determined to be owned by defendant Cayetano Morin-Degollado.

Acting on this information agent Wilkins proceeded to the location. As he was riding through the area, Wilkins saw both vehicles in the parking lot of La Frontera Tavern, located about 75 yards from La Militar. He noticed two men walking alongside the highway towards the tavern. They were later discovered to be Howison and Josué Morin-Degollado. The agent then concealed himself near the place where he believed the contraband would be picked up. From his position of surveillance, Wilkins soon observed Howison and Josué Morin-Degollado leave La Frontera, disappear for a few minutes into the dense underbrush surrounding the area, and then return to the tavern. Shortly, all five defendants left La Frontera together. Howison and Josué Morin-Degollado took the truck to an area near where they had previously entered the underbrush and began to load the pickup with burlap sacks. With loading completed, the truck pulled alongside the car and Josué got out of the truck and into the front seat of the Ford with the two appellants and Gonzalez-Serrano while Howison stayed in the pickup. Proceeding toward McAllen, Texas, both vehicles were soon stopped after about 20 miles by Government agents.

A search of the truck revealed 460 pounds of marijuana. Only a loaded .38 caliber pistol was found under the passenger side of the front seat on the initial search of the Ford automobile. A later search at the station, however, revealed marijuana debris found in the folds of a blue blanket in the trunk.

A jury found Gomez, Howison and Cayetano Morin-Degollado guilty of the conspiracy and knowing possession with intent to distribute 460 pounds of marijuana. Gonzalez-Serrano was found not guilty. Josué Morin-Degollado fled the court’s jurisdiction prior to trial. Gomez and Cayetano Morin-Degollado were sentenced to two concurrent five year [416]*416terms, with special parole of ten years. Howison did not appeal.

Informant’s Hearsay

Although not specifically argued in the briefs, defendants strongly urged at oral argument that the convictions should be reversed because the court allowed agent Murray to testify that the informant told him the owners of the marijuana would be driving a red 1974 Ford, license number YCY 381. The informant was not available for cross-examination. Defendants say the admission of this hearsay evidence as to marijuana ownership constituted reversible error.

As soon as the agent had testified to this statement, the judge instructed the jury in the proper use of this type of evidence.

I am admitting what the informant told agent Murray here not for the truthfulness of what he told him but just to see why the officers did whatever they did after that because the informer is not here for us to cross-examine.

The judge on three occasions instructed the jury as to the limited use of the evidence. This testimony, he said, was to help inform the jury why the agents were in that area in the first place.

We have previously approved such testimony for such limited purpose. To explain why the agents were at the scene of the crime, the evidence is, of course, not hearsay, but direct evidence of what the informant told the agent. In United States v. Herrera, 455 F.2d 157 (5th Cir. 1972), we said of such evidence:

This testimony was not relied upon by the Government to establish the truth of what was said and the jury was so instructed. The trial court specifically limited the use of this evidence to showing why the customs agent took the action he did to obtain a physical identification of Herrera.

455 F.2d at 158.

But to accomplish this purpose, it was not necessary for the agent to tell the jury that the informant told him the owner of the marijuana would be in the red Ford. That testimony tended to point directly to a connection between the marijuana and the occupants of the red Ford, and was purely hearsay evidence of that fact. In United States v. Hernandez, 441 F.2d 157 (5th Cir.), cert. denied, 404 U.S. 847, 92 S.Ct. 150, 30 L.Ed.2d 84 (1971), this Court distinguished between the two aspects of such testimony. In discussing the prior cases of Brown v. United States, 202 F.2d 474 (5th Cir. 1953), Landsdown v. United States, 348 F.2d 405 (5th Cir. 1965), McMillian v. United States, 363 F.2d 165 (5th Cir. 1966), and United States v. Duke, 423 F.2d 387 (5th Cir. 1970), the Court in Hernandez said that:

In each of these cases the admitted testimony related to information that pointed directly to the suspects involved. The evidence here was background evidence admitted to show that the officers did not act in a vacuum and it did not point to appellant. The Court both in its rulings on the objections to admissibility and in its oral charge strictly limited the evidence to that single purpose. We are of the view that prejudicial error in respect to this evidence has not been demonstrated.

441 F.2d at 164. Cf. Busby v. United States, 296 F.2d 328, 332 (9th Cir. 1961), cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278 (1962) and Smith v. United States, 70 App.D.C. 255, 105 F.2d 778, 779 (1939).

In the recent case of United States v. Rodriguez, 524 F.2d 485 (5th Cir. 1975), we held as inadmissible hearsay an agent’s testimony that the marijuana involved belonged to Rodriguez.

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Bluebook (online)
529 F.2d 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-telesforo-ray-gomez-and-cayetano-morin-degollado-ca5-1976.