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United States v. Gloria - 494 F.2d 477 (5th Cir. 1974)


The criminal defendant is not denied his right to compulsory process of witnesses when he subpoenaed a codefendant who appeared at the trial and then exercised his U.S. Const. amend. V right against self-incrimination, as he was entitled to do.


Defendant Joaquin Gloria, Jr. was convicted in federal district court of conspiring to possess with the intent to distribute and of possessing with the intent to distribute 41 pounds of marijuana. Crispin Santos Mercado, the primary witness for the Government, testified that Gloria approached him on the streets of Eagle Pass, Texas and offered him $200 to make a trip to Batesville, Texas. Lured by the prospect of easy money, Mercado agreed, whereupon he was instructed to leave the keys in his car and "take a walk." After absenting himself for a period of time, Mercado returned to his automobile and began his trip to Batesville. Following Gloria's instructions to utilize a roundabout route, Mercado was stopped by the Border Patrol at Carrizo Springs, Texas. Marijuana was discovered in a suitcase in the car's trunk. Finding himself in a compromising situation, Mercado agreed to help the authorities, whereupon he was allowed to continue his journey but under the close surveillance of customs agents. At the Batesville rendezvous, Mercado again met Gloria who instructed him to park the car at the rear of the establishment. Co-defendant Milton George Frey, Jr., removed the marijuana to another vehicle, conversed with Gloria, and then left in the direction of San Antonio, only to be arrested shortly after his departure. At the Batesville rendezvous, Gloria completed the $200 payoff to Mercado. Customs agents arrested both of them. At trial, Gloria subpoenaed Fry to testify; Frey exercised his Fifth Amendment right against self-incrimination at trial. Gloria appealed his convictions.


Were Gloria's convictions proper?




Finding no ground for reversal, the appellate court affirmed the conviction. The court found that there was no deprivation of Gloria's right to compulsory process of witnesses, because Frey had an absolute right to invoke his U.S. Const. amend. V right to remain silent on all issues not plead to, even though Frey was a co-defendant who would soon have a hearing on his own guilty plea. Frey's prior convictions were properly excluded as they did not pertain to moral turpitude. Allowing customs agents to testify about Gloria's reputation did not cause any unfair prejudice so long as he was competent on the issue. There was sufficient evidence to show Gloria had constructive control over the contraband in that he controlled the person transporting it. Lasty, there were no errors in the jury instructions.

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