U.S. v. Gaitan-Acevedo
| Decision Date | 12 May 1998 |
| Docket Number | Nos. 95-1616,GAITAN-ACEVEDO,95-1758 and 95-1764,95-1694,s. 95-1616 |
| Citation | 148 F.3d 577 |
| Parties | 49 Fed. R. Evid. Serv. 590 UNITED STATES of America, Plaintiff-Appellee, v. Elias(95-1616); Paul Free (95-1694); Leonarda Oropeza Arechiga (95-1758); Charles Crehore (95-1764), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
R. Steven Whalen (argued and briefed), Detroit, MI, Nicholas J. Vendittelli (argued and briefed), Dearborn, MI, Joan E. Morgan (argued and briefed), Detroit, MI, Robert A. Ratliff (argued), Cincinnati, OH, Joseph P. Zanglin (briefed), Durant & Durant, Detroit, MI, for Appellants.
Wayne F. Pratt (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Appellee.
Before: KEITH, SUHRHEINRICH and DAUGHTREY, Circuit Judges.
In these consolidated appeals, Defendants, Elias Gaitan-Acevedo, Paul Free, Leonarda Oropeza Arechiga, and Charles Crehore raise various challenges to their respective judgments of conviction and sentences for conspiracy to possess with intent to distribute and distribution of marijuana in violation of 21 U.S.C. § 841(a)(1) and § 846 (1988), and aiding and abetting possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) (1988). For the reasons discussed below, we AFFIRM the lower court on all grounds.
In 1993, a California drug dealer, Richard Sumpter, developed contacts with Roberto Huerta and Miquel Ontiveres, who could provide him with large quantities of marijuana from Mexico. Sumpter, in turn, sold the marijuana to Jerome Maddox in Detroit. Moving the marijuana across an international border and then into Michigan presented logistical problems, however, so Sumpter and his suppliers made arrangements to transfer the marijuana from Mexico to California to Detroit through the Defendants.
Defendant Paul Free frequently coordinated the retrieval of marijuana shipments, delivered numerous shipments received from Huerta in Mexico to Sumpter in California. 1 In July 1993, Free drove a rental truck from San Diego to Detroit to supply Sumpter with 200 pounds of marijuana from Huerta. Sumpter later established a buyer in New York, and in September 1993, Free transported 250 pounds of marijuana from California to New York. Unable to complete the sale in New York, Free then carried the marijuana from New York to Maddox in Detroit, and the sales proceeds back to Sumpter in California.
Free made two deliveries to Detroit in January 1994. On the first occasion, Free transported 400 pounds of marijuana in a motor home to Maddox's "stash house," and returned to California with $350,000 in cash proceeds. On the next occasion, Free delivered 550 pounds of marijuana in a motor home to Detroit, and then flew back to California.
Defendant Charles Crehore worked as a courier for Free, also transporting marijuana from California to Detroit. In December 1993, Free arranged for Crehore to deliver more than 400 pounds of marijuana to Detroit by motor home. One month later, in January 1994, Free had Crehore pick up a motor home Free previously left in Detroit after completing a delivery.
Defendant Elias Gaitan-Acevedo was a manager in the operation. Gaitan-Acevedo coordinated and supervised the shipments of marijuana from California to Detroit. He often participated in trips to retrieve the marijuana from the Arizona desert, and processed marijuana in California to prepare it for distribution in Detroit and other locations throughout the United States.
Defendant Leonarda Oropeza Arechiga, commonly known as "Leah," recruited, trained, and supervised couriers for the syndicate. Oropeza Arechiga received commissions for loads of marijuana that were delivered by the couriers she recruited.
On January 21, 1994, Gaitan-Acevedo and others gave Douglas Shepherd a load of marijuana at the border. After a brief stop in Hemet, California, where he left two duffel bags of marijuana for Gaitan-Acevedo, Shepherd left for Detroit in a motor home to complete the delivery. On January 25, 1994 law enforcement officers in Illinois stopped Shepherd and discovered 560 pounds of marijuana hidden in duffel bags in the motor home. The officers obtained Shepherd's cooperation, and he continued to Detroit to make a controlled delivery of the marijuana.
While Shepherd was in transit, Sumpter, Curtis Oppedahl, and Defendants Crehore and Gaitan-Acevedo, flew from California to Detroit to meet Shepherd and the shipment of marijuana, and to retrieve the motor home left in Detroit by Defendant Free. Sumpter purchased the airplane tickets for all four of the travelers. When the men arrived in Detroit, they checked into four rooms at the Westin Hotel and waited for Shepherd to arrive. Shepherd and an undercover agent, wearing a monitoring device, went to the Westin Hotel at approximately 12:05 a.m. on January 28, 1994. Gaitan-Acevedo met them in the hotel lobby and escorted them to the room where Sumpter was staying.
After briefly discussing the marijuana shipment that had just arrived from California with Gaitan-Acevedo and Sumpter, Shepherd and the undercover agent left the room, at which time agents from the Drug Enforcement Administration (the "DEA") entered and arrested Sumpter and Gaitan-Acevedo. DEA agents subsequently arrested Crehore in his hotel room, where the agents found marijuana in Crehore's coat pocket and $2,424.60 in cash in a dresser drawer.
Shortly after the arrests in Detroit, law enforcement officers surveilling Sumpter's house in Corondo, California, saw Defendant Free arrive at Sumpter's house, load a suitcase into his pick-up truck, and then drive away. Officers arrested Free as he drove away from the residence. When the arresting officers opened the suitcase, they discovered $60,000 in cash and two semi-automatic handguns.
On October 7, 1994, a grand jury in the Eastern District of Michigan charged 31 defendants, including the four defendants involved in the instant appeal, with one count of conspiracy to distribute and posses with intent to distribute more than 1,000 kilograms of marijuana. A second count charged Defendants Gaitan-Acevedo, Crehore, and four others with the substantive offense of possession of 100 kilograms or more of marijuana with intent to distribute "on or about January 28, 1994." Several defendants pled guilty to the charges, but at least five of the defendants opted for a trial by jury.
In December of 1994, Defendants Gaitan-Acevedo, Crehore, Free, Oropeza-Arechiga, and Oppedahl went to trial before United States District Judge Horace Gilmore. At the conclusion of the eight-week trial, Gaitan-Acevedo was convicted on both the conspiracy charge and the substantive charge; Free and Oropeza-Arechiga were convicted on the conspiracy charge; and Crehore was convicted on the conspiracy charge, but acquitted on the substantive charge. Oppedahl was acquitted on both the conspiracy charge and the substantive charge.
The district court imposed the following sentences: Gaitan-Acevedo received concurrent 180-month prison terms on Counts One and Two; Free received a term of life imprisonment on Count One; Oropeza-Arechiga received a 121-month sentence on Count One; and Crehore received a 240-month prison term on Count One. The defendants have combined their timely appeals, and raise a combined total of nineteen issues that will be addressed in turn below. 2
At trial, Crehore moved to suppress evidence seized during the DEA's search of his hotel room incident to his arrest. The district court concluded that exigent circumstances justified the warrantless entry into Crehore's hotel room and the subsequent search incident to arrest, because the officers held a legitimate concern for Crehore's flight or destruction of evidence. Crehore urges no exigent circumstances existed, and that the district court's refusal to suppress the evidence was in error.
The lower court's legal conclusions with respect to exigency are reviewed de novo, but the court's factual findings on the existence of exigent circumstances may only be disturbed where the findings are clearly erroneous. United States v. Johnson, 9 F.3d 506, 508 (6th Cir.1993), cert. denied, 512 U.S. 1212, 114 S.Ct. 2690, 129 L.Ed.2d 821 (1994).
As a general rule, law enforcement officers may not enter an individual's dwelling without a warrant to effect an arrest or search, absent exigent circumstances. United States v. Johnson, 9 F.3d 506, 508 (6th Cir.1993). 3 This Circuit has adopted a two-pronged test to determine when the possibility of the destruction of evidence might constitute exigent circumstances sufficient to justify a warrantless entry into a home. "Warrantless entry to prevent the destruction of evidence 'is justified if the government demonstrates: (1) a reasonable belief that third parties are inside the dwelling; and (2) a reasonable belief that the loss or destruction of evidence is imminent.' " United States v. Straughter, 950 F.2d 1223, 1230 (6th Cir.1991); see also United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir.1996) (). 4 The district court made several factual findings that clearly support both prongs of our test.
Crehore's connection to the conspiracy was well established. Following Shepherd's arrest in Illinois, DEA agents were aware that Shepherd was traveling to Detroit to deliver marijuana to Sumpter. Through surveillance, officers established that Crehore, Sumpter, and two others boarded a plane together in San Diego, arrived in Detroit together, spoke with one another at the airport, and took a cab together to the Westin Hotel in downtown Detroit, where agents observed the four...
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