U.S. v. Lage, 98-50698

• Decision Date: 29 July 1999
• Docket Number: No. 98-50698,98-50698
• Citation: 183 F.3d 374
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEXIS A LAGE; JOSE A LUZARDO; ALBERTO DIAZ, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 374

183 F.3d 374 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEXIS A LAGE; JOSE A LUZARDO; ALBERTO DIAZ, Defendants-Appellants.

No. 98-50698

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 29, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeals from the United States District Court for the Western District of Texas

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

KING, Chief Judge:

Defendant-appellant Alexis A. Lage appeals his convictions for conspiracy to commit theft of an interstate shipment in violation of 18 U.S.C. § 371 and theft of an interstate shipment in violation of 18 U.S.C. § 659. Defendant-appellant Jose A. Luzardo appeals his convictions and sentence for the same offenses. Defendant-appellant Alberto Diaz appeals his conviction for theft of an interstate shipment. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

This case concerns the theft of an interstate shipment of computers. On September 4, 1997, a trailer loaded with Dell computer parts was placed on a street in Austin, Texas to await transport to Latham, New York. When a truck arrived at 12:15 a.m. on September 5, 1997 to pick it up, the trailer was missing. Although the theft was promptly reported to the Austin police, they received no leads on the case until September 10, 1997.

At about 12:30 a.m. on that day, Ronald Stone, a trooper with the Texas Department of Public Safety's License and Weight Service, observed an orange Peterbilt truck towing a trailer, followed closely by a purple Freightliner truck with no trailer, traveling east on Interstate Highway 10 (I-10) in Caldwell County, Texas. Stone stopped the purple Freightliner because its lack of a trailer and proximity to the Peterbilt was "unusual," and asked the driver, defendant-appellant Alexis A. Lage, for his driver's license, registration, and logbook. Although Lage produced a Florida commercial driver's license, Stone determined that he possessed neither a logbook nor registration to drive a commercial vehicle in Texas. Because truckers traveling short distances are not required to keep a logbook, Stone asked Lage where he had begun his trip. Lage replied in broken English that he was traveling from Dallas, where he had spent three days looking for work, to Miami, Florida. Stone found this account odd because Caldwell County is not on the most direct route from Dallas to Miami and called Jesse Deleon, a Spanish-speaking state trooper, to help him communicate with Lage. Through Deleon, Stone informed Lage that he would need to post a bond in the amount of $195.00 to cover the citations for failing to possess a logbook and proper registration. Lage told Stone that he had no money, but that his friend in the orange Peterbilt had both the logbook and money to post bond and that this friend would be waiting at the next rest stop.

Leaving Deleon with Lage and his passenger, defendant-appellant Jose A. Luzardo, who told Deleon that they were traveling alone, Stone proceeded to the rest stop to find Lage's "friend." As he entered the rest stop, he heard an individual ask over the citizen's band (CB) radio whether the purple Freightliner was still pulled over. Stone responded in the affirmative and asked if the speaker was in the orange Peterbilt. The speaker answered "yes." When Stone pulled up next to the Peterbilt, which was parked at the rest stop, and shone a light inside, he saw defendant-appellant Alberto Diaz talking on the CB radio. Diaz immediately dropped the radio microphone, dashed into the truck's sleeping compartment, and pulled a curtain closed behind him. Stone knocked repeatedly on the cab door and, when he received no response, called for backup.

After Fayette County Deputy Sheriff Donald Roberts arrived on the scene, Diaz and Armando Pedroso emerged from the cab.¹Diaz admitted that he was traveling to Miami but denied that the driver of the purple truck, whom he claimed he had only met over the CB radio, was his "friend." Stone asked for his bill of lading, but Diaz produced only a packing slip indicating that his cargo weighed twenty-one pounds and was being shipped via United Parcel Service (UPS) to "M-A," which Stone interpreted to mean either Maryland or Massachusetts. Stone then asked Diaz whether he was a UPS employee and where the shipment was going. Diaz responded that he was working "for them." He also agreed to post bond for the driver of the purple truck. At that point, Stone requested permission to search Diaz's vehicle and received written consent to do so. Upon entering the truck, Stone discovered Reydell Oviedo and a number of Dell computer boxes stacked in a disorderly fashion. He then asked the occupants of the orange Peterbilt, along with Deleon, Lage, and Luzardo, to accompany him to the Fayette County Fairgrounds in La Grange, Texas, for furtherinvestigation. After contacting Dell and UPS and confirming that the computers in the orange Peterbilt had been stolen, Stone placed Lage, Luzardo, Diaz, Pedroso, and Oviedo under arrest. With Roberts's assistance, he also searched the purple truck and discovered a fuel receipt from the Dorsett 221 truck stop, a UPS shipping document, a Dell packing slip, and a set of metal trailer seals matching those on the Peterbilt trailer.

A subsequent investigation revealed a great deal more about the Dell computer theft. First, after the events described above, the Hays County, Texas Sheriff's Department found the stolen Dell trailer behind a Conoco gas station near Buda, Texas, its identifying numbers obscured with white paint and a plastic sign. Oviedo's fingerprint was discovered on the trailer. Second, Officer Joe Nichols of the Austin Police Department went to the Interstate Inn near the Dorsett 221 truck stop, where at least one of the trucks had fueled, to see if the clerk, Doris Alexander, recognized any of the five arrestees. Alexander confirmed that Lage, Luzardo, Pedroso, and Oviedo had stayed at the Interstate Inn. According to Alexander, one morning in the early part of September 1997, Luzardo and Oviedo asked to rent a room, but she had none available and told them to come back later. At about 11:30 a.m., Lage and Pedroso rented a room, but Lage and Oviedo returned shortly afterward wanting to move to the south side of the motel so that they could see their truck. According to Alexander, the four men stayed at the Interstate Inn for four days, she saw them several times a day strolling about the motel, and Lage usually paid for the rooms in cash. In addition, Nichols interviewed Ezra Pagel, a clerk at a liquor store near the Conoco where the stolen trailer was found. Pagel recalled that Pedroso and Diaz came to his store on September 9, 1997 and asked to use the phone to page someone. Pedroso asked where he could park a trailer, and Pagel suggested that he do so at the Conoco across the street. The men then told Pagel that if anyone responded to their page, they would be "down the street," staying at the "Dorsett 221."

Nichols also went to an address written on a slip of paper found among Oviedo's possessions when he was booked into jail. At that location, he found a warehouse where, after obtaining and executing a search warrant, he discovered over one hundred boxes of Dell computer parts that later were confirmed as being part of the stolen shipment. Clifton Zachary, an Austin real estate broker, had leased the warehouse after hearing from one of his associates that an individual named Jose Matos was looking for warehouse space. Zachary contacted Matos, who represented himself to be the owner of La Tuna Furniture in Miami. Matos stated that he needed a warehouse with eighteen-foot clearance and a loading bay to be used for furniture distribution and gave Zachary a pager number for his Austin representative, Frank or Francisco, with whom Zachary set up an appointment to show the Austin warehouse. On September 3 or 4, Zachary met at the warehouse with three men who arrived in an eighteen-wheeler truck. One was an unident ified man whom Zachary took to be Frank or Francisco. The others were Lage and Luzardo. The three men agreed that the warehouse was suitable for their purposes, and Zachary contacted Matos in Miami to tell him that he needed a financial statement in order to execute a lease. Upon receiving a financial statement by facsimile, Zachary faxed the lease to Matos, who signed and faxed it back to Zachary. The next day, Zachary gave Luzardo and the unidentified man whom Zachary had assumed to be Frank or Francisco the warehouse key. At that time, Luzardo paid the rent with money orders that he signed "Francisco."

Nichols also spoke with Andres Ochoa, a warehouse worker who spoke with Lage, Luzardo and the unidentified man for some thirty minutes on the day that they came to inspect the warehouse. Ochoa identified Lage and Luzardo as two of the three men who arrived in an eighteen-wheeler truck on September 3 or 4 and characterized Luzardo as "the most important" member of the group.

Further investigation in Florida revealed more details about the theft. Law enforcement officials discovered, for example, that one Roberto Quevado had presented Joseph Lima, a Miami accountant, with documents purporting to describe La Tuna Furniture's financial situation and asked him to prepare the statement that was faxed to Zachary. Quevado told Lima that Matos was his partner and that he needed the statement to obtain a loan. Investigators also found that Diaz, accompanied by Pedroso, had borrowed the orange Peterbilt from Guillermo Echevarria in order to pick up something having to do with "tuna." Finally, an FBI agent went to the various addresses Matos gave for La Tuna Furniture and found them to be either single-family residences or non-existent. Nor did he ever find Matos.

On October 7, 1997, a grand jury charged Lage, Luzardo, Diaz, Pedroso, and Oviedo with one count each of conspiracy to commit theft...