189 F.3d 1071 (9th Cir. 1999), 98-50116, United States v. Duran
| Citation | 189 F.3d 1071 |
| Party Name | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NATIVIDAD DURAN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARTIN ROMAN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODOLFO ALMARAZ MORA, Defendant-Appellant. |
| Case Date | August 31, 1999 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit |
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Argued and Submitted July 12, 1999--Pasadena, California
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Michael M. Crain, Los Angeles, California, for defendant- appellant Mora; Karen L. Landau, Oakland, California, for defendant-appellant Roman; Joseph F. Walsh, Los Angeles, California, for the defendant-appellant Duran.
Patrick W. McLaughlin, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.
Appeals from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. Nos. CR-97-00141-DT-8, CR-97-00141-DT-7, CR-00141-DT-02.
Before: Melvin Brunetti, Pamela Ann Rymer and Barry G. Silverman, Circuit Judges.
RYMER, Circuit Judge:
Natividad Duran and Rodolfo Almaraz Mora appeal their jury convictions, and Martin Roman appeals his conviction pursuant to a guilty plea, for conspiracy to distribute cocaine in violation of 21 U.S.C. SS 841(a)(1) and 846. Roman also appeals his sentence. Their appeal raises two principal issues. With respect to the first, we conclude that although there was a variance in proof between the single conspiracy alleged in the indictment and the two conspiracies shown at trial, the variance did not prejudice Duran or Mora's substantial rights. We also hold that the district court was not required to sup- press disclosure of conversations obtained through a wiretap on a co-conspirator's cellular telephone after the instrument (and thus the electronic serial number), but not the telephone number, had been changed without the government's knowledge. As the other claims of error do not merit reversal, we affirm.
I
Pursuant to a court-authorized wiretap, the government intercepted a number of phone calls from Angel Montes's1 residence in Rialto, California between October 16 and 18, 1996. During two of those calls, Gloria Gonzalez spoke with Montes, her son, about obtaining "chofes" or drivers for transporting drugs from El Paso to Houston, Texas. Gonzalez instructed Montes to have "Rudy" (Mora's nickname) pick up the drivers "because he's the only one who knows them." Gonzalez also asked Montes to make the reservations for the drivers and to inform her what time the drivers were scheduled to arrive.
Montes subsequently called Luis Murillo, who in turn called Gene Chu and asked him to transport drugs from El Paso to Houston, Texas in exchange for $15,000. Montes called Southwest Airlines and arranged for Chu and Jody Chen, Chu's girlfriend, to fly from Los Angeles to El Paso, Texas. On October 17, 1996, Chu and Chen went to the Los Angeles airport and picked up the tickets that had been reserved for them. However, they missed the flight on which they hadbeen scheduled and had to take a later flight. When Chu and Chen did not arrive as scheduled, Mora, who was waiting at the airport for them, called Montes. Mora then learned that Chu and Chen had missed their flight.
When Chu arrived, he called Murillo and was instructed to call "Rudy." He did so and was told by Mora to go to the La
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Quinta Hotel and spend the night there. The next day, October 18, Luis Gonzalez (Luis), Montes's father, picked up Chu and Chen from the La Quinta Hotel and drove them to Las Cruces, New Mexico. Luis obtained a room for Chu and Chen at the Best Western Hotel, where they spent the night. On October 19, Chu and Chen met Mora in a restaurant next to the Best Western. Mora informed them that he was waiting for the checkpoint near Alamogordo, New Mexico to close. Later that day, Mora and his son, Ruben Almaraz (Ruben), met Chu and Chen at the Best Western. They gave Chu a pager and discussed the route he would take to Houston. Mora also gave Chu a green Toyota Camry to use and $400 in spending money.
On October 20, Chu told Mora that he wished to move hotels to avoid suspicion. After Chu and Chen checked in to the La Quinta Hotel across the street from the Best Western, the three went to see if the checkpoint were closed. Mora drove the green Camry. They drove past the checkpoint and discovered that it was closed. Mora then turned the car around and headed back towards Las Cruces. Although it was after- noon, Mora turned on the headlights of the car. He also made a call on his cell phone. Mora then began honking at an oncoming van. Mora turned the car around again and began following the van. The van then pulled over to the side of the road. Chu and Chen got out of the Camry and into the van, which contained the drugs that they were to transport to Houston. Mora remained in the Camry, where he was joined by the original driver of the van. Chu and Chen then drove the van through the closed checkpoint to Alamogordo, New Mexico.
Mora eventually joined Chu and Chen in Alamogordo and informed them that he was unable to get their luggage from the La Quinta Hotel because the room was registered under Chen's name. Mora drove Chen back to the La Quinta Hotel, while Chu checked in to the Days Inn Motel in Alamogordo. Late that evening, Mora and Chen returned. Mora informed Chu that Ruben would be escorting the van to Highway 385 the next morning and that, from there, they would drive unes- corted.
On the morning of October 21, Chu and Chen met Ruben at Denny's restaurant in Alamogordo. They confirmed that Ruben would follow them until they reached Highway 385. Chu and Chen, followed by Ruben in the green Camry, began to drive the van towards Artesia, New Mexico. Officers from the Artesia Police Department followed the van and the Camry and eventually pulled over both vehicles. The officers learned that Mora was the registered owner of the Camry. In addition, after Chu and Chen gave conflicting stories regard- ing their plans in New Mexico, the officers obtained consent from Chu to search the van. The officers' search revealed an interior, hidden compartment. The van was taken to the Arte- sia police station, where it was searched and 37 kilograms of cocaine were found. Chu subsequently admitted his role in the offense to the officers.
On January 3, 1997, the government obtained another court-authorized wiretap, this time on Montes's cellular phone. On January 28, 1997, Roman called Montes to report that he had met with someone who had agreed to sell him cocaine for $13,100 per kilogram. Roman explained that the sellers wanted to start with 50 kilograms, but if all went well, they would provide 200 kilograms. Montes told Roman to call him again in 15 minutes. When Roman did so, Montes reported that he was ready to "give [the deal ] gas."
On January 29, Roman called Montes and informed Montes that he was "ready," but that he only had 22 kilograms because someone had "screwed [him] over " and taken over half of the drugs. Roman also confirmed the price of $13,100 per kilogram. Roman and Montes agreed to meet at "the little house." Later that day, Montes called the residence of his sister and Duran's girlfriend, Rita Montes (Rita), in La Puente, California. Duran, whom Montes referred to as "Ricardo," answered
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the phone and reported that Rita was not home. Montes asked Duran to tell Rita that he might need her "to go get something" and that she should "be ready." Early that eve- ning, Montes again called Rita's house and Duran answered the phone. Montes inquired about what was "going on" with Roman and asked if Roman were going to leave the drugs there. Duran responded, "Uh, I think so." Montes then asked to speak to Roman. He told Roman that he was "far away" and asked that Roman leave the drugs at the house. Roman stated that he would leave them "with this guy," referring to Duran. Montes asked to speak to Duran again. Montes told Duran that Rita was going to store the drugs for him until the morning and asked Duran to "verify" the amount of the drugs. Duran stated that there were 17 packages. Montes warned Duran not to "talk so clearly," to which Duran responded that he understood.2 Finally, Roman got back on the phone and explained that there were only 17 packages, rather than the 22 that he had most recently promised.
Soon after the call between Duran, Roman, and Montes concluded, officers from the Riverside Police Department forced entry into Rita's residence. Duran and Rita attempted to run away, but were caught and detained in the house. Roman, who was attempting to leave the house in a car, was also detained. The officers found an open suitcase in one of the bedrooms that contained 17 kilograms of cocaine. An AK- 47 rifle was recovered from the closet in the same bedroom. In addition, officers found a loaded semi-automatic handgun, an M-1 carbine rifle and Duran's Mexican birth certificate in the trunk of a Buick Century parked in the driveway of the residence. When Duran was later questioned at the Riverside Police Department, he admitted that he sometimes used the name "Ricardo," but denied knowing anything about the drugs.
On February 14, 1997, the grand jury returned a two-count indictment. The first count charged Gonzalez, Mora, Montes, Murillo, Chu, Chen, Roman, Duran, and Rita with conspiracy to distribute in excess of five kilograms of a substance containing cocaine. The second count charged Montes, Roman, Duran, and Rita with possession with intent to distribute more than five kilograms of a substance containing cocaine. Before trial, Roman and Duran filed a motion to suppress evidence seized from the...
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