U.S. v. Carreon-Palacio

Citation267 F.3d 381
Decision Date19 September 2001
Docket NumberNo. 00-50362,CARREON-PALACIO,LOPEZ-AGUAYO,00-50362
Parties(5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL; HUMBERTO SANTOS; JOSE NATIVIDAD, also known as Jose Lopez-Aguayo, Defendants-Appellants
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Appeal from the United States District Court for the Western District of Texas

Before POLITZ and EMILIO M. GARZA, Circuit Judges, and KAZEN,* District Judge.

POLITZ, Circuit Judge:

Miguel Carreon-Palacio, Humberto Santos, and Jose Lopez-Aguayo appeal their convictions for possession with intent to distribute more than 100 kilograms of marihuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Finding sufficient evidence to support their convictions and no error in the denial of their motions to suppress, we affirm.

BACKGROUND

The defendants' convictions stem from a drug seizure in rural North Carolina. Agent Ibarra of United States Customs received information from a tipster that prompted a surveillance of Carreon's home in Eagle Pass, Texas. On May 24, agents observed a flatbed trailer carrying a rolled up green tarp parked in front of Carreon's home. Two vehicles arrived and agents heard a metal clanging that lasted approximately 15 minutes. The two cars left 40 to 45 minutes later. The next morning Carreon drove a white rig, with the flatbed attached and now apparently with something under the tarp, to Santos' home and the two men stood in the street and talked.

That afternoon, agents saw three vehicles leave Eagle Pass and head towards San Antonio: a white rig now hauling steel coils on a flatbed, a blue rig hauling the flatbed with the green tarp, and a beige Chevy pick-up.1 The vehicles took "the long route," avoiding a DPS weigh station, and arrived in northeast San Antonio. Once there, the blue rig and the pick-up truck separated from the white rig, which proceeded to drop off the coils in Temple, Texas and returned without incident. The blue unit detached the flatbed at a warehouse parking lot and proceeded with the Chevy to a Knight's Inn motel.

The next day, May 26th, agents watched Santos and Carreon return to the warehouse. The men attached the flatbed to the blue rig and proceeded east on Interstate 10. Agents followed until around 9:30 p.m., when the unit pulled into a truck stop in Graham, North Carolina. After about an hour the truck departed, driving towards Greensboro, but then exited on Highway 49 and headed south into Staley. At about midnight, the truck turned down a remote dirt road called Shady Hollow, and stopped in front of a residence. For approximately 40 minutes officers heard clanking noises "from the general direction of the truck." The truck left at 12:40 a.m. and headed south, stopping at a Shell station where one of the two men in the vehicle made a phone call. A few minutes later the truck continued south.

Agents made the decision to stop the truck at a traffic light. They approached with guns drawn, but holstered them while talking with the driver and passenger, identified as Santos and Carreon. Agents obtained consent and searched the truck. Under the tarp agents found three stacks of sheet metal set on wooden pallets. The metal sheets were cut out in the middle like picture frames, with the hollow portion covered by a complete sheet or sheets of steel weighing around 200 lbs. Inside the hollow area agents found $440,000 and marihuana residue. The agents found two bills of lading, some blank bills of lading, a typewriter, and two cell phones inside the cab. They arrested Santos and Carreon.

Around the same time, just after the truck left Shady Hollow, a red sports car also left and pulled into a gas station. Officers approached and identified Lopez-Aguayo as the driver, and Melissa Ward as the passenger. Ward informed the officers that she was sitting on some money and officers found $12,000 on her seat. Officers also learned that Lopez had no license with him, so they asked that he go with them back to his residence to get it. Lopez rode with the officers while Ward drove the red car. The group arrived at Shady Hollow and officers accompanied Lopez inside his residence. After verifying his license, they obtained Lopez's consent to search the residence and surrounding area. They found scales, trash bags and note pads in a storage room. They then examined the property exterior and found 147 blocks of marihuana in a wooded area behind the house. They also found a pick-up truck containing marihuana.

The government originally indicted the three defendants in North Carolina. The defendants moved to suppress and the court held a suppression hearing. After receiving testimony from various law enforcement officials the court denied the motions. The government then dismissed the indictment but re-indicted defendants in the Western District of Texas, charging possession with intent to distribute more than 1000 kilograms of marihuana. Santos and Lopez again moved to suppress, and the court heard argument regarding the motions. The court determined to rely on the hearing in North Carolina and to adopt the ruling of that court in denying the motions. The jury found all defendants guilty and they timely appealed, urging error in the denial of their motions to suppress and challenging the sufficiency of the evidence supporting their convictions.

ANALYSIS
I. Due Process

Lopez first asserts that the Texas district court violated his due process rights when it declined to hold a live suppression hearing and chose instead to rely on the record from the hearing in North Carolina and the judge's decision in that hearing. We disagree. The North Carolina district court conducted a full evidentiary hearing that included extensive testimony from various law enforcement officials involved in the investigation and arrest of the defendants. All of the defendants attended the hearing and their respective counsel subjected each government witness to rigorous cross-examination. The Texas court reviewed the entire transcript of the hearing and, with the exception of one, all of the witnesses at the suppression hearing testified at the trial a quo.

Further, the trial court advised the parties that "if [the suppression hearing witness] are not testifying in the trial, or if there are matters that relate to the suppression issue that should not come up during the trial, then I would suggest that we have those witnesses testify after the trial is over if the jury finds the defendants guilty." Accordingly, any of the defendants could have asked the judge for a hearing after the trial but none chose to exercise this option. We find no error in the Texas court's decision to evaluate the transcript of the hearing in North Carolina and then to follow the rulings of that court.

II. Motions to Suppress
A. Waiver

We first address the government's contention that the defendants waived their suppression issues by not raising them in the Texas court. The government concedes that all defendants filed motions to suppress in North Carolina raising the same issues currently on appeal, but maintains that Carreon filed no motion in Texas and that Santos filed a motion seeking only to suppress statements made to agents after his arrest.2 We recognize that Fed. R. Crim. P. 12(b)(3) requires that parties move to suppress before trial or risk waiver of such claim.3 Such "[m]otions may be written or oral at the discretion of the judge."4

After a thorough review of the record, however, we find that Rule 12 does not bar defendants' appeals for three reasons.

Initially, the trial judge informed the parties that, unless persuaded otherwise, the court was "mak[ing] the same ruling on the suppression issue as did my colleague in North Carolina." This reflects that the court was proceeding as though the suppression issue was identical in both jurisdictions and it would be unjust to bar an appeal of an issue specifically ruled upon by the court a quo.

Second, the government informed the court that the suppression issue was in four parts, which included the search of the truck and the search of Lopez's residence. The government also told the court which issues it deemed fairly handled in North Carolina and suggested that any other issue be carried with the trial. It is disingenuous for the government to assert that the defendants waived their claims by not raising them in Texas when the government included those claims in its break down of the suppression issue for the court.5

Finally, counsel for Lopez, speaking for all the defendants, specifically addressed his waiver concerns to the court. When asked his position on the court's decision to rely on the North Carolina hearing, counsel replied: "As far as the suppression, Your Honor, I agree with the Court that our clients don't necessarily have to have two bites at the apple. The only thing I'm trying to avoid is having the Fifth Circuit tell us later on, 'that other hearing was in another court in another circuit and you waived it.' I just want to be as clear as I can for the record that we've urged our suppression. We're not waiving anything by it." This clearly establishes that defendants, whether by written motion or orally, were raising their North Carolina suppression issues with the Texas court, even if that court decided not to hold a live hearing and to rely on the North Carolina transcript.

In light of the statements made by the government, the concerns expressed by defense counsel, and the treatment of defendants' motions to suppress by the trial court, we find that the issues raised in North Carolina were properly before the Texas court. Accordingly, the issues raised in defendants' motions to suppress in North Carolina are preserved on appeal.

B. Merits

"We review the district court's factual findings on a motion to suppress for clear error and its ultimate conclusion as to the...

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