299 F.3d 420 (5th Cir. 2002), 99-41490, U.S. v. Solis

Docket Nº:99-41490.
Citation:299 F.3d 420
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Cleotide SOLIS, also known as Little Cocho; Ecliserio Martinez Garcia; Salvador Pineda Contreras, also known as Chino; Francisco Favela, also known as Jr., also known as Big Jr., also known as Dreamer; Alfonzo Meza; Arturo Meza, also known as Jr.; Hilario Merlan Solis, also known as Cocho; Aurel
Case Date:July 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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299 F.3d 420 (5th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jose Cleotide SOLIS, also known as Little Cocho; Ecliserio Martinez Garcia; Salvador Pineda Contreras, also known as Chino; Francisco Favela, also known as Jr., also known as Big Jr., also known as Dreamer; Alfonzo Meza; Arturo Meza, also known as Jr.; Hilario Merlan Solis, also known as Cocho; Aurelio Mendez; Jose Alberto Meza, also known as Beefy, Defendants-Appellants.

No. 99-41490.

United States Court of Appeals, Fifth Circuit

July 18, 2002

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William D. Baldwin, Asst. U.S. Atty. (argued), Tyler, TX, for Plaintiff-Appellee.

Bobbie J. Belzung-Peterson (argued), Sherman, TX, for Jose Cleotilde Solis.

Ronald Wesley Tidwell, The Moore Law Firm, Paris, TX, for Jose Alberto Meza.

Gerald W. Cobb (argued), Philips & Hopkins, Denton, TX, for Ecliserio Martinez Garcia.

Amy R. Blalock, Asst. Federal Public Defender, Gregory A. Waldron, Asst. Federal Public Defender, Tyler, TX, for Salvador Pineda Contreras

Bryan Mac Morris, Piano, TX, for Francisco Favela.

William David George (argued), Edwards & George, Houston, TX, for Alfonzo Meza.

James Patrick Fallon (argued), Law Office of Jim Fallon, Sherman, TX, for Arturo Meza.

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Garland Don Cardwell (argued), Munson, Munson, Perce & Cardwell, Sherman, TX, for Hilario Merlan Solis.

Sydney Snelling Young, Paris, TX, for Aurelio Mendez.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This appeal arises from a 36-count indictment of 29 defendants for conspiracy to distribute heroin and cocaine in Piano, Texas and individual violations of 21 U.S.C. § 841(a)(1). Eleven defendants went to trial, ten were convicted of conspiracy and various individual drug offenses, and nine—Jose Cleotide Solis, Ecliserio Martinez Garcia, Salvador Pineda Contreras, Francisco Favela, Alfonzo Meza, Arturo Meza, Hilario Merlan Solis, Aurelio Mendez, and Jose Alberto Meza— now appeal their convictions and sentences.

I. Factual background

In September 1997, a concerted effort by local and federal law enforcement agencies to apprehend heroin traffickers in Piano, Texas led to the formation of the Piano Heroin Task Force. The government's investigation determined that in late 1996 Aurelio Mendez and Ecliserio Martinez Garcia were part of a conspiracy to import heroin from Guerrero, Mexico, where it was manufactured, to North Texas. Mendez and Garcia sold the heroin to Hilario Merlan Solis. Hilario's brother Jose Cleotide Solis then distributed the heroin until he was arrested on July 9, 1997.

Among Hilario's customers was Alfonzo Meza. Alfonzo lived at 1120 Avenue I in Piano, which became known as the "blue house," with his brother Jose Alberto Meza and several friends including Francisco Favela and Santiago Mejia. These individuals, along with Alfonzo's and Jose's brother Arturo Meza, sold heroin from the blue house.

Search of Alfonzo Meza's house on May 14, 1997

On May 14, 1997, officers arrived at the blue house holding an arrest warrant for Jose Meza. At the same time, building inspectors accompanied by two other Piano Police officers arrived at the blue house. The inspectors intended to condemn the house for housing code violations. After the officers with the warrant searched the house for Jose and found that he was not present, a police officer approached Alfonzo Meza outside the house and asked if there were any weapons inside. Alfonzo replied that there was a .45-caliber pistol on a shelf in his bedroom and consented to the officer's retrieving the gun. However, when the officer could not reach the gun without assistance, an accompanying officer moved a cooler from across the room for the officer to stand on. On moving the cooler, the accompanying officer noticed a baggie containing what appeared to be heroin capsules. After retrieving the gun, the officers re-approached Alfonzo and received consent to search the entire house. The blue house was thereafter condemned.

Aftermath of the search and condemnation of Alfonzo Meza's house

After the blue house was condemned, Mejia, Favela and others sold heroin and cocaine from hotel rooms, using Jose Solis as their source until Jose's arrest in July 1997. Hilario Solis then introduced Salvador Contreras Pineda as the source for these individuals' drugs.

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State court convictions of Favela and Alfonzo Meza

On September 18, 1997, Favela was arrested in a hotel room with cocaine and heroin. He pled guilty to possession with intent to deliver more than 4 grams but less than 200 grams of heroin, possession of less than 1 gram or heroin, possession with intent to deliver more than 4 grams but less than 200 grams of cocaine, and possession of less than 1 gram of cocaine in Texas state court and was sentenced to 20 years imprisonment.

Alfonzo Meza was likewise convicted on April 6, 1998 in Texas state court of two counts of delivery of cocaine, one count of possession with intent to deliver cocaine, and one count of possession with intent to deliver heroin. He was sentenced to concurrent 15-year terms on each of the four counts.

Search of Salvador Pineda's house on November 23, 1997

Pineda lived in a house at 211 Walnut Street in McKinney, Texas, with his wife and Garcia and Garcia's wife. On November 23, 1997, Pineda and Garcia were arrested away from their house. Police officers then arrived at 211 Walnut Street and obtained consent from Pineda's wife to search the residence and the outbuildings behind the house.

Convictions of Salvador Pineda and Ecliserio Martinez Garcia

Pineda pled guilty on March 3, 1998 to possession with intent to distribute heroin and, on June 25, 1998, was sentenced to a term of imprisonment of 125 months. Garcia pled guilty on March 13, 1998 pursuant to a written plea agreement with the government and was sentenced to a term of imprisonment of 120 months.

Statement of Jose Meza on March 26, 1998

Jose Meza was arrested on March 26, 1998 and promptly gave a videotaped confession to the police.

Indictment in the present case

On June 24, 1998, the Federal Grand Jury for the Eastern District of Texas returned a 36-count indictment charging 29 defendants. Count 1 charges a conspiracy from an unknown date until December 1997 to distribute heroin and cocaine in violation of 21 U.S.C. § 846. Counts 2-7, 9, 12-16, and 18-28 charge various defendants with distribution of or possession with intent to distribute heroin or cocaine or both in violation of 21 U.S.C. § 841(a)(1). Counts 6, 9, 12, 16, and 27 also charge that a user of the drugs died or suffered serious bodily injury from the use of the drugs.

Thereafter, Mendez was arrested on July 22, 1998, and his house was searched. The following day, the co-conspirators named in the indictment who were not already in custody were arrested in a multi-agency drug sweep.

Course of proceedings in the district court

On December 17, 1998, the district court denied, inter alia, Pineda's and Alfonzo Meza's motions to suppress evidence seized from their residences; Jose Meza's motion to suppress his videotaped confession; Garcia's, Jose Meza's, Alfonzo Meza's, and Favela's motions to dismiss the indictment; and Mendez's motion to sever. The district court allowed each defendant to join in other defendants' motions and objections without an additional filing.

The defendants also filed motions to strike surplusage in the indictment, specifically any reference to heroin deaths or injuries set forth in Counts 6, 9, 12, 16, and 27 and Count 1's Overt Acts 7, 10, 13, and 34. They also requested that the district

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court limit the government's proof at trial to evidence of possession, distribution, and manufacture of controlled substances and other statutory violations. The district court granted these requests and struck the language from the indictment.

Trial began on February 3, 1999. The district court denied motions for acquittal by Jose Solis, Garcia, Pineda, Favela, Alfonzo Meza, Arturo Meza, Hilario Solis, Mendez, and Jose Meza on February 22, and, on February 25, the following verdict was returned:

Jose Solis guilty on Count 1-3, 6-7

Garcia guilty on Counts 1, 6, 9, 12, 14-15, 18-28

Pineda guilty on Counts 1, 6, 9, 12, 14-15, 18-25, 27-28

Favela guilty on Counts 1, 4-5,13

Alfonzo Meza guilty on Counts 1-6, 12, 2 acquitted on Count 9

Arturo Meza guilty on Counts 1, 4-6, 9, 12, 27

Hilario Solis guilty on Counts 1, 6, 9,12

Mendez guilty on Counts 1, 6, 9,12, 27

Jose Meza guilty on Counts 1, 4-5, 12, 27 acquitted on Counts 6, 9

On December 7-8, 1999, the district court held a hearing on the causes of death and serious bodily injury as a result of the use of heroin and cocaine distributed by the defendants and on the applicability of U.S.S.G. § 2D1.1(a)(2). The government presented testimony from medical examiners as to the causes of death of the individuals the government alleged died as a result of the sale of drugs charged in Counts 6, 9, 12, and 27. The district court found by a preponderance of the evidence that heroin caused the deaths of three of...

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