3 F.3d 1496 (11th Cir. 1993), 91-5646, United States v. Freyre-Lazaro

Docket Nº:91-5646.
Citation:3 F.3d 1496
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rafael Eduardo FREYRE-LAZARO, Orestes Miguel Diaz-Gonzalez, and Eufemio Ruben Llerena-Acosta, Defendants-Appellants.
Case Date:October 08, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1496

3 F.3d 1496 (11th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rafael Eduardo FREYRE-LAZARO, Orestes Miguel Diaz-Gonzalez,

and Eufemio Ruben Llerena-Acosta, Defendants-Appellants.

No. 91-5646.

United States Court of Appeals, Eleventh Circuit

October 8, 1993

Page 1497

[Copyrighted Material Omitted]

Page 1498

Andrew Cotzin, Broad & Cassel, Miami, FL, for Rafael Eduardo Freyre-Lazaro.

Miguel del Aguila, Miami, FL, for Orestes Miguel Diaz-Gonzalez.

John E. Bergendhal, Miami, FL, for Eufemio Ruben Llerena-Acosta.

Dexter W. Lehtinen, U.S. Atty., Carol Herman, Linda Collins Hertz, and Anne Ruth Schultz, Miami, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and COX, Circuit Judges, and HOBBS, [*] Senior District Judge.

Page 1499

HOBBS, Senior District Judge:

Appellants are three defendants who raise an assortment of challenges to their convictions for their roles in a conspiracy to purify contaminated cocaine. Defendants Orestes Miguel Diaz-Gonzalez, Eufemio Ruben Llerena-Acosta, and Rafael Eduardo Freyre-Lazaro were each indicted on four counts and tried together. The jury found all three guilty of Count I, possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and Count II, conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. The jury convicted Diaz-Gonzalez of Count III, possession with intent to distribute cocaine within 1,000 feet of a school in violation of 21 U.S.C. Sec. 845a. 1

We affirm the convictions of Llerena-Acosta and Freyre-Lazaro and the conviction of Diaz-Gonzalez on Counts II and III. However, we vacate Diaz-Gonzalez' conviction on Count I and remand his case to the district court for resentencing.

I. FACTS

Defendant Diaz-Gonzalez owned a farm in northwest Dade County, Florida. In 1990, Miguel Oliva, a twice-convicted felon who became a DEA confidential informant in January, 1991, began working at Diaz-Gonzalez' farm as a cattle tender.

Through Diaz-Gonzalez, Oliva met Diaz-Gonzalez' son, Diaz-Acosta. 2 Diaz-Acosta owned the Botanica El Valle Azul in Hialeah, Florida. The Botanica sold religious artifacts, cement garden statues, herbs, and other objects associated with the Santeria religion. 3 The second floor of the Botanica housed offices and an area where the statues were painted. The ground floor served as the retail store and was adjoined by an outdoor work area with a shed.

At the Botanica, Oliva met defendant Freyre-Lazaro (Freyre), the father-in-law of Diaz-Acosta, and defendant Llerena-Acosta (Llerena), a nephew of Diaz-Gonzalez. Both defendant Freyre and defendant Llerena were employed at the Botanica.

During a three week period beginning on January 18, 1991, Oliva met with the defendants and recorded approximately twenty-three hours of conversation by means of a surveillance device that he wore.

On January 20, 1991, Oliva and Diaz-Gonzalez met at Diaz-Gonzalez' house and discussed the possibility of Oliva purchasing 30 kilograms of cocaine from Diaz-Acosta. The total price of $360,000 was to include Oliva's $500 per kilogram broker's fee. Because the DEA would not agree to this arrangement, the deal was never consummated.

The following day Oliva met with Diaz-Acosta at the Botanica. Their tape-recorded conversation revealed that Diaz-Acosta had 50 kilograms of cocaine and that his "friend" had 40 kilograms of cocaine which had been contaminated with diesel fuel. In order to fetch a full price, Diaz-Acosta planned to decontaminate the "dirty" cocaine by removing the diesel fuel. Oliva agreed to assist Diaz-Gonzalez and Diaz-Acosta in the purification process.

The cocaine purification was to take place at the Botanica with Oliva being paid $500 for each decontaminated kilogram. Two methods of purification were contemplated. The first method involved soaking the cocaine in a solution of ammonia and water in a trash can, filtering it, and then drying the cocaine under light bulbs or in a clothes dryer. The second method involved immersing the cocaine in an acetone solution containing hydrochloric acid, which caused the diesel fuel to separate from the cocaine.

Page 1500

The first cocaine treatment occurred at the Botanica on January 30, 1991, when three kilograms of cocaine were transformed to cocaine base through the first method of purification. Diaz-Acosta and defendants Llerena and Freyre participated in the conversion process. Llerena assisted in the pouring and filtering steps. Freyre brought rope and helped tie a sheet to filter the cocaine. Part of the drying was done in a clothes dryer in Diaz-Gonzalez' house.

On February 7, 1991, Oliva, Diaz-Acosta, Freyre, and Llerena all helped decontaminate cocaine at the Botanica by following the second treatment method. Diaz-Acosta told Oliva that 7.4 kilograms of cocaine were in the solution and that 35 more kilograms of cocaine were awaiting purification. When Oliva arrived at the Botanica on February 12, 1991, for another round of cocaine decontamination, he discovered 17 kilograms of cocaine already soaking in acetone. Both Llerena and Freyre assisted in the process. When the cocaine was in its finished form, it was pressed into kilogram blocks and then placed in a large box which Diaz-Acosta loaded into the front of his car.

Diaz-Acosta then drove his car to Diaz-Gonzalez' house and parked it. Upon entering the driveway, Diaz-Acosta was stopped by a police detective who asked Diaz-Acosta for identification and the car's registration. A search of Diaz-Acosta's car yielded thirteen kilograms of cocaine and a .380 caliber semiautomatic firearm. A subsequent inventory search of the car yielded a small package of cocaine.

Shortly after Diaz-Acosta was arrested, law enforcement officers converged on the Botanica and arrested Llerena and Freyre. Diaz-Gonzalez was arrested at his farm. An inventory search of the truck Diaz-Gonzalez was driving at the time of his arrest (conducted by DEA agents) yielded a .9 mm automatic pistol.

Pursuant to warrants, searches were conducted of the Botanica and of Diaz-Acosta's home. These searches yielded over $126,000 of cash, four firearms, a kilogram press, a cash counting machine, and a microwave oven with cocaine residue. In a search of Diaz-Gonzalez' house, officers found three guns and aluminum pans with cocaine residue.

II. DISCUSSION

  1. Pretrial

    1. Motion to Suppress

      Diaz-Gonzalez first challenges the district court's denial of his motion to suppress evidence on the ground that his wife, Doris Diaz, did not voluntarily consent to a search of their house on the day of his arrest. Diaz-Gonzalez contends that because his wife was shaken by the arrest of her son (Diaz-Acosta) at the house, "she was in no state to give consent." At a pretrial hearing on the motion, the district court heard testimony from two Hialeah Police Department Detectives and from Doris Diaz.

      Detective Carlos Diaz testified that Doris Diaz appeared "rational" and "lucid" and that he asked her in Spanish if she would consent to a search of her house. Detective Diaz explained to Mrs. Diaz that the search was connected to her son's arrest and that the officers would be looking for evidence of narcotics crimes. Detective Diaz also testified that he advised Doris Diaz that she was not required to consent.

      Detective Lee Mock testified that Mrs. Diaz, although "nervous" and "concerned," was not sobbing or broken down. Detective Mock read the consent form in Spanish to Mrs. Diaz. The form, which stated that no promises, threats, or coercion had been used to extract the consent, was signed by Mrs. Diaz with detectives Diaz and Mock as witnesses. The detectives did not have their guns drawn nor did they raise their voices during their conversation with Mrs. Diaz.

      Doris Diaz testified that she had not read the consent form, nor was the form explained to her. The district court ruled that Mrs. Diaz' consent was given "freely, voluntarily and intelligently" and judged that her testimony was not believable.

      It is "well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."

      Page 1501

      Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973). The determination of voluntariness is a question of fact to be decided from the totality of the circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48. The district court's factual finding that consent was given voluntarily will not be overturned unless clearly erroneous. United States v. Blake, 888 F.2d 795, 798 (11th Cir.1989). "This is true because the trial judge usually bases his finding on credibility choices resulting from conflicting testimony." United States v. Garcia, 890 F.2d 355, 359 (11th Cir.1989).

      We conclude that the district court's factual finding that Doris Diaz voluntarily consented to a search of her house was not clearly erroneous. After listening to conflicting accounts of the circumstances surrounding Mrs. Diaz' consent, the district court determined that "the little lady's testimony is not worthy of belief." The district court instead chose to accept the testimony of police detectives Diaz and Mock. Their testimony established that Mrs. Diaz, a woman of rational demeanor, had witnessed the arrest of her son outside her home. Although Mrs. Diaz was upset over her son's arrest, both detectives testified that she was not too distraught to comprehend the implications of the search and had signed the consent form after being advised in her native tongue that her consent was not...

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