U.S. v. Bermea

• Decision Date: 25 August 1994
• Docket Number: No. 92-7349,92-7349
• Citation: 30 F.3d 1539
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Baldemar BERMEA, Rogelio Bermea, Lorenzo Rodriguez, Manuel Garcia, Honorio Garza, Matilde Perez, Guadalupe Bermea, Enrique Avalos and Teodoro Pedraza, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1539

30 F.3d 1539

UNITED STATES of America, Plaintiff-Appellee, v. Baldemar BERMEA, Rogelio Bermea, Lorenzo Rodriguez, Manuel Garcia, Honorio Garza, Matilde Perez, Guadalupe Bermea, Enrique Avalos and Teodoro Pedraza, Defendants-Appellants.

No. 92-7349.

United States Court of Appeals Fifth Circuit.

Aug. 25, 1994.

Rehearing Denied Oct. 7, 1994.

David Almaraz (court appointed counsel), Laredo, TX, for Matilde Perez.

Allen Cazier, San Antonio, TX, for Baldemar Bermea.

Allen Cazier, San Antonio, TX, for Guadalupe Bermea.

C.J. Quintanilla (court appointed counsel), McAllen, TX, for Manuel Garcia.

David Diaz, Corpus Christi, TX, for Enrique Avalos.

David Diaz, Corpus Christi, TX, for Teodoro Pedraza.

L. Aron Pena, Edinburg, TX, for Lorenzo Rodriguez & Rogelio Bermea.

Heriberto Medrano, Harlingen, TX, for Honorio Garza.

Cynthia Young, Dept. of Justice, Crim. Div., Washington, DC, Paula Offenhauser, Asst. U.S. Atty., Gaynell Griffin Jones, U.S. Atty., Houston, TX, for appellee.

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

Before GOLDBERG, KING and WIENER, Circuit Judges.

KING, Circuit Judge:

This case presents a myriad of issues common to appeals of drug conspiracy convictions. Two less common issues are difficult. One such issue concerns the failure of the district court to conduct individual voir dire of the members of the jury following prejudicial midtrial publicity. The other such issue concerns the treatment of a pending James motion, ultimately ruled on at trial, under the Speedy Trial Act.

I. BACKGROUND

A. FACTS

The appellants in this case were charged with participating in one or both of two conspiracies to possess marijuana with the intent to distribute. The first of these conspiracies, lasting from late 1987 to mid-1988, allegedly involved eight persons, including appellants Matilde Perez, Manuel Garcia, Honorio Garza, Enrique Avalos, Teodoro Pedraza, and Lorenzo Rodriguez. The second conspiracy lasted from late 1988 through early 1989, and it allegedly involved seven persons, including appellants Perez, Garza, Rogelio Bermea, Baldemar Bermea, and Guadalupe Bermea.

1. The First Conspiracy

Jaime Rios Gonzalez, an informant who began working for the Drug Enforcement Administration (DEA) and other government agencies in 1988, testified at trial as follows. In 1988, Gonzalez was staying at a ranch owned by Garcia, getting paid about $200 per week for doing "mostly nothing." (Other testimony at trial indicates that Garcia's ranch was located just north of Mission, Texas, which is in Hidalgo County near the border with Mexico.) Avalos and Rodriguez also worked at Garcia's ranch while Gonzalez was there, and Gonzalez identified Avalos as Garcia's closest associate.

At some point, Garcia revealed to Gonzalez that he owned a grain trailer with a secret compartment used for carrying large quantities of marijuana. Garza, a constable of Starr County, Texas (adjacent to Hidalgo County), and Perez came to Garcia's ranch on one occasion, and Gonzalez overheard Perez tell Garcia not to let his workers "get lost" because he had some work coming up. A little later, Garcia told Gonzalez and other workers that Perez and Garza would soon be providing a "load." A few days later, Gonzalez and Rodriguez went to a different ranch owned by Carlos Gomez, where they met Garcia, Garza, Avalos, and several other men. That night, which was sometime in July 1988, Gonzalez, Avalos, Rodriguez, Garcia, and the others loaded bundles of marijuana into the secret compartment in Garcia's grain trailer; Gonzales was told by Avalos and Garcia that the load contained over 1800 pounds. Although Garza was not present during the loading of the marijuana, Garcia told Gonzalez that Garza and Perez had supplied the marijuana.

The trailer containing the marijuana remained on the Gomez ranch for at least two weeks before Garcia gave the order to move it. Another of Garcia's employees, Pepe Villarreal, drove the tractor-trailer, while Gonzalez accompanied Avalos and Rodriguez in another vehicle. Ultimately the tractor-trailer was taken to the home of one "Shorty" Pedraza, which Gonzalez described as being in the country near Giddings, Texas. There Gonzalez, Villarreal, Rodriguez, Avalos, and Teodoro Pedraza unloaded the marijuana and stored it in a shed on Shorty Pedraza's property. Within the next few days, someone identified as "Ruben" arrived with Garza in a truck equipped with a U-Haul trailer, and the men loaded 600 pounds of marijuana (apparently into the U-Haul). Gonzalez saw Ruben pay Garza an indeterminate amount of money, and Gonzalez then left with Villarreal to return to Garcia's ranch. A few days later, Gonzales saw Perez and Garza come to Garcia's ranch and deliver four plastic sacks containing money to one of Garcia's henchmen. Garcia paid Gonzalez $700 for his work. Gonzalez stayed with Garcia through August of 1988. In September of 1988 he began working for the DEA.

Gonzalez's testimony was corroborated in part by Carlos Gomez, who testified at trial as a government witness. Gomez testified that Garcia used Gomez's ranch as a site for loading marijuana into the secret compartment of Garcia's trailer ten or twelve times between January and August 1988. Gomez also verified that Perez brought marijuana to the ranch on two or three occasions and that Gonzalez had been at the ranch to load marijuana with Garcia's men on one occasion.

2. The Second Conspiracy

Gonzalez testified that, near the end of his association with Garcia, Garcia became upset with his cousins, the brothers Guadalupe, Baldemar, and Rogelio Bermea. Garcia told Gonzalez that the Bermeas had stolen his secret compartment design and built their own trailer with a secret compartment and that he was afraid that the Bermeas would get caught by law enforcement officers and thus ruin the usefulness of his design.

Gonzalez was recruited to be a driver for the Bermeas by Guadalupe and Baldemar Bermea in October of 1988. He went to a ranch, apparently owned by Guadalupe and Baldemar Bermea, in late October or early November 1988. Some time later the Bermeas' tractor-trailer arrived, and marijuana was brought to the ranch in a van by Perez and an unknown man. Perez told Gonzalez that he and Garza had decided to start working with the Bermeas because they could get a "cheaper rate" with the Bermeas than they could with Garcia. While Rogelio, Guadalupe, and Baldemar Bermea kept a lookout, Gonzalez and others loaded marijuana into the secret compartment in the Bermeas' trailer, which Gonzalez described as "identical" to Garcia's compartment. The next day, Gonzalez left the ranch driving the tractor-trailer. He contacted the DEA agents with whom he had been working, and the agents arrested Rogelio Bermea, who was following Gonzalez in a separate vehicle, along the way. Gonzalez continued with the shipment and met Baldemar Bermea a little later, but Baldemar Bermea apparently abandoned Gonzalez when Texas state highway troopers began to follow Gonzalez. Eventually Gonzalez was "arrested" by the DEA and the Hays County Sheriff's Department. He helped the law enforcement officers unload the marijuana, which turned out to weigh a little over 1300 pounds.

After Gonzalez turned the Bermeas' tractor-trailer over to the DEA, he returned to the Bermeas' ranch and told them that he had left the tractor-trailer at a certain truck stop with the key under the floor mat. Guadalupe Bermea told him that the tractor-trailer was nowhere to be found and then paid him $500 and told him to "get lost for a while." Later, Baldemar Bermea told Gonzalez that Garza and his brother had put a price on his head.

Another government witness was Juan Teodosa Solis, who testified to the following events. Solis was recruited by Rogelio Bermea to drive a second tractor-trailer with a secret compartment in January 1989. Solis drove three shipments of marijuana for the Bermeas successfully, and Perez accompanied him on each of these trips. On the second trip, Solis overheard Perez talking to someone on the phone that he referred to as "Honorio." Additionally, while Solis was working for the Bermeas, he was told by Guadalupe Bermea that Rogelio and Baldemar Bermea were making plans with "Honorio" to transport another load of marijuana. On a fourth trip, in early March 1989, Solis was arrested, and it appears that he pleaded guilty to federal drug charges and was sentenced to seventy months in prison. A DEA agent testified at trial that Solis was transporting about 1100 pounds of marijuana at the time he was arrested.

B. PROCEDURAL HISTORY

The final superseding indictment against the appellants contained four counts. The first count charged that from December 1987 through July 1988, Perez, Garcia, Garza, Avalos, Pedraza, Rodriguez, and two others not before this court conspired to possess more than 100 kilograms of marijuana with the intent to distribute in violation of 21 U.S.C. Secs. 846, 841(a)(1), and 841(b)(1)(B). The second count charged that from November 1988 through May 1989, Perez, Garza, Rogelio Bermea, Baldemar Bermea, Guadalupe Bermea, and two others not before this court conspired to possess more than 100 kilograms of marijuana with the intent to distribute, also in violation of 21 U.S.C. Secs. 846, 841(a)(1), and 841(b)(1)(B). The third count charged Perez, Rogelio Bermea, Baldemar Bermea, Guadalupe Bermea, and two others not before this court with possession of between 100 and 1000 kilograms of marijuana with the intent to distribute on or about November 16, 1988, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. Sec. 2. The final count charged Perez, Rogelio Bermea, Baldemar Bermea, and Guadalupe Bermea with possession of between 100 and 1000 kilograms of marijuana with the intent to distribute on or about March 3, 1989, also in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. Sec. 2.

After a...