U.S. v. Juarez, 77-5217
| Citation | 573 F.2d 267 |
| Decision Date | 19 May 1978 |
| Docket Number | No. 77-5217,77-5217 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lenin JUAREZ and Oscar Juarez, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
George E. Gilkerson and John T. Montford, Lubbock, Tex., for L. juarez.
Max E. Ramsey, Odessa, Tex., for O. Juarez.
Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Ronald P. Guyer, W. Ray Jahn, Wayne F. Speck, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before THORNBERRY, AINSWORTH and MORGAN, Circuit Judges.
A jury convicted defendants-appellants Lenin Juarez and Oscar Juarez on one count of conspiring to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846, on two counts of aiding and abetting possession of heroin with intent to distribute in violation of 18 U.S.C. § 2, and on three and one counts, respectively, of aiding and abetting the distribution of heroin in violation of 18 U.S.C. § 2. Oscar Juarez was also convicted on two counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1). The district court sentenced each defendant to ten years' imprisonment with a special parole term of three years on each count, the sentences to run concurrently. 1 The defendants now appeal, urging thirteen points of error by the trial court. Finding none of their contentions meritorious, we affirm.
The scenario begins in the Playgirl Lounge in Lubbock, Texas, where, on May 24, 1976, a confidential informant introduced DEA Agent Pedro T. Hernandez to Joe Miguel Gerhardt. The informant earlier had told Hernandez that a Lubbock lawyer was dealing in narcotics, and Hernandez was seeking to determine his identity. Hernandez communicated to Gerhardt his desire to purchase an ounce of heroin. Gerhardt seemed interested and responded that he could make the sale himself but first would have to contact his connection. Government agents then followed Gerhardt to the Lubbock home of defendant Lenin Juarez, a 32-year-old attorney practicing law in Lubbock, on to a road sign located approximately twelve miles from Kermit, Texas, and finally to the Village Inn in Lubbock, where Gerhardt sold Hernandez one ounce of heroin for $1,000. On July 12, 1976, Gerhardt and Hernandez consummated a second sale at a location approximately twenty-four miles north of Midland, Texas on Highway 176. Once again Gerhardt sold Hernandez one ounce of heroin for $1,000. A third sale occurred between Hernandez and Gerhardt on September 14, 1976 at a liquor store parking lot in Lubbock. This time, however, the stakes were higher; four ounces of heroin and $4,000 exchanged hands. On September 23, 1976, Hernandez and Gerhardt met a fourth time, on this occasion in a cafeteria parking lot in Lubbock. Hernandez, accompanied by DEA Agent Ed Alcorn, informed Gerhardt that he was a DEA agent, that a grand jury soon would indict Gerhardt, and that Gerhardt would be wise to cooperate with the Government. Gerhardt agreed to become an informant and stated that two brothers, Lenin Juarez of Lubbock and Oscar Juarez of Kermit, were his suppliers.
Gerhardt revealed further that he first met Lenin Juarez in April or May of 1975 at the Sportsman's Club in Lubbock, where Juarez recruited him to sell heroin "on the streets" at a fee to Gerhardt of $300 an ounce. Gerhardt was instructed to obtain the heroin in Kermit from Oscar Juarez. Thereafter, Gerhardt made numerous trips to Kermit in order adequately to supply his customers. In the latter part of 1975 Lenin Juarez instructed Gerhardt to cease contacting Oscar Juarez directly. Instead, the heroin was to be buried no more than a foot deep alongside a road near Kermit, with road signs and an historical marker to be used to identify the burial site. The plan called for Gerhardt to meet Lenin Juarez at his law office, his home, or in various bars to place an order, at which time Juarez would notify his brother Oscar to bury the heroin and would recontact Gerhardt to inform him when and where he could pick it up. The conspirators continued to follow this procedure up until the time of their arrests. This also was the method used to service Agent Hernandez's purchases.
Shortly after telling his story to the agents on September 23, Gerhardt placed a telephone call to Lenin Juarez. The conversation was "coded" and in Spanish and, with Gerhardt's consent, was recorded by DEA agents. Juarez told Gerhardt the "five pieces of paper" were ready to be picked up but there was no need for Gerhardt to hurry unless he needed them. After the conversation, either that same day, September 23, or the day after, September 24, Gerhardt guided Agent Hernandez to a sign located approximately nine miles northeast of Kermit. The sign read "One Mile to Historical Marker." Beginning at the sign and walking in a line perpendicular to the road, Hernandez and Gerhardt came to a fence with a ribbon tied to it. Approximately ten inches beneath the ground directly under the ribbon Hernandez found a baby food jar containing four ounces of heroin. Gerhardt next led two other DEA agents to a location in Abernathy, Texas, where they found approximately one and one-half more ounces of heroin.
On September 27, 1976, DEA agents gave Gerhardt $1,500 in government funds to pay Lenin Juarez for prior sales of heroin. Gerhardt delivered the money to Juarez at his home and chatted with him about their heroin business. 2 Government agents also recorded this conversation, with Gerhardt's consent, through a microphone taped to Gerhardt's body. The agents made no attempt to recover the funds passed in this meeting, however.
A second meeting between Lenin Juarez and Gerhardt was planned for 9:30 p. m. on September 30, 1976 at the Ambassador Club in Lubbock. The purpose of this meeting was to enable Gerhardt to pay Juarez for heroin which Juarez thought had been sold but which in fact had been turned over to DEA agents on September 23 or 24. Agents provided Gerhardt a roll of marked government funds amounting to $4,000, which the agents decided to seize from Juarez if he accepted it. No warrant to search or arrest Juarez was obtained. 3
On September 30, Gerhardt entered the Ambassador Club at approximately 10:15 p m. Agent Hernandez was already stationed inside while other agents were in strategic locations outside the club. Gerhardt met Lenin Juarez at the bar and, after talking briefly, the two retired to the restroom where Gerhardt paid Juarez the $4,000. Gerhardt then returned to the bar area, signaled to Hernandez by removing his hat and scratching his head that Juarez had accepted the money, and left the club. It was approximately 10:30 p. m. Juarez left about half an hour later with a friend named Arthur Chavez. Juarez and Chavez walked to Chavez's car where Juarez gave Chavez the $4,000 to keep temporarily for him. When a young woman appeared and entered the bar, Chavez decided to return to the club, at which point Juarez regained possession of the money and began walking toward his own car. The time was approximately 11:15 p. m.
The DEA agents stationed outside the club then moved in and stopped Juarez. Agent Richard Brazil informed him they were conducting a narcotics investigation and, after advising him of his Miranda 4 rights, told Juarez he was suspected of possessing government funds involved in a narcotics transaction. Brazil then asked him if he possessed any government funds and Juarez said he did not. "Well, I am going to have to search you," replied Brazil. Juarez, according to the testimony of DEA Agent Delbert W. Stiewert, who was assisting Brazil, replied, "That's fine," a statement Juarez denied repeatedly at trial. A warrantless search of Juarez produced the $4,000 roll of marked government funds, which was concealed in his left sock, and which Agent Brazil seized. Juarez explained that a client had given him the money as legal fees, but that the client's name was privileged information, 5 and he was allowed to leave. Subsequently, on October 12, 1976, a grand jury indicted both Lenin and Oscar Juarez, at which time they were arrested.
Defendants contend first that the district court erred in failing to suppress as inadmissible evidence the $4,000 roll of marked government funds taken from Lenin Juarez, because allegedly these funds were the product of a "planned, warrantless search" conducted without Juarez's consent and therefore in violation of the fourth amendment. Both Lenin and Oscar Juarez urge this point of error, but Oscar Juarez has no standing to complain because he has not demonstrated a legitimate interest in either the premises searched or the object seized. E. g., United States v. Hunt, 5 Cir., 1974, 505 F.2d 931, 939-40, cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975). See, e. g., United States v. Archbold-Newball, 5 Cir., 1977, 554 F.2d 665, 667-79; United States v. Houltin, 5 Cir., 1976, 525 F.2d 943, 946-47, vacated in part sub nom., Croucher v. United States, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 745, modified, 5 Cir., 1977, 553 F.2d 991. We turn, therefore, to the contentions of Lenin Juarez.
A well-settled tenet of fourth amendment jurisprudence is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Lenin Juarez suggests that the warrantless search of his person does not fall into any of these exceptions. We disagree and hold that the search was legal under both the consent and the exigent circumstances exceptions to the fourth amendment warrant requirement.
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