U.S. v. Ochoa

• Decision Date: 04 January 1980
• Docket Number: No. 79-5079,79-5079
• Citation: 609 F.2d 198
• Parties: 5 Fed. R. Evid. Serv. 583 UNITED STATES of America, Plaintiff-Appellee, v. Isidro Sanchez OCHOA, Omar Sanchez Ochoa, Reynaldo Fuentes Ortega, and Juanita Alaniz Cavazos, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 198

609 F.2d 198

5 Fed. R. Evid. Serv. 583

UNITED STATES of America, Plaintiff-Appellee, v. Isidro Sanchez OCHOA, Omar Sanchez Ochoa, Reynaldo Fuentes Ortega, and Juanita Alaniz Cavazos, Defendants-Appellants.

No. 79-5079.

United States Court of Appeals Fifth Circuit.

Jan. 4, 1980.

Alfonso A. Guerra, McAllen, Tex. (Court-appointed), for I. Ochoa.

Oscar Palacios, Pharr, Tex. (Court-appointed), for O. Ochoa.

Robert Gaines Griffin, Weslaco, Tex. (Court-appointed), for Ortega.

Ramon Garcia, Edinburg, Tex., for Cavazos.

John M. Potter, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEWIN, AINSWORTH and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Four defendants convicted of distribution and conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 bring this appeal to urge various grounds of complaint: improper use of informants, multiple rather than a single conspiracy, insufficiency of the evidence, and erroneous rulings on the admissibility of evidence. The first contention is frivolous. We overrule the other complaints and affirm the convictions of Isidro Ochoa, Omar Ochoa and Reynaldo Ortega. We reverse the conviction of Juanita Cavazos because of improperly admitted evidence.

FACTS

This case arises out of an undercover investigation by the Drug Enforcement Administration in McAllen, Texas, from August 21 to September 16, 1978. Two informants, Roberto Ortiz and Enrique Marroquin, assisted DEA agent Russell Reina in establishing the necessary contacts. Seven individuals, including one John Doe, were indicted on six counts. ¹ Count one is the general conspiracy count with which all defendants were charged. Defendant Salazar pleaded guilty to the conspiracy count and all other charges were dismissed; he does not appeal. All charges against defendant Anzaldua, Salazar's common-law wife, were dismissed in return for cooperation. The remaining four defendants, Isidro Ochoa, Omar Ochoa, Reynaldo Ortega, and Juanita Cavazos were each found guilty of count one as well as the counts corresponding to their substantive offenses.

On August 21 agent Reina, informant Ortiz and defendants Isidro Ochoa and Omar Ochoa met in the Windsor Motel in McAllen to discuss a sale of heroin. Agent Reina gave informant Ortiz money for the purchase. Informant Ortiz left with the Ochoas and later returned to the motel with Omar Ochoa and the heroin. Thirty dollars was paid for .17 grams of heroin.

On August 23 agent Reina, informant Ortiz, and defendants Omar Ochoa and Reynaldo Ortega met at the motel and discussed another sale. Later that day agent Reina paid defendant Ortega $500.00 for 4.6 grams.

On August 31, informant Ortiz arranged another meeting between agent Reina and defendant Ortega. Later that day agent Reina purchased 27.8 grams for $1500.00 from defendant Ortega and a John Doe.

On September 12 informant Marroquin, defendants Omar Ochoa, Jesus Salazar and unnamed others met to discuss agent Reina's purchase of more heroin.

On September 14, agent Reina and defendant Ortega discussed a heroin sale shortly before a meeting which informant Ortiz had arranged between agent Reina and defendant Salazar. Defendant Salazar suggested a sale of heroin; agent Reina, Salazar and Salazar's wife, Yolanda Anzaldua drove to a store where defendant Cavazos worked. Salazar went inside for a few minutes. Then, Reina, Salazar, and Anzaldua drove to Cavazos' residence in Pharr, Texas. Salazar entered the house through the front door, shortly emerged and sold agent Reina 49.7 grams for $2500.00. Later that afternoon, agent Reina discussed another transaction with Salazar. As Reina was leaving, defendant Ortega arrived for further discussions with Salazar.

On September 15 agent Reina again discussed a heroin sale with Salazar.

On September 16 agent Reina discussed a sale with the Salazars. After arriving at their apartment in the Windsor Motel, Reina was informed that Anzaldua would place a telephone call for delivery of the heroin. Shortly thereafter defendant Cavazos arrived at the Salazars' apartment. While waiting for this delivery, agent Reina saw defendant Ortega in the courtyard of the motel and arranged for a purchase of heroin from him later that afternoon at the Cuevas Restaurant in McAllen, Texas. Agent Reina and informant Marroquin then entered the Salazars' room. Agent Reina agreed to buy 135.8 grams of heroin for $6200.00 from Salazar. In the one room efficiency apartment with Salazar at that time were Salazar's wife and defendant Cavazos. Agent Reina then left the apartment, supposedly to get the money for the heroin, but instead alerted other narcotics agents who assisted him in arresting all three defendants. Later that day defendant Ortega was arrested at the Cuevas Restaurant.

SINGLE CONSPIRACY

Defendants attack the sufficiency of the evidence supporting the jury's finding of a single conspiracy. "To prove a conspiracy, the government must prove the existence of an agreement between two or more persons to combine efforts for an illegal purpose. Direct proof of an agreement is not necessary to establish a conspiracy; it may be proven by inferences from the actions of the actors or circumstantial evidence of the scheme." United States v. Hitsman, 604 F.2d 443, 446 (5th Cir. 1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). "Whether a scheme is one conspiracy or several is primarily a question for the jury." United States v. Michel, 588 F.2d 986, 995 (5th Cir. 1979), Cert. denied, --- U.S. ----, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir. 1975). "A single plan does not become many plans simply because some members were cast in roles more vital than others, or because certain members performed only a single function." United States v. Bates, 600 F.2d 505, 509 (5th Cir. 1979); United States v. Michel, supra.

The evidence warranted the finding that each of the defendants were aware of the conspiracy and voluntarily associated with it. In an attempt to satisfy agent Reina's desire for increased amounts of heroin, some defendants introduced agent Reina to other defendants in a stepladder progression. Thus, informant Ortiz introduced agent Reina to the Ochoa brothers for the initial purchase of a small sample of heroin. The jury heard testimony that Isidro was having trouble reestablishing his connections for heroin. (R. at 127). Because of Isidro's difficulties and perhaps because the group was fearful of losing Reina as a customer, Omar Ochoa subsequently introduced Reina to defendant Ortega for additional heroin purchases. As Reina's needs began to outstrip Ortega's resources, defendant Ortega and defendant Salazar agreed to work together to supply Reina with larger quantities of heroin. Finally, defendant Salazar and defendant Cavazos cooperated to supply Reina with the largest amounts of heroin.

A finding of a single conspiracy is not defeated merely because of personnel changes. United States v. Bates, supra, 600 F.2d at 509. On the contrary, we have recognized proof of overlapping membership and activities directed toward a common goal as factors reflecting only one conspiracy. United States v. Michel, supra, 588 F.2d at 994-95; United States v. Becker 569 F.2d 951, 960-61 (5th Cir. 1978), Cert. denied,439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). As noted above, Isidro and Omar Ochoa worked together to supply agent Reina with heroin, as did Omar Ochoa and Ortega, Ortega and Salazar, and Salazar and Cavazos. Furthermore, Salazar was aware of agent Reina's transactions with Omar Ochoa and with Reynaldo Ortega (R. at 154); Ortega was aware of Reina's transactions with Salazar. (R. at 151, 164). The interrelated nature of the enterprise is further reflected by the fact that on September 12, Salazar, Omar Ochoa and unnamed others met to discuss agent Reina's continued purchases of heroin. (R. at 153).

Even when not acting in each other's presence, these defendants operated in similar fashions, further evidence of a common plan. Heroin is rarely sold in its pure state, but is diluted with various materials. All of the heroin purchased by agent Reina during the course of this investigation contained quantities of acetylprocane greater than one percent. According to the government's expert witness in analytical chemistry, this relatively high percentage of a single cutting material indicated a similar method of operation. (R. at 108, 111).

A similar method of operation is also demonstrated by the manner in which each of the transactions were conducted. In each instance the heroin was located elsewhere during the negotiations and had to be delivered after agreement had been reached. Defendants would first meet with agent Reina, satisfy themselves that he was ready to buy and agree on a price. All parties would then proceed to another location, or the heroin would be brought to the parties, for the actual transfer.

In view of the foregoing evidence showing the interrelationships among these defendants, their joint activities and similar methods of operation, we find support for the jury finding of a single conspiracy.

ISIDRO OCHOA

Defendant Isidro Ochoa contends the evidence supporting his conviction was insufficient. An examination of the testimony of agent Reina and informant Ortiz adequately refutes that contention. During joint negotiations with agent Reina, Omar Ochoa identified his brother Isidro as their heroin "connection," (R. at 121), a designation which Isidro did not deny. In response to agent Reina's concerns over the length of time the sale would take, Isidro stated that he was having difficulty reestablishing himself in the "business" and required payment in advance. (R. at 127). In Isidro's presence, agent Reina gave informant Ortiz a one hundred dollar bill for the...