U.S. v. Cardona, 80-2039
| Decision Date | 24 June 1981 |
| Docket Number | No. 80-2039,80-2039 |
| Citation | 650 F.2d 54 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth CARDONA, Miguel Padron-Silva, and Sara Padron, Defendants-Appellants. Summary Calendar. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Victor R. Arditti, El Paso, Tex., for defendants-appellants.
LeRoy M. Jahn, Asst. U.S. Atty., San Antonio, Tex., Michael S. McDonald, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before CHARLES CLARK, REAVLEY and WILLIAMS, Circuit Judges.
Elizabeth Cardona, Miguel Padron-Silva, and Sara Padron were tried before a jury on one count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and on two counts of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). They were each convicted on all three counts. Cardona and Padron-Silva both received sentences of seven years imprisonment on each count, with the sentences to run concurrently, and a ten-year special parole term on each of the two possession counts. Padron received sentences of five years imprisonment on each count, with the sentences to run concurrently, and a ten-year special parole term on each of the two possession counts. The district court suspended execution of Padron's prison sentences and placed her on five years probation without supervision.
All three defendants appeal. They raise numerous issues including entrapment, sufficiency of the evidence to support the convictions, admissibility of certain coconspirator statements, and sufficiency of the indictments. We vacate the convictions of Padron-Silva and Padron on the possession charge reflected in Count III of the indictment and affirm each of the remaining convictions.
The charges lodged against Cardona, Padron-Silva, and Padron arise out of two transactions between Cardona and Special Agent Wendt of the Drug Enforcement Administration. Most of the government's case is founded upon the testimony of Wendt and other DEA agents.
The first transaction took place on February 27, 1980, during a meeting in the parking lot of the Sunrise Shopping Center in El Paso, Texas. The meeting was first attended by Wendt and Cardona, but the government informant who introduced them to one another was also present in the shopping center parking lot. Before the meeting, DEA agents strip searched the informant, searched his automobile, and observed him continuously in order to ensure that he did not have any contraband in his possession.
Agent Wendt described his initial encounter with Cardona. He testified that he entered her automobile where he observed a prophylactic containing heroin lying on the seat. They then discussed the possible sale of twelve ounces of heroin to Wendt, and Cardona told him that she had two ounces that she wished to sell for $9,000. When Wendt expressed his desire to purchase only one ounce for $4,500, Cardona said that she would have to leave for about fifteen minutes in order to weigh out the ounce. Cardona then left the shopping center parking lot, but heavy traffic prevented other agents from following her. During this initial meeting, DEA agents observed Padron and Padron-Silva in the vicinity of the parking lot, driving a red Mustang automobile. Padron and Padron-Silva are Cardona's sister and brother-in-law, respectively.
Cardona soon returned to the shopping center and met briefly with Padron-Silva. She then drove to the area where Wendt was waiting, picked him up, and said that she wanted him to speak with someone. Cardona and Wendt then drove to another area where Padron-Silva and Padron were sitting in the parked Mustang. With the two automobiles parked parallel to one another, Padron passed a magazine and the prophylactic containing heroin to Cardona. In accordance with Cardona's instructions, Wendt placed forty-five $100 bills into the magazine. Cardona handed the magazine to Padron, and Padron then handed it to Padron-Silva. Padron-Silva then proceeded to count the money. Cardona asked the occupants of the Mustang if the deal was still set for the remaining eleven ounces, and Padron replied, "Yes, it will be set for Saturday." Wendt repeated the question, and Padron answered, "Yes, it's set." This exchange concluded the first transaction.
Complications then apparently developed. During the following weeks, Cardona held numerous telephone conversations with Agent Wendt and with the government informant. On March 19, 1980, Wendt telephoned Cardona and arranged another meeting at the Sunrise Shopping Center to discuss the sale of twelve ounces of heroin. At that time Cardona told Wendt that she was having trouble obtaining the heroin but that she expected to be receiving a delivery soon. She also asked to see the money, and Wendt showed her $42,000. After this meeting, Wendt called Cardona several more times, and each time Cardona gave the same explanation for the delay. She said that they were having problems crossing the heroin from Juarez to El Paso because the "mule" who usually carried the heroin across the border was unavailable and that they were having difficulties locating a sufficiently trustworthy replacement.
On April 8, 1980, Wendt again telephoned Cardona. This time she told him that a new shipment would soon be arriving from Parral, Mexico, the residence of Padron-Silva and Padron. Cardona then called Wendt on April 13, 1980, to say that the heroin had arrived in El Paso and that she was ready to go forward with the transaction. She told Wendt he would have to buy six ounces of heroin first and then, if that sale went smoothly, buy the remainder within 24 hours. They arranged the sale for the following day.
The second transaction was consummated on April 14, 1980. Cardona met Wendt at the Sunrise Shopping Center and then took him to Room 18 of the Hawaiian Royale Motel. The motel room had been rented by Padron-Silva in the name of another person. While they were driving to the motel, Cardona discussed the details for completing the transaction. She informed Wendt that the heroin would be in the motel room, but when they arrived they were not able to locate it. According to Wendt, Cardona became anxious and said that she would leave and check with her people. Other DEA agents observed her leave the motel and go to a nearby convenience store. While returning from the store, she met briefly with Padron-Silva and Padron behind the Hawaiian Royale Motel. All three defendants insisted that no heroin changed hands at that meeting. Cardona left Padron-Silva and Padron and approached Wendt and another DEA agent in the parking lot. She showed them two packages containing approximately six ounces of heroin. DEA agents then simultaneously arrested the three defendants. Cardona testified that her supplier Jose Luis Chavez, had given her the two packages while she was in the convenience store. Cardona said she met Chavez in Mazatlan when she travelled there at the behest of the government...
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