U.S. v. Cardenas, 83-1720

• Citation: 748 F.2d 1015
• Decision Date: 17 December 1984
• Docket Number: No. 83-1720,83-1720
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gabriel Dejesus CARDENAS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1015

748 F.2d 1015

UNITED STATES of America, Plaintiff-Appellant, v. Gabriel Dejesus CARDENAS, Defendant-Appellee.

No. 83-1720.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 1984.

James A. Rolfe, U.S. Atty., Shirley Baccus-Lobel, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellant.

Max B. Kogen, Lauren Kogen, Miami, Fla., for defendant-appellee.

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

Before JOHNSON, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Gabriel Cardenas was convicted by a jury for possession of a controlled substance with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The trial court, however, granted a post-verdict judgment of acquittal on the ground that there was insufficient evidence to support the jury's verdict. The government has appealed. Finding that the record does contain sufficient evidence to support the defendant's conviction, we reverse and remand the case for the reinstatement of the jury verdict of guilty.

I.

The events which led to the arrest of the defendant Cardenas resulted from a fugitive investigation. The Federal Bureau of Investigation (FBI) had received information that Paul Alan Van Riessen, a fugitive charged in Oklahoma with conspiracy to import and conspiracy to distribute marijuana, was living in Texas.

The FBI's investigative efforts led them to a Dallas Cadillac dealer. From the dealer, the FBI learned that Van Riessen, along with another individual, Eula Mae Fulton, had recently purchased a red 1983 Cadillac El Dorado. The FBI also learned that the car was currently at the dealership for repairs. In an effort to locate Van Riessen, the FBI began surveillance of the red Cadillac after the vehicle was removed from the dealership on March 10, 1983.

The car was followed throughout the day. At approximately 8:15 p.m. Fulton drove the Cadillac to a house located in Rowlett, Texas, which had been rented in February of 1983 by Eula Mae Fulton and another female. The car was removed from the residence later that night by a male driver, not Van Riessen, and returned to the house at approximately midnight. The FBI maintained surveillance of the Rowlett residence the entire night and no activity was noted.

At approximately 9:30 a.m. the next morning, March 11, Fulton left the residence in the red Cadillac. The car was not followed, however, since no man was in the car, and the agents were searching for Van Riessen. Later that morning, the car was observed in the area of the residence. Eula Mae Fulton was driving the car with Cardenas as a passenger. The car did not stop at the residence. Rather, Fulton drove Cardenas around the area, and eventually brought him to a small shopping center near the vicinity of Belt Line Road and Interstate 30. Here, Cardenas exited the car and entered a grocery store which was adjacent to a Shell station and Spires Restaurant. He browsed through a magazine and book rack, then left the grocery store and walked to a nearby intersection. Cardenas walked back and forth in the vicinity of the intersection for approximately forty-five minutes.

Meanwhile, Fulton returned to the Rowlett residence, and picked up another man. She drove this unidentified individual to the Days Inn which overlooked the intersection where Cardenas was standing and pacing. This individual entered the restaurant at the Days Inn and sat near a window. This man is not identified other than that he was not Van Riessen. He appeared to watch Cardenas.

Fulton next returned to the area of the Spires restaurant and picked up an unidentified white male whom the jury could have reasonably inferred, in the context of time and place, was Cardenas. She then went to an apartment complex and picked up another white male. The three occupants of the car drove to the Doubletree Inn on North Central Expressway in Dallas. They arrived at the hotel at 2:40 p.m. on March 11. The two individuals accompanying Fulton are not positively identified in the record.

Van Riessen registered in room 1506 at the Doubletree Inn under the name of "James Anthony" at 2:39 on the afternoon of March 11, 1983. ¹ He was accompanied by another individual, whom the registration clerk was unable to identify. Van Riessen paid for the hotel room and made all of the accommodation arrangements.

On the morning of March 12, 1983, at approximately 8:00 o'clock, the FBI agents began a constant surveillance of Van Riessen's room. The agents observed Van Riessen leave the room twice, very briefly. Other than Van Riessen, no one was observed entering or leaving the room.

An FBI agent, posing as a hotel room-service employee, entered Van Riessen's hotel room in response to a room-service call. The agent was instructed not to close the hotel room door when she made the delivery. However, when Van Riessen attempted to close the door after she entered the room, several agents rushed it. The occupants of the room at the time the agents entered were Van Riessen, Fulton and Cardenas.

Cardenas's wallet was taken after he was placed in custody. It contained a handwritten notation: "205 Joanne 4937726." This number had previously been given by Fulton as a reference when she rented the Rowlett house. No weapons or drugs were physically found on him. A ticket and boarding pass in the name of Cardenas were also found in the room. The ticket was for American Airlines flight number 575 from Miami to Dallas on March 11, 1982. Fulton's purse was also searched when she was taken into custody. The purse contained an envelope on which was written, "Pan Am flight" and either number "578" or "575" or "570."

The hotel room occupied by Van Riessen, Cardenas and Fulton contained numerous other items of incriminating evidence. Among these items was a shoe box located on a large open shelf in the room. Inside the box were some pill bottles containing 148 methaqualone tablets. Another bottle inside the box contained a powder analyzed to be sixty percent methamphetamine.

Located on an open shelf above the shelf where the shoe box rested, was a ceramic bowl containing 1.1 grams of cocaine residue. Located on the floor beneath the lower shelf was a wing-tip shoe. The heel had been separated about one-and-three-eighths inches from the rest of the shoe and a white powder in a light plastic bag was protruding from it. The bag was later found to run through the sole of the shoe and to contain 181.9 grams of ninety-five percent pure cocaine. On the shelf above the shoe, next to the shoe box, was a pocket knife. The room also contained numerous "Coca Cola" and "Pepsi" cans, each with a secret compartment. Two cans were on the shelf and others were in a bag on the table next to the window.

Among the other items seized from the hotel was a brown attache case. It contained several loose sheets of papers bearing names and numbers along with other notations. The papers included a Miami telephone number for "Red," an alias by which Cardenas was known. Between February 28, 1983, and March 10, 1983, twelve calls were placed from the Rowlett house to the Miami telephone number. The subscriber of the number was "Marisol Chavarri." Above that name on the telephone toll record was printed "self-employed import-export No. Ctn & PR MUDVI 4350842 PR CARDENAS." During the period between February 28 and March 10, there were several calls from the Miami telephone number to Columbia and Venezuela, South America.

Two individuals, Norman Carey, and Christopher Gandsey, arrived after one of them telephoned and was told by an agent to come up to the room. Norman Carey carried a suitcase to the room which contained only a smaller suitcase and a shaving kit. The other individual, Christopher Gandsey, carried a suitcase filled with clothes and a loaded automatic pistol inside his shaving kit. Sometime later, Michael Patrick Kraal arrived at the room. Kraal had checked into the Sheraton Park Hotel, room 548, on March 11.

Carey was Van Riessen's cousin. At trial, he testified that he flew from California on March 12, 1983, to Dallas, intending to stay one day for the purpose of collecting a $2,800 debt owed him by Van Riessen. Carey testified that he did not expect to meet anyone other than his cousin at the Doubletree Inn. Carey also testified that Gandsey accompanied him to Dallas because of the possibility that he would have to drive a vehicle back to California. ² The vehicle would have been given as part payment of the debt if Van Riessen did not have sufficient cash.

Telephone toll records admitted into evidence indicated that several calls were made between Carey's number in California and the Rowlett residence. Several calls were also made between the Doubletree and the Sheraton Park. At 3:30 p.m. a call was placed from room 548 at the Sheraton Park to the Doubletree. At 1:52 p.m., a call had been placed from room 548 to Carey's number in California. At 3:33 p.m., a call was placed to Carey's number in California from Van Riessen's room at the Doubletree. Several calls were placed from room 1506 to the Sheraton Park Hotel that day.

Eula Mae Fulton entered a plea of guilty to misprision of a felony prior to trial. The government thereafter subpoenaed her to testify at the trial. She was granted immunity pursuant to the provisions of 18 U.S.C. Secs. 6002, 6003. Notwithstanding immunity and the fact that she was ordered to testify by the court, she refused to testify and was found in contempt. The defense presented no evidence at trial.

The defendant was charged with possession of cocaine, methamphetamine, and methaqualone, with the intent to distribute each controlled substance in violation of 21 U.S.C. Sec. 841(a)(1). The jury convicted Cardenas on all counts, but the district court granted a judgment of acquittal on the grounds that the government did not present sufficient evidence to establish that Cardenas constructively possessed the controlled substances....