816 F.2d 980 (5th Cir. 1987), 86-1308, United States v. Basey

Docket Nº:86-1308.
Citation:816 F.2d 980
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ben Lee BASEY, Armando Jose Lopez, and Oscar Quirarte Ponce, Defendants- Appellants.
Case Date:April 28, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 980

816 F.2d 980 (5th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ben Lee BASEY, Armando Jose Lopez, and Oscar Quirarte Ponce,

Defendants- Appellants.

No. 86-1308.

United States Court of Appeals, Fifth Circuit

April 28, 1987

Rehearing Denied May 28, 1987.

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[Copyrighted Material Omitted]

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Scott Young, Warren L. Collins, Jr., Austin, Tex., for Basey.

Robert J. Kuhn, Austin, Tex., court-appointed, for Ponce.

David L. Shapiro, Austin, Tex., court-appointed, for Lopez.

Thomas Booth, Dept. of Justice, Appellant Section, Cr. Div., Washington, D.C., Helen M. Eversberg, U.S. Atty., Michael R. Hardy, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GARWOOD, JOLLY, and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

Three defendants appeal their convictions, following a joint jury trial, on charges that they conspired to possess more than fifty kilograms of marihuana with the intent to distribute it, and individual charges of drug possession. Appellant Ben Lee Basey (Basey) was stopped by law enforcement officers investigating a burglary in an isolated, rural area of Burnet County, Texas. Basey claims that the stop was unlawful, that his arrest was pretextual, and that he was therefore subjected to an improper search. Basey urges the suppression of all evidence flowing from these events. He also claims that evidence was insufficient to show he possessed the 1,700 pounds of marihuana found in an abandoned van about two miles from the site of his arrest.

The other two appellants--defendants Oscar Quirarte Ponce (Ponce) and Armando Jose Lopez (Lopez)--were arrested in a motel in Austin, Texas, some twenty-eight

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hours after, and about forty miles from the scene of, Basey's arrest. Both attack the sufficiency of evidence linking them to the marihuana conspiracy. Lopez and Ponce each also protest the admission of Basey's postarrest statements on Sixth Amendment grounds and claim that the district court erred in denying their motions for severance. Ponce further complains of the denial of his motion to quash the entire venire on the ground of prior jury service and the admission of Lopez' postarrest statements; and he also challenges the sufficiency of evidence supporting his conviction of possession of marihuana found in a nightstand in the motel room.

We determine that the issues raised by Basey and Lopez lack merit and affirm their convictions. We conclude that Ponce was properly convicted of possessing the marihuana found in the motel nightstand and affirm that conviction, but we hold that evidence was insufficient to prove his participation in the charged conspiracy beyond a reasonable doubt, and accordingly reverse his conviction on that count.

I.

The facts of this case involve events in two locations: Burnet County, where Basey was arrested, and Austin, where Ponce and Lopez were found in a motel.

  1. Events in Burnet County

    On the evening of September 5, 1985, a resident of a rural area of Burnet County, David Naumann, reported to the sheriff's office that his house near the town of Spicewood had been burglarized while he was at work that day. 1 Two county sheriff's deputies (Reinhardt Reeh and Randy Meeks) were on routine patrol near the town of Marble Falls when they received a message from the office dispatcher advising them to investigate the complaint. Deputy Reeh testified that the dispatcher informed them that "a particularly suspicious vehicle" had been seen in the area by Naumann and his neighbors, "gave a description of the vehicle and gave us the license plate number," and indicated that the car had last been seen heading in the direction of Marble Falls on Double Horn Road. Deputy Reeh said that Naumann had worked for several years at a small store three to four miles from his home and consequently "he knows almost every person in that community" and was familiar with the vehicles of local residents.

    The deputies headed towards Naumann's home on Double Horn Road, arriving around 9:00 p.m., some ten minutes after receiving the dispatcher's message, without having spotted the vehicle in question. Deputy Reeh testified that, shortly after the deputies arrived, he heard the sound of a "low-flying aircraft," which he thought was landing at or possibly taking off from an airstrip he knew was on the Blagg ranch about two miles away.

    Naumann and some of his neighbors met the deputies. Naumann told the deputies that seven firearms were among the missing items, and he and his neighbors said they had seen an unfamiliar car "driving up and down the road" earlier that day. Naumann also reported that just before he arrived home from work that evening and discovered the burglary, he had seen the same car "almost at a stop just down from his gate." Naumann said he had talked to the driver, who claimed to be looking for a woman's house, and that the driver had then driven away on Double Horn Road. Reeh testified that, after the deputies said they had not seen the vehicle, Naumann stated that the vehicle must have gone onto the Blagg Ranch. The record suggests that Naumann had reported the burglary promptly and that only about fifteen minutes elapsed between the time Naumann saw the unfamiliar car near his house on

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    his arrival home from work and the time of the deputies' arrival.

    About fifteen minutes after the deputies had arrived and while they were conversing with Naumann, a car came down the road from the direction of the Blagg Ranch. A pickup truck was following the car. Naumann told the deputies that he believed that the passing car he was observing--described as a yellow or cream-colored 1980 Ford sedan--was the same one he had seen earlier near his gate just before he discovered the burglary. 2

    The deputies followed and stopped the car. Reeh told the driver, Basey, who had stepped out of the vehicle, that they were investigating the burglary of Naumann's home and asked Basey to produce his driver's license. The license disclosed Basey resided in Arlington, Texas (between Dallas and Fort Worth). Basey explained his presence by claiming he was looking for the home of a woman he had met in a bar, giving a name--Susan Harris--unknown to the officers, and revealed that he had neither directions to nor a phone number for this woman's home. Basey also stated that he had borrowed the car he was driving from a friend.

    Basey was asked to show proof that he carried adequate liability insurance for the car, which he could not do. Basey was then read his rights and arrested for not complying with Texas' financial responsibility statute, which requires drivers to obtain at least the prescribed minimum levels of liability insurance on vehicles they drive and to carry some proof of this insurance coverage. Deputy Meeks then asked Basey's permission to look into the vehicle's trunk, which Basey granted, and the deputies found that the trunk contained only a spare tire and tire tools. In the passenger compartment, however, the deputies saw two "Handi-Talkie" portable radios and a citizen's band (CB) radio handset, and they observed that at least one radio was set on CB Channel 16 and that a Handi-Talkie radio was tuned to frequency 122.90. Government witnesses later testified that frequency 122.90 is used as an aircraft communications frequency.

    One of the radios was already switched on, and Deputy Meeks spoke into its microphone and asked if anyone was listening. A voice answered and asked Meeks if he was "the Spiderman." Meeks said that he was and tried to arrange a meeting with the unknown voice, but there was no reply. Another officer was called to take custody of Basey, and a wrecker was summoned to impound his car. Deputies Meeks and Reeh returned to Naumann's home, where they were told that Naumann's neighbors had seen another suspicious vehicle--a white Ford van--in the area. Meeks testified that Reeh told him to continue to search the surrounding area for vehicles that might have been involved in the burglary. Meeks drove towards the Blagg Ranch airstrip and, about two miles from where Basey had been arrested, spotted a white van parked partially hidden in a cluster of cedar trees off the road.

    The van's windows were open, and its engine was still warm. Four radios were in the front of the van. One or more of the radios were set to CB Channel 16, and a Handi-Talkie radio was tuned to frequency 122.90. At least one Handi-Talkie and one CB were of the same brand and model as those found in Basey's car. The back of the van was stuffed full of baled marihuana, a cargo later determined to weigh some 1,700 pounds. Additional officers were called to the scene and the van was impounded.

    Basey was taken to and processed at the Burnet County jail. His effects taken into police custody when he was booked included

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    his personal telephone book, which listed the name Armando Lopez, and two scraps of paper, one containing the numbers "441 0143" and "115," the other the name "Danielle Ann Fields." The next day, September 6, Basey was arraigned on state drug charges and again advised of his constitutional rights. Around noon, Burnet County Sheriff's Department criminal investigations officer Bob Simpson interrogated Basey. 3 Simpson also contacted the federal Drug Enforcement Administration (DEA) and the Texas Department of Public Safety (DPS) for assistance in investigating the case and provided officers from these agencies the originals and copies of the documents found in Basey's possession.

    About 5:30 p.m. on the same day as Simpson's interrogation, DEA Agent Javier Pena administered Miranda warnings to Basey again and questioned Basey after informing him that no specific promises of help were being offered. Basey described the general scheme of marihuana trafficking without stating whether he was...

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