U.S. v. Crespo de Llano, DOMINGUEZ-PERAZ

Citation830 F.2d 1532
Decision Date26 October 1987
Docket Number86-1372 and 86-1373,DOMINGUEZ-PERAZ,86-1362,Nos. 86-1361,D,s. 86-1361
Parties23 Fed. R. Evid. Serv. 1263 UNITED STATES of America, Plaintiff-Appellee, v. Raimundo CRESPO de LLANO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George Antonio ROJAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Justina GARCIA DOMINGUEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Santos Amableefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

John S. Leonardo, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Bertram Polis, Tucson, Ariz., for defendants-appellants Dominguez and Dominguez-Peraza.

Scott W. Schlievert, Tucson, Ariz., for defendant-appellant Rojas.

Stephen G. Ralls, South Tucson, Ariz., for defendant-appellant Crespo de Llano.

Appeal from the United States District Court for the District of Arizona (Tucson).

Before CHOY, ALARCON and O'SCANNLAIN, Circuit Judges.

ALARCON, Circuit Judge:

Raimundo Crespo de Llano (Crespo), George Antonio Rojas (Rojas), Justina Garcia Dominguez (Dominguez), and Santos Dominguez-Peraza (Dominguez-Peraza) appeal their judgment of conviction after a jury trial. Crespo, Rojas, and Dominguez-Peraza were found guilty of conspiracy to possess with intent to distribute cocaine in

violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A)(ii), and 846; and possession with intent to distribute one kilogram or more of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(ii). Rojas was also found guilty of assault on a federal officer in violation of 18 U.S.C. Secs. 111 and 1114. Dominguez was convicted for possession with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(ii). We affirm.

FACTS

On April 22, 1986, DEA Agent Anthony Coulson, acting in an undercover capacity, met with Rojas in a park near his residence to discuss the purchase of cocaine. Coulson stated he was interested in buying kilogram quantities of cocaine. Rojas stated he could deliver that amount. Coulson then drove Rojas to Valencia Garden Apartments. When they arrived Rojas pointed to a parked 1974 Mercedes with Nevada license plates and stated: "That's their car. They have just gotten back from Las Vegas. They brought the kilos in that vehicle."

Apartment 180 was rented to Claude Robinson. Rojas conducted Coulson to Apartment 180. Rojas introduced Coulson to Crespo and Robinson. Rojas spoke to Crespo in Spanish. Coulson does not speak Spanish. Rojas then told Coulson: "I've told him I've seen your money, that you're trusted--go ahead and do whatever you have to do." After further conversation with Crespo in Spanish, Rojas then explained to Coulson that Crespo wanted to sell one kilo of cocaine before dealing in larger amounts. Coulson responded that he agreed. Crespo nodded indicating his assent.

Claude Robinson told Coulson that the people in the apartment used it as a safe house and as a place to sleep. They also used it as a place to conduct cocaine transactions.

Crespo handed a small block of powder to Coulson and asked him to taste it. Coulson refused to taste it and instead performed a chemical test. The test showed that the block of powder contained cocaine. During the testing, Dominguez-Peraza entered the kitchen from a bedroom.

After the test, Coulson told Rojas that he would purchase a kilo of cocaine. Crespo spoke to Rojas in Spanish. Rojas then told Coulson that the kilo was not in the apartment. Coulson stated that he would not buy the sample because it did not come from the kilo located elsewhere. Rojas replied: "Yeah, that's a very good idea. We'll agree to that."

Rojas told Coulson that he had brought a buyer to the apartment the previous day who did not have the money when Crespo produced the cocaine. This incident caused Crespo to become angry with Rojas.

Coulson asked how much it would cost to purchase a kilo of cocaine. Crespo spoke to Dominguez-Peraza in Spanish. Dominguez-Peraza replied: "Treinta y tres." Crespo told Coulson: "Thirty-three." Rojas stated: "Thirty-three thousand dollars."

Coulson told them he could get the money in one hour. After Crespo and Rojas conferred in Spanish, Rojas stated: "Have it in three hours or the deal is off."

Coulson then inquired whether the delivery would be made in the Mercedes. Rojas stated that it would be and that he could also purchase the car for an additional $20,000 in cash.

As Coulson drove Rojas back to the area near his residence, Rojas stated that they had brought 16 kilos from Las Vegas in the Mercedes the previous weekend. He also informed Coulson that of this amount 10 kilos were now at a ranch in Tucson. He stated further Dominguez-Peraza was a co-owner of the 10 kilos. The other owner of the cocaine was at the ranch. He described the ranch as having a vintage Corvette, a boat, and dogs in the yard.

One and one half hour later, Coulson called Rojas at his residence and told him that he could get the money in one hour. Rojas told him that the exchange would occur at his mother's house. DEA agents then set up surveillance in the area near Rojas' mother's home. At about 5:00 p.m., officers who were surveilling the Valencia Garden Apartments, saw a Chevrolet van Coulson drove to that residence. When he arrived, he was told that Crespo was on the way with the cocaine. After about an hour, Rojas called Robinson's apartment to find out what had delayed Crespo. Rojas then told Coulson that he had left five minutes earlier.

and the Mercedes leave the apartments at the same time. The cars were driven to 3607 E. 23rd Street. There, both drivers entered the house and left in about five minutes and drove off. The vehicles were observed heading to the area of Rojas' parent's home.

While waiting for the delivery of the cocaine, Coulson showed Rojas $29,400 and told him it was $33,000. Rojas asked Coulson to give him $1,000 before the sale. Coulson declined.

At approximately 7:00 p.m., Rojas again telephoned the Robinson apartment. After the call, Rojas told Coulson that Robinson, who was a co-owner of the cocaine, would accompany Crespo to make the sale.

While waiting, Coulson noticed a white Thunderbird occupied by a male parked near the Rojas residence. Coulson assumed this man was engaged in counter surveillance on behalf of the cocaine dealers. About one minute after the Thunderbird drove off, Crespo drove up in a 1984 Chevrolet van. He was followed by Dominguez-Peraza in the 1974 Mercedes. Crespo parked the van in the driveway. Dominguez-Peraza drove the Mercedes down the street.

Crespo spoke to Rojas in Spanish. Rojas told Coulson that the cocaine was in the van but Crespo was going to move the van before making the sale. Crespo drove the van down the street and got out. Rojas told Coulson to get in. He refused. Rojas then said that the cocaine was in the Mercedes.

Coulson went to his car and opened the door. Dominguez-Peraza drove the Mercedes next to the passenger side of Coulson's vehicle. As Dominguez-Peraza got out of the Mercedes, Coulson saw a revolver in the waistband of Rojas pants, partially concealed by his shirt.

When Rojas and Crespo arrived, Rojas stated: "It's in the trunk." After a conversation in Spanish with Crespo and Dominguez-Peraza, Rojas told Coulson that they would go down the street to complete the transaction.

As Coulson entered his car, Rojas got into the passenger side of the car. Coulson believed that he was in danger and flashed his car lights as a signal to the other agents. Coulson showed Rojas his badge and pointed his firearm at him. Rojas grabbed the gun with his left hand and struck Coulson with his right hand.

Coulson's gun discharged through the windshield. Coulson got out of the car. Rojas charged at him. Coulson pointed his gun and yelled: "Freeze, police." Rojas continued running and assaulted Coulson with his fists until the other agents arrived to rescue the officer.

During this melee, Dominguez-Peraza sped away in the Mercedes with the lights off. A DEA agent followed the Mercedes onto a freeway. After a chase at speeds in excess of 100 miles an hour, the vehicle was stopped by other police units. Crespo and Dominguez-Peraza were removed from the vehicle. The police found a .38 caliber revolver, several bullets, and a cellular mobile car phone and $6,560 in cash.

After Rojas' arrest the agents went to 3607 E. 23rd Street. There, they observed a 1950 Corvette and a boat on a trailer. Dominguez was present. She stated she resided there with her husband, Dominguez-Peraza.

After determining that no one else was present at the residence, Dominguez was asked to remain outside. No one was permitted to enter until a search warrant was obtained for the house at 12:35 a.m., on April 23, 1986. When the agents entered the house after obtaining the warrant, Dominguez was told: "You know what we're looking for. Could you save us a lot of time and tell us where the dope is?" The agent also testified he told Dominguez: "[W]e were going to search for it, and--in order to keep from having to tear the house completely apart, if she knew where it was to tell me ..." Dominguez replied:

"It's in the kitchen." She then told the officers the cocaine was next to the refrigerator "by the garbage." The officers found three kilograms of cocaine in a plastic shopping bag under an empty pizza container on the kitchen floor. The agents also found $30,011 in cash, bank money wrappers, six firearms, and 1,000 rounds of ammunition.

After her arrest, Dominguez told the officers that she and her husband had lived at that residence for about nine months. Prior to that time they had lived in Miami. Her husband had owned a restaurant and was looking for a business in Tucson. He did auto body work and sold cars. On the previous weekend, he had gone to Las Vegas to purchase a Mercedes. After his return she became...

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