U.S. v. Mollier

• Citation: 853 F.2d 1169
• Decision Date: 18 August 1988
• Docket Number: No. 87-1583,87-1583
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter MOLLIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1169

853 F.2d 1169

UNITED STATES of America, Plaintiff-Appellee, v. Walter MOLLIER, Defendant-Appellant.

No. 87-1583.

United States Court of Appeals, Fifth Circuit.

Aug. 18, 1988.

Rehearing Denied Sept. 16, 1988.

Michael R. Gibson, El Paso, Tex. (court appointed), for defendant-appellant.

LeRoy Morgan Jahn, San Antonio, Tex., Joseph W. Galenski, Asst. U.S. Attys., El Paso, Tex., for plaintiff-appellee.

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

Before GEE, DAVIS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Appellant Mollier challenges his conviction on counts of conspiring to import and to possess large quantities of marijuana with intent to distribute. Mollier asserts that the evidence was insufficient to sustain the jury's verdict, that the trial court erred in refusing his instruction on the definition of the word "knowingly," and that he was denied due process when the government was permitted to introduce evidence relating to certain substantive counts that should have been barred under the doctrine of non-mutual collateral estoppel. Finding no error, we affirm.

I.

The government indicted appellant Mollier along with 29 others for a large drug conspiracy and related crimes. Mollier was charged in Count 2 with conspiring to import in excess of 1,000 pounds of marijuana, ¹ in Count 3 with conspiring to possess in excess of 50 kilos of marijuana with intent to distribute, ² in Count 26 with aiding and abetting a co-defendant in exporting speech scramblers without an export license, ³ and in Counts 27 and 28 with aiding and abetting several co-defendants in the investment of proceeds derived from an illegal drug operation. ⁴

Mollier was formerly an El Paso police officer who had once arrested the kingpin of the charged drug conspiracy, Gilberto Ontiveros, in June 1979 for drug violations. In the arrest report, Mollier attributed Ontiveros with coordinating the importation of 1,425 pounds of marijuana which Mollier himself had seized from a van shortly before the arrest. Mollier also noted that "Ontiveros' organization is purported to transact in multi-ton quantities of marijuana with unknown sources of supply in Mexico."

An informant who testified at Mollier's trial, Carlos de Herrera, revealed the extent of Ontiveros' organization. From two palatial residences in Juarez, Mexico, Ontiveros directed the planting and harvesting of marijuana on plantations in Mexico's interior, transportation of the crop to storage facilities in the United States, and distribution in large quantities to American middlemen. De Herrera testified that in late 1985, he located one of the Ontiveros plantations--the so-called Tres Riitos ranch--for DEA agents. Tres Riitos was located in the Casas Grandes area of the state of Chihuahua, Mexico, an approximate eleven-hour drive from Juarez, which is at the El Paso border.

Using map coordinates given by de Herrera, the agents orchestrated a raid on Tres Riitos with cooperation from the Mexican government. Although temporarily abandoned, the ranch was found to have between 20 and 30 cultivated marijuana fields and to employ an estimated 150 to 200 workers. Tres Riitos was equipped with a landing strip, a ranch house, living quarters for the workers, and irrigation facilities. Once there, the agents eradicated a quantity of marijuana which, if harvested and cured, would have weighed as much as 125 tons and carried an estimated street value of over $75,000,000.

In addition to marijuana cultivation, Ontiveros was engaged in certain "legitimate" front operations. For at least one year prior to Mollier's arrest in December 1986, Ontiveros actively supervised construction of the Palacio del Cesar luxury hotel in Juarez. Testimony given by one of the gang members established that monies used to finance construction of the hotel had been derived from the sale of illegal substances.

The precise time frame in which Mollier became reacquainted with Ontiveros does not appear of record. We are informed that at some time after their first meeting, Mollier resigned from the El Paso Police Department and opened a private investigative firm with his live-in girlfriend, Elva Lovato. During 1983 and 1984, the firm struggled, and Mollier claimed a total of $502 in taxable income. For 1985, however, the firm showed a net profit of $120,983. How was this money made?

By June 1984, Mollier was working as an electronics broker for Ontiveros, buying cellular and portable phones and portable radios and base stations for Ontiveros' homes in Juarez and his marijuana plantations in Chihuahua and Sinaloa. Mollier purchased these items from an American supplier, representing his client to be a very wealthy rancher with connections to the President of Mexico and other high-ranking officials in the Mexican government.

In the summer of 1985, the first system was replaced with a more powerful system that had been designed, at Mollier's instructions, to allow direct radio contact between Juarez and the Tres Riitos plantation. For this purpose, Mollier purchased two solar-powered radio repeater stations that had the capability of relaying radio signals from the top of the Bola mountains, near Juarez, to a station midway between Juarez and the plantation, and finally from the midpoint to the plantation itself. To mask conversations from radio eavesdroppers, Mollier procured scrambling devices for the radios. Other electronics purchases included closed-circuit television security systems installed in Ontiveros' homes, bugging devices, and stun guns.

Mollier kept large amounts ($50,000 to $75,000) of cash in his office and paid for the electronics equipment in bills of small denominations. The government also introduced evidence that Mollier helped Ontiveros outfit the new hotel with such luxury items as a grand piano, lacquered Italian furniture, gym equipment, televisions, and refrigerators, all paid for in cash. In sum, the government showed that Mollier spent at least $150,000 in cash on behalf of Ontiveros.

When preparing Mollier's 1985 tax estimate, his accountant noticed that Mollier had received $350,000 in cash in a single transaction in Mexico. The accountant asked Mollier if he had filed a Customs declaration of the cash he brought into the United States; Mollier said no. The accountant wanted Mollier to deposit all cash receipts in the bank for traceability; Mollier refused, telling the accountant that his "client" preferred that he not deposit the funds in a bank. Mollier fired this accountant soon thereafter.

Mollier's investigative firm provided Ontiveros with services even more nefarious, although Mollier's personal role in them is somewhat questionable. On one occasion Mollier's partner, Elva Lovato, helped some members of the conspiracy in an unsuccessful attempt to kidnap a former member of the gang. An informant who testified about the bungled kidnapping understood from statements made by Ontiveros that Mollier's firm was being paid $5,000 per day to surveil the victim. On another occasion, Ontiveros called Lovato on a mobile phone to instruct her to locate the home of a person suspected by the gang of stealing 2,000 pounds of marijuana from one of Ontiveros' El Paso warehouses. Lovato complied by carrying out the search.

After his arrest, Mollier and one other co-defendant obtained a severance from the main conspiracy trial, which preceded theirs. At the close of the evidence in Mollier's case, the district court granted his motion to acquit on Counts 26, 27, and 28, but submitted the drug conspiracy counts to the jury. During deliberation, the jury asked for further instruction on what the defendant must have known about the conspirators that he dealt with; in response, the trial judge redirected the jury to their written instructions. The jury then returned a guilty verdict. Mollier appeals.

II.

A. Sufficiency of the Evidence.

In assessing a challenge to the sufficiency of the evidence to support a conviction we view the evidence in the light most favorable to the government and determine "whether any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt." United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). In drug conspiracy cases, the government must prove the existence of an agreement to do an unlawful act and the defendant's knowledge and voluntary participation in the conspiracy. United States v. Palella, 846 F.2d 977, 981 (5th Cir.1988); United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.1986).

It is unnecessary in drug conspiracy cases to prove an overt act in furtherance of the conspiracy. Williams-Hendricks, supra. Further, the government need not prove the existence of a formal agreement to commit an unlawful act, as the agreement itself may be tacit or silent. Id. Finally, "[b]oth the fact of the conspiracy and a defendant's participation in it may be proved by circumstantial evidence." United States v. Duvall, 846 F.2d 966, 975 (5th Cir.1988) (quoting United States v. Cook, 793 F.2d 734, 736 (5th Cir.1986)).

In contending that the evidence was insufficient to support his convictions, Mollier relies heavily upon two Supreme Court cases: Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943), and United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In Falcone, the government petitioned for reversal of a decision of the Second Circuit holding that food distributors who sold sugar, beets, and yeast to illegal distillers of alcohol were not guilty of conspiracy to violate the revenue laws. On certiorari, the government conceded that there was not enough evidence of an agreement between the sellers and...