U.S. v. Espinoza-Seanez

Decision Date15 December 1988
Docket NumberE,No. 88-1026,ESPINOZA-SEANE,88-1026
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gilbertrnesto Espinoza-Seanez and Raul Lazarin-Becerra, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Charles Louis Roberts, El Paso, Tex., for Gilbert Ernesto Espinoza-seanez.

Robert Ramos, El Paso, Tex., for Lazarin-Becerra.

LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for U.S.

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

Before GEE, SNEED * and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

The appellants, Gilbert Espinoza-Seanez, Ernesto Espinoza-Seanez and Raul Lazarin-Becerra (hereafter Gilbert, Ernesto, and Lazarin, respectively) were found guilty of conspiracy to possess marihuana with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846(1). Gilbert was also found guilty of the substantive offense of possession. Gilbert received concurrent sentences of five years for each count, a three-year term of supervised release for the offense of possession, and $100 in assessments pursuant to 18 U.S.C. Sec. 3013(a); Ernesto and Lazarin each received five year sentences and special assessments of $50 pursuant to 18 U.S.C. Sec. 3013(a). They appeal their convictions.

Facts

On the morning of August 19, 1987, at 5:30 a.m. John Jennings, a border patrol helicopter pilot, was informed that a metal detection device located on a dirt road roughly two and one-half miles from the border between Mexico and New Mexico had been activated. The sensor was near an open concrete structure called the "pillbox" located at the intersection of two roads. One of those roads comes from the place known as the Burchfield Gate, an unlocked gate in a fence that runs along the international border separating the state of New Mexico from Mexico. A dirt road runs through the gate and north for roughly 2 1/2 miles, where it eventually intersects with a crushed gravel and dirt road known as the Old Strauss Road.

Throughout the months of July and August, 1987, the border patrol had been flying over this area and had observed numerous tracks from foot traffic, cars, and trucks. At some point during July and August the border patrol observed tracks leading to and from the border and the pillbox. On further investigation, agents discovered pieces of plastic, other packaging materials and rope in the pillbox. These packaging materials and the increased activity made them suspicious that illicit border traffic was taking place. On the 18th of August the border patrol investigated the area between the pillbox and the Burchfield Gate, and used helicopters to blow sand into old tracks so that they could later determine if any fresh tracks would appear.

When Jennings was informed of the sensory "hit" in the area on August 19th, he had already observed a car driving toward the pillbox area from the direction of El Paso. Jennings continued aerial surveillance around the pillbox. He saw a vehicle stop, remain parked with its lights off for roughly five minutes, and then turn around and head back east towards El Paso.

At 5:50 a.m. Jennings called for help in tracking the vehicle and a radio dispatcher called another pilot, Pilot Loren Nichols. Nichols was airborne in his helicopter by 5:55 and flew west along the international border. During his flight he was informed by Jennings of the previous events and was guided by Jennings to the vehicle. Jennings had been following the vehicle from the time he first spotted it arriving at the pillbox until 6:15 a.m. at which point Nichols took over the aerial surveillance. Nichols called in requesting ground surveillance, and identified the automobile by color and as a sedan with only one person in it. Border patrol agents waited near Santa Teresa, New Mexico and began to follow the vehicle after Nichols identified it. Both Nichols and the ground units followed the vehicle through Santa Teresa onto Interstate Highway 10 East and into El Paso.

In the meantime, Jennings and another helicopter pilot landed in the Burchfield Gate area. They discovered four or five sets of footprints, fresh since the Border Patrol's investigation of the previous day, coming from the Mexican border to the pillbox area. They relayed the information of the apparent border crossing on to Jennings. Jennings informed the ground surveillance units and requested that they stop the suspect vehicle.

The stop was made at roughly 7:30 a.m., on I-10 one mile east of Sunland Park, in El Paso. Patrol Agent Javier Magdaleno testified that prior to the stop he saw the suspect vehicle riding very low in the back, indicating that it was carrying a heavy load in the trunk. The vehicle was an early 1970's model blue/gray Pontiac sedan. Agent Magdaleno also saw that there was a spare tire inside the vehicle directly behind the front seat. When asked where he was coming from, the driver, appellant Gilbert Espinoza-Seanez, said "Anapra, New Mexico." The border agents knew that to be false, because they had had Gilbert's car under direct surveillance for the past two hours. Furthermore, the border agents testified that Gilbert was nervous and sweating profusely.

The agents asked Gilbert to step out of the car, and then asked him if he was carrying anything in the trunk. At this point Gilbert asked if they had a search warrant. The border agents then phoned their supervisors to request advice, and were told to "stay clear of the vehicle." After the agent who had phoned the Border Patrol Headquarters came back, he handcuffed Gilbert, told him he was under arrest, and read him his Miranda rights. After having been arrested, Gilbert stated, "Go ahead and open it. It's in there. Go ahead and open it." The agents asked Gilbert several times if he was certain that he wanted to authorize a search of the car trunk, and he replied affirmatively each time. This conversation occurred roughly 10 minutes after the car was stopped. Agents stated they were concerned that there might have been aliens in the trunk, and if so they wanted to let them out. After he gave his consent, the agents opened up the trunk without a search warrant. They found 225 pounds of marihuana.

Gilbert was taken to the Border Patrol Headquarters. He agreed to cooperate with the DEA by making a prearranged drop off of the marihuana. He went with DEA agent Garcia, one Customs Agent, and several Border Patrol Agents to a 7-11 store where he was scheduled to have turned over the car containing the marihuana. 1 Although the record is unclear on this point, apparently Gilbert's contact was not at the convenience store. Gilbert proceeded to make a phone call. The name of the person he called was not disclosed at the trial. Gilbert then went to the El Senorial Bar in El Paso, where Gilbert's brother, Ernesto, met him at 11:30 a.m. Ernesto was arrested. When questioned as to whether he knew that the Pontiac contained a load of marihuana, Ernesto responded that he did and that he was there to pick it up. He also indicated that he knew of the plans to transport the marihuana to El Paso.

Ernesto also agreed to cooperate with the DEA and told the agents that he was supposed to make a phone call and then leave the car at an El Paso restaurant. After the call Ernesto and Agent Garcia drove to the La Rosita Cafe and parked in the parking lot. Roughly 40 minutes later, Lazarin drove into the parking lot and parked his car several yards from the Pontiac. There were also two other men in the car. One of them, an unidentified Hispanic male, got out of Lazarin's car, quickly got into the load vehicle and drove away before the agents could stop him. After this occurred, the agents arrested Lazarin and coindictee Jose Gandarilla-Castro, the third man in the car. In Lazarin's car was a mobile telephone and Lazarin himself had $1,760 on his person. Ernesto also had approximately $1,700 in his possession at the time of his arrest.

The three defendants were tried and convicted in the same proceeding for conspiracy to possess marihuana for distribution. Further, Gilbert was also convicted for the substantive crime of possession. There are four issues raised on appeal: (1) Gilbert contends that the marihuana should have been suppressed as evidence because the search of the vehicle was in violation of the Fourth Amendment and because his arrest was without probable cause. (2) Ernesto argues that the confession of Gilbert was used to convict him and because Gilbert never took the stand he was denied his Sixth Amendment right to confront the witness against him. Lazarin makes an identical argument with respect to Ernesto's confession. Both Ernesto and Lazarin claim that the use of the confessions was in violation of the Supreme Court's ruling in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). During the trial counsel for both Ernesto and Lazarin moved for trial severance on Bruton grounds, and both now claim that the refusal to grant severance was reversible error. (3) Ernesto claims that the district court committed reversible error because it failed to hold a hearing on the voluntariness of his admissions. (4) Lazarin claims that there is insufficient evidence to convict him of the conspiracy charge. We address each of these contentions in turn.

I. The Search of the Automobile and Gilbert's Arrest.

Warrantless searches must fall within one or more well defined exceptions or they are considered unreasonable and in violation of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971). We find that the search in this case falls within a valid exception, and we uphold the district court's order denying Gilbert's motion to suppress the evidence. The search of the Pontiac can be justified as an extended border search or as an automobile search with probable...

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