U.S. v. Hernandez-Escarsega

• Decision Date: 04 October 1989
• Docket Number: No. 86-5320,HERNANDEZ-ESCARSEG,D,86-5320
• Citation: 886 F.2d 1560
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donacianoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1560

886 F.2d 1560

UNITED STATES of America, Plaintiff-Appellee, v. Donaciano HERNANDEZ-ESCARSEGA, Defendant-Appellant.

No. 86-5320.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 1988.

Submission Withdrawn June 17, 1988.

Resubmitted Sept. 12, 1989.

Decided Oct. 4, 1989.

Barry Tarlow and Mark O. Heaney, Los Angeles, Cal., for defendant-appellant.

Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HUG, KOZINSKI and NOONAN, Circuit Judges.

HUG, Circuit Judge:

On August 20, 1986, following an 18-day trial, a jury found Donaciano Hernandez-Escarsega ("Hernandez") guilty of a series of drug-related offenses. Specifically, the jury convicted Hernandez of conspiracy to import marijuana, in violation of 21 U.S.C. Secs. 952, 960, and 963 (1982 & Supp. V 1987); conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 841 and 846 (1982 & Supp. V 1987); conspiracy to travel in interstate and foreign commerce in aid of a racketeering enterprise, in violation of 18 U.S.C. Secs. 371 and 1952(a)(3) (1982); and engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848 (Supp. V 1987). Hernandez was sentenced to 40 years in prison and the forfeiture of various properties on the continuing criminal enterprise conviction. He received concurrent sentences of 5, 15 and 5 years on the three conspiracy convictions.

In this appeal, Hernandez raises a battery of claims challenging his convictions, sentencing, and the order of forfeiture. His myriad contentions, and the facts pertinent thereto, are addressed under separate headings. We affirm the conviction for engaging in a continuing criminal enterprise and the property forfeiture. We also affirm the conviction for conspiracy to travel in aid of a racketeering enterprise. We remand for vacation of the convictions for the conspiracy to import marijuana and the conspiracy to possess with intent to distribute as being punishment that is impermissibly cumulative, under the Double Jeopardy clause, to the sentence imposed for the continuing criminal enterprise conviction.

I. ADEQUACY OF SEARCH WARRANTS

On July 27, 1985, a grand jury returned an indictment charging Hernandez and 20 co-conspirators with numerous drug-related crimes. Shortly thereafter, on August 8, Government agents executed search warrants at two residences and one office connected to Hernandez. The warrants were based on allegations contained in a single affidavit presented to the magistrate by Agent Larry Johnson, an investigator with the San Diego Integrated Narcotic Task Force. Hernandez contends that the Johnson affidavit failed to establish probable cause to search his office and residences. He further argues that the warrants were overbroad, both facially and as executed. We review a magistrate's determination of probable cause only for clear error. See United States v. McQuisten, 795 F.2d 858, 861 (9th Cir.1986). A finding "that under the totality of the circumstances the magistrate had a substantial basis for concluding that probable cause existed" is sufficient to uphold the warrant. Id. (citation omitted). In contrast, this court reviews de novo the district court's finding that a warrant describes with sufficient particularity the

items to be seized. See United States v. Rabe, 848 F.2d 994, 997 (9th Cir.1988).

A. Probable Cause

When deciding whether to issue a warrant, a magistrate must "make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983). To aid the magistrate in making this determination in the present case, Agent Johnson submitted a 52-page affidavit describing in detail his investigation of Hernandez. The affidavit begins with a discussion of Johnson's extensive training and experience in drug trafficking matters. It notes that Hernandez and others recently were indicted on a series of drug charges stemming from the activities described in the affidavit. It then summarizes Agent Johnson's conclusions, stating that Hernandez appears to be the head of a large-scale drug smuggling organization operating in Southern California and Arizona, that this operation involves the transportation of drugs by airplane from Mexico for distribution in the United States, and that over 200 individuals purportedly work under Hernandez' control.

In support of these conclusions, the Johnson affidavit first recounts information supplied by Hernandez' former paramour, Rosemary Rosales, to the Yuma County Sheriff's Office. In her statement, given to the police in 1977, Rosales described her participation in and Hernandez' orchestration of extensive smuggling activity spanning several years. The information is detailed and indicates that Hernandez was involved in a major drug-trafficking operation. Indeed, Rosales estimated that she handled millions of dollars for Hernandez in connection with his narcotics activities. Rosales also told the police in this interview that it was initially her idea to use the proceeds from Hernandez' drug smuggling to invest in legitimate businesses and real estate. Rosales' story was corroborated both by her arrest in 1974 for transporting approximately 400 pounds of marijuana and by the statements of a confidential informant (Confidential Source 4) attesting to the fact that Hernandez and Rosales were engaged in drug smuggling during the seventies and early eighties. ¹

The Johnson affidavit next describes the purchase of an airplane in 1983 by Francis Mulleaux and Frank Peacock, alleged associates of Hernandez. The airplane was purchased with $80,000 in cash and the seller was requested by the buyers to leave the bill of sale blank. In further discussions, the buyers indicated that the "money man" behind the purchase was a Mexican national living in Los Angeles. Two of Johnson's confidential informants reported being told by Peacock that Hernandez supplied the money for this transaction.

James Richards was arrested in December 1983. A search of his car revealed evidence linking Richards to Peacock and Mulleaux and implicating him in marijuana trafficking. In a subsequent statement to the police, Richards admitted that he participated in an air smuggling organization headed by an individual known to him as "Don." Richards had personal knowledge of the importation of four loads of marijuana. He identified the organization's main pilot as "Frank." Finally, Richards identified Frank as the pilot of a plane that crashed in October 1983. Police reports confirmed that the plane was found in the area described by Richards. There was marijuana debris in the aircraft.

Confidential Source 1 ("CS1") also related information concerning Peacock, Mulleaux, and Hernandez to Agent Johnson for inclusion in the warrant affidavit. In addition to supplying general comments about the relationship of these individuals, CS1 gave a specific description of Peacock's arrest in Mexico during 1983 and Hernandez' subsequent efforts to obtain the release of Peacock and his plane. Peacock later told CS1 that Hernandez had paid one million dollars to the Mexican police to effect his release and the release of his marijuana-stocked aircraft. Finally, CS1 provided information regarding Hernandez' reaction to Richards' arrest and Hernandez' involvement in cocaine smuggling during December 1983.

Confidential Source 2 ("CS2") corroborated much of the information provided by CS1. In addition, CS2 recounted several conversations with Peacock during which Peacock discussed the scope of Hernandez' drug-trafficking organization. For instance, Peacock told CS2 that Hernandez was the largest smuggler of marijuana in southern California, that he had hundreds of individuals working for him in his nationwide narcotic distribution organization, that he was extremely wealthy from drug trafficking, and that he had accumulated substantial real estate over the years with proceeds derived from the sale of narcotics. Finally, CS2 described in some detail two instances in late 1983 when Peacock flew loads of marijuana into the United States.

Confidential Source 3 ("CS3"), debriefed in mid-1984, indicated that he was aware that during December 1983 and January 1984, Hernandez received and distributed 20 tons of marijuana. According to CS3, Hernandez and another individual almost totally controlled the marijuana market in the Los Angeles area. CS3 was also aware that Hernandez had opened a bar in Arizona called the "Cat Palace" which was used to launder money.

Agent Johnson's affidavit also included a description of an incident that occurred on September 17, 1984, at the San Ysidro Port of Entry. On that date, Hernandez and another individual, Antonio Quintero-DeAvila, entered the United States from Mexico through the San Ysidro checkpoint. The two men were asked if they had anything to declare and, based upon Hernandez' statement that he had more than $5,000, were referred to secondary inspection. Hernandez filled out a form declaring $7,800. A subsequent search of the vehicle, however, revealed additional money secreted in the rear spare tire area. After being read his Miranda rights, Hernandez stated that, other than admitting that the money belonged to him, he did not wish to talk. The currency seized by customs agents during this incident was later subjected to a canine sniff. The dog's alert indicated that the money had been in proximity to narcotics. ²

Agent Johnson's affidavit concludes with a description of Hernandez' relationship to the three locations to be searched. Based upon this information, the magistrate determined that probable cause existed sufficient...