909 F.2d 111 (5th Cir. 1990), 89-1903, United States v. Boruff

Docket Nº:89-1903
Citation:909 F.2d 111
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Othel BORUFF, Defendant-Appellant.
Case Date:July 31, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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909 F.2d 111 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Othel BORUFF, Defendant-Appellant.

No. 89-1903

United States Court of Appeals, Fifth Circuit

July 31, 1990

Rehearing Denied Sept. 11, 1990.

Page 112

[Copyrighted Material Omitted]

Page 113

Robert W. Ritchie, Ritchie, Fels & Dillard, Knoxville, Tenn., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., James Blankenship, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, JOLLY and JONES, Circuit Judges.

CLARK, Chief Judge:

I. Introduction.

James O. Boruff (Boruff) appeals his conviction on conspiracy to possess and possession of more than 50 kilograms of marijuana with intent to distribute. 21 U.S.C. Secs. 841(a)(1), 846. We affirm.

II. Facts.

  1. Background.

    Boruff purchased a new Chevrolet pickup truck to use in smuggling marijuana from the Mexican border into Texas. Russell B. Taylor (Taylor), a co-conspirator, accompanied Boruff to make the purchase. Boruff selected a heavy-duty bumper to install on the truck and gave the salesman $2,000 as a downpayment. Boruff later bought two cashiers checks bearing Taylor's name to pay the balance of the purchase price. Boruff instructed the salesman to put the title in Taylor's name. Boruff and Taylor had agreed that appearances would be best served by putting Taylor's name on all documents relating to the truck, since Taylor would be driving the truck for the smuggling operation.

    Boruff and Taylor flew to Dallas, Texas to obtain automobile insurance for the truck and a Texas driver's license for Taylor. The truck's registration and insurance were placed in Taylor's name. Boruff later purchased a camper top for the truck, listing Taylor's name on the invoice. Boruff also installed a grill and bumper guard, a CB radio, and fog lights on the truck. Boruff and Taylor understood that if the truck was ever sold, Boruff would receive the money.

    Boruff arranged to have his girlfriend, Brenda Lawless (Lawless), rent a car for him, which he planned to use in the smuggling operation. Lawless rented a white Lincoln Towncar in her own name and

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    turned it over to Boruff. The standard rental agreement signed by Lawless provided that only she would drive the car and that the car would not be used for any illegal purpose. Boruff was aware of these restrictions when he took possession of the vehicle. Boruff placed a CB radio in the glove compartment of the car and a magnetic antenna on its roof.

  2. The Smuggling Operation.

    Taylor and Boruff traveled toward the Mexican border on Highway 385 south of Midland, Texas. Taylor drove the pickup truck, and Boruff drove the rental car. The two maintained contact by CB radio. At one point, Border Patrol Agent Newberry (Newberry) noticed the two vehicles traveling approximately 100 yards apart on the highway. He observed that the two vehicles were traveling at the same speed, bore Texas license plates, and contained no one else but the drivers. His view through the windows of the camper top was unobstructed. Although his suspicions were not then aroused, Newberry made a mental note of the vehicles because they fit a "smuggler" pattern common to the area.

    Taylor and Boruff subsequently left the truck unattended on the United States' side of the Rio Grande river. When they returned, the truck had been loaded with marijuana as Boruff had arranged. Boruff and Taylor covered the marijuana with a tarpaulin and placed camping gear on top of it.

    The next morning, Taylor and Boruff traveled northbound on Highway 385. The two vehicles passed Agent Newberry, who was traveling southbound in a Border Patrol vehicle. As Boruff passed, Newberry observed him put something to his mouth "as though it was a microphone" and noticed the CB antenna on top of Boruff's car. Newberry also saw that the same truck he had seen the previous day was trailing Boruff, separated only by a tour bus. Newberry decided to make a U-turn and follow the vehicles.

    After spotting the Border Patrol vehicle, Boruff made a U-turn southbound to see whether the Border Patrol vehicle would pursue them. Boruff passed the Border Patrol vehicle, which was now traveling northbound in pursuit of the pickup truck. Agent Newberry, fearing that Boruff would get away, contacted another Border Patrol agent, Harris Clanton (Clanton), and instructed him to stop Boruff's car. Boruff made a second U-turn and traveled northbound, hoping to catch up to the Border Patrol vehicle and divert attention away from the pickup truck.

  3. The Searches, Seizures, and Arrests.

    Agent Newberry pulled up behind the pickup truck and noticed the camping gear riding high in the camper. Newberry pulled along side of the truck and signalled Taylor to stop. Newberry approached the truck and asked Taylor if he would mind opening the camper top. Taylor complied, exposing the camping gear. Newberry opened the truck's tailgate and discovered 591 pounds of marijuana. Taylor was placed under arrest.

    In the meantime, Agent Clanton had been pursuing Boruff but had not yet stopped him. As Boruff approached the point where the pickup truck was stopped, he saw agent Newberry standing in the road motioning for him to stop. Newberry noticed that the CB antenna was no longer on the roof of Boruff's car but was in plain view in the back seat. After Boruff stopped, he was placed under arrest and read his Miranda rights. The agents subsequently found in the car a walkie-talkie radio identical to one recovered from the pickup truck, a CB radio, the CB radio antenna, $4,700 in United States currency, and some of Boruff's personal effects.

    As Agent Clanton drove Boruff to the Border...

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