945 F.2d 1302 (5th Cir. 1991), 90-2773, United States v. Zuniga-Salinas

Docket Nº:90-2773, 90-2824.
Citation:945 F.2d 1302
Party Name:UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Nolberto ZUNIGA-SALINAS, Defendant-Appellant, Cross-Appellee.
Case Date:October 16, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1302

945 F.2d 1302 (5th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

Nolberto ZUNIGA-SALINAS, Defendant-Appellant, Cross-Appellee.

Nos. 90-2773, 90-2824.

United States Court of Appeals, Fifth Circuit

October 16, 1991

Page 1303

Richard J. Gonzalez, Laredo, Tex. (court-appointed), for defendant-appellant, Salinas-Zuniga.

Paula Offenhauser, Jeffery A. Babcock, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., Patty M. Stemler, Deputy Chief, Appellate Section, U.S. Dept. of Justice, Main Justice Dept., Washington, D.C., for plaintiff-appellee U.S. in No. 90-2773.

Jeffery A. Babcock, Asst. U.S. Atty., Stephen S. Morris, U.S. Atty., Mark M. Dowd, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellant U.S. in No. 90-2824.

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

Before WISDOM, JOLLY, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Nolberto Zuniga-Salinas ("Salinas") appeals his conviction for possession of marihuana with intent to distribute, on the ground that the evidence was insufficient to support the jury's verdict, and also appeals the district court's denial of his motion for a new trial based upon the inadequacy of his counsel. The government cross-appeals the district court's granting of Salinas's motion for acquittal after the jury had found him guilty of conspiracy but had acquitted his alleged co-conspirator. We affirm.

I.

At approximately 5:00 a.m. on Sunday, June 25, 1989, United States Border Patrol Agents Michael Dolan, Danny Ramirez, and Javier Gonzalez saw a black pickup truck heading north at a high speed on Highway 16 toward Hebbronville, Texas. Because they had only seen about eight cars heading in that direction since their shift began at midnight and the truck was traveling so fast, the agents followed it. When the driver of the truck, Salinas, saw the patrol car turn around to follow him, he pulled off the highway onto the grassy shoulder and slowed down. He then returned to the highway and continued north for about a mile, until the agents caught up with him and stopped his truck.

Recognizing Salinas as someone who had passed through their checkpoint two nights before at 2:00 a.m., the agents asked him where he was going. He told them that he was from Pharr, Texas, and that he was going to meet his lawyer in Hebbronville. When the agents told him that there was a more direct way to that city, he responded that he was coming from a party in Zapata, Texas, where he had been drinking. The agents then reminded Salinas that it was Sunday and that his lawyer's office would probably be closed; Salinas replied that he was going to the lawyer's home, but upon further questioning he admitted that he did not know where the attorney lived.

While looking at the truck, the agents noticed that its wheel wells were covered with mud and grass and that the passenger door was ajar. Salinas explained that the door was broken, but one of the agents closed it several times and found it to be working properly. Salinas said that he did not know why the door was now working. He also told the agents that he pulled off the highway when he saw their car because he had planned to turn around and talk to them, as he believed that the agents were harassing him. Apparently, Salinas had been stopped at a border crossing a few days earlier and had had his truck temporarily seized.

While Ramirez and Gonzalez spoke to Salinas, Dolan returned to the grassy area where Salinas had pulled his truck off the road. According to Dolan's testimony, soon after he arrived at the truck tracks he found a burlap bag wrapped in plastic that

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exposed marihuana. Although it had rained most of the night, the bundle was dry. Dolan then radioed the other agents, but they already had released Salinas. They then radioed ahead to the Hebbronville checkpoint, where other agents arrested him. At the checkpoint, a narcotics detection dog alerted to both the cab and the bed of the truck, indicating, according to its handler, that marihuana had been present within the last two or three days.

At about 8:00 a.m., after dropping off Ramirez and Gonzalez at the Hebbronville checkpoint, Dolan returned with two other officers to the grassy area. He then noticed that the tire tracks from Salinas's truck were about one hundred yards long and that plastic packages of marihuana were strewn the length of the tracks. The agents ultimately collected about 144 pounds of marihuana from the grassy area.

While the agents gathered the bags of marihuana, Ruben Olvera-Garcia ("Olvera") came out of the brush nearby and began walking south on Highway 16. When questioned by the agents, he said that he had walked across the border from Mexico, had been walking for several days, and was tired and hungry. He could not show the agents the path in the grass he had made, however, and the agents noticed that he looked fresh and only slightly wet and that his shoes were clean, belying his story of pedestrian hardship. At that time Olvera denied that he knew anything about Salinas or the marihuana.

After the agents transferred him to the checkpoint, Olvera admitted that he was traveling with Salinas. He said that he had met Salinas in a bar in Brownsville and that Salinas offered him $250 to get the marihuana past the Hebbronville checkpoint. Olvera explained that when Salinas spotted the patrol car on Highway 16 and saw it begin to follow the truck, Salinas told Olvera to throw out the marihuana concealed in both the cab and the bed of the truck and to jump off the truck himself. After doing so, Olvera was to stay with the marihuana while Salinas drove ahead to see whether the Hebbronville checkpoint was open. At the station house later, Olvera made a written statement confirming what he had told the officers.

II.

Salinas and Olvera were charged with conspiracy to possess more than fifty kilograms of marihuana with intent to distribute, in violation of 21 U.S.C. § 846, and with possession of 144 pounds of marihuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At trial, Olvera testified for the defense and recanted his confession. He stated that he was coming from Houston in a car on the morning of his arrest, when his companions kicked him out of the car south of the checkpoint at about 5:00 a.m. He did not know, though, who had driven him from Houston or what kind of car he had ridden in. Olvera said that he went into the brush because he was drunk and sleepy. He stated that he told the agents that he had been with Salinas only because they were threatening him at the checkpoint, but he admitted that he was not threatened when he made his written statement at the station house.

The jury found Salinas guilty on both counts but acquitted Olvera on both. Salinas was sentenced to ninety months' imprisonment,...

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