U.S. v. Ramirez
| Decision Date | 05 June 1992 |
| Docket Number | Nos. 90-4746,91-4022,s. 90-4746 |
| Citation | 963 F.2d 693 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ricky RAMIREZ, Jose Garcia, and Jose Cantu-Cantu, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Alfredo GARCIA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Douglas M. Barlow, Beaumont, Tex. (Court-appointed), for Jose Garcia.
Heriberto Medrano, Harlingen, Tex., for Cantu-Cantu.
L. Aron Pena, Edinburg, Tex. (Court-appointed), for Ramirez.
Gary M. Braugh, Beckenstein, Oxford & Johnson, Beaumont, Tex. (Court-appointed) for Alfredo Garcia.
Paul E. Naman, Louis Guirola, Jr., Asst. U.S. Attys., Bob Wortham, U.S. Atty., Beaumont, Tex., for U.S.
Appeals from the United States District Court for the Eastern District of Texas.
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
This is an appeal of convictions for possessing marijuana with intent to distribute and conspiring to do so. Ricky Ramirez and Jose Garcia appeal their convictions but not their sentences. Jose Cantu-Cantu appeals from both his conviction and his sentence. The fourth appellant, Alfredo Garcia, appeals only from his sentence. The points of error include insufficiency of evidence, admission of evidence, prosecutorial misconduct, failure to strike a venire panel, and improper sentencing. The district court's findings concerning Jose Cantu-Cantu's objections to the Pre-Sentence Investigation report are not in the record. We must therefore vacate Jose Cantu-Cantu's sentence and remand his case to the district court for entry of factfindings. In all other respects, we affirm.
The appellants were indicted along with ten others in July of 1990 for one count of conspiracy to possess 2,000 kilograms of marijuana with intent to distribute and three counts of the substantive offense. Count One of the four-count superseding indictment alleged that defendants had conspired to possess 1,000 kilograms of marijuana with intent to distribute between January 1990 and March 23, 1990. The remaining counts alleged three separate substantive violations of 21 U.S.C. § 841, stating that defendants had possessed one hundred kilograms of marijuana with intent to distribute in January, February, and March of 1990 respectively.
On October 3, 1990, the jury returned a verdict finding Jose Garcia guilty of all counts. The jury found Jose Cantu-Cantu guilty of the conspiracy count and substantive possession during February and March. The government had dismissed the count against Cantu-Cantu alleging a substantive violation in January. The jury found Ricky Ramirez guilty of the conspiracy count and the substantive count of possession of marijuana in March, but acquitted him of possession offenses in January or February. Alfredo Garcia had earlier pled guilty to the fourth count only, possession of marijuana with intent to distribute in March of 1990.
The government charged the transport of about 2,000 kilos of marijuana by an eighteen-wheel semi-tractor trailer from Alfredo Garcia's house in South Texas to Noel Ramirez's house in Dayton, Texas. The government argued that the marijuana was transported in monthly shipments in January, February, and March of 1990. Each time the tractor-trailer rig was unloaded at Alfredo Garcia's house, and the marijuana was hidden in a shed for several days. The conspirators loaded the marijuana on to the rig, camouflaging it with purchased cabbage and ice. The conspirators would then drive the rig to Noel Ramirez's home near Dayton where the marijuana was unloaded and taken away by smaller vehicles.
Noel Ramirez, testifying for the government, described the operation after it arrived at his house but could not identify any appellant as being present except Jose Cantu-Cantu. Several conspirators unloaded the marijuana in his garage. The rig then drove away and, after a short interval, pickup trucks or vans arrived at Noel Ramirez's house to pick up the marijuana. Noel Ramirez received $5,000.00 for the use of his garage.
The government's case depended heavily on the testimony of witnesses with whom plea agreements had been negotiated. Rene Vela-Garcia was the key witness. Vela-Garcia testified that he worked with Ricky Ramirez and Jose Garcia, among others, unloading and loading marijuana and covering the marijuana with cabbages at Alfredo Garcia's house in January, February, and March, 1990. Vela-Garcia also testified that Jose Garcia and Ricky Ramirez had driven with Vela-Garcia to Dayton to deliver the marijuana on several occasions.
Vela-Garcia detailed Ricky Ramirez's and Jose Garcia's participation in the "March load" of marijuana. According to Vela-Garcia, Jose Garcia and Ricky Ramirez helped load the marijuana at Alfredo Garcia's house and drove from Alfredo Garcia's house to Dayton in a blue pick-up truck owned by Jose Garcia's father, accompanying the March load of marijuana. After delivering the marijuana at Noel Ramirez's house, some of the conspirators rented a room at an EconoLodge.
The government also relied on the testimony of agents from the Federal Drug Enforcement Agency, the Federal Bureau of Investigation, and officers from the Texas Department of Public Safety who participated in the surveillance and arrests of the conspirators and who presented at trial photographs and documents obtained during the operation. With the cooperation of Noel Ramirez, the government began surveillance of his house on March 23, 1990. The agents testified that a tractor-trailer rig arrived at Noel Ramirez's house, and marijuana was unloaded at the house. The agents then followed the rig to an EconoLodge where they saw several people leave the rig and enter Room 132 of the motel.
After placing the EconoLodge under additional surveillance, the agents photographed people entering and leaving the EconoLodge. They saw Ricky Ramirez and a companion leave the motel in a blue car that they had seen arrive earlier. The agents also testified that they saw Jose Garcia drive up to the EconoLodge in a yellow pick-up truck, park in the EconoLodge parking lot, enter Room 132 of the motel, exit Room 132 with two other alleged conspirators, enter his pick-up truck, and prepare to leave the motel. The agents arrested Jose Garcia and his two companions as they were about to drive away. After these arrests, they entered Room 132 and arrested two other alleged conspirators. The agents searched the pockets of the arrestees and discovered several documents that were later introduced at trial, including a business card carried by Jose Garcia with telephone numbers of several of the conspirators.
The agents released Jose Garcia after his initial arrest outside the EconoLodge but arrested him again later in McAllen, on June 11, 1990. In the interview following his second arrest, Garcia stated that "he was not responsible, that Jesus Garcia was responsible for the transportation of the marijuana." When Shelton asked how much money he received for loading and unloading marijuana, Garcia stated that "he did not receive any money for loading or unloading the marijuana." Garcia also expressed fear that "Daniel Bautista [a co-conspirator] would have people come up from Mexico and do harm to him and his family."
The government also presented documents obtained in a search of Cantu-Cantu's motel room at the EconoLodge. Cantu-Cantu was arrested while driving a marijuana-laden truck from Noel Ramirez's house. Agent Shelton read him his Miranda rights and drove him to a Justice of the Peace where Cantu-Cantu signed a consent form purportedly authorizing the government to search Cantu-Cantu's motel room at the EconoLodge. The government searched the room and discovered various motel and airline receipts that tended to confirm Vela-Garcia's testimony about the travels of the members of the conspiracy.
Jose Garcia contends that the district court erred in admitting into evidence his statements made to Agent Shelton, because those statements were elicited in violation of his Fifth Amendment rights. We need not reach the substantive merits of this contention, however, because we find that the admission of the challenged statements was harmless beyond a reasonable doubt.
After advising him of his Miranda rights, Shelton asked Jose Garcia to sign a form waiving his rights. Garcia refused to sign the form but told Agent Shelton that he would answer questions. Shelton testified both in a suppression hearing and at trial that Garcia was reluctant to speak because he feared his co-conspirators would kill him. Shelton therefore terminated the interview, writing on the waiver form that "Garcia did not wish to say any more because he was afraid for his life." Shelton returned about an hour and a half later to renew his conversations with Jose Garcia accompanied by Agent Humphries from the Drug Enforcement Agency. According to Shelton's testimony at trial, Garcia added nothing to his earlier statements.
Jose Garcia objects only to the admission of testimony regarding his second interview with Shelton. However, Shelton testified that Garcia made no new statements in the second interview. The mention of the second interview was harmless beyond a reasonable doubt. Arizona v. Fulminante, --- U.S. ----, 111 S.Ct. 1246, 1266, 113 L.Ed.2d 302 (1991).
Jose Garcia also contends that the business card seized from him after his arrest outside the EconoLodge should have been excluded from evidence because he was arrested without probable cause.
Probable cause exists when the facts and circumstances known to the arresting officer are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed and the arrested person is the guilty person. United States v. Rocha, 916 F.2d 219, 238 (5th Cir.1990); United States v. Raborn, 872 F.2d...
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