U.S. v. Rodriguez, 91-9539

• Decision Date: 14 June 1993
• Docket Number: No. 91-9539,91-9539
• Citation: 993 F.2d 1170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose RODRIGUEZ, Aristides Napoles, and Marlene Guerra, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1170

993 F.2d 1170

UNITED STATES of America, Plaintiff-Appellee, v. Jose RODRIGUEZ, Aristides Napoles, and Marlene Guerra Defendants-Appellants.

No. 91-9539.

United States Court of Appeals Fifth Circuit.

June 14, 1993.

Virginia Laughlin Schlueter, Asst. Federal Public Defender and John T. Mulvehill, Federal Public Defender, New Orleans, LA, for Rodriguez.

Dwight Doskey, New Orleans, LA, for Napoles and Guerra.

Herbert W. Mondros, Peter G. Strasser, John Braud, Asst. U.S. Attys., and Harry Rosenberg, U.S. Atty., New Orleans, LA, for appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

I.

On January 25, 1991, agents of the New Orleans Police Department, Jefferson Parish Sheriff's Office and the Federal Bureau of Investigation were involved in an investigation of a suspected drug dealer, Estrella Del Sol. The agents observed Del Sol drive a gray Blazer into the parking lot of the New Orleans Motor Lodge (now known as the Howard Johnson Motel) in the 4200 block of Old Gentilly Road in New Orleans and park near a black and white Blazer belonging to Aristides Napoles.

Earlier that day, the motel clerk, Norman Kunsky, noticed Del Sol outside the hotel. Kunsky had also observed Aristides Napoles and Marlene Guerra drive a black and white Blazer into the hotel parking lot. He noted that a yellow Cadillac, driven by a man, followed the black and white Blazer into the parking lot. Kunsky could not identify the driver of the yellow Cadillac. Kunsky testified at trial that Marlene Guerra entered the motel and registered for one room for herself and Napoles, and one for the other man. After Guerra had registered and left the motel lobby, Kunsky observed that the black and white Blazer and the Cadillac were moved to another location in the parking lot near the hotel rooms.

Later, while surveilling the motel parking lot area, police agents observed Napoles use keys to open the yellow Cadillac which bore a Florida license plate. Napoles and a man later identified as Jose Rodriguez got in the car, but did not leave. Napoles sat on the passenger side of the car and Rodriguez sat in the driver's seat. After a few minutes, Napoles and Rodriguez left the Cadillac. The Cadillac was later determined to be owned by Napoles's sister, Miriam Napoles.

Shortly thereafter, Napoles, Guerra, and Rodriguez left the motel in the black and white Blazer. The agents followed the three to a storage facility where Guerra was observed placing a brown paper bag in a locker. The agents stopped the defendants at the facility. Guerra, the lessee of the storage locker, gave the agents consent to search the locker. Agents searched the locker and found a brown paper bag containing a triple-beam scale with a trace of white powder, which later tested positive for cocaine, as well as plastic bags and aluminum foil.

Guerra denied that she owned the yellow Cadillac or had any knowledge, or that the other defendants had any knowledge of it. Napoles and Rodriguez also denied to the agents any knowledge of the yellow Cadillac.

Meanwhile, back at the motel, a drug-detection dog alerted to the passenger side of the yellow Cadillac; and after obtaining a search warrant for the car, the agents retrieved a kilogram of cocaine, valued at approximately $28,000-$32,000, wrapped in aluminum foil, stashed behind the firewall.

The defendants were arrested and were taken to jail on that same day.

A jury convicted Rodriguez, Napoles, and Guerra of conspiracy to possess with intent to distribute and possession with intent to distribute one kilogram of cocaine. The court sentenced Napoles to serve concurrent terms of 106 months of imprisonment on each count, to pay a $15,000 fine, and to be placed under supervised release for concurrent five-year terms; Guerra to serve concurrent terms of sixty months on each count, to pay a $10,000 fine, and to be placed under supervised release for concurrent terms of five years and Rodriguez to serve concurrent terms of sixty-six months on each count and to be placed under supervised release for concurrent four-year terms. On appeal the defendants raised four grounds for relief as follows:

1. Rodriguez's right to counsel was violated.

2. The evidence was not sufficient to support any of the defendants' convictions.

3. The voir dire violated Napoles' and Guerra's due process rights.

4. The court erred in finding that Rodriguez was not entitled to an adjustment from the Guidelines sentencing range because he was a minor participant.

Because we REVERSE the trial court's conviction of Rodriguez, we do not reach the issues as to Rodriguez's complaints in Ground two and four. We AFFIRM the trial court's actions as to all other grounds involving defendants Napoles and Guerra.

II.

WHETHER RODRIGUEZ'S RIGHT TO COUNSEL WAS VIOLATED.

Rodriguez contends that the in-custody statement taken from him on February 1, 1991 was taken in violation of his Sixth Amendment right to counsel and is therefore clear error.

Rodriguez had been in custody of the State since January 25, 1991, charged with possession with the intent to distribute the cocaine in question in the State of Louisiana and had appeared in court and been appointed counsel. On February 1, 1991, FBI Agent John Cataldi went to the jail where Rodriguez, Guerra and Napoles were being held in custody and took statements from each of the defendants. Rodriguez complains that Agent Cataldi made no effort to contact his appointed counsel. Rodriguez argues that because he was in custody, had been arraigned and appointed counsel on the same identical charges in the State courts and did not initiate the contact with the Agent that led to the statement, the Agent's contact with him was police initiated and therefore there was no valid waiver of his Sixth Amendment right. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The right to counsel under these circumstances, he claims, raises compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On September 18, 1991, the court held a hearing to determine whether to suppress the February 1, 1991 statements made by Rodriguez, Guerra and Napoles and a statement which was taken from Rodriguez on the day he was arrested, January 25, 1991. At the hearing, Rodriguez's attorney objected to the hearsay nature of Cataldi's testimony concerning the conversation he had with Shaw that resulted in the February 1 contact with the defendants. The judge instructed Cataldi to limit his testimony only to conversations he had had with the parties in the case. The February 1 statement made by Rodriguez was never introduced at the suppression hearing and therefore no ruling was made as to its admissibility by the court and the January 25 statement, although ruled admissible, was never introduced at trial. ¹

Prior to trial, the prosecutor and Rodriguez's counsel stipulated that if Cataldi were called to testify, he would testify that in the February 1 interview, Rodriguez gave him a statement admitting that (i) Rodriguez drove from Miami to New Orleans in a small yellow vehicle different from the one narcotics agents searched; (ii) Rodriguez met Napoles and Guerra at a gas station off interstate highway I-10 somewhere between Miami and New Orleans; (iii) Rodriguez followed Guerra and Napoles who were in a black and white Blazer to the New Orleans Motor Lodge; and (iv) Guerra rented two rooms for them and, after a while, Rodriguez, Guerra and Napoles took a ride in the gray Blazer, when they were stopped by the police.

Rodriguez's attorney stated at trial that although she had agreed to this stipulation, she wanted the record to reflect it was simply a stipulation as to what Cataldi would testify. She made it clear that the stipulation "was in no way to negatively impact on any previous motions."

At the trial on September 23, 1991, the government attempted to introduce the February 1 statement by Rodriguez to Cataldi whereupon Rodriguez's attorney asked the judge to hold a hearing out of the presence of the jury to determine whether the statement was voluntarily given pursuant to Title 18 U.S.C. § 3501. ²

At that hearing, the government put Agent Cataldi on the stand; and Cataldi testified that he had received a call from Gary Shaw, a co-defendant of Rodriguez, Guerra and Napoles and that Shaw indicated to Cataldi that "they" all wanted to speak to him. He testified that Shaw made no mention of anyone in particular. Cataldi testified that he interviewed the defendants each individually and asked them if they wanted to speak to him. Cataldi said that he told each defendant: "I understand you want to speak with me" and "you can have your attorney here if you wish." However, Cataldi testified that he did not ask Rodriguez whether he had any contact with Shaw. Cataldi also testified that he knew Rodriguez was represented by counsel and was in custody.

After confirming that Rodriguez wished to speak with him, Cataldi testified that he had Officer Lejarsa advise Rodriguez of his rights through the use of a Spanish "advice of right" form. After Rodriguez indicated that he understood his rights, and was willing to speak to the officers, he signed the waiver of rights form and Cataldi then conducted the interview.

Rodriguez's counsel objected to the February 1 statement at this § 3501 hearing because (i) the statement was an in-custody statement, (ii) the agent knew that Rodriguez was represented by counsel, (iii) there was no evidence that Rodriguez had called Cataldi and asked him to come, and (iv) Cataldi's call had come from another defendant [Shaw] who was not housed with Rodriguez.

The judge overruled this objection and allowed the statement.

When trial commenced, the government read the stipulation to the jury regarding the February 1 interview of Rodriguez...