998 F.2d 1491 (9th Cir. 1993), 91-30393, United States v. Arias-Villanueva

Docket Nº:91-30393, 91-30403 and 92-30280.
Citation:998 F.2d 1491
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David ARIAS-VILLANUEVA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carlos Humberto ORANTES-ARRIAGA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Adolfo PLANCARTE-RAYA, Defendant-Appellant.
Case Date:July 20, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1491

998 F.2d 1491 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

David ARIAS-VILLANUEVA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Carlos Humberto ORANTES-ARRIAGA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Adolfo PLANCARTE-RAYA, Defendant-Appellant.

Nos. 91-30393, 91-30403 and 92-30280.

United States Court of Appeals, Ninth Circuit

July 20, 1993

Argued and Submitted March 1, 1993.

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Mark Bennett Weintraub, Weintraub & Halley, Phillip M. Margolin, Margolin & Margolin, Philip A. Lewis, Portland, OR, for defendants-appellants.

Johnathan S. Haub, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: TANG, POOLE, and RYMER, Circuit Judges.

POOLE, Circuit Judge:

Appellants David Arias-Villanueva, Carlos Humberto Orantes-Arriaga and Adolfo Plancarte-Raya appeal their convictions and sentences for conspiracy to possess with the intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and related charges. We find that their arguments on appeal afford them no relief and therefore affirm their convictions and sentences.

I.

Over the course of several years, law enforcement officials obtained the following evidence against the three defendants:

On February 28, 1986, Drug Enforcement Administration (DEA) agents and Oregon law enforcement officials, in the course of an investigation of heroin trafficking, served 28 search warrants on Orantes-Arriaga's home in Lake Oswego, Oregon. The agents and officials seized several handguns, marijuana, cocaine, heroin and approximately $30,000 during their search.

Orantes-Arriaga was arrested later that year on unrelated charges. After his arrest, Orantes-Arriaga admitted that he was a member of a heroin trafficking enterprise transporting heroin from Guatemala to several cities in the United States: Portland, Oregon; Seattle, Washington; Oakland, California; and San Francisco, California. Orantes-Arriaga also admitted that he used motel rooms to stash the heroin that he imported into the United States and conducted his transactions in motel rooms. Orantes-Arriaga further admitted that he had conducted transactions under many aliases and normally transferred three to four million dollars per month to Mexico from his United States heroin transactions.

Upon his release from incarceration in Texas on September 25, 1987, Orantes-Arriaga was deported. Orantes-Arriaga later returned to the United States and was seen with Arias-Villanueva in Texas, Oregon and Washington at various times during late 1989 and early 1990. Wire transfers traced to the heroin enterprise were made from Texas to Portland during this time period.

Both before and after Orantes-Arriaga's return to the United States, Plancarte-Raya supervised a network which distributed and sold heroin, in Portland from 1985 to 1987, and, along with Arias-Villanueva, in Seattle from 1988 to 1989. Plancarte-Raya transferred profits from his sales to Orantes-Arriaga in Mexico after Orantes-Arriaga was deported.

On January 19, 1990, DEA agents enlisted the cooperation of Brian Boyer, one of Orantes-Arriaga's former employees. In January 1990, Orantes-Arriaga told Boyer that he had a contact at the Oregon Department of Motor Vehicles who would provide false licenses and identifications for $500. On February 26, 1990 and March 1, 1990, United States Customs Service (USCS) Agent Ann Harkonen, posing undercover as Boyer's girlfriend, accompanied Boyer to the Department of Motor Vehicles where Boyer purchased false licenses.

On January 24, 1990, Boyer met with Orantes-Arriaga in Portland and Orantes-Arriaga told Boyer that he intended to have a person in Portland killed. Orantes-Arriaga asked Boyer to obtain a gun for the intended murder. It was later discovered that the person Orantes-Arriaga intended to have killed was George Elias, who had been an informant for the DEA in 1986 and 1987 and provided information which led to the arrest of Julian Duarte, who managed Orantes-Arriaga's

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heroin enterprise while Orantes-Arriaga was incarcerated in Texas. When he was contacted, Elias confirmed having had threats made on his life.

On January 27, 1990, Boyer was instructed by law enforcement officials to volunteer to perform the killing. When Boyer went to Orantes-Arriaga's motel room and made the suggestion, Orantes-Arriaga told him that he had already enlisted two "professional killers," one of whom was identified as Raul Valencia-Mazariegos, a member of the enterprise who was staying in an adjacent motel room. During their discussion, Orantes-Arriaga made a motion toward Arias-Villanueva which Boyer interpreted to mean that Arias-Villanueva would also be involved in the murder.

Valencia-Mazariegos left his motel room on January 28, 1990 carrying a doughnut box and walked to the trunk of a Dodge with Oregon license plate "HMF 131." Valencia-Mazariegos placed the box inside the trunk. Valencia-Mazariegos and the other person then left the motel in a taxicab. After leaving the taxicab, Valencia-Mazariegos was arrested. The trunk of the Dodge parked outside of the motel was later searched and two handguns were found inside the doughnut box.

On January 29, 1990, Orantes-Arriaga, Arias-Villanueva and others were stopped by Portland Police Officer William Gray for a traffic violation. Orantes-Arriaga and Arias-Villanueva both produced false licenses. Orantes-Arriaga gave Gray permission to search his vehicle and instructed the others to cooperate. Gray searched Orantes-Arriaga and the others, took pictures of them, but did not arrest them. The encounter lasted 20 to 30 minutes.

On January 30, 1990, Valencia-Mazariegos was bailed out by Orantes-Arriaga and Ramon Fierro-Gaxiola, another member of the enterprise. Later that same day, Boyer went to Orantes-Arriaga's motel room in Portland and met with him, Arias-Villanueva, Valencia-Mazariegos and Fierro-Gaxiola. Boyer was instructed to obtain an apartment for Fierro-Gaxiola. Boyer met with Fierro-Gaxiola on February 8, 1990 and gave him door and mailbox keys for an apartment near McCormick Pier in Portland.

After independently connecting the McCormick Pier apartment with heroin sales, Gray applied for a search warrant while other officers, including Officer Sue Kruger, secured the apartment. While the apartment was being secured, Orantes-Arriaga and Arias-Villanueva approached, walking to within 15 feet of the stairway leading to the apartment. Kruger explained that there had been some trouble in the area and asked the two where they were headed. They replied that they were going to see some girls in a nearby apartment. Kruger checked their identifications and allowed them to leave after 30 to 40 minutes. Kruger later found a key for the apartment in the back seat of the squad car in which Orantes-Arriaga and Arias-Villanueva had been sitting.

The search of the apartment led to the seizure of almost one pound of heroin, packaging materials and $6,700 in cash. On February 17, 1990, after the search of the apartment, Orantes-Arriaga, Arias-Villanueva and Fierro-Gaxiola met Boyer and Harkonen, still posing as Boyer's girlfriend, outside the apartment. When Fierro-Gaxiola, after searching the apartment, discovered that the heroin and the money were missing, Orantes-Arriaga became upset and ordered Boyer and Harkonen to leave.

On May 2, 1990, Plancarte-Raya was arrested for selling heroin. It was later learned that Plancarte-Raya and his wife, Kathleen Benson, received approximately six deliveries of between 10 and 30 ounces of heroin at their home between February and May 1990 and received payments of between $10,000 and $20,000 for the sale of this heroin. Arias-Villanueva later admitted that he retrieved 20 ounces of heroin from Plancarte-Raya's house following Plancarte-Raya's arrest.

Orantes-Arriaga and Arias-Villanueva were arrested on November 2, 1990 after accepting $20,000 from Boyer for a delivery of 30 ounces of cocaine. Arias-Villanueva confessed after being Mirandized that he and Orantes-Arriaga were involved in heroin trafficking, that he had known Orantes-Arriaga

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for three years, that he had possessed and transferred heroin money, that he and Orantes-Arriaga had left a key to the McCormick Pier apartment in the police car, and that he had possessed a false drivers license. Arias-Villanueva never confessed or otherwise admitted that he was involved with any heroin dealing in Texas or in the planned murder of Elias.

II.

The defendants raise the following issues regarding the legality of their convictions:

  1. The Suppression Motions

    The defendants argue that the district court erred in denying their motions to suppress. The ultimate conclusion of the legality of a seizure is a mixed question of law and fact that we review de novo. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989). We review the underlying facts as found by the district court for clear error. United States v. Espinosa, 827 F.2d 604, 608 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988).

    Orantes-Arriaga and Arias-Villanueva challenge the legality of the seizure of evidence during the January 29, 1990 encounter. They contend the evidence was seized during an illegal stop and detention. The...

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