U.S. v. Enriquez-Estrada
| Decision Date | 07 July 1993 |
| Docket Number | D,91-10614 and 92-10066,ENRIQUEZ-GALA,ENRIQUEZ-ESTRAD,Nos. 91-10613,s. 91-10613 |
| Citation | 999 F.2d 1355 |
| Parties | 39 Fed. R. Evid. Serv. 202 UNITED STATES of America, Plaintiff-Appellee, v. Martinefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Roy SELIG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Fernando Fajardo, Tucson, AZ, for defendant-appellant Enriquez-Estrada.
Thomas G. Hippert, Dardis & Hippert, Tucson, AZ, for defendant-appellant Selig.
J. Bert Vargas, Tucson, AZ, for defendant-appellant Enriquez-Galaz.
David A. Kern, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before: FARRIS, POOLE, and WIGGINS, Circuit Judges.
Defendants Martin Enriquez-Estrada (Estrada), Jorge Enriquez-Galaz (Galaz), and Donald Selig were charged with conspiracy and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846. A jury convicted them on all counts. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 (1988). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.
On February 18, 1991, Phoenix area DEA agents met with an informant in Tucson, Arizona. The informant had on two occasions during the preceding two days informed the agents that a three-ton load of marijuana had been moved to a stash house in the Tucson area. Another informant corroborated this information and added that there would be three men with the marijuana. After the meeting, the informant accompanied the agents to a residence at 918 Calle Catavinos, which he claimed to be the stash house.
One of the DEA Agents, Agent Rodriguez, left to obtain a search warrant. Three other agents, Agent Schrimpf, Agent Gulick, and Agent Hough, remained to watch the premises. During their surveillance, a red Pontiac Trans Am entered the 918 Calle Catavinos property. Two males, later identified as Estrada and Galaz, were in the car.
Soon thereafter, a silver Pontiac Grand Prix containing Estrada and a young woman exited the property. Part of the surveillance team followed the silver Pontiac and, upon receipt of information that a warrant had been obtained, radioed ahead and had the car stopped. Estrada was taken into custody.
Agent Rodriguez advised Estrada of his rights. Estrada then chose to speak briefly with the agents, informing them that no guns were present at the residence, but that two males, whom he identified by name as "Jorge and Donald," were. When asked if anything else was in the house "that would cause them any legal problems," Estrada replied "marijuana." When asked what the two people at the house were doing, he replied "taking care of the marijuana." Estrada then refused to say anything further, and Agent Rodriguez left to join the units converging on the 918 Calle Catavinos residence.
Agents assigned to secure the back yard of the residence arrested Galaz while he was leaning into the previously seen red Pontiac Trans Am. Agents who entered the residence arrested Selig. They also testified that the odor of marijuana was so strong that it could be smelled several yards away from the residence.
Agents discovered thirty to thirty-five bales of marijuana wrapped in cellophane in each of two bedrooms in the residence. Wrapping material, open bags of marijuana, a .22 caliber Derringer, and various other paraphernalia were scattered throughout the residence. Altogether, agents seized 1,001 pounds of marijuana.
On top of the marijuana stacked in the master bedroom, agents found a drug ledger that indicated that the residence was being used as a major warehouse for marijuana. Along with this ledger, agents seized personal correspondence of Selig, personal correspondence of Estrada, a cable television bill sent to Estrada at the 918 Calle Catavinos address, and bills of sale made out to Selig for both the silver Pontiac Grand Prix and the red Pontiac Trans Am.
On March 20, 1991, all of the defendants were indicted. After arraignment, the defendants filed various pre-trial motions, including motions to sever and motions to suppress post-arrest statements, namely Estrada's identification of "Jorge and Don" as the men "taking care of the marijuana." The district court denied both motions, ruling that Estrada's statement properly could be sanitized with appropriate instructions.
On September 23, 1991, trial commenced. On September 25, 1991, a jury convicted the defendants on all counts. The defendants filed a motion for new trial and a motion for judgment of acquittal, both of which were denied. They now appeal.
The defendants contend that the evidence is insufficient to support their convictions for conspiracy and possession with intent to distribute marijuana. In considering a challenge to the sufficiency of the evidence, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Medina, 940 F.2d 1247, 1250 (9th Cir.1991). Moreover, we may not substitute our judgment for the jury's. United States v. Nicholson, 677 F.2d 706, 708 (9th Cir.1982).
To prove a conspiracy, the government must show (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. United States v. Hill, 953 F.2d 452, 457 (9th Cir.1991); Medina, 940 F.2d at 1250; United States v. Ray, 930 F.2d 1368, 1371 (9th Cir.1990), cert. denied, 498 U.S. 1124, 111 S.Ct. 1084, 112 L.Ed.2d 1189 (1991). To prove possession with intent to distribute, the government must show that the defendants knew contraband was present and that they were capable of exercising dominion and control over the contraband. See United States v. Restrepo, 930 F.2d 705, 709 (9th Cir.1991).
To support the convictions, the prosecution offered the following evidence: the information provided by the two informants regarding the three tons of marijuana in a Tucson stash house, later identified as the 918 Calle Catavinos residence; Estrada's arrest while driving away from the residence and Galaz and Selig's arrest at the residence; Estrada's admission to the police that two men were at the residence "taking care of the marijuana"; the strong odor of marijuana emanating from the house; the 1,001 pounds of marijuana; the ledger, which indicated that the house was being used as major warehouse for marijuana; the wrapping material, open bags of marijuana, .22 caliber Derringer, and various other paraphernalia scattered throughout the house; and the personal effects of each of the defendants, including correspondence of Selig and Estrada, documents indicating that Selig owned the two vehicles involved, and some evidence of personal clothing belonging to Galaz. We conclude that this evidence is more than sufficient to support the defendants' convictions for conspiracy and possession with intent to distribute marijuana.
After his arrest, Estrada told Agent Rodriguez that "Jorge and Don" were at 918 Calle Catavinos "taking care of the marijuana." Before trial, Galaz and Selig moved to suppress this statement. The district court denied the motion, concluding that the statement properly could be sanitized with appropriate instructions. The statement was admitted with the word "individuals" substituted for the names of Selig and Galaz. Selig and Galaz now challenge that admission as violative of their Confrontation Clause rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We review de novo alleged violations of the Confrontation Clause. See United States v. George, 960 F.2d 97, 99 (9th Cir.1992).
In Bruton, the Supreme Court held that, because there is a substantial risk that the jury will use the facially incriminating confession of a non-testifying defendant as evidence of the guilt of his codefendant, admission of the confession in a joint trial violates the Confrontation Clause of the Sixth Amendment. Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. This is so even where the jury has been given "concededly clear instructions" to the contrary. Id. at 137, 88 S.Ct. at 1628 (Stewart, J. concurring).
The Supreme Court subsequently illuminated the Bruton holding in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). First, the Supreme Court clarified that only those statements that "expressly implicate" the defendant or are "powerfully incriminating" implicate the Bruton rule. Id. at 208, 107 S.Ct. at 1707. Second, the Supreme Court concluded that where the statement is not incriminating on its face, but becomes so only when linked with evidence introduced later at trial, and where the statement has been redacted to eliminate not only the defendant's name, but any reference to his existence, then a limiting jury instruction adequately will protect the defendant's Confrontation Clause rights. Id. at 211, 107 S.Ct. at 1709.
In Marsh, the Supreme Court "express[ed] no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Id. at 211 n. 5, 107 S.Ct. at 1709 n. 5. The Eleventh Circuit, however, confronted that very question in United States v. Vasquez, 874 F.2d 1515 (11th Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 845, 107 L.Ed.2d 840 (1990).
In Vasquez, the defendant challenged...
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