U.S. v. Alonso

• Decision Date: 16 May 1986
• Docket Number: No. 84-1082,84-1082
• Citation: 790 F.2d 1489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fabio ALONSO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1489

790 F.2d 1489

UNITED STATES of America, Plaintiff-Appellee, v. Fabio ALONSO, Defendant-Appellant.

No. 84-1082.

United States Court of Appeals, Tenth Circuit.

May 16, 1986.

Wayne T. Dance, Asst. U.S. Atty., Brent D. Ward, U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Daniel T. Goodwin of Dailey, Goodwin & O'Leary, Denver, Colo., for defendant-appellant.

Before BARRETT, SEYMOUR, Circuit Judges and KANE, District Judge. ^*

KANE, District Judge.

Fabio Alonso was convicted by a jury of possession of a controlled substance under 21 U.S.C. Sec. 841(a)(1), and importation of a controlled substance in violation of 21 U.S.C. Sec. 952(a). On appeal, Alonso raises four grounds for reversal or remand: (1) insufficiency of the evidence; (2) the trial court's denial of a motion to suppress evidence derived from an electronic beeper device; (3) the trial court's denial of a motion to suppress evidence gained from a warrantless arrest; and (4) the trial court's refusal to issue Alonso's tendered "mere presence" jury instruction. For the reasons set forth below, Alonso's conviction is affirmed.

I. BACKGROUND

Pursuant to a valid court order issued by the United States District Court for the Western District of Texas on June 12, 1983, a transponder was hidden in a DC-7 aircraft, Federal Aviation Administration # N8852, on about June 13, 1982. By its own terms, this order expired 60 days from the date of its issue. A transponder is an electronic device which upon receiving a designated signal emits a signal of its own.

On September 17, 1983, by means of the transponder, federal authorities detected the DC-7 entering United States airspace from Mexico. The plane was tracked to an abandoned desert airstrip at McKay Flats, Emery County, Utah. Local authorities were alerted. Around 3:00 a.m. on September 17, Emery County Deputy Sheriff Brent Pace and Utah Highway Patrol Trooper Steve Rappage were dispatched to investigate the plane that had just landed. At trial Pace testified that McKay Flats is located in southern Utah. One seeking habitation near McKay Flats must travel 30 miles to the east, 75 miles to the west, 50 miles to the north and 50 miles to the south. It is not an area frequented by joggers or casual visitors.

As they drove toward the airstrip on the dirt Ranch Exit Road off of Interstate 70, Pace and Rappage saw a set of automobile headlights coming toward them. The vehicle, a Jeep Cherokee, stopped and its occupants were observed to flee. A short time later a semi-truck and a semi-truck trailer were spotted coming down the road. The truck stopped and the officers saw a figure in its cabin. Upon investigation of the Jeep, truck and trailer, Pace and Rappage found footprints and configurations in the dirt which indicated the suspects had been running and fell down. The trailer contained about 20,000 pounds of marijuana.

With the marijuana in custody, the police set about capturing the fleeing suspects. Pace testified that the police focused patrols on the routes the suspects would most likely use as a means of escape from this desolate area. Interstate 70 from Ghost Rocks, (ten miles to the west of Ranch Exit), to the brake test area, (seven miles to the east of Ranch Exit), was chosen as the target patrol area. During the times pertinent to this appeal, this stretch of I-70 was patrolled continually by at least two posse groups in unmarked vehicles. Law enforcement officers and deputized posse members were on the lookout for anything or anyone appearing suspicious.

On the late evening of September 17 and early morning of September 18, 1984 unmarked private posse vehicles patrolled the target area along I-70. Included in these vehicles was that of Emery County Jeep Posse deputies Carey Delpaiz and Julian Bowman. At approximately 12:30 a.m. they sighted a campfire just south of the interstate at mile marker 133 but they did not discern any people. A short time later, however, on the side of the road very near mile marker 133 where they had seen the fire, they observed a small cairn of stones. At this time two males, who turned out to be co-defendants, came running toward the deputies' car from the area where the fire had been seen. They were quite dirty and wearing t-shirts from the "Westwinds" truckstop in Green River, Utah. All the jeep patrols being in radio contact with each other, the deputies had been informed that another suspect arrested several hours earlier had also been wearing a "Westwinds" t-shirt. They detained the two individuals until a deputy sheriff arrived to take them into custody.

Late on September 17, volunteer posse members Randy Erwin and Dean King were also assigned to patrol the target area on I-70. They saw nothing suspicious along the designated route until Erwin spotted something moving in the trees near mile marker 133 around 3:00 a.m. on September 18. Closer inspection revealed nothing significant.

Erwin and King continued patrolling for another twenty minutes when they got a call over the radio from another patrol car in the area advising that someone was hitchhiking or walking on the road between the Ranch Exit and the brake test area. Erwin and King travelled back to the area of mile marker 133.

Not realizing the posse's vehicle was associated with the authorities, the hitchhiking Alonso flagged it down at about 3:30 a.m. He was located a quarter mile east of mile marker 133. This was the precise spot where 2 co-defendants had been apprehended approximately three hours earlier, 100 to 200 yards east of where Erwin had seen the movement in the trees, and just east of the stacked stones on the shoulder of the road. Alonso was wearing a dirty jogging suit, carrying some clothes in his hand and, according to the deputies, "looked like he'd been out in the weeds, in the sand."

Suspicions aroused, posse members Erwin and King pulled over and were approached by Alonso. When asked where he was going, Alonso said he was headed to Green River to catch a bus. When asked where he had come from, Alonso said he had been "walking all day from Salina." Salina was approximately 80 miles away. At this point Alonso was detained until police officers arrived about 15 to 20 minutes later.

Three items of substantial evidentiary value were found on Alonso's person. First, a "Pathfinder's" compass identical to the one found on a co-defendant. Second, a round trip airline ticket, the first part of which had been used for a Denver to Grand Junction, Colorado flight. The ticket was bought, and used, on September 13, 1983, the very day other defendants had checked into a Grand Junction motel. Subsequent investigation showed Grand Junction to be the staging area for the unloading crew. The airline ticket was in the name of F. Steffano, not Fabio Alonso. Aliases were also used by other defendants when checking into the Grand Junction motel. Third, shoes worn by Alonso which were comparable in design and degree of wear to shoe prints found near the aircraft.

Documentary evidence showed that all eleven suspects, including Alonso, arrested in vicinity of the trailer loaded with ten tons of marijuana were permanent residents of Miami or nearby communities. In addition, nine of the eleven, including Alonso, were Cuban.

II. SUFFICIENCY OF EVIDENCE

A. Ample Evidence Supports Alonso's Conviction

Alonso contends that the evidence presented at his trial was insufficient to support his conviction. The jury's verdict of guilty, he argues, must be reversed. In evaluating this claim we must view the evidence, both direct and circumstantial, in the light most favorable to the prosecution. All reasonable inferences and credibility choices must be made in support of the jury's verdict. United States v. Massey, 687 F.2d 1348, 1351 (10th Cir.1982): see also, United States v. Blitstein, 626 F.2d 774, 776 (10th Cir.1980), cert denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981); and United States v. Themy, 624 F.2d 963, 965-966 (10th Cir.1980) ("The jury observed the prosecution and defense witnesses, appraised their credibility, determined the weight to be given to their testimony, drew permissible inferences therefrom, resolved conflicts in the evidence and reached ultimate conclusions of fact. Those are functions exclusively reserved for the trier of fact."). The evidence, direct and circumstantial with reasonable inferences drawn therefrom and construed in a light most favorable to the government, is sufficient if the fact finder may find the defendant guilty beyond a reasonable doubt. United States v. Gay, 774 F.2d 368, 372 (10th Cir.1985); United States v Hubbard, 603 F.2d 137, 142 (10th Cir.1979). "To be sufficient, the evidence must do more than raise a mere suspicion of guilt". Gay, 774 F.2d at 372. "If substantial evidence supports the verdicts, they cannot be set aside". Themy, 624 F.2d at 965.

Considering the evidence admitted at trial, it is manifest that a jury would find Alonso guilty beyond a reasonable doubt. The evidence supporting Alonso's conviction is clearly sufficient: Alonso's capture a mere stone's throw from mile marker 133 where two other defendants had been apprehended and where deputies saw a fire, movement in the trees and a rock marker alerting co-defendants to an emergency gathering point; Alonso's dirty appearance as one who had hid in the desert sand and sage for over 24 hours; Alonso's lacking upon apprehension clothes, toiletries, camping gear or even water, indicating he had lied about being a hitchhiker "on the road"; the incredibility of Alonso's story that he had walked all the way from Salina in such a short time and with none of the constantly cruising posse member's spotting him before his detention; Alonso's presence in the middle of desert wasteland only a few miles from ten tons of marijuana; the close proximity of Alonso's arrest to that of 10 other co-defendants; Alonso's being a Cuban, just like nine of the eleven people arrested in...