U.S. v. Alvarez

• Decision Date: 25 February 2004
• Docket Number: No. 01-10686.,No. 02-10260.,01-10686.,02-10260.
• Citation: 358 F.3d 1194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier ALVAREZ, a.k.a. Frank Javier Alvarez, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Richard Valenzuela, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

358 F.3d 1194

UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier ALVAREZ, a.k.a. Frank Javier Alvarez, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Richard Valenzuela, Defendant-Appellant.

No. 01-10686.

No. 02-10260.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2003 — Pasadena, California.

Filed February 25, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Pamela M. Katzenberg, Tucson, Arizona, S. Jonathan Young, Law Offices of Williamson & Young, P.C., Tucson, Arizona, for the defendants-appellants.

Paul K. Charlton, United States Attorney, Robert L. Miskell, Chief, Criminal Division, Christina M. Cabanillas, Deputy Chief, Appellate Section, Richard E. Gordon, Assistant U.S. Attorney, and James T. Lacey, Assistant U.S. Attorney, United States Attorney's Office for the District of Arizona, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-99-00759-JMR.

Before: Alex KOZINSKI and Thomas G. NELSON, Circuit Judges, and Jane A. RESTANI, Judge.^*

RESTANI, Judge:

I. INTRODUCTION

Francisco Javier Alvarez appeals his jury conviction and sentence for one count of conspiracy to possess with intent to distribute cocaine in excess of five kilograms in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846 (2000), a Class A felony. Richard Valenzuela appeals his jury conviction of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii)(II) (2000), also a Class A felony. We have jurisdiction over their timely appeals under 28 U.S.C. §§ 1291 and 1294 (2000). For the reasons that follow, we vacate Alvarez's conviction and remand his case to the district court with instructions to review the probation files of three cooperating witnesses to determine whether they contain information that should have been disclosed to the defense. We affirm Valenzuela's conviction and sentence.

II. FACTUAL AND PROCEDURAL BACKGROUND

These appeals involve a broad conspiracy to import and distribute at least 12 tons of cocaine from Mexico from approximately December 1995 through May 1999. The cocaine was smuggled into the United States through a 200-foot long tunnel linking a mobile home in Naco, Arizona, to a residence in Naco, Sonora, Mexico. The investigation into the conspiracy commenced after 5.6 tons of cocaine were seized at a Tucson warehouse in December of 1996.

From May 19, 1999 through October 25, 2000, six indictments were filed charging 50 defendants with drug trafficking violations, use and carry of firearms in connection with drug trafficking offenses, and forfeiture allegations. The government alleged that Appellant Alvarez provided security surveillance of loads of cocaine while in transport. It further alleged that Appellant Valenzuela was paid in excess of $100,000 to store cocaine at his home on various occasions in 1996, and that, on at least one occasion, a co-conspirator possessed an automatic weapon while guarding the drugs at Valenzuela's home.

Alvarez and Valenzuela were tried separately. Alvarez was convicted by a jury of Count 4 of the sixth superseding indictment, which charged that from approximately December 1995 to approximately May 1999, Alvarez conspired to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846. The trial court found, by a preponderance of the evidence, that the weight of drugs attributable to Alvarez was one ton. On October 24, 2001, Alvarez was sentenced to 188 months' imprisonment and 60 months' supervised release. Valenzuela was convicted of conspiracy to possess with intent to distribute 12,000 pounds of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii)(II). He was sentenced to 120 months' imprisonment to be followed by 60 months' supervised release. Appellants filed timely notices of appeal.

III. DISCUSSION

A. ALVAREZ

1. Whether There Is Sufficient Evidence to Support Alvarez's Conviction

Alvarez does not challenge the existence of a conspiracy involving his co-defendants. He only challenges the sufficiency of the evidence connecting him to the conspiracy. "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.'" United States v. Bautista-Avila, 6 F.3d 1360, 1362 (9th Cir.1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). When the evidence establishes that a conspiracy exists, there is sufficient evidence to support a conviction for knowing participation in that conspiracy if the government is able to establish, beyond a reasonable doubt, "even a slight connection" between the defendant and the conspiracy. United States v. Wiseman, 25 F.3d 862, 865 (9th Cir.1994) (citing Bautista-Avila, 6 F.3d at 1362); see also United States v. Dunn, 564 F.2d 348, 357 (9th Cir.1977). Finally, the uncorroborated testimony of co-conspirators is sufficient evidence to sustain a conviction unless "`incredible or unsubstantial on its face.'" United States v. Yossunthorn, 167 F.3d 1267, 1270 (9th Cir.1999) (quoting United States v. Lopez, 803 F.2d 969, 973 (9th Cir.1986)).

Viewing the evidence in the light most favorable to the government, we conclude that a rational trier of fact could have found that Alvarez knowingly participated in the conspiracy. Although the government offered no direct evidence of an agreement between Alvarez and other members of the conspiracy, three co-conspirators testified that Alvarez provided counter-surveillance during the transportation of loads of cocaine during 1996 and/or 1998. The testimony was somewhat inconsistent as to the nature and extent of Alvarez's role,¹ but "any conflicts in the evidence are to be resolved in favor of the jury's verdict." United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1201-02 (9th Cir.2000) (citation omitted). The jury was aware that the witnesses were cooperating with the government in exchange for lenient treatment, and the witnesses were subject to full cross-examination by the defense. Under these circumstances, we cannot disturb the jury's credibility determinations with respect to these witnesses. See, e.g., Yossunthorn, 167 F.3d at 1270 ("[T]he credibility of witnesses is a question for the jury unreviewable on appeal."); United States v. Leung, 35 F.3d 1402, 1405 (9th Cir.1994) ("[W]hen a jury is informed of the possible challenges to a witness'[s] credibility and nevertheless believes the witness, the reviewing court should not upset the jury's credibility determination.").

Because the witnesses' testimony regarding Alvarez's involvement was not incredible or unsubstantial on its face, it is sufficient to sustain his conviction. In addition, the testimony was corroborated by physical evidence that was seized from Alvarez's home and introduced at trial.² See infra Parts A.2-3. The evidence thus provided a sufficient basis for reasonable jurors to conclude that the government had established Alvarez's "slight connection" with the conspiracy beyond a reasonable doubt, and we reject Alvarez's challenge to the sufficiency of the evidence.

2. Whether the Seizure of Evidence from Alvarez's Home Violated His Fourth Amendment Rights

A warrant was issued to search Alvarez's residence on December 15, 1999. The supporting affidavit set forth the training and experience of the affiant, a special agent for the FBI specializing in narcotics investigations, described the background of the case, including the seizure of over five tons of cocaine from a Tucson warehouse and the fact that several search and arrest warrants were executed in May of 1999, and explained that the investigation and interviews with cooperating sources and cooperating defendants allowed the government to locate additional members of the conspiracy. The affidavit included the statements of two unnamed cooperating sources and two unnamed cooperating defendants who alleged that, among other things, Alvarez was involved in surveillance activities in connection with the transportation of loads of cocaine in 1996 and 1998, provided radios to surveillance drivers, and stored radios at his house. The affidavit further alleged that pen register and/or toll information for Alvarez's telephone number showed phone calls to and from other co-conspirators.

Based on this information, the magistrate judge concluded that there was probable cause that contraband would be found at Alvarez's home and issued a search warrant. Agents executing the warrant seized several hand-held radios, police scanners, and a transceiver device. The trial court denied Alvarez's motion to suppress this evidence.

Alvarez argues that the affidavit failed to establish probable cause because it did not include any information regarding the reliability of the confidential informants, failed to indicate that Alvarez was related to two of the co-conspirators to whom phone calls had been placed from his home, and failed to justify the magistrate's conclusion that a search of Alvarez's residence more than one year after his alleged surveillance activities would be fruitful. Thus, Alvarez asserts that the information contained in the affidavit was unreliable and too stale to establish probable cause that surveillance equipment would be found on the premises when the search warrant was executed in December of 1999.

In issuing a search warrant, a magistrate judge must look to the "totality of the circumstances" to determine whether the supporting affidavit establishes probable cause. Illinois v. Gates, 462...