U.S. v. Anderson

• Decision Date: 23 December 1992
• Docket Number: Nos. 91-2238,91-2247 and 91-2260,s. 91-2238
• Citation: 981 F.2d 1560
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James T. ANDERSON, Phillip Cordova, and Jon Gerald Salinas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1560

981 F.2d 1560

UNITED STATES of America, Plaintiff-Appellee, v. James T. ANDERSON, Phillip Cordova, and Jon Gerald Salinas Defendants-Appellants.

Nos. 91-2238, 91-2247 and 91-2260.

United States Court of Appeals Tenth Circuit.

Dec. 23, 1992.

Charles Louis Roberts, El Paso, TX, for defendant-appellant Anderson.

Mary Y.C. Han, Albuquerque, NM, for defendant-appellant Cordova.

Todd G. Hotchkiss (Timothy M. Padilla, with him on the brief) of Timothy M. Padilla & Associates, P.C., Albuquerque, NM, for defendant-appellant Salinas.

James D. Tierney, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with him on the brief), Albuquerque, NM, for plaintiff-appellee.

Before SEYMOUR, LAY, ^* and MOORE, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendants Phillip Cordova, James Anderson, and Jon Salinas appeal their convictions for conspiracy to possess more than 100 kilograms of marijuana with the intent to distribute in violation of 21 U.S.C. § 846, and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). ¹ Mr. Salinas was also convicted of the establishment of manufacturing operations in violation of 21 U.S.C. § 856. We conclude that the evidence is insufficient to support Anderson's convictions. We further conclude that because unlawfully obtained evidence was admitted at trial, the convictions of Cordova and Salinas must also be reversed.

I.

The government charged defendants with a conspiracy to distribute 1,968 pounds of marijuana, beginning on or about January 1, 1991, and continuing until on or about February 27, 1991. ² The government became involved in investigating the conspiracy on February 24, 1991, when Detective James Torres began surveillance of the area where Jon Salinas lived. Agent Torres was in the area observing different targets for an unrelated investigation. He noticed a U-Haul truck backed up to the garage at 3343 Grogan, N.W. in Albuquerque, New Mexico (the Grogan residence). Upon checking, it was determined that the residence was leased to Frances Torres, Jon Salinas' wife. Agent Torres recognized Mr. Salinas as a man he had seen meeting with a primary target of the separate investigation some weeks earlier. From U-Haul records, the agents discovered that Jon Salinas leased the U-Haul on February 24th. The U-Haul was no longer at the Grogan residence on the 25th, and was found in the parking lot of a nearby shopping center around 10:20 a.m. that day.

At 2:10 p.m. on the 25th, James Anderson's vehicle was observed in the Grogan driveway. At 2:35 p.m., Mr. Anderson entered his car and drove to a bar where he met with Joe T. Cordova for approximately ten minutes. Mr. Anderson left the bar and returned to the Grogan residence. He approached the doorway of the house, but none of the surveilling officers could actually see him go inside. They testified, however, that his approach to the doorway was consistent with entering the residence.

At 2:56 p.m., Mr. Anderson left the Grogan residence, drove back to the bar, and parked next to Joe Cordova's vehicle. Mr. Anderson left his car carrying a white bowl and entered the passenger side of Joe Cordova's car. Three minutes later, Mr. Anderson left the car without the white bowl. Both cars then left the parking lot travelling towards the Grogan residence and were stopped by uniformed police. The police found the white bowl, six ounces of marijuana, a gun, and a speed loader in Joe Cordova's vehicle. Mr. Anderson's fingerprints were found on the bowl. Joe Cordova said that Mr. Anderson "fronted" him the marijuana for his personal use. Mr. Anderson and Mr. Cordova were arrested.

Phillip Cordova was also seen leaving the Grogan residence on February 25. At 12:55 p.m., he drove his pickup truck to the grocery store where the U-Haul was parked. Although the agents lost him in the grocery store, they saw him again back at the Grogan residence a few hours later. Phillip Cordova left the Grogan residence on foot at 3:30 p.m. He walked to the shopping center and drove off in his pickup. On the way to his truck, Phillip Cordova passed within thirty yards of the arrests of Mr. Anderson and Joe Cordova.

Agent Henderson and agent Shiree, in separate cars, followed Phillip Cordova. He drove to a Wendy's fast food restaurant and ordered at the drive-thru window. He continued driving in a slow and cautious manner. The agents testified that they felt Phillip Cordova was aware of their surveillance of him. Agent Henderson testified that he stopped Mr. Cordova because he concluded that Mr. Cordova could notify persons remaining at the Grogan residence that Mr. Anderson and Joe Cordova had been stopped by the police and that the police were now following him. Agent Henderson turned on his emergency red light, and the two agents stopped Mr. Cordova in a cul-de-sac. Both agents blocked Mr. Cordova's truck with their vehicles so that he could not drive away. Agent Shiree had his gun drawn as Mr. Cordova exited his truck pursuant to Agent Henderson's request. The agents searched Phillip Cordova and then his truck. They found a U-Haul key in his back pocket and a small baggie of marijuana in his front pocket. They also found marijuana "roaches" in the ashtray. Mr. Cordova was then handcuffed and taken to the Grogan residence.

The agents back at the Grogan residence decided to secure the house pending a search warrant. In addition to the marijuana found on Phillip Cordova and Joe Cordova, the agents relied on information gathered throughout the day to conclude that exigent circumstances existed justifying the entry of the residence. Once arrested, James Anderson, Joe Cordova, and Phillip Cordova could not return to the Grogan residence, a situation which the officers believed might cause those inside to become suspicious and destroy evidence which the officers believed was in the house. Furthermore, three other men had left the Grogan residence at approximately 3:45 p.m. They were followed, one of the men had disappeared, and the other two were stopped by an agent. Due to faulty radio communications, the agent released the remaining two men. The police feared that these three men were now free to contact anyone who remained inside the Grogan residence to warn them of the law enforcement activities.

The agents entered the Grogan residence without a search warrant about 5:00 p.m. and performed a protective sweep. The officers saw marijuana in almost every room, and the smell of marijuana was noticeable throughout the house. The search warrant arrived at 7:55 p.m. The search uncovered 1,968 pounds of marijuana.

II.

Mr. Anderson was convicted of conspiracy and of possession with intent to distribute. He alleges that the evidence is insufficient to support either conviction.

In reviewing a criminal conviction, we examine the evidence in the light most favorable to the Government in order to determine whether the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, is substantial enough to establish guilt beyond a reasonable doubt.

United States v. Kendall, 766 F.2d 1426, 1429 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986). In order to sustain a conviction for conspiracy, the government must show that there was an agreement to violate the law, that the defendant knew the essential objectives of the conspiracy, that the defendant knowingly and voluntarily took part in the conspiracy, and that the coconspirators were interdependent. United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992). The government contends that Anderson's participation in the conspiracy is supported by the following evidence.

James Anderson was seen at the doorway of the Grogan residence twice. The second time occurred immediately prior to Mr. Anderson's meeting with Joe Cordova and giving him the white bowl filled with marijuana. A picture of Mr. Anderson with Frances Torres and Jon Salinas was found in the Grogan residence. The government introduced this evidence in order to establish the relationship among the alleged coconspirators. In addition, the government found phone numbers when searching several of the defendants and obtained the phone toll records of several defendants other than Mr. Anderson, which revealed that common numbers had been called by those defendants. Finally, one of the three men seen leaving the Grogan residence on the 25th was staying at a hotel where a message had been left for him asking him to "call James."

An alleged conspirator must have a "general awareness of both the scope and the objective of the enterprise to be regarded as a coconspirator." Id. at 670 (emphasis added). In United States v. Jones, 808 F.2d 754 (10th Cir.1987), we observed that a defendant " 'lacks the requisite criminal intent if he does not know the conspiracy's objective'; this knowledge must be shown by 'clear, unequivocal evidence.' " Id. at 755 (quoting United States v. Dumas, 688 F.2d 84, 86 (10th Cir.1982)). Furthermore, for one to be convicted of conspiracy there " 'must at some point be a meeting of the minds in the common design, purpose, or objects of the conspiracy.' " Id. See also United States v. Peveto, 881 F.2d 844, 856 (10th Cir.1989). "It is not enough ... for the government to show only 'mere association' with conspirators ...; '[c]asual transactions' between the defendant and conspirators ...; or a buyer-seller relationship between the defendant and a member of the conspiracy." Evans, 970 F.2d at 669. "[T]he Government was required to show, by clear and unequivocal evidence, [Anderson's] knowledge that the object of the conspiracy was the distribution of marijuana, and his agreement to cooperate in achieving that object." United States v. Austin, 786 F.2d 986, 988 (10th Cir.1986) (emphasis added).

"[W]e cannot sustain a conspiracy conviction if the evidence does no more than create a suspicion of guilt or amounts to a conviction...