U.S. v. Bazan

• Decision Date: 29 December 1986
• Docket Number: No. 85-2751,85-2751
• Citation: 807 F.2d 1200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus BAZAN, Jr., Manuel Aleman, and Graciela Flores, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1200

807 F.2d 1200

UNITED STATES of America, Plaintiff-Appellee, v. Jesus BAZAN, Jr., Manuel Aleman, and Graciela Flores Defendants-Appellants.

No. 85-2751.

United States Court of Appeals Fifth Circuit.

Dec. 29, 1986.

Heriberto Medrano, Harlingen, Tex., for Bazan, Jr.

Reynaldo S. Cantu, Jr. (court-appointed), Brownsville, Tex., for Aleman.

Jose Roberto Flores (court-appointed), McAllen, Joseph A. Connors, III, McAllen, for Flores.

James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, REAVLEY and WILLIAMS, Circuit Judges.

REAVLEY, Circuit Judge:

Jesus Bazan, Manuel Aleman, and Graciela Flores were each convicted on four drug counts: conspiracy to possess with intent to distribute over one kilogram of cocaine in violation of 21 U.S.C. Secs. 846, 841(a)(1), 841(b)(1)(A); possession with intent to distribute over one kilogram of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A); conspiracy to possess with intent to distribute over fifty kilograms of marijuana in violation of 21 U.S.C. Secs. 846, 841(a)(1), 841(b)(1)(B); and possession with intent to distribute over fifty kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B). Appellants raise both independent and overlapping grounds for reversal, four of which we address here: that evidence used against appellants was obtained by means of an illegal search; that prosecutorial misconduct at trial warrants reversal; that the convictions of Graciela Flores on two conspiracy counts and on two substantive counts violate the double jeopardy clause of the Fifth Amendment; and that the initial arrest of Flores was illegal because not supported by probable cause. We find merit in only the third contention that challenges Flores' conviction of two conspiracies; we remand for resentencing of Flores based on only one conspiracy. Otherwise the convictions are affirmed.

Facts

Bazan was the owner of a 547 acre ranch in a remote area of Starr County, Texas close to the Mexican border. On June 6, 1985, at 2:30 A.M., Arturo Garza, a neighbor of Bazan's, was awakened by the entry of a tanker truck to the Bazan ranch. Garza dressed quickly and followed the truck on foot, entering Bazan's property by crawling under a barbed wire fence. At trial, Garza testified that, standing thirty yards from the ranch house, he saw Bazan, Aleman, and Flores loading boxes onto the tanker, and that two hours later he followed the tanker as it left the ranch. He then telephoned Drug Enforcement Agent Mathews, describing the vehicle and saying it was "loaded." At 6:30 A.M. the vehicle was intercepted by border patrol agents, and its driver, appellant Manual Aleman, was arrested. Agent Mathews then telephoned other agents to secure the ranch and arrest Bazan. After a futile attempt to escape in a pickup truck by cutting part of the wire fence surrounding the ranch, Bazan and Flores were arrested. The tanker truck was taken to DEA headquarters, where a search of its contents revealed 125 pounds of marijuana and 693 pounds of cocaine, samples of which were admitted into evidence at trial.

The jury found appellants guilty on all four counts as charged, and the district court entered judgment on the verdict.

Discussion

I. An Illegal Search?

Appellants filed a pretrial motion to suppress "the evidence and testimony" of Garza, on the ground that his entry to the ranch constituted an illegal search under the Fourth Amendment. The district judge denied the motion, citing two reasons in his memorandum opinion: first, that Garza was not a government agent, and, second, that this case is covered by the open fields exception to the Fourth Amendment prohibition on warrantless searches, as enunciated in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Since we hold that Garza was not a government agent, we need not here reach the open fields question.

A wrongful search or seizure conducted by a private party does not violate the Fourth Amendment, and "such private wrongdoing does not deprive the government of the right to use evidence." Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980). The question is whether, when Garza entered the Bazan ranch, he "must be regarded as having acted as an 'instrument' or agent of the state." Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971).

Appellants' argument that Garza must be regarded as an agent of the government is based on an analysis propounded by the Ninth Circuit. In United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982), the court held that "two critical factors in the 'instrument or agent' analysis are: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." For purposes of reviewing this argument we will assume the adequacy of this formulation. Appellants take it as evident that Garza's intent was "purely to aid law enforcement officers." They claim that the only issue is whether the government knew of and acquiesced in the intrusive conduct. In support of their position, appellants contend that Garza had met with DEA Agent Mathews twice before the night of June 6 to discuss the suspicious activity on the Bazan property, that Garza had been a past police informant, that he had served as a deputy sheriff from 1981 to 1983, that he is a close personal friend of Deputy Sheriff Saenz, who knew of Garza's past trespasses on the ranch, and that DEA Agent Mathews "asked Garza to conduct surveillance on the ranch." We disagree with appellants both in their contention that the government knew of and acquiesced in Garza's conduct, and in their contention that it is obvious that Garza acted solely to aid the government. These issues are considered in turn.

We already have held that a person's former employment as a police officer or former status as a police informant does not convert private action into state action for purposes of the Fourth Amendment. United States v. Bomengo, 580 F.2d 173, 175 (5th Cir.1978). Obviously, close personal friendship with a deputy sheriff does not render one a government agent. The only portion of appellants' contentions here that has prima facie merit is that Agent Mathews met with Garza prior to June 6 and instructed him to "conduct surveillance on the ranch."

Our study of the record, however, convinces us that this "instruction" to Garza was far too vague and general to constitute governmental knowledge of the search that is here challenged. Testimony at trial indicated that in May of 1985 Garza approached Agent Mathews to "tell him we needed to put a stop to certain individuals around my area," and that Mathews had responded "why don't you give me a call sometime." At the second meeting, in early June, Mathews asked Garza if he had seen any vehicles go into Bazan's ranch; Garza answered in the affirmative and stated that "they might be moving drugs." Mathews told Garza to call "if he saw something strange." Garza emphatically denied that Mathews told him about any police plans regarding the ranch. During cross-examination, he was asked repeatedly by all three attorneys whether he spoke to Agent Mathews or Deputy Saenz, or any other officer, before trespassing on June 6, and each time he denied that he had. The testimony of Saenz and Mathews corroborates that neither knew that Garza was going to enter the ranch on June 6 until after it happened. Mathews testified that he told Garza to call him if he saw trucks entering the ranch "[a]nd then to get out of the area and I would be there." Mathews had no reason to predict that Garza would enter the ranch, and he clearly did not request that Garza do so. And, as Garza testified, when he heard the truck cross the cattleguard he did not pause to tell anyone before rushing to follow it onto the ranch. We conclude that it cannot be said that the government "knew of" or "acquiesced in" the intrusive conduct.

As stated above, the Ninth Circuit's Miller opinion includes two factors in the "instrument or agent" analysis: (1) the government's knowledge of the intrusive conduct, and (2) "whether the party performing the search intended to assist law enforcement efforts or to further his own ends." 688 F.2d at 657. In Miller itself, the party performing the intrusive search was the victim of a theft; with police knowledge, he entered the defendant's property to photograph his stolen trailer. The photographs were admitted into evidence at defendant Miller's trial. Although informant Szombathy had told officers he intended to enter Miller's property to search for his trailer, the court held this was a private search. The court reasoned that Szombathy acted to further his own ends. It notes that there was "nothing in the record to suggest that the officers encouraged Szombathy to act on their behalf, or even planted the idea of conducting a private search." Id.

Our review of the record in the instant case convinces us that there was considerably less police involvement in Garza's search than there had been in the Miller search, which the court found to be private. The record makes clear that Garza was a neighbor of Bazan's who was quite concerned about the illegal activity nearby and that it was he who initiated contact with DEA Agent Mathews because of this concern. In Miller, the police knew in detail what the informant proposed to do and when he would do it; here Mathews had no knowledge of what Garza would do or when he would act. Furthermore, like the informant in Miller, Garza indeed may have had a personal motive to conduct the search--the Bazan ranch had once belonged to Mrs. Garza's family and the defense itself advanced the theory at...