U.S. v. Botello

• Decision Date: 10 May 1993
• Docket Number: No. 92-7134,92-7134
• Citation: 991 F.2d 189
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel BOTELLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 189

991 F.2d 189

UNITED STATES of America, Plaintiff-Appellee, v. Miguel BOTELLO, Defendant-Appellant.

No. 92-7134.

United States Court of Appeals, Fifth Circuit.

May 10, 1993.

Edmund K. Cyganiewicz, Brownsville, TX (Court-appointed counsel), for defendant-appellant.

Michael Shelby, Paula C. Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

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

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant, Miguel Botello, was convicted by a jury of murdering Gerardo Luis Quintanilla while working in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e) (1988), and of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (1988). Botello appeals, arguing that the district court erred by (a) instructing the jury on the law of aiding and abetting as to the murder charge, (b) denying his motion to dismiss on account of double jeopardy, (c) denying his motion for continuance, and (d) denying his motion to suppress evidence seized during a search of his vehicle. We affirm.

I

Botello was an assassin for the cocaine dealer Juan Garcia-Abrego, one of the largest drug dealers in Mexico. Quintanilla was a member of a rival drug organization. Quintanilla was driving his Ford Bronco in Brownsville when the occupants of a Mercury Grand Marquis opened fire on his vehicle. Six shots hit Quintanilla, and he died. Botello was identified as the purchaser of the Mercury and the driver at the time of the shooting. After the murder, he returned to the auto dealership and said, "It's done with Quintanilla." There was conflicting testimony at trial as to whether Botello was the "trigger man." Botello was arrested after a routine traffic stop which resulted in the discovery of $148,000 in his car.

Botello was indicted for killing Quintanilla while working in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e) (1988). Botello was also charged with money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (1988), in connection with the $148,000 found in his car. Botello's first trial ended in a mistrial. At the second trial Botello was found guilty on both counts, and was sentenced to life imprisonment for the murder, and 20 years imprisonment for the money laundering charge, to run concurrently with the life sentence.

II

A

Botello argues that the district court erred by instructing the jury on the law of aiding and abetting as to the murder count of the indictment. Botello contends that the instruction violated his right to be convicted only of the offenses charged in the indictment, because he was indicted as a principal and not as an aider and abettor. Botello concedes that, as a general rule, an aiding and abetting instruction may be given to the jury even though the indictment does not specifically mention aiding and abetting, so long as evidence is introduced to support an aiding and abetting conviction. ¹ Botello argues, however, that he was unfairly surprised ² by the aiding and abetting instruction because the indictment explicitly alleged that he was the principal and not an aider and abettor. According to Botello, "the Government ... allege[d] in the indictment that [he] committed the murder in question by actually shooting the victim." Brief for Botello at 7. Botello contends that, "where it is clear that the Government makes a specific decision to allege that one Defendant is the shooter and a co-defendant is the one who aids and abets, ... they should not be allowed to change their theory at the end of the trial." ³ See id. at 8. We review the district court's decision to give the aiding and abetting instruction for abuse of discretion. See United States v. Neal, 951 F.2d 630, 633 (5th Cir.1992) (holding that "it was not an abuse of discretion for the trial court to instruct the jury on aiding and abetting").

We reject the argument that Botello was unfairly surprised by the aiding and abetting instruction, chiefly because the language of the indictment did not limit Botello's conduct to that of a principal. The superseding indictment stated:

Defendant MIGUEL LUCIO BOTELLO, aided and abetted by Defendant ARCADIO PEREZ, did intentionally kill Gerardo Luis Quintanilla while working in furtherance of a continuing criminal enterprise.... [Violation: Title 21, United States Code, Section 848(e) and Title 18, United States Code, Section 2].

Record on Appeal, vol. 4, at 439 (bracketed material in original). Botello argues that, because the indictment contained the phrase "aided and abetted by Defendant ARCADIO PEREZ," the indictment specifically charged that Perez was the aider and abettor and Botello was the principal. Botello reads too much into the phrase "aided and abetted by Defendant ARCADIO PEREZ." That language describes Perez's role in the offense, not Botello's. With respect to Botello's conduct, the indictment merely states that he "did intentionally kill Gerardo Luis Quintanilla while working in furtherance of a continuing criminal enterprise." That language charged Botello both as a principal and as an aider and abettor. See Neal, 951 F.2d at 633 ("Aiding and abetting is not a separate offense, but it is an alternative charge in every indictment, whether explicit or implicit.").

We also disagree with Botello's contention that he was unfairly surprised by the aiding and abetting instruction because the prosecution's theory of the case identified him strictly as the principal in the offense. According to Botello, the prosecutor alleged in his opening statement that Botello personally fired the shots that killed Quintanilla. However, because evidence introduced by the government tended to prove that Botello acted as an aider and abettor, ⁴ and because the indictment did not foreclose the possibility of conviction as an aider and abettor, Botello's counsel should have realized that an instruction on aiding and abetting was available to the prosecution. See United States v. Gordon, 812 F.2d 965, 969 (5th Cir.) ("Any early suggestion ... that the government expected to prove that Woodcock was the actual gunman rather than only an aider and abettor did not unfairly prejudice his defense."), cert. denied, 483 U.S. 1009, 107 S.Ct. 3238, 97 L.Ed.2d 743 (1987). We agree with the district court's conclusion that Botello was not unfairly surprised by the aiding and abetting instruction, and therefore find no abuse of discretion.

B

Botello argues that the district court, at his second trial, erred by denying his motion for dismissal, which was premised on a claim of double jeopardy. We review de novo the district court's denial of a motion to dismiss on the ground of double jeopardy. United States v. Vasquez-Rodriguez, 978 F.2d 867, 870 (5th Cir.1992); United States v. Deshaw, 974 F.2d 667, 669 (5th Cir.1992).

At Botello's first trial, a court officer suspected that one of the jurors was smoking marijuana during recesses. The district court ordered the U.S. Marshal to observe the juror, but the Marshal confronted the juror with the suspicion that he had been smoking marijuana. Later it was learned that the suspected juror had told other jurors of his encounter with the U.S. Marshal. Botello moved for a mistrial, and the district court granted the motion. Prior to the second trial, Botello moved for dismissal on the grounds of double jeopardy, and the district court denied the motion.

"A defendant may ... waive double jeopardy protection by consenting to a mistrial before a verdict is rendered.... [A] motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." United States v. Bauman, 887 F.2d 546, 549 (5th Cir.1989) (citations omitted), quoted in United States v. Nichols, 977 F.2d 972, 974 (5th Cir.1992). "[O]nly where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." United States v. Weeks, 870 F.2d 267, 269 (5th Cir.) (quoting Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2088-89, 72 L.Ed.2d 416 (1982)), cert. denied, 493 U.S. 827, 110 S.Ct. 92, 107 L.Ed.2d 57 (1989). Botello does not allege, and nothing in the record suggests, that the Marshal confronted the juror, or was directed to do so by any representative of the government, in order to provoke a defense motion for mistrial. ⁵ As a result, Botello's double jeopardy argument is without merit.

C

Botello argues that the district court committed reversible error by denying his motion for a continuance to locate and interrogate Eric Linares, who was suspected of committing the murder for which Botello was indicted. ⁶ Dr. Victor Leal, a member of the Garcia-Abrego organization, reported to the government that Eric Linares, another member of the organization, had admitted killing Quintanilla. Dr. Leal also informed the government that he was unwilling to testify in court, and that he would invoke the Fifth Amendment if called to do so. Upon learning of Linares's alleged confession, Botello filed a motion for continuance, to gain additional time to locate Linares and investigate his statements. The motion stated that Linares's whereabouts were unknown. Apparently Linares resided in Mexico--beyond the subpoena power of the district court--but occasionally traveled to Brownsville. The district court denied Botello's motion for continuance.

The denial of a motion for a continuance is reviewed for abuse of discretion. United States v. Walker, 621 F.2d 163, 168 (5th Cir.1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981); see also United States v. Khan, 728 F.2d 676, 681 (5th Cir.1984) (...