U.S. v. Brito, 96-50757

• Decision Date: 27 February 1998
• Docket Number: No. 96-50757,96-50757
• Citation: 136 F.3d 397
• Parties: 48 Fed. R. Evid. Serv. 1335 UNITED STATES of America, Plaintiff-Appellee, v. Pablo Salinas BRITO; Adrian Brito; Jesus Salinas Brito; Adan Brito; Ignacio Berumez Brito; Benjamin Hernandez Rodriguez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 397

136 F.3d 397

48 Fed. R. Evid. Serv. 1335

UNITED STATES of America, Plaintiff-Appellee, v. Pablo Salinas BRITO; Adrian Brito; Jesus Salinas Brito Adan Brito; Ignacio Berumez Brito; Benjamin Hernandez Rodriguez, Defendants-Appellants.

No. 96-50757.

United States Court of Appeals Fifth Circuit.

Feb. 27, 1998.

Rehearing Denied March 27, 1998.

Richard L. Durbin, Jr., Asst. U.S. Atty., Margaret Feuille Leachman, U.S. Atty's Office, San Antonio, TX, for Plaintiff-Appellee.

Thomas S. Morgan, Midland, TX, for Pablos Salinas Brito.

Ward William Elmendorf, San Antonio, TX, for Adrian Brito.

Scott Warren Johnson, Pecos, TX, for Jesus Salinas Brito.

Philip J. Lynch, Federal Public Defender's Office, San Antonio, TX, for Adan Brito.

Robert Victor Garcia, Odessa, TX, for Ignacio Berumez Brito.

Paul Kobbe Williams, Midland, TX, for Benjamin Hernandez Rodriguez.

Appeals from the United States District Court for the Western District of Texas

Before POLITZ, Chief Judge, and GARWOOD and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellants Pablo Salinas Brito (Pablo), Adrian Brito (Adrian), Jesus Salinas Brito (Jesus), Adan Brito (Adan), Ignacio Berumez Brito (Ignacio), and Benjamin Hernandez Rodriguez (Rodriguez)(collectively, appellants), were convicted of conspiracy and various substantive offenses arising out of their drug importation and distribution enterprise. On appeal, the appellants raise various constitutional issues and challenge, inter alia, the sufficiency of the evidence, the admissibility of certain evidence, and the district court's sentencing findings as to the amount of marihuana involved in the offenses.

Facts and Proceedings Below

The appellants' convictions are all related to a drug smuggling organization (the Organization or the Brito gang) that, according to the government's evidence, ¹ over the course of several months moved thousands of pounds of marihuana from Mexico to Midland, Texas, where it was further distributed to other locations in the interior of the United States. The Organization was directed by the Britos, who oversaw the transportation and storage of the drugs and actively participated in recruiting, supplying, and escorting the drivers of the drug shipments.

In March 1995, the Organization was exposed when one of the drug shipments was intercepted by law enforcement officers. In the months that followed, more shipments were intercepted, and numerous individuals recruited by the Brito gang were arrested. By late November 1995, after numerous arrests and seizures, the smuggling operation was effectively shut down and the conspiracy came to an end. Appellants and other co-conspirators were charged together in a twenty-count indictment and convicted by a jury in the Western District of Texas. Much of the evidence at trial was provided by co-conspirators who pleaded guilty and testified against appellants.

The smuggling conspiracy began to unravel on March 15, 1995, when a Border Patrol agent stopped a car near Marathon, Texas, driven by Herb Groessel (Groessel). The car contained approximately 448 pounds of marihuana destined for Midland, Texas. After Groessel and his passengers, Richard Olson (Olson) and Misty Wheeler, were arrested, they agreed to cooperate with law enforcement officials by delivering the marihuana as planned. Under the watchful eye of law enforcement agents, Groessel left the car containing the drugs at his parents' house in Midland. The car was later picked up by Juan Leija, escorted by Angel Lerma; ² it was Angel Lerma who had initiated this trip by giving Groessel $2000 and instructing him to go to Boquillas, Mexico, to pick up the drug load.

Groessel told law enforcement officers, and later testified at trial, that he smuggled drugs for Pablo. Olson also believed that he was smuggling drugs for Pablo. But despite their belief that Pablo was the leader of the Brito gang and was behind their smuggling trips, neither Groessel not Olson had much contact with Pablo. Angel Lerma gave Groessel instructions on when and where to go pick up the shipments, and upon returning to Midland he was paid by Jesus and Adan in cocaine and cash. Groessel saw Pablo a couple of times in Mexico while picking up drug loads, and on occasion Pablo would act as a "jammer" ³ for the marihuana loads.

Groessel testified that he ran drugs about eighty times and transported cash twice for Angel Lerma and Pablo. Olson, on the other hand, was a novice and had just started smuggling drugs two weeks before he was arrested. He testified that he had once accompanied Groessel to Mexico in order to pick up a load of drugs, but for one reason or other, they did not receive the drug load and returned empty-handed. On at least one other occasion, however, Groessel and Olson did manage to successfully transport a load to Merkel, Texas.

On July 9, 1995, police officers made another drug bust. Juan Munoz (Munoz), a confidential informant, told Odessa Police that he was carrying forty-eight pounds of marihuana for delivery in Midland. Police followed Munoz, who was driving a white Ford, to a store in Odessa, where he placed a call on a pay phone. Shortly thereafter, police observed a maroon Dodge pickup truck arrive. The driver of the truck, later identified as Pablo, briefly spoke with the informant, returned to his truck, and drove off, followed by the informant in the white Ford. The maroon pickup truck appeared to be "running heat" or checking for surveillance.

A short while later, the two vehicles stopped at a gas station and another individual, Bumaro Ortega (Ortega), entered the white Ford and drove it to Pablo's house. Ortega left the car, with the drugs in the trunk, in Pablo's backyard and disappeared into Pablo's house. Police approached the house and received Pablo's wife's consent to search the house for Ortega, who was found hiding upstairs. Ortega then gave the police consent to search the white Ford. As expected, the car contained approximately forty-eight pounds of marihuana. Pablo's truck was also stopped, but he was not carrying any drugs.

On August 16, 1995, David Tovar (Tovar) and Evaristo Galindo (Galindo), were arrested in Crane, Texas, for transporting 320 pounds of marihuana for the Brito gang. Tovar and Galindo had been recruited as drivers by Oscar Salinas (Salinas), who was himself a driver for the Brito gang and had been instructed by Adan to find more drivers. After the two young recruits were arrested Adan gave money to Salinas to pass on to the boys' parents.

Salinas was well connected to the Brito gang; he knew Ignacio from school, and he had met all of Ignacio's family members. Based on his conversations with Ignacio and his family members, Salinas learned that they were in the business of selling marihuana. According to Salinas, despite the fact that the Brito brothers considered each other equals, Pablo was the leader of this marihuana enterprise.

Being well acquainted with the Britos and needing money, Salinas asked Adan if he could sell drugs for the Brito gang. Adan agreed and sold some marihuana to Salinas, who then sold it to others. Later, Salinas asked Adan if he could transport drugs for the brothers. The brothers were hesitant to allow him to transport drugs since Pablo, Adrian, and Jesus did not trust Salinas. Eventually however, they offered Salinas $4000 to transport a load.

For this first trip, Salinas was instructed by Adan that he would have to procure a car and drive to La Linda, a small town near Big Bend National Park, to pick up the drugs. Escorted by Ignacio and Rodriguez and accompanied by his brother-in-law, Nick Avila, Salinas drove his father-in-law's old Pinto to Mexico. In Mexico, Salinas told inquiring Federales that the Britos had sent him. Satisfied with this response, the Federales let him continue.

In Mexico, 280 pounds of marihuana were loaded into the trunk and backseat of Salinas' car. Escorted by Ignacio and Rodriguez, who ensured that no police were in front of or behind the load vehicle, Salinas drove back to Midland to Jesus's house, where the drugs were ultimately unloaded and placed in a shack behind the house. After this trip was successfully completed, Salinas was paid by Adan in cash and drugs.

Satisfied by his performance, Adan asked Salinas several more times to transport drug loads for the Britos. Salinas agreed and over the next several weeks he not only made trips to Mexico to smuggle drugs back to the Midland area, but he also transported drugs from Midland to other places in Texas. For these trips, Salinas was usually escorted by Ignacio and Rodriguez, received payment and instructions from Adan, and delivered the drug shipments to Jesus. In addition to transporting the drugs, Salinas, on at least one occasion, delivered $40,000 cash to Adan.

A fourth seizure of drugs belonging to the Britos occurred on October 19, 1995, and led to the arrest of Salinas. For this trip, Salinas obtained a gray Lincoln Town Car, which he took to Igancio's house so Pablo, Adrian, Jesus, and Adan could see it. He then drove to Mexico where the car was loaded with marihuana. At around this same time, Border Patrol agents received information, based on a confidential informant's tip, that a gray Lincoln Town Car, driven by Salinas, would be smuggling a load of drugs from Mexico. On October 19, 1995, law enforcement officials spotted the Lincoln, driven by Salinas. The car was escorted by Ignacio in a green pickup truck and by Rodriguez and his wife in a blue pickup truck. Upon seeing the police cars, the Lincoln sped away from the law enforcement officers and crashed into an embankment. After the crash, Salinas fled, but was later apprehended. The Lincoln was searched and 278 pounds of marihuana were found in its trunk.

The final drug seizure occurred on November 19, 1995, when a pickup truck registered to Adrian, driven by Gustavo Manriquez (Manriquez), was stopped and searched. The...