U.S. v. Caro, 77-5261

Citation569 F.2d 411
Decision Date10 March 1978
Docket NumberNo. 77-5261,77-5261
Parties2 Fed. R. Evid. Serv. 1317 UNITED STATES of America, Plaintiff-Appellee, v. David CARO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert R. Harris, El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., San Antonio, Tex., Frank Walker, Stanley M. Sewatka, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.

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

Before THORNBERRY, GOLDBERG, and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellant David Caro was convicted after a jury trial on one count of conspiracy to possess heroin with intent to distribute, 21 U.S.C. § 846, and sentenced to fifteen years' imprisonment, to be followed by a special parole term of twenty-five years. Caro was tried independently of his named coconspirators, Daniel Mizer, Sammy Self, Elias Casillas, and Timothy Trail. The jury acquitted Caro on a substantive count of possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1). On this appeal, Caro challenges the sufficiency of the evidence against him and the use of alleged hearsay evidence by the government, and asserts the denial of his rights under the due process and confrontation clauses to cross-examine witnesses against him. Finding all the arguably admissible evidence introduced by the government insufficient to support Caro's conviction for conspiracy, we reverse.

The Facts

Viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the facts are as follows. On September 14, 1976, two special agents with the Drug Enforcement Administration (DEA), acting in an undercover capacity, initiated negotiations with one Daniel Mizer for the purchase of a quantity of heroin. During those negotiations, according to the testimony of Special Agent Wendt, Mizer stated that he would talk to his "source of supply" and arrange delivery of a one ounce sample of heroin. Another meeting was held the following day at Mizer's residence; at that time Mizer apologized to Agent Wendt for his failure to appear at a pre-arranged rendezvous, explaining that he was out looking for his source of supply. On September 17, 1976, the agents agreed to meet with Mizer at his residence to purchase a one-gram sample of heroin. The meeting was held that day; in addition to the agents and Mizer, one Timothy Trail was also present. Mizer told Agent Wendt that he would go to the house of his source of supply, that the house was approximately five minutes away, 1 and that he would inform his source that the agents were ready to purchase the one-gram sample. 2

Following Mizer and Trail's departure, one David Wilson, not named as a coconspirator, arrived at the Mizer residence. Upon Mizer and Trail's return, ten to fifteen minutes after they had departed, Mizer informed the agents that everything looked good for the transaction. Shortly thereafter, Elias Casillas and Sammy Self arrived at the Mizer residence. Mizer, Trail, Self and Wilson entered the house; Casillas remained in the car and the agents waited outside. A few minutes later Wilson left the house and handed the agents a one-half-gram sample of heroin. Arrangements were then made for the purchase of eight ounces of heroin. Self told the agents that he and Casillas would leave to meet the source of supply at a bar in the lower valley, where the supplier was waiting with eight ounces of heroin.

Surveillance agents followed Self and Casillas to a market, then to the Flying Y Bar in the lower valley area. After a short stay, Self and Casillas proceeded to a house located at 8774 Coloma Circle, where one of them, standing outside a fence surrounding the house, spoke briefly to a short, stocky man within the fence. 3

Self and Casillas then returned to the Flying Y Bar. Meanwhile, Wilson, in the company of Agents Wendt and McLees, received a telephone call from Mizer stating that Casillas and Self had missed their meeting at the bar with their source of supply and were still trying to locate him. Wilson and the two agents returned to Mizer's residence, where, after some discussion, the transaction was postponed and set for the following day.

Some time later, still on September 17, Agent Wendt learned from an informant that Self and Casillas had located their source of supply and that the supplier had eight ounces of heroin and wanted to complete the transaction that evening. Casillas outlined a detailed plan of operation for the transaction to Agent Wendt. Agents Wendt and McLees were to go to a root beer stand located in the lower valley area of El Paso County, a location selected, according to Casillas, because it was only a couple of blocks from the source's house. But this plan, too, was to change. At a meeting that evening, Casillas and Self told the agents that their source did not want to "do the deal at the (root beer) stand because it was too close to the source of supply's house." 4 Agent Wendt first indicated that he intended to proceed with the original plan, but then agreed to an alternative plan in which the supplier would bring the heroin to the agents at Casillas' house. Casillas and Self then departed.

At about 9:00 p. m., Self met with the agents and stated that his source of supply was on his way to Casillas' house, located at 130 Candelaria. The agents, accompanied by Self, then drove to that address, parked across the street, and remained in their vehicle. Upon arriving they noticed a 1971 green Chevrolet parked on the street in front of the house. Casillas approached the agents in their vehicle and informed them that the source of supply had only five ounces of heroin. The agents agreed to purchase that amount and Casillas left the agents' vehicle and walked back to the green Chevrolet, entering on the right passenger side. 5 A short time later, Casillas returned to the agents' vehicle, told them that everything was ready, and asked whether the agents would follow him and his source of supply to a bar on North Loop where the five ounces were waiting. The agents stated they would not leave their present location and insisted that the heroin be brought to them. Casillas responded that he would have to talk to his source. Casillas then walked back to the Chevrolet and the vehicle departed.

About twenty minutes later, Casillas returned, driving the same 1971 green Chevrolet. Casillas was accompanied only by a young child. Agent Wendt entered the Chevrolet and was handed a brown paper bag containing approximately five ounces of heroin. A signal was given and Casillas and Self, who had been waiting with the agents for Casillas' return, were arrested. Following the arrest, Agent Wendt searched the Chevrolet and found several electric company bills in the name of appellant David Caro, bearing addresses of 10229 Hachet Street, El Paso, Texas, and 8774 Coloma Circle, El Paso, Texas, as well as a work order for a 1971 Chevrolet, also bearing Caro's name. 6 Casillas was advised of his constitutional rights and interviewed by Special Agent Theodore Baden. Agent Baden asked Casillas to whom the heroin belonged, where he was supposed to take the money received from the undercover agents, and to whom the automobile belonged. He also asked Casillas whether he would take the agents to the place and the person to whom he was to pay the money. 7

Following this interview, Special Agents Wendt and McLees entered the 1971 green Chevrolet together with Casillas and proceeded in convoy with surveillance agents to 10229 Hachet Street. Upon their arrival at that address they observed a white male walk down a driveway, whistle, and make a motion for the vehicle to stop there. Agent Wendt got out of the vehicle and chased the male, who ran up the driveway and into the residence, closing the door behind him. Agent Wendt knocked at the door but received no response for two minutes. Two women, who identified themselves as David Caro's wife and mother, opened the door and gave Agent Wendt permission to search the residence. A search of the house and the surrounding neighborhood failed to locate Mr. Caro. 8 At trial, Agent Wendt identified Mr. Caro as the person who had been at 10229 Hachet Street and had run through the door.

Sufficiency of the Evidence

This court has had several recent occasions to address the essential elements of a criminal conspiracy. These elements include "an agreement to commit a crime followed by an overt act in furtherance of the agreement." United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977). "There must be proof beyond reasonable doubt that a conspiracy existed, that the accused knew of it, and that the accused, with that knowledge, voluntarily became a part of it." Id. See also United States v. Barrera, 547 F.2d 1250 (5th Cir. 1977), cited in Gutierrez. The crucial issue for our determination here is whether the government has carried its burden of proving beyond a reasonable doubt that appellant Caro knowingly participated in the conspiracy established in this case.

Appellant moved for acquittal on the ground of insufficient evidence at the close of the prosecution's case-in-chief. The motion was renewed at the close of all the evidence. The standard for review in such circumstances has recently been stated by this court:

(I)f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that "the jury must necessarily have had a reasonable doubt as to the inconsistency."

United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). See also United States v. Pinner, 561 F.2d 1203, 1207 (5th Cir. 1977)...

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