U.S. v. Chirinos
| Decision Date | 15 May 1997 |
| Docket Number | No. 93-4389,93-4389 |
| Citation | 112 F.3d 1089 |
| Parties | 47 Fed. R. Evid. Serv. 133, 10 Fla. L. Weekly Fed. C 925 UNITED STATES of America, Plaintiff-Appellee, v. Samuel CHIRINOS, Rolanda Guerra, David Martinez, Jose Reyes, Joseph Gonzalez, Enrique Santiesteban, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Donald F. Chase, Carol Herman, Dawn Bowen, Asst. U.S. Attys., Miami, FL, for U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL *, Senior District Judge.
In affirming this criminal case appeal, we reject the appellants' claims that the evidence was insufficient, that the prosecutor's remarks in opening and closing arguments prejudiced the appellants, that the district court erred in denying requested jury instructions, that the district court erred in denying a motion to suppress evidence and that the district court erred in sentencing.
In 1992, the Bureau of Alcohol Tobacco and Firearms (ATR) conducted a sting operation in South Florida. At ATF's direction, Horatio Ibarra, a confidential informant, telephoned Enrique Vargas to inform him of a fictitious shipment of 300 kilograms of cocaine. Ibarra suggested to Vargas that they steal the 300 kilograms of cocaine from the purchasers of the shipment. After expressing interest in Ibarra's plan, Vargas told Ibarra that he could enlist the help of David Martinez, Enrique Santiesteban, Joseph Gonzalez, Joseph Reyes, Jose Reyes, Rolando Guerra, and Samuel Chirinos (the Vargas group) to steal the cocaine. Vargas assured Ibarra that he could trust the Vargas group, stating that they had previously "done a job of 600 [kilograms]."
Vargas and Ibarra met to discuss further the proposed theft of the 300 kilograms of cocaine. According to the plan, the Vargas group would travel to an airfield where a On May 7, 1992, the Vargas group traveled to the Opa Locka West airstrip to carry out their plan. An airplane circled the airfield but never dropped the cocaine. The group decided to leave the area and travel to a barbecue restaurant to meet to discuss why the airplane did not drop the cocaine. Following the meeting, Santiesteban and Gonzalez traveled back to the airfield. Prior to their return, agents had placed three duffel bags on the runway to make it appear that the drop had occurred. ATF agents arrested Santiesteban and Gonzalez as they approached the bags. ATF agents arrested the remaining members of the Vargas group in the vicinity of the airstrip. Following their arrest, Santiesteban and Martinez waived their Miranda rights and told the ATF agents of their plan to steal the cocaine.
small airplane was scheduled to airdrop the 300 kilograms of cocaine. Ibarra and his associates would load the cocaine onto a van. Several members of the Vargas group, dressed as police officers with badges and blue lights, would then stop the van as it traveled on the highway and seize the 300 kilograms of cocaine. Various meetings were held to discuss the plan, including meetings on April 30, May 4, May 5 and May 6, 1992. The meetings included the participation of Joseph and Jose Reyes, Chirinos, Santiesteban, Martinez, and Guerra. The Vargas group agreed to divide the 300 kilograms into one-half shares with Vargas and Ibarra to receive 150 kilograms and the other 150 kilograms divided equally among the remaining members of the Vargas group.
At the time of Santiesteban's arrest, ATF agents performed a pat-down search and found a loaded Browning arms BDA .380 semi-automatic pistol in the waistband of Santiesteban's pants. During an inventory search of one of the Vargas group's vehicles, law enforcement officers also found a State of California private detective badge and a Ruger Mini-14 assault rifle with a loaded magazine.
On May 15, 1992, a federal grand jury returned a two-count indictment against Vargas, Santiesteban, Joseph Reyes, Jose Reyes, Chirinos, Martinez, Gonzalez, and Guerra charging them with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I), and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2 (Count II). Vargas pleaded guilty and agreed to testify for the government against his codefendants. Santiesteban, Jose Reyes, Chirinos, Martinez, Gonzalez, and Guerra entered not guilty pleas and proceeded to a joint jury trial. The district court severed Joseph Reyes's trial from the remaining defendants; he, however, pleaded guilty to the indictment prior to going to trial.
At the conclusion of the joint trial, the jury found Chirinos, Gonzalez, Martinez, Jose Reyes, and Guerra guilty on Count I and not guilty on Count II. The jury found Santiesteban guilty on both Counts I and II. The district court sentenced the appellants as follows: Chirinos to 135 months imprisonment and 5 years supervised release; Gonzalez to 151 months imprisonment and 5 years supervised release; Guerra to 168 months imprisonment and 5 years supervised release; Martinez to 240 months imprisonment and 5 years supervised release; Jose Reyes to 135 months imprisonment and 5 years supervised release; and Santiesteban to 188 months imprisonment on Count I, a consecutive term of 60 months imprisonment on Count II, and 5 years supervised release. Santiesteban, Jose Reyes, Chirinos, Martinez, Gonzalez, and Guerra filed this appeal challenging their convictions on numerous grounds. Santiesteban, Chirinos, and Martinez also challenge the district court's calculation of their sentences.
We address the following issues: (1) whether sufficient evidence supports Santiesteban's conviction for using or carrying a firearm during and in relation to a drug trafficking offense under 18 U.S.C. § 924(c)(1); (2) whether the prosecutor's remarks in opening and closing statements prejudicially affected appellants' substantial rights; (3) whether the district court erred in denying appellants' requested jury instructions;
(4) whether the district court erred in denying Martinez's motion to suppress his post-arrest statement; and (5) whether the district court erred in sentencing appellants on the basis of possessing 300 kilograms of cocaine.
Sufficiency of the evidence is a question of law we review de novo. United States v. Farris, 77 F.3d 391, 394 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996). In determining whether sufficient evidence supports a defendant's conviction, we view the evidence in the light most favorable to the government and draw all reasonable inferences and credibility choices in favor of the jury's verdict. United States v. Shenberg, 89 F.3d 1461, 1470 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 961, 136 L.Ed.2d 847 (1997).
Santiesteban challenges his conviction for using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Santiesteban argues that the government failed to produce sufficient evidence to demonstrate that he possessed and used a weapon during and in relation to a drug trafficking crime, and failed to produce evidence to link his carrying the firearm to the drug trafficking crime.
Section 924(c)(1) provides in pertinent part:
Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years....
18 U.S.C. § 924(c)(1) (1994). In order to sustain a conviction under the "use" prong of section 924(c)(1), the government must show active employment of the firearm, such as firing, attempted firing, brandishing, displaying, bartering, or striking. Bailey v. United States, 516 U.S. 137, ----, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995); United States v. Jones, 74 F.3d 275, 276 (11th Cir.1996); United States v. King, 73 F.3d 1564, 1567 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 220, 136 L.Ed.2d 153 (1996). To sustain a conviction under the "carry" prong of section 924(c)(1), the government must show actual transporting of the firearm during and in relation to the drug trafficking offense--i.e., that the defendant carried the firearm on his person or carried the firearm in a vehicle used for drug distribution during and in relation to the drug trafficking offense. See Farris, 77 F.3d at 395.
In this case, the government presented evidence concerning two firearms: (1) a loaded Browning arms BDA .380 semi-automatic pistol found in the waistband of Santiesteban's pants and (2) a Ruger Mini-14 assault rifle with a loaded magazine found under the back seat of one of the appellant's vehicles. Agents discovered both firearms following appellants' arrests. As Santiesteban correctly points out, neither he nor his codefendants fired, attempted to fire, brandished, displayed, bartered, or struck anyone or anything with the firearms during the course of the conspiracy. The evidence is therefore insufficient to support a jury's finding that Santiesteban "used" the weapons for drug trafficking in violation of section 924(c)(1).
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