U.S. v. Delagarza-Villarreal

• Citation: 141 F.3d 133
• Decision Date: 08 May 1997
• Docket Number: D,DELAGARZA-VILLARREA,No. 97-40172,97-40172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edelmiroefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 133

141 F.3d 133

UNITED STATES of America, Plaintiff-Appellee, v. Edelmiro DELAGARZA-VILLARREAL, Defendant-Appellant.

No. 97-40172.

United States Court of Appeals Fifth Circuit.

May 8, 1997.

Jeffery Alan Babcock, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Alfredo E. Padilla, Brownsville, TX, for Defendant-Appellant.

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

Before WISDOM, JOLLY and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Edelmiro Delagarza-Villarreal ("Delagarza") appeals his convictions for conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. Delagarza argues that the evidence is insufficient to support the convictions, that he received ineffective assistance of counsel, and that the trial court erred when it refused to grant his motion for a mistrial based upon evidence of government misconduct. This appeal also presents an issue of apparent first impression in this circuit--the scope of the fugitive disentitlement doctrine in the light of the Supreme Court's opinion in Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). We decline to apply the doctrine in this instance to dismiss Delagarza's appeal. We instead affirm the conspiracy conviction and reverse the conviction for possession because of insufficient evidence that Delagarza aided and abetted any co-conspirator's possession of marijuana.

I

This case arises from a reverse-buy sting operation. In March 1994, Delagarza asked Jorge Guajardo-Benavidez ("Guajardo"), an acquaintance of Delagarza's for more than ten years, to broker a marijuana transaction. Delagarza had several prospective purchasers and Guajardo had connections--one of whom, unbeknownst to him, was an informant. Guajardo contacted the informant to set up the transaction and a meeting was arranged between Guajardo, and the informant, and the Mexican drug supplier, "Juan Fonseca," who was in fact an undercover officer.

At the meeting, Guajardo inspected a sample of marijuana--a 4 1/2 pound "brick"--and, based upon the sample, struck a deal for a 500-pound purchase at $250 per pound with a $40,000- to $60,000-down payment, with the remainder due in two weeks. Guajardo suggested that the transaction take place at a "stash house" on Sprague Street in Edinburg, Texas, a location selected by Delagarza. The men attempted to do the deal the following day, March 31, 1994, but Delagarza's purchasers had suddenly departed. They agreed to try again later.

On April 18, 1994, Delagarza met with Guajardo and told him that his purchasers had returned to town and they could complete the drug deal. Guajardo and Delagarza agreed to meet later after Guajardo had contacted the undercover officer. Guajardo and the officer met at a K-Mart parking lot and agreed on a 500-pound delivery. Guajardo then returned to the Sprague Street stash house, where he found Delagarza with Norberto De La Rosa and Felipe Clemente Munoz--the buyers. All three men joined Delagarza in his vehicle and proceeded to rendezvous with the undercover officer at the K-Mart parking lot.

The undercover officer, who carried a hidden wire, recorded the meeting on audiotape. Guajardo approached the undercover officer and told him that the money was there. Both men then returned to Guajardo's vehicle. The undercover officer asked how much money they had and De La Rosa answered "Cuarenta" (meaning $40,000). De La Rosa then asked if the marijuana was "guaranteed" and Munoz displayed the cash contained in a towel. Delagarza inquired whether the weed was of good quality, specifically, if the marijuana was "green." The officer answered affirmatively that the drug was "pino" or green.

Upon confirmation that the marijuana was to be delivered to the Sprague Street stash house, the undercover officer gave the "bust signal" and arrested all four men--Guajardo, Delagarza, De La Rosa, and Munoz. The authorities seized exactly $40,000.

II

Delagarza, Guajardo, De La Rosa, and Munoz were all charged in a two-count indictment for conspiracy to possess with intent to distribute and possession with intent to distribute marijuana. The three co-defendants pled guilty, but Delagarza elected for trial. The case began on August 9, 1994, and two days later, Delagarza absconded during a court recess. A warrant was issued for his arrest, and the trial went forward.

Meanwhile, the prosecutor learned that the case agent had held a brief, unauthorized conversation with two jurors, discussing his educational background, job experience, personal on-the-job safety, and law enforcement corruption. The prosecutor advised the court of these happenings and the court interviewed the two jurors, discussed the communications with the entire panel, dismissed the two conversationalists, and replaced them with two alternates. The case proceeded against Delagarza in absentia, and the jury returned a guilty verdict as to the two charges on August 15, 1994. A sentencing date was set two months later, but Delagarza failed to show.

Co-defendants De La Rosa and Munoz moved to withdraw their guilty pleas during Delagarza's absence in the spring of 1995. A superseding indictment was handed down against them and a jury selected for the upcoming trial. Before trial began, however, the two defendants opted to withdraw their motions to withdraw their guilty pleas and abide by the terms of their original plea agreements. Guajardo, De La Rosa, and Munoz were sentenced on March 27, 1996. None appealed.

Authorities recaptured Delagarza on April 23, 1996, and returned him to the custody of the trial court. The court sentenced him on August 7, 1996, to serve two concurrent 120-month terms of imprisonment for the drug convictions followed by a consecutive one-day sentence for his failure to appear conviction. ¹ Delagarza timely appealed.

III

As an initial matter, we address the government's request that we invoke our discretion and employ the fugitive disentitlement doctrine to dismiss Delagarza's appeal without reaching the merits.

It is generally accepted that circuit courts have the authority to fashion procedural rules governing the management of litigation before them. Ortega-Rodriguez v. United States, 507 U.S. 234, 252, 113 S.Ct. 1199, 1210, 122 L.Ed.2d 581 (Rehnquist, C.J., dissenting) (1993). Specifically, the Supreme Court recognized almost thirty years ago that an appeal may be dismissed if the appellant becomes a fugitive from justice while his appeal is pending. Molinaro v. New Jersey, 396 U.S. 365, 365-66, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586 (1970) (coining doctrine of disentitlement); United States v. DeValle, 894 F.2d 133, 134, 138 (5th Cir.1990) ("As a general matter, willful flouting of the judicial system on the part of one seeking appellate redress should not go wholly unrecognized."); United States v. Glomb, 877 F.2d 1, 3 (5th Cir.1989). Since then, we have incrementally expanded the rule to allow dismissal when the fugitive is captured before the motion to dismiss the appeal is ever filed, and, even further, this circuit has held that the appellate court retains the discretion to dismiss an appeal when the appellant's fugitive status commences before the filing of an appeal. De Valle, 894 F.2d at 136. In fact, the case law could be read to condone dismissal even though recapture may occur before the appellate process is invoked. Id. (noting dismissal may be appropriate "at least as to trial proceedings completed before the appellant became a fugitive.").

The Supreme Court, however, curtailed the application of the fugitive disentitlement doctrine in its 1993 Ortega-Rodriguez opinion. See 507 U.S. at 249-51, 113 S.Ct. at 1208-10. The facts then before the Court closely mirror those before us now. The defendant had fled the jurisdiction of the district court after conviction, but was apprehended before sentencing and appeal. The Eleventh Circuit, without addressing the merits of the appellant's arguments, dismissed the appeal under the fugitive disentitlement doctrine. The Supreme Court granted certiorari to determine the proper reach of the doctrine.

The Court initially acknowledged that "dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice." Ortega-Rodriguez, 507 U.S. at 242, 113 S.Ct. at 1204-05 (emphasis added). Noting that the justifications advanced for allowing dismissal all assume that a sufficient connection exists between the defendant's fugitive status and the appellate process so as to make dismissal a reasonable sanction, the Court turned to examine the basis for that assumption when a fugitive is recaptured before the appellate process begins. Id. at 243-45, 113 S.Ct. at 1205-06.

The Court first noted that the risk of unenforceability of an appellate court's judgment is nonexistent if the defendant is in custody when he begins the appellate process. Id. at 244, 113 S.Ct. at 1206. Similarly, the "efficient operation" of the appellate process generally will not have been interrupted by a fugitive's absconding when the fugitive files an appeal after recapture. Id. at 245, 113 S.Ct. at 1206 (noting that court that faces "additional trouble" is "the court before which the case is pending at the time of escape"). Similarly, the fugitive's flight from the district court's jurisdiction affronts the dignity of the district court--not that of the appellate court--and the trial court has available to it adequate sanctioning authority to defend its own dignity. Id. at 245-46, 113 S.Ct. at 1206-07. Because the trial court "is quite capable of defending its own jurisdiction," the district court may fashion an appropriate punishment to deter escape. Deterrence from escape of the district court's jurisdiction thus fails to withstand...