U.S. v. DeLeon, 80-1095

• Citation: 641 F.2d 330
• Decision Date: 02 April 1981
• Docket Number: No. 80-1095,80-1095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Becaficio Saenz DeLEON, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 330

641 F.2d 330

UNITED STATES of America, Plaintiff-Appellee, v. Becaficio Saenz DeLEON, Defendant-Appellant.

No. 80-1095.

United States Court of Appeals, Fifth Circuit.

Unit A

April 2, 1981.

Pat Maloney, San Antonio, Tex., for defendant-appellant.

J. A. Canales, U.S. Atty., John M. Potter, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before RUBIN and GARZA, Circuit Judges, and SUTTLE ^*, District Judge.

ALVIN B. RUBIN, Circuit Judge:

Becaficio Saenz DeLeon appeals his conviction for conspiracy to possess cocaine with intent to distribute it, 21 U.S.C. § 846 and § 841(a)(1), and for possession of cocaine with intent to distribute it, 21 U.S.C. § 841(a)(1), on several grounds. Finding the evidence sufficient to support DeLeon's conviction of both the single conspiracy charged in count one of the indictment as well as the substantive offense, and concluding that DeLeon's remaining contentions are without merit, we affirm.

I. Facts

In April, 1979, DeLeon met in a Dallas motel room with alleged co-conspirators Robert Earl Smith and Ramon Medina-Martinez. Shortly after the meeting convened, DeLeon left the room and returned in a few minutes with approximately 211 grams of cocaine wrapped in plastic bags. In a discussion with Martinez in DeLeon's presence, Smith agreed to take a sample of the cocaine and to try to find a buyer. Smith and DeLeon snorted some of the cocaine at that meeting. The next day the three men gathered in the same motel room and Smith announced that he had been unsuccessful in finding a buyer. In DeLeon's presence, Martinez told Smith that he was in a bind and needed the cocaine unloaded. He lowered the asking price and promised a three-way split of the profits among Martinez, Smith and DeLeon. Then Martinez asked Smith to hold the cocaine because he and DeLeon were returning to Laredo. Two weeks later the three men met at the same Dallas motel and Smith reported that he had been unable to sell the cocaine. Again Martinez asked Smith to hold the 211 grams of cocaine.

On the morning of May 11, 1979, Martinez called Smith and told him that Martinez was flying into the Dallas airport that day. Smith met Martinez at the Dallas airport with $45,000 in cash, which Smith testified Martinez had asked him to remove from a car parked at a friend's house, and the cocaine that he had been holding. Smith's wife remained in the driver's seat of his car parked outside the airport while Smith and Martinez reentered the terminal. They left the cocaine wrapped in a black plastic bag bound with rubber bands on the floor of the front seat. Narcotics agents arrested Martinez and Smith in the terminal. When an agent approached Mrs. Smith in the car outside the airport, she left the automobile, exposing the black plastic bag on the floor of the front seat. The agent seized and opened the bag, the contents of which were later identified as approximately 211 grams of cocaine. Smith testified that this was the same cocaine he had been asked to sell at the Dallas meetings.

The next day, May 12, 1979, narcotics agents undertook surveillance of the Laredo home of Martinez' mother. Agents watched DeLeon and Morquecho, another alleged co-conspirator, leave the house and enter a pickup truck. Morquecho carried an orange paper bag from the house and into the cab of the truck. With Morquecho driving, the truck traveled for twenty-eight blocks at a speed of twenty miles per hour. The agents following the truck observed Morquecho and DeLeon talking to each other and looking back at the agents in the car following them.

Suddenly the truck accelerated rapidly to forty-five miles per hour and began a circuitous route. The agents pursued the truck, losing eye contact with the vehicle only one time for a few moments during which the truck traveled a distance of about one block. After the agents flashed their car's headlights and honked its horn, the driver of the pickup pulled over and stopped. The truck was immediately searched, but the orange bag was not found. In the bed of the truck the agents found a set of scales on which there were traces of a white crystalline substance, later identified as cocaine. They subsequently found an orange bag in some bushes on the passenger side of the street on the route traveled by the pickup. The agents did not see the orange bag being thrown from the cab of the truck. It was found along that part of the route where the agents lost sight of the vehicle. The orange bag contained 294 grams of cocaine.

DeLeon was indicted on three counts of a seven count indictment brought against Martinez, Smith, Morquecho and DeLeon. The court granted a motion for judgment of acquittal in favor of DeLeon on one of the three counts. DeLeon now contests his conviction on counts one and five. Count one of the indictment charged a conspiracy to distribute cocaine involving the four defendants and culminating on May 12, 1979, the day after Smith and Martinez were arrested in Dallas and the day on which the Laredo chase occurred. The overt acts named in count one included the events at the Dallas airport and the incident in Laredo the next day. Count five of the indictment charged DeLeon with the substantive possession offense as a result of the events in Laredo leading to the recovery of the cocaine found in the orange paper bag. DeLeon challenges his conviction on counts one and five, alleging insufficiency in the evidence as to both counts; prejudicial variance between the indictment for one extended Dallas-Laredo conspiracy and the proof at trial, which DeLeon claims established multiple, separate conspiracies; improper joinder of offenses; improper venue in the Laredo district court and erroneous admission into evidence of the contents of the black plastic bag, which DeLeon claims was seized in violation of his fourth amendment rights. We deal with each of DeLeon's contentions separately.

II. Sufficiency of the Evidence

DeLeon moved for judgment of acquittal based on insufficiency of the evidence at the close of the government's case. The defense closed subject to a renewal of its motion and, after the close of the evidence, defense counsel twice reminded the court of its motion and reurged the motion to the trial judge. Subsequently the evidence was reopened to allow a short stipulation to be read to the jury. DeLeon did not renew his motion after the evidence was closed the second time.

DeLeon's failure to renew his motion for judgment of acquittal again at the second closing of the evidence did not effect a waiver of the motion, United States v. Frick, 588 F.2d 531 (5th Cir.), cert. denied, 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 385 (1979), resulting in the application of the "manifest miscarriage of justice" standard to a review of the sufficiency of the evidence in this case. United States v. Bourg, 598 F.2d 445 (5th Cir. 1979); United States v. Dawson, 576 F.2d 656 (5th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 88 (1979); United States v. Juarez, 566 F.2d 511 (5th Cir. 1978). Considering the repeated efforts by DeLeon to renew his motion for judgment of acquittal, we conclude that DeLeon preserved his motion and that we may properly apply the more stringent standard to our review of the evidence. That standard requires us to determine whether, viewing the evidence most favorably to the government, reasonable minds could conclude that the evidence is inconsistent with any reasonable hypothesis of the accused's innocence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942).

DeLeon contends that the evidence was insufficient to support his conviction for the single conspiracy alleged in count one of the indictment. He claims that the evidence did not establish a single, continuing agreement to distribute cocaine encompassing both the cocaine seized at the Dallas airport as well as that found in Laredo.

" 'Whether a scheme is one conspiracy or several is primarily a question for the jury.' United States v. Michel, 588 F.2d 986, 995 (5th Cir. 1979), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir. 1975). 'A single plan does not become many plans simply because some members were cast in roles more vital that others, or because certain members performed only a single function.' United States v. Bates, 600 F.2d 505, 509 (5th Cir. 1979)...." United States v. Ochoa, 609 F.2d 198, 201 (5th Cir. 1980). Personnel changes do not defeat a finding of a single conspiracy, United States v. Ochoa, 609 F.2d at 201; United States v. Bates, 600 F.2d at 509, and overlapping membership in various activities may reflect a single continuing plan or scheme, United States v. Ochoa, 609 F.2d at 201; United States v. Michel, 588 F.2d at 995.

From the evidence presented in this case, we think the jury could have reasonably inferred that the scope of the scheme to distribute cocaine went beyond the plan to sell the 211 grams seized at the Dallas airport. The events in Dallas and those in Laredo were closely related in time and geography. ¹ The Laredo truck chase occurred only one day after the Dallas episode. There was evidence that Martinez and DeLeon traveled back to Laredo after attending the Dallas conspiratorial meetings. Martinez registered at the Dallas motel using the Laredo address of his mother's home. The jury may have inferred that Martinez flew from Laredo to the Dallas airport on the day of his arrest. Thus, some connexity between Laredo and Dallas was established. The removal of the cocaine from the home of Martinez' mother in Laredo the day after the arrest of Martinez in Dallas allows the inference that, having heard of Martinez' arrest, DeLeon and Morquecho removed the cocaine to prevent its seizure by the authorities. Thus, DeLeon's actions in Laredo could be viewed as...