U.S. v. Escobedo

• Citation: 940 F.2d 1536
• Decision Date: 31 July 1991
• Docket Number: 89-10651,JIMENEZ-SANCHE,D,AGUILAR-CORREA,Nos. 89-10647,ROJAS-OQUITA,s. 89-10647
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Socorro Aida ESCOBEDO, aka Coyo, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carlos Martinez MEDINA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Faustoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rodimiro, aka Rody, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maria Jesus ROJAS, aka Chuita, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George Stephen, aka El Grande, Defendant-Appellant. to 89-10654 and 90-10002.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1536

940 F.2d 1536

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. Socorro Aida ESCOBEDO, aka Coyo, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Martinez MEDINA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Fausto JIMENEZ-SANCHEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rodimiro ROJAS-OQUITA, aka Rody, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Maria Jesus ROJAS, aka Chuita, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. George Stephen AGUILAR-CORREA, aka El Grande, Defendant-Appellant.

Nos. 89-10647, 89-10651 to 89-10654 and 90-10002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1991.

Decided July 31, 1991.

Before BRUNETTI and RYMER, Circuit Judges, and WILSON, ^* District Judge.

MEMORANDUM ^**

For appeals 89-10651, 89-10653 and 90-10002, this memorandum decides claims not addressed in the contemporaneously filed opinion.

I. Jimenez-Sanchez's Motion to Dismiss the Indictment

Jimenez-Sanchez's claim fails because indictments are not open to challenge on the ground that there was inadequate evidence before the grand jury. United States v. Calandra, 414 U.S. 338, 345 (1974); Costello v. United States, 350 U.S. 359, 363-64 (1956); Holt v. United States, 218 U.S. 245, 248 (1910).

II. Suppression of Wiretap Evidence

Rojas-Oquita, Rojas and Escobedo challenge the district court's decision not to suppress the wiretap evidence.

The government's affidavit supporting its wiretap application contained detailed information describing past efforts in the investigation, including the use of informants, physical surveillance and pen registers and tracing devices on telephones. It also explained why those procedures, as well as others, such as grand jury subpoenas and search warrants, were inadequate to uncover further information about the source of narcotics in this conspiracy. The affidavit was sufficiently full and complete to satisfy 18 U.S.C. Sec. 2518(1)(c) and the district court did not abuse its discretion "in finding that the affidavit demonstrated the unavailability of alternate means of investigation." United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986); see also United States v. Brown, 761 F.2d 1272, 1276 (9th Cir.1985) (alternate investigatory techniques similar to those contemplated here held inadequate); United States v. Bailey, 607 F.2d 237, 242 (9th Cir.1979) (wiretap held necessary to discover source of narcotics supply, manner of distribution, extent of conspiracy and identity of coconspirators), cert. denied, 445 U.S. 934 (1980).

Nor did the district court clearly err in rejecting defendants' claims that the affidavit contained misleading statements and omissions. Under Franks v. Delaware, 438 U.S. 154 (1978), "[t]he deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any nongovernmental informant." Id. at 171 (emphasis added). The district court did not clearly err in concluding that defendants had not met their initial burden of showing intentional or reckless misstatements on the part of the affiants, as opposed to alleged misstatements in the source information from informants. Cf. United States v. Ippolito, 774 F.2d 1482, 1485-86 (9th Cir.1985) (government misled court about ability to uncover evidence using conventional techniques); United States v. Stanert, 762 F.2d 775, 780 (9th Cir.1985) (affiant misrepresented source information supplied by informant), amended, 769 F.2d 1410.

III. Suppression of Cash Seized from the Car Escobedo Drove

Rojas-Oquita and Escobedo challenge the district court's refusal to suppress the seized cash.

The information government agents heard from the wiretap of Rojas-Oquita's telephone on December 30, 1987, furnished probable cause to arrest Escobedo after the transaction in the Bosa Donuts parking lot on the same date. Because Escobedo was not detained illegally, there is no resulting taint to render her later consent ineffective. Cf. Florida v. Royer, 460 U.S. 491, 507-08 (1983) (illegal detention taints subsequent consent).

The voluntariness of a consent to a search is determined according to the totality of the circumstances, Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), even when it occurs with a suspect in police custody. United States v. Heimforth, 493 F.2d 970, 971-72 (9th Cir.), cert. denied, 416 U.S. 908 (1974); see also United States v. Watson, 423 U.S. 411, 425 (1976) (no requirement to inform arrestee that he could withhold consent). Upon review of the transcript of the January 13, 1989, suppression hearing, we see no reason to conclude that the district court clearly erred in finding that Escobedo's consent to the search of the Christmas package was voluntary. See United States v. Licata, 761 F.2d 537, 544-45 (9th Cir.1985) (voluntariness of consent is question of fact reviewed for clear error; finding not disturbed when supported by record). ¹

The circumstances of the transaction show that the government agents had reasonable grounds to believe that Escobedo had apparent authority to exercise control over the Christmas package. Government agents were entitled to rely on that reasonable belief in acting upon Escobedo's consent to search the package. United States v. Yarbrough, 852 F.2d 1522, 1534 (9th Cir.), cert. denied, 488 U.S. 886 (1988); United States v. Hamilton, 792 F.2d 837, 842 (9th Cir.1986).

Because Escobedo had apparent authority to consent to a search, had consented and had been arrested lawfully, the district court did not err in denying the motion to suppress the cash found in the Christmas package.

IV. Motions for Severance

Escobedo and Jimenez-Sanchez challenge the district court's denial of their motions for severance.

"Generally speaking, defendants jointly charged are to be jointly tried." United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856 (1980). All of these defendants have failed in meeting their heavy burdens to show the district court abused its discretion. See id. (must show violation of one of several substantive rights by reason of joint trial); United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983) (defendant "must show more than that a separate trial would have given him a better chance for acquittal; he must show that the magnitude of the prejudice denied him a fair trial"); United States v. Ford, 632 F.2d 1354, 1373 (9th Cir.1980) ("must show that the joint trial was so prejudicial as to require the exercise of the district judge's discretion in only one way: by ordering a separate trial"), cert. denied, 450 U.S. 934 (1981). The jury's acquittal of Rojas-Oquita on count 7 and Martinez-Medina on count 8 shows that the jury was able to compartmentalize the evidence. See Escalante, 637 F.2d at 1201 (whether jury can "reasonably be expected to compartmentalize the evidence" is "[t]he prime consideration in assessing the prejudicial effect of a joint trial" (emphasis added)); see also United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir.1987) (jury's failure to convict all defendants on all counts is "[t]he best evidence of the jury's ability to compartmentalize"), cert. denied, 488 U.S. 974 (1988). Thus, there was insufficient prejudice to any of these defendants. See also United States v. Smith, 893 F.2d 1573, 1581 (9th Cir.1990) ("The possibility that some of the evidence ... 'rubbed off' [on defendant] is insufficient to prove compelling prejudice"). We will not disturb the district court's discretionary decisions to deny these motions to sever.

V. Sufficiency of the Evidence Claims

A. Rojas-Oquita

There was sufficient evidence, taken in the light most favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), linking Rojas-Oquita to a conspiracy to import cocaine (count 2), including evidence of Martinez Medina implicating him in importation. [See, e.g., Exhibits 1B-8B.] There is circumstantial evidence that Mexico was a source of the drugs involved. [See Exhibit 4B.] There was enough circumstantial evidence to infer that Rojas-Oquita knew the drug was imported. See United States v. Flickinger, 573 F.2d 1349, 1360 (9th Cir.), cert. denied, 439 U.S. 836 (1978), overruled on other grounds, United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). The same evidence was sufficient to show, circumstantially, that Rojas-Oquita assisted in the importation (count 5). See United States v. Gaskins, 849 F.2d 454, 459 (9th Cir.1988).

Given that code words are commonly used to refer to drugs in drug conspiracies, see United States v. Thomas, 586 F.2d 123, 129 (9th Cir.1978), and viewing the evidence in the light most favorable to the government, the evidence was sufficient to show that Rojas-Oquita's telephone conversations made easier or aided the drug conspiracy (counts 12-19). See United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988). The evidence supported the inferences that Rojas-Oquita's phone calls facilitated the distribution of drugs [ (Exhibits 40B & 49B) ], the setting up of drug transactions [ (Exhibits 34B & 51B) ], the collection of drug debts [ (Exhibits 44B & 47B) ], see United States v. Zavala, 839 F.2d 523, 526-27 (9th Cir.), cert. denied, 488 U.S. 831 (1988), assurances of customer satisfaction [ (Exhibit 55B) ], see United States v. Mason, 658 F.2d 1263, 1270 (9th Cir.1981).

B. Rojas

The government presented numerous pieces of direct and circumstantial evidence that, taken in the light most favorable to the prosecution, link Maria Rojas to the conspiracy to distribute...