U.S. v. Espinosa, s. 83-2001

• Decision Date: 26 August 1985
• Docket Number: Nos. 83-2001,s. 83-2001
• Citation: 771 F.2d 1382
• Parties: 19 Fed. R. Evid. Serv. 860 UNITED STATES of America, Plaintiff-Appellee, v. Severo D. ESPINOSA, Federico C. Atucha, Antonio Niebla Martin, Mario Hernandez, Amado F. Larrazleta, Leovigildo Nunez, Crecencio J. Denis, Leonardo O. Carralero, Luis Santa Cruz, and Terry Lynn Foreman, Defendants-Appellants. to 83-2009 and 83-2027.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1382

771 F.2d 1382

19 Fed. R. Evid. Serv. 860

UNITED STATES of America, Plaintiff-Appellee, v. Severo D. ESPINOSA, Federico C. Atucha, Antonio Niebla Martin, Mario Hernandez, Amado F. Larrazleta, Leovigildo Nunez, Crecencio J. Denis, Leonardo O. Carralero, Luis Santa Cruz, and Terry Lynn Foreman, Defendants-Appellants.

Nos. 83-2001 to 83-2009 and 83-2027.

United States Court of Appeals, Tenth Circuit.

Aug. 26, 1985.

Rodney W. Bryson of Bryson & Berman, Miami, Fla., for defendant-appellant Amado F. Larrazleta.

Tova Indritz, Federal Public Defender, (Don Klein, Jr., Asst. Federal Public Defender, on brief), Albuquerque, N.M., for defendant-appellant Terry Lynn Foreman.

Richard M. Gale, Miami, Fla., for defendant-appellant Mario Hernandez.

Paul J. Kennedy, Albuquerque, N.M. (Stuart R. Mishkin, of Mishkin & Golembe, Miami, Fla., was also on brief), for defendant-appellant Luis Santa Cruz.

Bill Clay, Miami, Fla., for defendants-appellants Severo D. Espinosa and Federico C. Atucha.

Dennis N. Urbano, Coral Gables, Fla., for defendants-appellants Crecencio J. Denis and Leonardo O. Carralero.

Carl L. Masztal, Miami, Fla., for defendant-appellant Leovigildo Nunez.

Gerald D. Hubbart, Miami, Fla., for defendant-appellant Antonio Niebla Martin.

David N. Williams, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., Don J. Svet and Larry Gomez, Asst. U.S. Attys., Albuquerque, N.M., with him on brief), Albuquerque, N.M., for plaintiff-appellee U.S. of America.

Before HOLLOWAY, Chief Judge, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Chief Judge.

This is a timely consolidated appeal brought by ten defendants who were convicted after a jury trial on two counts of an indictment charging possession of marijuana with intent to distribute and conspiracy to distribute, in violation of 21 U.S.C. Secs. 841(a), 846, and 18 U.S.C. Sec. 2. ¹ The defendants were all sentenced to fifteen years' imprisonment.

The defendants present the following issues on appeal: (1) whether sufficient evidence was presented to support each defendant's conviction on both counts of the indictment; (2) whether the trial court violated defendants' Sixth Amendment right to confrontation in refusing to grant a mistrial or severance after certain comments were made by defendant Foreman in his opening statement; (3) whether comments made by the prosecutor in closing argument amounted to prosecutorial misconduct and were so prejudicial as to deprive defendants of a fair trial; (4) whether the trial court erred in failing to impose individualized sentences for each defendant; (5) whether the trial court erred in the conduct of the voir dire; (6) whether the trial court erred in admitting Exhibit 77 into evidence; (7) whether the trial court erred in denying various defendants' motions to suppress evidence obtained from the searches incident to their arrests; (8) whether the trial court erred in denying defendant Foreman's motion for a severance; (9) whether defendant Foreman was denied his Sixth Amendment right to effective assistance of counsel; and (10) whether the trial court erred in refusing to correct before the jury the alleged misidentification of defendant Denis by a government witness. We affirm.

I. THE FACTUAL BACKGROUND

This case involves many defendants and a voluminous set of facts. We will therefore briefly summarize the pertinent facts to present an overview of the case. Further factual details will be discussed later for analysis of the various issues.

On the night of March 27, 1983, United States Customs officials tracked a DC-6 airplane, which was not on a flight plan and did not clear customs, to the vicinity of Corona, New Mexico. Surveillance was continued until the aircraft landed on the Austin ranch, located in a sparsely populated area of New Mexico, at approximately 12:45 a.m. (Tr. 157, 172). The officers observed from the air that a landing strip was lit with flares two or three minutes before the plane landed. (Tr. 149). Officers also observed that approximately six vehicles approached the plane as it landed and left the area around 45 minutes later at a high rate of speed. (Tr. 175, 178, 196-97).

New Mexico state police were notified to assist and they converged on the area at approximately 12:30 a.m. to meet vehicles leaving the aircraft. (Tr. 240-43, 309-11). The officers first spotted a Ford Bronco or International heading north towards them without lights; upon nearing their station, this vehicle quickly turned around and sped south (Tr. 243-44, 311-12). While pursuing this vehicle, Officers Bibiano and Ness came upon an abandoned Omega pointed north approximately one mile down the road; at that time, they arrested defendants Espinosa and Atucha whom they observed jumping a fence and running from the car. (Tr. 244-45, 247).

Officer Mahannah continued south past officers Bibiano and Ness in pursuit of the original vehicle. He passed an eighteen-wheeler trailer-truck parked on the side of the road with its doors open and motor still running. (Tr. 313, 404). A fuel tank and pump were later discovered in this truck, pumping aviation fuel onto the ground. (Tr. 404-05). Approximately three or four miles further south, he came upon an abandoned North American Van Lines truck parked in the center of a ninety degree turn in the road. (Tr. 313-14). This truck was later found to contain approximately 20,000 pounds of marijuana. (Tr. 1345-47). While Officer Mahannah was examining this van, defendant Foreman drove up in a Jeep Cherokee and stopped 15 feet behind the van; Foreman was arrested at that time. (Tr. 315-16).

The police next found a Ford pick-up and GMC Suburban parked in the center of the road approximately four and one-half miles from the marijuana truck. Defendants Larrazleta and Martin were standing nearby and were immediately arrested. (Tr. 318-20, 425-27). Two rolls of film were seized from the GMC Suburban. (Tr. 216). This film, when developed, depicted defendant Santa Cruz in a hotel room and several of the defendants building a shed on land located approximately 35 miles from the Austin ranch. (Government's Exhibit 23; Tr. 1022-26). This land had been quickly purchased on March 16, 1983 by a named defendant (Vallina) and a man using the name "Virgilio Morales."

In the early morning hours, officers also found a Ford Bronco, which had apparently been abandoned for some time, "high centered" in the road approximately one mile from the marijuana truck and three and one-half miles from the aircraft. (Tr. 253-54, 806). This vehicle had been rented in Albuquerque by defendant Hernandez or by defendant Denis using identification in the name of Hernandez. (Tr. 1115-17). Hernandez had the keys to this car in his possession when arrested. (Tr. 1288).

On March 28, 1983, around 6:30 a.m., defendants Hernandez and Nunez were arrested upon being stopped at a roadblock approximately 20 miles from the Austin ranch. (Tr. 631-39, 663-65). They had been picked up hitchhiking earlier that morning by a state highway employee approximately ten miles south of Willard, New Mexico. (Tr. 391-94). They were arrested after presenting identification and giving unsatisfactory explanations for their presence in the area.

In the early afternoon of March 28, 1983, defendants Carralero and Denis were discovered at the ranch of James Hansen located eight or nine miles from the Austin ranch; they arrived at the ranch asking for water, money and a ride to Albuquerque. (Tr. 386-88). At 3:00 p.m., police officers responding to a call from Hansen picked up the men two miles from the highway. (Tr. 648-49). They were placed under arrest after an unsuccessful attempt was made to locate their vehicle which they claimed had broken down. (Tr. 670-72).

On March 29, 1983, defendant Santa Cruz was arrested at a Quality Inn Motel in Albuquerque when police responded to a call that some Cubans had registered at another adjacent motel. Police decided to question Santa Cruz upon observing him attempt to hide his face. (Tr. 838). He was arrested after it was discovered he had not slept in his room, he appeared dusty with scratches on his arms, and he held a one-way bus ticket from Moriarty, New Mexico to Albuquerque. (Tr. 839-40, 844-49).

II THE SUFFICIENCY OF THE EVIDENCE

All defendants except Martin contend on appeal that the evidence presented at trial was insufficient to support their individual convictions for conspiracy to distribute and for possession of marijuana.

In reviewing the evidence, "we must view the entire record 'in the light most favorable to the Government in order to determine whether the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, is substantial enough to establish guilt beyond a reasonable doubt.' " United States v. Petersen, 611 F.2d 1313, 1317 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980) (quoting United States v. Hubbard, 603 F.2d 137, 142 (10th Cir.1979)); see also United States v. Dickey, 736 F.2d 571, 583 (10th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). As an appellate court, we are bound by the rule that the resolution of conflicting evidence and the assessment of the credibility of witnesses is within the sole discretion of the jury as the trier of fact. United States v. Petersen, 611 F.2d at 1317; United States v. Hubbard, 603 F.2d at 142-43.

A. Conspiracy ²

Defendants first argue that there was insufficient evidence to sustain their convictions for conspiracy. In conspiracy cases brought under 21 U.S.C. Sec. 846, the government is required to prove that two or more persons agreed to commit an offense under the Controlled Substances Act. United States v. Knowles, 572 F.2d 267, 269 (10th Cir.1978). Defendants may not be convicted of a conspiracy charge without proof that they had knowledge of and participated in the conspiracy. United States v. McMahon, 562 F.2d 1192, 1196 (10th Cir....