U.S. v. Figueroa

• Decision Date: 05 December 1983
• Docket Number: No. 82-5699,82-5699
• Citation: 720 F.2d 1239
• Parties: 14 Fed. R. Evid. Serv. 598 UNITED STATES of America, Plaintiff-Appellee, v. Abraham FIGUEROA, Sixto Vega, Sr., Doris Santiago, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1239

720 F.2d 1239

14 Fed. R. Evid. Serv. 598

UNITED STATES of America, Plaintiff-Appellee, v. Abraham FIGUEROA, Sixto Vega, Sr., Doris Santiago,

Defendants-Appellants.

No. 82-5699.

United States Court of Appeals, Eleventh Circuit.

Dec. 5, 1983.

Max B. Kogen, P.A., Loren H. Cohen, Miami, Fla., for Figueroa.

Robert M. Jasinski, Miami Beach, Fla., for S. Vega, Sr.

Hertz & Carroll, P.A. (court apptd.), Linda L. Carroll, Miami, Fla., for Santiago.

Stanley Marcus, U.S. Atty., Joseph R. Buchanan, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Appellants Sixto Vega, Doris Santiago, and Abraham Figueroa were tried before the United States District Court for the Southern District of Florida for conspiracy to possess diazepam with intent to distribute and possession of diazepam with intent to distribute. ¹ They were each convicted of both charges by a jury empanelled to hear their jointly-tried cases. Central to the various arguments raised on appeal are challenges to the sufficiency of evidence adduced at trial. After considering appellants' contentions, we affirm Vega's conviction, and reverse those of Santiago and Figueroa.

I.

Based upon information provided to a federal drug enforcement agent by a confidential informant, a warrant was obtained allowing the search of Dade County Services, a warehouse building suspected of containing illicit drugs. On February 25, 1982, federal drug agents set up surveillance of the warehouse and observed appellant Sixto Vega on the premises. Vega operated the business, which sold residential and commercial window supplies. Early in the afternoon, he approached a boat set up on blocks outside the warehouse and apparently discussed something about the boat with co-worker Fernando Coipel. Shortly before the warrant was executed, agents observed Roger Dion arrive by car. They also noticed appellant Abraham Figueroa on the scene, but due to other traffic could not tell how he arrived.

When agents executed the warrant at 4:30, Vega was no longer present. Figueroa, upon questioning, stated that he had been driving with Dion when Dion's car broke down and they had stopped at Dade County Services to seek help. Dion also spoke of car trouble, but claimed that Figueroa had come in a separate car. ² Figueroa later mentioned to the officer, and testified at trial, that he was on the premises to purchase a sliding glass shower door.

Agents searching the premises found 50 pounds of pills containing diazepam in a back bedroom of the warehouse and in a pan on top of the boat. ³ Vega was arrested when he returned. He admitted, after a valid Miranda warning, that the drugs were his, that he had obtained them from a Colombian and that he was attempting to augment his income by trade in narcotics.

Agent William Rochon testified that the telephone at Dade County Services rang several times during the search. He answered a call from a female asking for "Abraham" and told her that Abraham was occupied. She called back at least twice, stressing that the call was urgent and identifying herself as "Doris." Finally, when asked if she had a message to give Abraham, the caller stated, "The client is here and wants to know how much money." Agent Rochon briefly put her on hold, and then asked, "Are you talking about the merchandise?" She said yes. He then asked, "Quaaludes?", and she replied, "I don't want to talk on the phone." She continued to call, but would say nothing except that she wanted to talk to Abraham. This series of calls raised Rochon's suspicions and Abraham Figueroa was immediately placed under arrest. The following day, a warrant was obtained authorizing the arrest of Doris Santiago, who was living with Figueroa at the time. When arrested, she recognized Agent Rochon's voice and said, "You're the one I talked to on the telephone yesterday."

The case proceeded to trial and the appellants, with other defendants, were charged with the conspiracy and possession counts. The trial was arranged in a bifurcated manner to allow Vega both to remain silent in his own behalf and testify for his co-defendants. At the close of the government's case, Vega rested without putting on any evidence. The court denied appellants' motions for judgment of acquittal and the jury then deliberated as to Vega, rendering a decision against him. Following this deliberation, appellants Figueroa and Santiago put on their defense. Vega testified that he did not know either of them, and Figueroa explained that he went to the warehouse for legitimate business reasons. After defense testimony, the court once again denied motions for judgment of acquittal made by Santiago and Figueroa. Jury verdicts were rendered against them on each count.

II.

The primary claim of each appellant involves the sufficiency of the evidence to support the jury verdict. We are bound, in reviewing such challenges, to examine the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). From that viewpoint, a conviction is to be affirmed if "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (Unit B en banc), aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). ⁴ We proceed to examine the claims of each appellant separately, keeping in mind the foregoing standard of review for each sufficiency challenge.

A. SIXTO VEGA

Vega, the operator of Dade County Services, argues that the warrant obtained to authorize a search of his premises was not supported by probable cause. He also claims that there was insufficient evidence against him on each count.

1. Validity of the Warrant

Federal Drug Enforcement Agent Nick Zapata filed an affidavit with his request for a search warrant in which he related information provided by a confidential informant. The informant, who had provided reliable information before in non-drug cases, advised Zapata that Vega was involved in drug trafficking. Specifically, the affidavit stated that Vega had told the informant that he had brought approximately 200 pounds of wet methaquaalone pills to Dade County Services. ⁵ In addition, the informant claimed to have personally seen the drugs the evening before the warrant was issued. Vega challenges the informant's tip as being insufficient to create the probable cause necessary for the issuance of a search warrant.

Following the decision of Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the evaluation of a search warrant based upon informant information involves an inquiry into the "totality of circumstances" presented in the supporting affidavit. Id. at ----, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. We therefore must "assess whether there was sufficient information to allow a magistrate to conclude the existence of probable cause." United States v. Sorrels, 714 F.2d 1522 at 1528 (11th Cir.1983). Given the traditional deference to a magistrate's decision that probable cause exists, Spinelli v. United States 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969), the warrant will be upheld on review so long as the magistrate had a "substantial basis" for concluding that the search would reveal evidence of crime. Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). Accord Illinois v. Gates, --- U.S. at ----, 103 S.Ct. at 2331, 76 L.Ed.2d at 547.

We readily find on this record that the magistrate did have a "substantial basis" for such a conclusion. First, the affidavit related that the informant had previously provided information that led to a seizure of counterfeit money. See United States v. Anderson, 500 F.2d 1311, 1313 n. 4 (5th Cir.1974) (allegation that informant's tips have led to seizure of evidence establishes reliability). See also W. LaFave, Search and Seizure Sec. 3.3, at 511 (1978) (informant's tip that leads to discovery of evidence may, as a general proposition, be more indicative of reliability than one leading merely to arrest or conviction). ⁶ Second, the informant was explicitly told that he would be subject to criminal prosecution under 18 U.S.C. Sec. 1001 if he knowingly and willfully gave false information to Agent Zapata. Third, the informant claimed he was told directly by Vega that illegal drugs were present at Dade County Services. See Spinelli v. United States, 393 U.S. at 425, 89 S.Ct. at 593 (White, J., concurring) ("If ... the informer's hearsay comes from one of the actors in the crime in the nature of admission against interest, the affidavit giving this information should be held sufficient"). Finally, the informant claimed to have seen the drugs on the premises immediately before the search. While the affidavit did not recount how the informant knew the substance to be illicit drugs, ⁷ the statement of Vega that drugs were on the premises lent credence to the observation. All the facts together amply lead us to conclude that the magistrate did have a substantial basis for issuing the warrant.

2. Sufficiency of the Evidence

To sustain a conviction of possession with intent to distribute, the government must prove (1) knowing (2) possession of a controlled substance (3) with intent to distribute it. United States v. Richards, 638 F.2d 765, 768 (5th Cir.), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981). Vega's admission that the drugs found at the warehouse belonged to him is sufficient proof of the first two elements of the crime. Given the quantity of diazepam and cutting agents found on the premises and Vega's statement that he was in the drug business, a reasonable jury could have appropriately inferred an "intent to distribute."...