U.S. v. Garcia-Rodriguez

• Decision Date: 10 August 1977
• Docket Number: Nos. 76-3635,GARCIA-RODRIGUEZ,76-3697 and 77-1050,s. 76-3635
• Citation: 558 F.2d 956
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto(t/n Ruben Gutierrez-Garcia), Alfonso Garcia-Sanchez, Francisco Martinez-Martinez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 956

558 F.2d 956

UNITED STATES of America, Plaintiff-Appellee, v. Alberto GARCIA-RODRIGUEZ (t/n Ruben Gutierrez-Garcia), Alfonso Garcia-Sanchez, Francisco

Martinez-Martinez, Defendants-Appellants.

Nos. 76-3635, 76-3697 and 77-1050.

United States Court of Appeals, Ninth Circuit.

Aug. 10, 1977.

Rehearings and Rehearings En Banc Nov. 14, 1977.

Charles R. Khoury, II, Del Mar, Cal., Timothy K. MacNeil, Uribe, Sorem & MacNeil, Stuart Smits, San Diego, Cal., argued, for defendants-appellants.

Terry J. Knoepp, U.S. Atty., John J. Robinson, Asst. U. S. Atty., argued, San Diego, Cal., argued, for plaintiff-appellee.

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

Before BARNES, WALLACE and SNEED, Circuit Judges.

BARNES, Circuit Judge:

This is a consolidated appeal from the Southern District of California, before Judge Turrentine. ¹ Each of the three appellants was convicted on two counts, one of conspiracy to possess marijuana, and one of the possession of marijuana.

I. Alleged Errors.

(1) Was there error in the Court's refusal to grant Rule 29(a) Motions for Judgment of Acquittal, based on the insufficiency of the evidence produced prior to the first motion to suppress;

(2) Was there error in stopping a PHd van, which had left a certain warehouse theretofor under surveillance by customs officers, and in denying the Motion to Suppress the marijuana which was contained in it;

(3) Was there error in denying a Motion to Suppress the marijuana found in a warehouse because of warrantless entry early on August 5, 1976 by two undercover customs agents;

(4) Appellant Gutierrez raises as error the refusal of the court to give an instruction requested by him.

We affirm as to each appellant on each count.

II. Evidence.

On July 28, 1976, a large semi-tractor truck entered the United States at Tecate, Mexico with a declared 30,000 pounds (or fifteen tons) load of scrap tin, to be delivered to a Los Angeles firm. There were no facilities to thoroughly search the vehicle and its load at Tecate, and the truck was allowed to proceed into the United States. On a private off-duty mission of his own, the Tecate Customs Inspector who had passed the truck through customs, saw it that same day about 10:15 a. m. headed for Chula Vista; not for Los Angeles. He later notified the Tecate Station of his observation.

On August 5, 1976, at 8:30 a. m., the same truck (easily identified) and the same driver, with a similar load of tin consigned to Los Angeles, came through Tecate again with 31,600 pounds of declared scrap tin. It was allowed to pass, but was placed under continuous surveillance as it drove away from Los Angeles and toward Chula Vista, until it entered a warehouse about 10:00 a. m., at Chula Vista. The warehouse's two front doors had previously been opened and remained open during part of that day. A wire fence surrounded a yard at one side of the warehouse (on which the open doors were located), and its wire gate was open during the entire day after 10:00 a. m.

About 10:15 a. m., two undercover Customs Inspectors, Mr. Pitt and Mr. Wise, drove their vehicle to the wire fenced, enclosed area, through its open gate, and parked their car near the double open doors, and entered into the warehouse on foot, about 50 or 60 feet. They saw the truck and trailer in the open, unpartitioned, otherwise unused 26,000 square-foot warehouse, and a U-Haul van parked near (Government's Ex. No. 7). The two inspectors talked to two of the several defendants about a possible rental of the warehouse. They saw that some tin scrap had been unloaded from the truck, and thereafter left the warehouse premises. The surveillance of the warehouse was continued from a distance.

Thereafter, during the day, at least nine automobiles entered the yard, and four or five entered the warehouse. Of these three of them were rental vans (the blue Ford Econoline, Govs.Exs. 10 and 11; the PHd rental van, Gov.Ex. 6, which was later stopped; and the U-Haul van). Two others were pickup trucks, and three or four more were passenger cars. Counting the individuals who arrived on foot from cars parked outside the fenced area, approximately ten "apparently male Mexican workmen", also entered the warehouse.

A Drug Enforcement Administration (herein DEA) agent was called by the surveilling customs officers, and directed the proceedings thereafter. The officers decided to keep the warehouse under surveillance until one or more of the vehicles inside the warehouse, which were of a type that could conceal the contents of the vehicle, should leave the warehouse. At 5:17 such a vehicle (the PHd van) left the premises, was stopped for investigation 500 yards away, and when the driver opened the rear door, the customs officer could see and smell the marijuana contained therein, 498 kilos of it. The driver was then arrested. Almost immediately the officers entered the warehouse and arrested eight within it, and one outside it.

They saw the two other vans were loaded with kilos of marijuana, and two piles of kilos of marijuana stacked in corners, on the floor: a total of about 1,301 kilos. About one-half of the scrap tin was off the truck on the floor (Gov.Ex. 5), and the semi-truck was about one-third full of scrap tin (Gov.Ex. 3).

The foregoing evidence was introduced on the hearing of the motion to suppress evidence heard on September 20th and September 29th, 1976, before the Honorable Howard B. Turrentine; who, after hearing argument from all defendants, denied the motions to suppress, in a carefully thought out statement appearing at pp. 205 to 210 (C.T.).

Judge Turrentine discussed the geographical factors present, the location of Tecate 30 miles east of Tijuana; its smallness as a commercial area and that port of entry station's lack of facilities for the inspection and search of commercial vehicles (as compared to the facilities at Tijuana). He commented on the unusual route to be taken by the two truck loads, ostensibly headed for Los Angeles. The judge mentioned the continuous surveillance of the second load from the border until it drove into the warehouse; mentioned and characterized the several "For Lease" signs on and about the premises. "And I note that none of these signs indicated, Do not Disturb Tenant; Call Real Estate Office, or Call for Appointment to View merely said the building was for lease." He commented on the officers' morning entry through the open wire gate; and the open warehouse doors, and their seeing that the tin was being off-loaded at Chula Vista, not Los Angeles.

At pp. 208-210 (C.T.), the Court then stated:

"Now, it's clear to me that the manner and method by which the building was occupied and used, that the occupiers and user had no reasonable expectation of privacy. One, if they'd have wanted privacy they could have closed the gates and the door.

"Secondly, they knew, at the time, that the building was for lease and they could have, at any time, expected people to call, or to come into the premises. And it's not entirely uncommon for people to walk into parking lots and into buildings just to look to see what's going on.

"With this, it was pretty obvious that they were taking the scrap metal off, that something was wrong, the manifest showing Los Angeles, and the scrap tin is being unloaded in this warehouse in Chula Vista. People start coming and going, and the officers have a pretty good idea, by that time, what's in there, or should have, and they wait till they see a van, a U-Haul van goes in and comes out, and we know that most of the marijuana is hauled in rental cars, that's the way it is. People don't like to subject their own personal vehicles to seizure, so they go out to Kirby's and lease a car and use it.

"No question in my mind that the officers had a right to enter the building for purposes for which they did. There's no question in my mind that they had a right to stop the van, as they did, at least, a founded suspicion to stop the driver of that car. And the Court made special inquiry this morning, as to the amount of marijuana in the truck, for a particular purpose, 400 and some odd kilos, and I've always been leery of the officer that smelled the strong odor of marijuana, two or three kilos, but when there's 488 kilos, and a warm day in August, the probabilities are that smelled like a bale of alfalfa, hay in the field.

"So, the motion to suppress the evidence is denied."

III. Participation in the Conspiracy.

With the exception of defendant Jaime Murillo -Pacheco (who was driving the PHd van, with its 498 kilos of marijuana when arrested), all defendants arrested and charged were on the warehouse premises, and had been there inside the warehouse during the last four or five hours before 5:20 p. m. Some 1,800 kilo packages of marijuana, easily recognized as such, had been first unloaded and next loaded again in another vehicle, or placed in open piles, all in plain sight and obvious smell of any person within the one-room, non-partitioned space of the warehouse. It is a reasonable inference to conclude that all present were knowing participants in the possession of, and in a conspiracy to possess, marijuana, with the intent to distribute it within the United States.

We are of the view that the combination of facts cited above, together with the inferences that could properly be drawn, supported the district court's decision, and that a conspiracy in fact existed. Cf. United States v. Guerrera, 554 F.2d 987, 989 (9th Cir. 1977). We must keep in mind that the present three appellants do not contest the proof establishing a conspiracy to smuggle marijuana, but only dispute the fact that evidence existed connecting each of them with the conspiracy. "(Their) argument fails to account for the lower standard of proof for the latter once the conspiracy has been proved beyond a reasonable doubt." United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1976). Once a conspiracy is...