U.S. v. Garcia
| Decision Date | 19 July 1994 |
| Docket Number | No. 92-8625,92-8625 |
| Citation | 27 F.3d 1009 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Salvador GARCIA, Abraham Chavez, Elma Cepeda De Johnson and Julian Rodriguez-Rucobo, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Clarence D. Moyers, El Paso, TX (Court-appointed), for Garcia.
Henry J. Bemporad, Asst. Federal Public Defender, San Antonio, TX, Lucien B. Campbell, Federal Public Defender, El Paso, TX, for Chavez.
Ralph R. Garcia, El Paso, TX (Court-appointed), for Rodriguez-Rucobo.
Arthur A. Abraham, Joseph (Sib) Abraham, Jr., El Paso, TX, for Cepeda De Johnson.
Joseph H. Gay, Richard L. Durbin, Jr., Diane D. Kirstein, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GARWOOD and EMILIO M. GARZA, Circuit Judges and HEAD, * District Judge.
Defendants-appellants Salvador Garcia (Garcia), Abraham Chavez (Chavez), Elma Cepeda de Johnson (Cepeda), 1 and Julian Rodriguez-Rucobo (Rucobo) were convicted in the same proceeding of various drug offenses related to the importation and distribution of marihuana. In this consolidated appeal, Chavez contends that the district court (1) erred by denying his motion to suppress; (2) improperly allowed two grams of marihuana to be admitted in evidence; and (3) abused its discretion by rejecting his requested lesser included offense instruction. Further, appellants assert that the district court erred by failing to grant a judgment of acquittal under the entirety of count one of the indictment rather than simply a portion thereof. We affirm.
Appellants were convicted on September 29, 1992, for their participation in a large scale drug conspiracy. 2 The conspiracy involved the importation of marihuana across the United States-Mexico border for distribution in Denver, Colorado. The conspiracy was discovered as a result of a series of arrests, from June of 1990 to December of 1991, of individuals attempting to drive across the United States-Mexico border or through immigration checkpoints with marihuana hidden in their vehicles. 3 Information obtained from some of the individuals arrested and evidence discovered from searches of some of the vehicles linked these arrests and the importation of the marihuana to the Cepeda family. 4
On January 3, 1992, a federal grand jury in the El Paso Division of the Western District of Texas returned a four-count indictment against appellants and twelve other individuals. Under count one of the indictment, all defendants were charged with conspiring to possess marihuana with the intent to distribute and using a minor to conceal the crime in violation of 21 U.S.C. Secs. 841(a)(1), 846, and 861(a)(2). Under count two, Garcia, Chavez, and Rucobo were charged with conspiring to import marihuana in violation of 21 U.S.C. Secs. 952(a), 960(a), and 963. Under count three, Cepeda and Rucobo were charged with importing marihuana into the United States from Mexico in violation of 21 U.S.C. Sec. 952(a). Under count four, Cepeda and Rucobo were charged with possession of marihuana with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).
On January 9, 1992, a search warrant was issued authorizing federal agents to search Chavez's home at 3841 Shoshone Street in Denver. The search warrant was issued based on the affidavit of Customs Agent Stephen Simer (Simer). Simer, an agent in the Denver office, stated that in February of 1991 he became involved in a joint investigation with the El Paso office concerning the illegal importation and distribution of marihuana. Simer declared that the investigation revealed that Chavez had conspired to import in excess of three hundred pounds of marihuana from Mexico and distribute it from his Denver residence. Simer testified that the investigation disclosed that between May 1989 and December 1991 Chavez received approximately five loads of marihuana, each load weighing between thirty and sixty pounds. In addition, Simer stated that the investigation of Chavez was based on information provided by confidential informants, an analysis of long distance telephone records, and surveillance. Simer also stated that Chavez and several others had been indicted by a federal grand jury in El Paso on January 3, 1992, for their involvement in the importation/distribution organization, and a warrant for Chavez's arrest had been issued. 5
On January 10, 1992, the search warrant was executed at Chavez's residence in Denver, Colorado. The warrant authorized a search for several items associated with drug trafficking including telephone records, ledgers, tally sheets, currency, narcotics, and distribution and packaging materials. During the search, customs agents found cigarette rolling papers, $21,557 in cash, and 2 grams of marihuana in the master bedroom. The agents also seized Chavez's truck and a map to Garcia's and Cepeda's El Paso home.
Appellants' jury trial began on September 22, 1992. At the end of the government's case, they moved for a judgment of acquittal as to count one. The district court granted the motion only as to paragraph (b) of that conspiracy count which relates to using a minor to conceal a crime.
During trial, the primary evidence presented against Chavez consisted of the testimony of Tomas Vasquez (Vasquez). Vasquez testified that he delivered three loads of marihuana from Chihuahua, Mexico, to Chavez's Denver home in the spring of 1991. Vasquez stated that, in Chavez's presence, he and Garcia unloaded the marihuana and took it into Chavez's home. Vasquez further testified that he overheard Chavez negotiating over the price of the loads and witnessed him giving Garcia money. In addition to Vasquez's testimony, the government introduced in evidence: (1) telephone records showing over 30 telephone calls between Chavez's house in Denver and Garcia's and Cepeda's house in El Paso and (2) the $21,557 in cash and the 2 grams of marihuana seized during the search of Chavez's home.
Testifying in his own defense, Chavez admitted to knowing Garcia and Cepeda. He stated that he and his wife were good friends with the couple and they often stayed in his home. Chavez admitted that he owned the two grams of marihuana found in his bedroom, but stated that it was for his own personal use. Chavez testified that he had purchased the two grams of marihuana from a third party at a Denver housing project. Chavez denied all of the accusations of Vasquez, and maintained that he never bought or sold large quantities of marihuana.
On September 29, 1992, the jury returned its verdict. Garcia was found guilty of conspiring to possess marihuana with intent to distribute and conspiring to import marihuana (counts one and two). Chavez was convicted of conspiring to possess marihuana with intent to distribute (count one), but acquitted of conspiring to import marihuana (count two). Cepeda was convicted of conspiring to possess with intent to distribute (count one), but acquitted of importing marihuana into the United States (count three) and of possession of marihuana with intent to distribute (count four). Rucobo was found guilty of all four counts of the indictment.
On appeal, Chavez argues that the district court erred by denying his motion to suppress the evidence seized from his home. In addition, Chavez contends that the district court erred in denying his motion in limine to exclude the two grams of marihuana found in his bedroom, which he maintains were inadmissible and unduly prejudicial extrinsic evidence. Chavez also asserts that the district court erred by denying his request for a lesser included offense instruction for conspiracy to possess. Lastly, appellants argue that the district court erred by granting only a partial acquittal on count one.
Chavez argues that the district court erred in refusing to suppress evidence seized from his home. This Court engages in a two-step review of a district court's denial of a motion to suppress evidence obtained pursuant to a search warrant. United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.1992); United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992). Generally, the first step is to determine whether the good faith exception to the exclusionary rule applies. Satterwhite, 980 F.2d at 320. The second step is to determine whether probable cause supported the warrant. Id. If the good faith exception applies, this Court need not reach the probable cause issue. Webster, 960 F.2d at 1307.
The good faith exception applies unless one of four exceptions is applicable. 6 Chavez argues that the third exception to the good faith doctrine applies in the instant case, i.e., the affidavit is so lacking in any indicia of probable cause as to render an official's belief in its existence entirely unreasonable. This Court reviews the reasonableness of an officer's reliance de novo. United States v. McKnight, 953 F.2d 898, 905 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2975, 119 L.Ed.2d 594 (1992).
Facts recited in Simer's affidavit which support the officer's belief that probable cause existed include: (1) Chavez was indicted on January 3, 1992, for his involvement in a conspiracy involving the importation and distribution of marihuana; (2) there was a warrant for Chavez's arrest; and (3) Chavez had been implicated in the conspiracy by information received from confidential informants, as well as police surveillance, and an analysis of phone records. The affidavit also states that the investigation revealed the marihuana was being distributed from Chavez's home. A weakness with the affidavit, however, is that Simer does not expressly state what information was received from the...
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