U.S. v. Garza
| Decision Date | 16 July 1997 |
| Docket Number | No. 95-21094,95-21094 |
| Citation | 118 F.3d 278 |
| Parties | 47 Fed. R. Evid. Serv. 644 UNITED STATES of America, Plaintiff-Appellee, v. Pedro Elizondo GARZA; Jorge Inocencio; Homero Hinojosa Garcia; Oziel Alanis, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jeffery Alan Babcock, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.
J.A. Canales, Nancy M. Simonson, Canales & Simonson, Corpus Christi, TX, for Pedro Elizondo Garza, Defendant-Appellant.
Eustorgio Charles Perez, Vela, Perez & Pena, Laredo, TX, for Jorge Inocencio, Defendant-Appellant.
Jose Luis Ramos, Rio Grande City, TX, for Hinojosa Garcia, Defendant-Appellant.
David Richard Bires, Houston, TX, for Pedro Alanis, Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and DOHERTY, 1 District Judge.
A jury convicted the defendants, Jorge Inocencio, Pedro Elizondo Garza, Homero Hinojosa Garcia, David Tovar 2 and Oziel Alanis, of conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Tovar and Oziel were convicted on other counts of aiding and abetting the possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. Inocencio, Garza, and Garcia were also convicted of money laundering under 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(g). The defendants appeal from the judgments of conviction entered and sentences imposed by the district court following a jury trial. After reviewing the record, we find that insufficient evidence exists to support the money laundering conviction as to Garza and Garcia. As to all other convictions and sentences, finding no error, we affirm.
On January 26, 1995, based on information supplied from a prior investigation, law enforcement officers set up surveillance on Garcia and Garza at a Days Inn in Houston, Texas. Houston Police Officer Jerry Nimmo observed Garcia seated in a red Buick Regal which was parked on a curb near the entrance to the Days Inn parking lot. Garcia appeared to be waiting for someone and conducting counter surveillance. Garza approached the Buick, entered the driver's side of the car, and drove down the road. Garza then stopped the car and Garcia got out, looked around, and reentered the car. Garza then made a u-turn and drove back to the Days Inn.
Garza then entered the motel while Garcia waited in the back seat of the Buick. Thereafter, Garza reappeared carrying a tan sports bag. Tovar walked toward the Buick with Garza. Garza placed the sports bag on the driver's side floorboard. Officer Nimmo then observed the three defendants conversing outside their vehicles. Tovar then turned and walked back to a black Camaro. Garza and Garcia left in the Buick. Tovar followed in the Camaro.
Garza and Garcia drove to an apartment complex and made two "heat runs" before entering the complex. Tovar headed toward the interstate. The Buick parked in front of apartment 2142, which was later found to be Tovar's apartment. Garza then drove the Buick to a "J.D. Sales" store in Pasadena, Texas. He was seen making two "heat runs" past the store before returning. Garza then drove the Buick to Mavis Lane in Pasadena where observation of the Buick ended. A surveillance perimeter was established around the neighborhood.
Officers saw Garza and Garcia again that afternoon in a blue Chrysler New Yorker. Garza and Garcia stopped in a Texaco gas station and used a pay phone at that location. Sometime thereafter, Inocencio arrived at the Texaco in a black Mercury Marquis. Inocencio pulled up next to the Chrysler and handed a green field jacket to Garcia. The two cars then left in opposite directions.
Around 3:00 p.m., the Chrysler pulled into a Conoco gas station. Garza used the pay phone and made a "pager type" call and then left the gas station. Officers stopped the Chrysler at 3:20 p.m. in the 3800 block of Spencer Highway in Pasadena. Speaking in Spanish, Sergeant Pohlman identified himself and ordered Garza and Garcia to raise their hands. Garcia kept lowering his hands, forcing the officer to reach inside the vehicle and place his hands across Garcia's elbows. The officer saw a 9mm pistol between Garcia's leg and the arm rest and seized the gun from the car. Garza and Garcia then exited the vehicle and Officer Bell advised them in Spanish that they were being investigated and that the officers wanted to speak with them.
During questioning, Garza told Officer Bell that he was not acquainted with anyone owning a black Camaro and that he had just purchased a pickup from J.D. Sales. Garza then read and signed a consent form to search the Chrysler. Police found a loaded .40 caliber Smith & Wesson pistol inside the green jacket Inocencio had handed Garcia. A telephone address book was also seized.
Meanwhile, outside the Mavis Lane residence of Inocencio, Police stopped Inocencio and explained that they were conducting a narcotics investigation and asked if they could question him inside the residence. Inocencio invited the officers inside. Inocencio first orally consented to a search of the premises and then signed a consent form to search the house. Police discovered 104 kilograms of cocaine in packages with labels of joker cards and a "red ace of clubs" concealed in luggage in attic space next to an upstairs bedroom. 3 Officers also found approximately $5 million in cash as well as ledgers and notebooks documenting drug transactions. The ledgers and notebooks indicated that 609 kilograms of cocaine had been sold for approximately $7,964,000, of which $6,189,000 had been received. Officers also found scales, a Smith & Wesson box with the same serial number as the gun found between Garza and Garcia in the Chrysler, an adding machine with adding machine tape, and loaded handguns and ammunition.
Around 4:00 p.m., officers stopped Tovar, Oziel, and another man in a Lincoln Town Car. After much consternation, Tovar consented to a search of his car and his apartment. In the car, officers found one kilogram of cocaine labeled with a red ace of clubs in a potato chip bag under the front passenger-side seat and $2,285 in cash in the glove box. In Tovar's apartment, officers discovered approximately 6 kilogram-sized packages of cocaine labeled with a red ace of clubs, two stolen loaded handguns, a lathe used to design silencers, silencers, silencer parts, and a digital scale. A date book and address book were also seized.
Inocencio, Garcia, Garza, Tovar, and Oziel were charged in Count One of a four count indictment with conspiracy to possess cocaine with intent to distribute. Count Two charged Inocencio, Garcia, and Garza with aiding and abetting persons to knowingly and intentionally possess with intent to distribute more than 5 kilograms of cocaine. Count Three charged Tovar and Oziel with aiding A jury found the defendants guilty on all counts in the indictment. The district court sentenced Inocencio to 365 months imprisonment. Garcia received 405 months and Garza was sentenced to 365 months. The defendants filed timely notices of appeal.
and abetting persons to knowingly and intentionally possess with intent to distribute more than 5 kilograms of cocaine. Count Four charged Inocencio, Garcia, and Garza with knowingly and willfully attempting to launder money in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 1956(g).
On appeal, Inocencio contends that the district court erred in denying his motion to suppress the warrantless search of his home. Inocencio contends that law enforcement officers arrived at his residence and asked if they could question him. Because Inocencio does not adequately speak nor understand English, one officer questioned him in Spanish. The Spanish speaking officer testified that Inocencio verbally consented to a search of his home. The officer then asked Inocencio to sign a written consent form which, in Spanish, explained his right to refuse consent. Inocencio signed the form.
The form states in pertinent part "Persona, Premisas o Transporte a ser examinado." Expert testimony revealed that the form was incorrectly translated from English to Spanish. The English version of this caption stated "person, premises or conveyance to be search." In the translation to Spanish, the word "premises" was changed to "premisas" which, in Spanish, means "logical proposition" or "the premise of the argument." Testimony revealed that "premisas" does not refer to premises or relate to a home or residence. Further, officers only filled out Inocencio's name under the heading. They did not fill-out the space for place, or conveyance to be searched.
According to Inocencio, this omission suggests that he was only to be subject to an "examinado." In support, he contends that the written form uses the verb "examinar" which means to examine. Inocencio maintains that he thought this "examination" would be oral and did not understand that he had consented to a "catear" or "registrar," two words which correctly translate to the verb "search" in English. Inocencio also testified that he did not understand that his oral consent to search included his home. He stated that he only agreed to a search of his person and his automobile. As such, he maintains that the search of his residence was improper.
We review a motion to suppress based on live testimony at a suppression hearing for clear error, viewing evidence in the light most favorable to the prevailing party, in this case, the government. See United States v. Levine, 80 F.3d 129, 132 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 83, 136 L.Ed.2d 40 (1996); United States v. Piaget, 915 F.2d 138, 139-140 (5th Cir.1990). The district court based its decision on the...
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