U.S. v. Gonzalez

• Decision Date: 04 September 1991
• Docket Number: No. 89-5401,89-5401
• Citation: 940 F.2d 1413
• Parties: 33 Fed. R. Evid. Serv. 1275 UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos GONZALEZ, a/k/a Carlos Gonzalez, a/k/a J. Garcia, Tomas Morales, a/k/a Tomasito, Israel Garcia, a/k/a Flaco, Raciel Rodriguez, a/k/a Ray Rodriguez, Luis Sanchez, Eliodoro Santos, a/k/a Lolo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1413

940 F.2d 1413

33 Fed. R. Evid. Serv. 1275

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos GONZALEZ, a/k/a Carlos Gonzalez, a/k/a J.

Garcia, Tomas Morales, a/k/a Tomasito, Israel Garcia, a/k/a

Flaco, Raciel Rodriguez, a/k/a Ray Rodriguez, Luis Sanchez,

Eliodoro Santos, a/k/a Lolo, Defendants-Appellants.

No. 89-5401.

United States Court of Appeals, Eleventh Circuit.

Sept. 4, 1991.

Fred A. Schwartz, Stephen M. Klimacek, Adorno & Zeder, P.A., Rauol G. Cantero, Miami, Fla., for Gonzalez.

Manuel Gonzalez, Jr., Miami, Fla., for Morales.

Stephen A. LeClair, Entin, Schwartz, Margules & Lazarus, Miami, Fla., for Rodriguez.

Harry M. Solomon, P.A., Miami, Fla., for Sanchez.

William A. Meadows, Jr., Thomas W. Risavy, Miami, Fla., for Santos.

James R. Gailey, Federal Public Defender, Miami, Fla., for Garcia.

Terry L. Lindsey, Linda Collins Hertz, Lynne W. Lamprecht, Asst. U.S. Attys., Miami, Fla., for U.S.

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

Before FAY and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.

FAY, Circuit Judge:

Defendants-appellants were convicted on numerous counts involving the trafficking in marijuana. On appeal, they raise several claims, the most significant of which are: whether the district court properly denied motions to suppress evidence seized pursuant to a search warrant, whether certain extrinsic act evidence was properly admitted, whether the evidence was sufficient to support their convictions, and whether the jury was properly instructed. For the reasons that follow, we VACATE the convictions of Luis Sanchez on Counts 20-22, we VACATE the convictions of Juan Carlos Gonzalez on Counts 1-3, we VACATE the convictions of Raciel Rodriguez on Counts 17-19, and we VACATE the sentence of Tomas Morales and REMAND for resentencing. We reject all other claims by defendants-appellants and AFFIRM their convictions and sentences on all other counts.

I. BACKGROUND

A federal grand jury in the Southern District of Florida handed down a twenty-seven count indictment charging Luis Sanchez, Juan Carlos Gonzalez, Eliodoro Santos, Raciel Rodriguez, Israel Garcia, Tomas Morales, and Jorge Hernandez ¹ with numerous offenses relating to the trafficking in marijuana. The indictment included charges of conspiracy and continuing criminal enterprise, as well as charges of importation, possession with intent to distribute, and possession with intent to distribute on board a United States vessel in connection with specific marijuana import ventures. ²

The indictment was based on evidence of numerous attempts to import marijuana into the United States, using several different vessels. Each venture involved a different crew, but followed the same general plan. Sanchez, either personally or through one of his agents--Gonzalez, Rodriguez, Hernandez, Morales, Garcia, or Santos--solicited a captain and a crew to import marijuana using a particular boat, usually some type of shrimping or fishing vessel. The crew was paid some money up front, with the remainder promised upon successful completion of the venture. One of the crew worked the ship's radio, and was given a code with different messages assigned specific numbers. The radio operator was told to communicate every eight hours and to use only the code numbers. Sanchez also detailed the route the vessel was to follow. For each venture, the vessel was to rendezvous with another boat containing the marijuana, generally at either a place called Misteriosa Bank, or at Lighthouse Point, off the coast of Belize. If the rendezvous was successful, the marijuana was transferred to the first vessel for transport back to the United States. At a designated place, the marijuana was then to be transferred to smaller boats which were to bring it ashore. The original vessel was then supposed to be cleaned, and made to look as if it had been out legitimately, for example by putting some shrimp in the hold. For various reasons, only one of the ventures charged in the indictment was successful. After a jury trial, all defendants were convicted of the conspiracy counts as well as of offenses related to at least one importation venture. ³

II. DISCUSSION

A. Motion to Suppress

On September 23, 1987, federal agents executed a search warrant for the residence of appellant Luis Sanchez. During the search, agents seized three address books and a locked briefcase belonging to appellant Juan Carlos Gonzalez, who is the brother-in-law of Sanchez. The briefcase, which was opened at the scene, contained $50,000 in United States currency, various documents which the government introduced as a marijuana bale list, and Gonzalez' passport. Both Sanchez and Gonzalez appeal the denial of their motions to suppress evidence seized as a result of the search of Sanchez' house.

1. Sanchez' House

Luis Sanchez makes a two-pronged attack on the search warrant and its supporting affidavit. ⁴ First, he argues that the affidavit was likely to mislead the magistrate into believing that there was more evidence of criminal activity on his part than actually existed. The affidavit contained thirty numbered paragraphs, only the last five of which specifically referred to Luis Sanchez. (R1:132 Exhibit B) Further, paragraphs 21-25 referred to the activities of a Julio Sanchez, who is not related to Luis Sanchez. Appellant Sanchez argues that unless reviewed carefully, the magistrate could unwittingly have assumed that the Sanchez referred to in paragraphs 21-25 and Luis Sanchez were the same person, and that the illegalities discussed in paragraphs 23-25 were attributable to Luis Sanchez. ⁵ Sanchez further argues that the warrant did not set forth a basis to determine probable cause, so that the good faith exception to the warrant requirement does not apply. See United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). We disagree.

First, we find it unlikely that the magistrate was confused or misled by the statements regarding the two Sanchezes. The information about Julio Sanchez was relevant to understanding the circumstances detailed in the affidavit and was not intermingled with information about appellant Luis Sanchez.

Second, the issuing magistrate clearly had a substantial basis for determining probable cause under the totality of the circumstances of this case. A substantial basis for probable cause exists where the totality of the circumstances set forth in the affidavit provides sufficient information for a magistrate to determine that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983). Great deference is accorded to the magistrate's determination of probable cause. Leon, 468 U.S. at 914, 104 S.Ct. at 3416; Gates, 462 U.S. at 236, 103 S.Ct. at 2331. In the instant case, two magistrates--the issuing magistrate and the magistrate who conducted the hearing on Sanchez' motion to suppress--and one district judge reviewed the warrant affidavit. All three found it provided probable cause to believe that documents and United States currency related to the importation and distribution of controlled substances in violation of the law would be found in the Sanchez residence. We agree with the other judges who have reviewed this affidavit and find it provided a substantial basis for determining probable cause. ⁶ We therefore find that the district court properly denied the motions to suppress.

2. Gonzalez' Briefcase

Even though we find that the search of the Sanchez house was valid, we consider separately the search of the locked briefcase belonging to Gonzalez that was found in the house. See United States v. Freire, 710 F.2d 1515 (11th Cir.1983) (search of briefcase found in co-defendant's car considered separately from search of car), cert. denied, 465 U.S. 1023, 104 S.Ct. 1277, 79 L.Ed.2d 681 (1984). Gonzalez argues ⁷ that even if the search of Sanchez' house was valid pursuant to the search warrant, that warrant could not justify the search of the locked briefcase which the agents knew belonged to Gonzalez. We disagree.

The items sought in the search of Sanchez' house were documents and United States currency related to the illegal importation and distribution of controlled substances. A briefcase could easily contain such items. Assuming without deciding that Gonzalez had a legitimate expectation of privacy in his locked briefcase, ⁸ we hold that the valid search warrant for Sanchez' house provided sufficient authorization for the search of the briefcase found in the house. See United States v. Morris, 647 F.2d 568, 572-73 (5th Cir. Unit B 1981) (search of locked jewelry box justified by valid search warrant for premises, though it would be different if "the objects sought in the warrant were of a size that would not fit in the box."). ⁹ We therefore affirm the denial of the motions to suppress.

B. Extrinsic Evidence

During the trial, the government introduced evidence of marijuana smuggling ventures involving two vessels, the "Don Christobal" and the "Sea Viking." Evidence of these ventures implicated appellant Sanchez, but these ventures were not listed in the indictment. The government also introduced evidence that Sanchez and his wife had submitted several false financial applications. This evidence was introduced as extrinsic act evidence pursuant to Federal Rule of Evidence 404(b). ¹⁰ Appellants Sanchez, Garcia, and Morales ¹¹ challenge the admission of this extrinsic act evidence. ¹² In addition, appellants Sanchez, Garcia, Morales, and Rodriguez challenge admission of evidence of the "Sea Viking" venture, claiming it was part of a separate conspiracy and not part of the conspiracies charged in the indictment.

The admission of extrinsic act evidence pursuant to Rule 404(b) is reviewed for a clear abuse of discretion. ¹³ United States v....