U.S. v. Guerra-Marez, GUERRA-MARE

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before CLARK; DUHE
• Citation: 928 F.2d 665
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adam Victorsperanza Adame, Maria Paredes-Moya, and Wenseslada Reyes-Moya, Defendants-Appellants.
• Docket Number: E,No. 90-1057,GUERRA-MARE
• Decision Date: 01 April 1991

Page 665

928 F.2d 665 UNITED STATES of America, Plaintiff-Appellee,
v.
Adam Victor GUERRA-MAREZ, Esperanza Adame, Maria
Paredes-Moya, and Wenseslada Reyes-Moya,
Defendants-Appellants. No. 90-1057. United States Court of Appeals,
Fifth Circuit. April 1, 1991.
Rehearing Denied May 29, 1991.

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O. Jan Tyler, Sands & Tyler, Lawrence Maxwell, Jr., Maxwell & Crowe (Court-appointed), Dallas, Tex., for Guerra-Marez.

Mark S. Werbner, Dallas, Tex. (Court-appointed), for Maria Paredes-Moya.

Larry Finstrom, Dallas, Tex. (Court-appointed), for Wenseslada Reyes-Moya.

Reed Prospere (Court-appointed), Richard A. Anderson (argued), Dallas, Tex., for Esperanza Adame.

Marvin Collins, U.S. Atty., Dallas, Tex., Mervyn Hamburg, Atty., Dept. of Justice, Washington, D.C., for U.S.

Appeals from the United States District Court For the Northern District of Texas.

Before CLARK, Chief Judge, RONEY, ¹ and DUHE, Circuit Judges.

DUHE, Circuit Judge:

The appellants raise several challenges to their convictions for an assortment of narcotics violations. By adopting the arguments of their co-appellants, ² all appellants contend that wiretap transcripts were erroneously admitted, that the prosecutor improperly exercised his peremptory strikes, and that the indictment was fatally flawed. Appellants Guerra-Marez and Reyes-Moya also contest the sufficiency of the evidence supporting their convictions. Finding only Reyes-Moya's sufficiency challenge meritorious, we affirm in part and reverse in part.

Facts and District Court Proceedings

As part of a criminal organization rivaling even Ma Barker's, the members of the Moya family participated in large-scale black tar heroin distribution. In the early part of the 1980's, the organization was comprised of two factions, each directed by Paula or Wenseslada Moya, respectively. The sisters' relationship was apparently uneven, and although they once shared a common supplier, they preferred to distance themselves, and their organizations, from each other. In 1985, Paula's career as a drug trafficker ended abruptly; she was arrested on a heroin distribution charge, and sentenced to life in federal prison.

Undaunted, the appellant Maria Paredes-Moya, Paula's sister, assumed Paula's role in the family business. Maria preserved the status quo, choosing to maintain the separate character of Paula's ring. Throughout this time, Maria's primary supplier was the appellant Adam Guerra-Marez, although she occasionally used other suppliers. She used her Dallas home as her primary distribution center, but employed electronic paging devices to contact customers and arrange drug deals. She stored the assorted electronics equipment she occasionally accepted as payment from her customers in a mini warehouse elsewhere.

As time passed, Paula's daughter Norma, then a participant in Maria's ring, grew concerned that her mother might die in prison. To aid her mother, she approached the authorities, and agreed to cooperate in their efforts to crack the Moya rings. Based on information supplied by Norma, federal agents conducted surveillance of several members of the ring, and arranged undercover drug buys with Maria via the electronic pagers. Surveillance was maintained on Maria's residence, and the garbage she deposited at curbside was seized and searched. The government also obtained records of her pager transmissions, and utilized a pen register to monitor calls made by Maria to members of her organization.

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Although these investigative efforts were initially fruitful, the agents suspected that crucial evidence regarding the identity of other participants was eluding them. Accordingly, the DEA applied for and received authorization from the district court to intercept Maria's phone calls. Most of the calls intercepted were from Adam, other members of the network such as Esperanza Adame, or customers attempting to arrange a drug transaction.

While the investigation was ongoing, Adam expressed to Norma his interest in supplying heroin to her aunt, Wenseslada, as well. Anxious to ferret out additional participants in the distribution network, the agents permitted Norma to arrange a meeting between Adam and Wenseslada at the latter's restaurant. When Wenseslada arrived, Adam had already gone, leaving a sample of his heroin with Delia, her sister. Wenseslada rejected the sample due to its low purity, and instructed Delia to deliver it to Norma. The transaction was recorded by Norma, who was equipped with a listening device.

Based on all the evidence collected, the agents procured search and arrest warrants for all the appellants. The search warrants were soon executed, and the appellants were arrested. The search of Maria's residence produced $8,000 in money orders, and a set of scales and gram weights, while a search of the mini-warehouse produced another scale, heroin cutting agents and packaging paraphernalia, handguns, a bill for the pagers, and tax documents belonging to Maria. A search of the automobile Wenseslada was driving when she was apprehended produced a loaded handgun, a portable safe containing $13,500 in cash, and 19 individual packages of heroin. Agents also searched her boyfriend's apartment, and found an extraordinary number of televisions, stereos, and other appliances. In Adam's residence, the agents discovered an electric grinder containing heroin residue, a scale, small quantities of heroin, and heroin cutting agents. Finally, a drug transaction ledger was discovered in the home of Susie Vela, a defendant who is not a party to this appeal.

Based upon that evidence and post-arrest confessions, the appellants and nine others were indicted for 55 violations of federal narcotics laws. Guilty pleas were accepted on the majority of the counts, and the appellants proceeded to trial on the remaining ones. A jury convicted each of the four appellants of conspiracy to possess heroin with the intent to distribute. Adam and Maria were also convicted of heroin distribution, and use of a telephone to facilitate drug trafficking. Wenseslada was convicted of possession of heroin with the intent to distribute, and Esperanza Adame was convicted of the use of a telephone to facilitate a drug offense. From those convictions, the appellants take this appeal.

The Wiretap Application

Maria argues that the district court erred in refusing to suppress evidence obtained from the wiretaps, contending that the affidavit submitted in support of the application contained fatal errors and misrepresentations. We find no error.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 empowers a federal judge to authorize wire, oral, or electronic communication interceptions upon compliance by law enforcement agents with statutory prerequisites. See generally 18 U.S.C. Secs. 2510-2521. Recognizing the highly intrusive nature of a wiretap, Congress added section 2518(1)(c), a statutory "necessity requirement" designed to insure that "wiretapping is not resorted to in a situation in which traditional investigative techniques will suffice to expose the crime." ³ United States v. Webster,

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34 F.2d 1048, 1055 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). However, courts are reluctant to impose their hindsight upon law enforcement agencies, and the proponent of the application need not establish that "every other imaginable mode of investigation would be unsuccessful." United States v. Diadone, 558 F.2d 775, 778 (5th Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978). Instead, we take a "common sense view" of the statements contained in the application to determine if the necessity requirement is satisfied. Id.

Special problems are presented when the affidavit in support of the wiretap application allegedly contains intentional or reckless misrepresentations or falsehoods. The U.S. Supreme Court has recognized that implicit in the fourth amendment's Warrant Clause is the assumption that factual allegations necessary to support a finding of probable cause must be truthful. Franks v. Delaware, 438 U.S. 154, 164, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978). In the context of a search warrant, the Franks court held that once a defendant makes a "substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth," was included in the affidavit, the defendant is entitled to a hearing to contest the validity of the warrant. Id. at 155-156, 98 S.Ct. at 2676. Any offending statements are then stricken from the affidavit, and the search warrant is validated only if the reconstructed affidavit satisfies the probable cause requirement.

In the context of an allegedly defective wiretap affidavit, the standard for validating the intercept has not yet been defined in our circuit. ⁴ However, a recent case applying section 2518 by analogy is instructive. In United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir.1987), the government obtained authorization to conduct video surveillance of the defendant's home, a suspected drug trafficking site. The affidavit contained the false statement that the defendant had previously been arrested for cocaine possession. Although the court recognized that Title III did not specifically address video surveillance, it chose to apply section 2518 "as a guide for the constitutional standard." Id. at 251. ⁵ As to the false statement, the court found that Franks was controlling. After excising the erroneous portions, it revisited the probable cause determination, and validated the surveillance warrant.

Where, as here, the affidavit falls squarely within the dictates of section 2518, application of the Franks standard is no less appropriate. Via a motion to suppress, Maria argued that the wiretap affidavit

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contained numerous false statements and material misrepresentations. She objected primarily to the government's characterization of the...