U.S. v. Guzman

• Decision Date: 22 July 1988
• Docket Number: No. 87-5050,87-5050
• Citation: 852 F.2d 1117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nelson GUZMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1117

852 F.2d 1117

UNITED STATES of America, Plaintiff-Appellee, v. Nelson GUZMAN, Defendant-Appellant.

No. 87-5050.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1988.

Decided July 22, 1988.

Joseph D. Allen, Santa Barbara, Cal., for defendant-appellant.

John S. Gordon, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before PREGERSON, BOOCHEVER and THOMPSON, Circuit Judges.

BOOCHEVER, Circuit Judge:

Nelson Guzman appeals his conviction for conspiracy to manufacture, distribute, and possess cocaine with intent to distribute, aiding and abetting an attempt to manufacture cocaine, and aiding and abetting possession of cocaine with intent to distribute. He alleges that the conspiracy count subjected him to double jeopardy, based on his conviction in an earlier trial for conspiracy to possess cocaine with intent to distribute; that evidence seized in a search of his apartment should have been suppressed because his wife did not have apparent authority to consent to the search; and that the deportation of a material witness deprived him of a fair trial. We affirm.

FACTS

In November 1984, Henry Turley, a rancher in Tuolumne County in rural eastern California, entered into a conspiracy with numerous Colombian nationals to manufacture and distribute cocaine. Turley offered his ranch as a lab site to process 500 kilograms of cocaine base into cocaine hydrochloride. Guzman and another member of the conspiracy delivered forty drums of ether to the ranch in early June 1985. In mid-July, accompanied by yet another conspirator, Guzman delivered additional lab supplies to the ranch. In late July, Guzman went to Turley's ranch to prepare the lab with a third conspirator.

In August, Guzman delivered ten drums of acetone to the ranch, scanning the drums with a "bug detector," a device to detect transmitters. Later that month he drove forty more drums of acetone to Merced, California, where he met with Turley and unloaded thirty of the drums in a barn on a ranch belonging to a friend of Turley's. A bag of trash later discovered in the barn contained garbage from Turley's lab; two items carried Guzman's fingerprints. Guzman and Turley then brought the remaining ten drums to Turley's ranch.

In early September 1985, Guzman delivered seven five-gallon containers of hydrochloric acid to Turley. On September 4, Guzman and Jesus Lopez drove to the ranch with fifteen kilograms of cocaine base. The next morning, Guzman, Turley, and Lopez began to process the cocaine base. Law enforcement agents raided the ranch on the afternoon of September 5; Guzman and Turley escaped, but Lopez was captured.

Inside the lab, the agents found cocaine, cocaine base, forty drums of ether, twenty drums of acetone, seven five-gallon containers of hydrochloric acid, and supplies and equipment for converting cocaine base. In the loft above the lab agents found a driver's license for "Nelson Kuzman," with Guzman's birth date and a former address.

Guzman was arrested in March 1986 on charges of conspiracy to possess cocaine with intent to distribute related to a transaction in Los Angeles on December 6, 1985. We affirmed his conviction on those charges in United States v. Guzman, 849 F.2d 447 (9th Cir.1988) (Guzman I ). Turley, who was arrested earlier in March, later saw Guzman in prison and identified him as the "Nelson Kuzman" involved in the Tuolumne conspiracy. A second superseding indictment charged Guzman with one count of conspiracy to manufacture, distribute, and possess cocaine with intent to distribute, 21 U.S.C. Secs. 846 and 841(a)(1) (1982); one count of aiding and abetting an attempt to manufacture cocaine, id. and 18 U.S.C. Sec. 2 (1982); and one count of aiding and abetting an attempt to possess cocaine with intent to distribute, id.

Before trial, Guzman moved to dismiss Count One of the indictment on double jeopardy grounds and to suppress evidence seized from his apartment. He joined in another defendant's motion to dismiss the indictment because the government had deported a material witness. Following a hearing, the district court denied all three motions. After a bench trial, Guzman was convicted on Count One and sentenced to ten years. A jury convicted him on Counts Two and Three, and he was sentenced to ten and five years respectively. The sentences were ordered to run concurrently with one another and with the ten-year sentence imposed for Guzman's earlier conviction for conspiracy to possess cocaine with intent to distribute in Guzman I.

DISCUSSION

1. Did the district court err in denying Guzman's motion to dismiss Count One of the indictment on double jeopardy grounds?

Guzman claims that the conspiracy charged in Count One of the indictment embraces the conspiracy for which he was convicted in Guzman I, thereby violating the constitutional prohibition against double jeopardy and requiring a reversal of his conviction on Count One. It is Guzman's burden to show that the two conspiracies are the same. United States v. Bendis, 681 F.2d 561, 564 (9th Cir.1981), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982). We review the district court's decision de novo, United States v. Guido, 597 F.2d 194, 197 (9th Cir.1979) (per curiam), viewing the evidence in the light most favorable to the prevailing party in the district court, here the government. United States v. Lewis, 833 F.2d 1380, 1382 (9th Cir.1987). The facts of Guzman I are set out in our earlier opinion, 849 F.2d 447, 448-49 (9th Cir.1988).

The double jeopardy clause precludes the government from dividing a single conspiracy into multiple charges and pursuing successive prosecutions against This circuit has adopted a "factor analysis" to determine whether two conspiracy counts charging violation of the same statute charge the same offense and so place the defendant in double jeopardy. Bendis, 681 F.2d at 565. " 'We compare[ ] the differences in the periods of time covered by the alleged conspiracies, the places where the conspiracies were alleged to occur, the persons charged as co-conspirators, the overt acts alleged to have been committed, and the statutes alleged to have been violated.' " Id. (quoting United States v. Mayo, 646 F.2d 369, 372 (9th Cir.) (per curiam), cert. denied, 454 U.S. 1127, 102 S.Ct. 979, 71 L.Ed.2d 115 (1981)).

                the defendant.   United States v. Vaughan, 715 F.2d 1373, 1375 (9th Cir.1983).  To sustain his claim of double jeopardy, Guzman must show that the two conspiracies are indistinguishable in law and in fact.   Id. at 1376.  A single conspiracy exists where there is one overall agreement to perform a variety of functions to achieve the objectives of the conspiracy, and may include subgroups or subagreements.   United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir.1987)
                

Time period. In Guzman I, the first superseding indictment charged a conspiracy "[b]eginning on a date unknown to the Grand Jury and continuing to on or about December 6, 1985." The second superseding indictment in this case charged a conspiracy "[b]eginning on a date unknown and continuing to on or about September 5, 1985." Guzman alleges that because Guzman I's conspiracy began on a "date unknown" it encompasses the earlier conspiracy charged in this case. The time period of a conspiracy is determined not by the dates alleged in the indictment, but by the evidence adduced at trial. See United States v. Lurz, 666 F.2d 69, 74 & n. 3 (4th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982). All the overt acts charged and proven in Guzman I took place on December 6, 1985. The evidence in this case established that the last overt act of the Tuolumne conspiracy occurred three months earlier, on September 7, 1985. The time periods of the two conspiracies do not overlap.

Location. Guzman argues that the conspiracies share the same geography because they both took place in California. The areas of the state involved, however, are quite distinct. The overt acts in Guzman I took place in the Orange County city of El Toro and in downtown Los Angeles, California. The conspiracy in this case was centered in Tuolumne County in rural northeastern California, and the surrounding towns of Merced Falls, Sonora, Turlock, Oakdale, and Merced. Some meetings between members of the Tuolumne conspiracy other than Guzman occurred in Glendale, Anaheim, Long Beach, and Westwood, all in southern California. Florida featured in both conspiracies: the tractor-trailer rig in Guzman I had Florida plates, and some of the chemicals used at the lab in this case came from a Ft. Lauderdale chemical supply company. It nevertheless appears there was very little actual overlap in the locations of the conspiracies. See Bendis, 681 F.2d at 568 (even where both conspiracies had "important connections" with Cleveland, Ohio, their scopes implicated different parts of the world).

Members. The only two conspirators identified in Guzman I were Daniel Serrano and Guzman; the others involved were never identified. In this case, eleven men were identified at trial as being involved in the conspiracy, along with other unidentified men. Guzman contends that because the personnel identified in Guzman I are "wholly included" in the conspiracy here, there is a complete overlap between personnel. Yet none of the other nine coconspirators identified in this case was shown to have had any involvement in Guzman I, and the roles performed by Guzman and Serrano in the two conspiracies were quite different. In Guzman I, Guzman and Serrano performed a "car switch" to deliver payment for a large shipment of cocaine, and Serrano drove off with the drugs. In this case, Serrano helped to set up the lab, and Guzman transported chemicals, equipment, and cocaine base to the lab, and served as a "cook" to process the drug. The involvement of Guzman and...