U.S. v. De Jesus-Batres

• Decision Date: 17 May 2005
• Docket Number: No. 03-20505.,03-20505.
• Citation: 410 F.3d 154
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Teresa DE JESUS-BATRES, Jose Alvarez-Batres, Walberto Alvarez-Batres, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.3d 154

UNITED STATES of America, Plaintiff-Appellee, v. Teresa DE JESUS-BATRES, Jose Alvarez-Batres, Walberto Alvarez-Batres, Defendants-Appellants.

No. 03-20505.

United States Court of Appeals, Fifth Circuit.

May 17, 2005.

COPYRIGHT MATERIAL OMITTED

Renata Ann Gowie (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def. (argued), Michael L. Herman, Houston, TX, for Teresa De Jesus-Batres.

John Riley Friesell (argued), Bellaire, TX, for Jose Alvarez-Batres.

Ali Fazel (argued), Scardino Courtney & Fazel, Houston, TX, for Walberto Alvarez-Batres.

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

Before DAVIS, SMITH and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this direct criminal appeal, the defendants appeal their convictions and sentences on charges of harboring illegal aliens for financial gain and conspiracy to hold aliens hostage. Based on arguments of counsel, our review of the briefs and the record, we AFFIRM their convictions, MODIFY their sentences on Count One and otherwise AFFIRM their overall sentences.

I.

Teresa De Jesus-Batres ("De Jesus-Batres"), Jose Alvarez-Batres ("Jose") and Walberto Alvarez-Batres ("Walberto") (a mother and her two sons) were indicted on three counts: (1) aiding and abetting alien harboring and attempted alien harboring of four named illegal aliens for commercial advantage and financial gain, in violation of 8 U.S.C. § § 1324(a)(1)(A)(iii), (A)(v)(II), (B)(i) and 18 U.S.C. § 2; (2) aiding and abetting alien transportation of the same four illegal aliens for commercial advantage and financial gain, in violation of 8 U.S.C. § § 1324(a)(1)(A)(ii), (A)(v)(II), (B)(i), and 18 U.S.C. § 2; and (3) a hostage taking conspiracy regarding the same four illegal aliens, in violation of 18 U.S.C. § 1203(a).

The charges arose from the following facts. In July 2002, a group of seven Mexican citizens arranged to be illegally smuggled into the United States for a fee to be paid by relatives in the United States. Each relative agreed to pay a $1200 or $1300 smuggling fee. Two guides, Gabino and El Viejito, accompanied the group as they waded across the Rio Grande and walked to I-35. After waiting at the highway for a couple of hours, the group was picked up by a Suburban and a white pickup truck. The truck was driven by appellant De Jesus-Batres' son-in-law, Antonio. After the Suburban broke down, the aliens were transported the rest of the way to Houston in the pickup truck. Gabino told the aliens that he would carry a weapon in Houston.

When the truck reached Houston, the aliens were delivered to De Jesus-Batres' house. Jose and Walberto sometimes live there, as well as De Jesus-Batres' daughter and son-in-law Antonio (the one who drove the white truck). De Jesus-Batres, Jose and Walberto were inside the house when the aliens arrived, along with Antonio and Alejandro, another participant. The aliens were directed to sit on the kitchen floor and stay there. Permission was required to leave the kitchen, even to use the restroom.

Over the next two days, Gabino and Alejandro called the aliens' relatives demanding $1500, instead of the agreed upon $1200 or $1300 fee. Three aliens were released upon payment. The family members of the four remaining aliens stated that they could not pay the increased fee. During this time, Gabino, Alejandro and Jose threatened the aliens, De Jesus-Batres, Jose and Walberto took turns guarding the aliens, and De Jesus-Batres and Jose carried guns.

One of the aliens, Diaz-Aboytes, managed to flee the house by pushing De Jesus-Batres out of the doorway. De Jesus-Batres told the remaining aliens that if she had had her firearm at the time, she would have shot Diaz-Aboytes. De Jesus-Batres, Jose and Walberto ran after Diaz-Aboytes as Gabino watched the rest of the group. Diaz-Aboytes ran down the street to a fire station. Two Houston police officers were in their patrol car there. Diaz-Aboytes told the officers that he had just escaped from a house where he was being held for $1500, that coyotes had brought him from Mexico for a fee and then increased the fee for his release. He also told the officers that he feared for his life.

Diaz-Aboytes pointed out Jose and Walberto who were walking along the street to the officers as two of his captors. The officers detained them, placing them in the back of their patrol car after patting them down. While the officers were waiting for a fluent Spanish-speaking officer to arrive, De Jesus-Batres approached the officers' vehicle. The officers told her what Diaz-Aboytes had said and asked her if they could look inside the house. She agreed and walked back to her house. Diaz-Aboytes led the officers to the house, where De Jesus-Batres was waiting outside. She claimed that she could not find her house key.

Houston police officers then knocked on the door, yelling in Spanish to open the door. The police entered the house finding the three illegal aliens. They removed them from the house and searched it. Approximately 45 minutes after they entered the house, the officers then searched the detached garage, which was about 20 to 30 feet from the rear of the house. The garage door was open. Through the open door, Officer Leija saw a white pickup truck. When he checked the garage, he saw a gun in the bed of truck, which was the same gun Jose had carried. Another gun had been found in De Jesus-Batres' purse during the search of the house.

All of the defendants filed motions to suppress the guns found. The motions were granted in part (as to the gun found in De Jesus-Batres' purse) and denied in part (as to the gun found in the garage). A judgment of acquittal was granted as to Count Two after the presentation of the government's case. A jury found all three defendants guilty of Counts One and Three. All defendants appeal.

II.

De Jesus-Batres and Jose argue that the district court erred in denying their motion to suppress the gun found in the search of the garage and Walberto and Jose argue that the district court erred in denying their motion to suppress all evidence discovered as a result of their arrests. In an appeal from the denial of a motion to suppress, this court reviews legal questions de novo and factual findings for clear error. United States v. Valadez, 267 F.3d 395, 397 (5th Cir.2001). If a particular suppression argument is not made to the district court, review is for plain error. United States v. Maldonado, 42 F.3d 906, 909-13 (5th Cir.1995).

A.

The district court ruled that the warrantless search of the garage fell within the exigent circumstances exception to the warrant requirement because officers searched the garage for more aliens or potential suspects inside. The court also ruled that the gun found in the pickup parked in the garage was not found in violation of the Fourth Amendment because it was found in open view, in the bed of the truck. A finding of exigent circumstances is a factual finding, reviewed for clear error. United States v. Blount, 123 F.3d 831, 837 (5th Cir.1997)(en banc). Although there is no set formula, exigent circumstances generally exist when there is a risk that officers or innocent bystanders will be endangered or that evidence will be destroyed. Id. This court does "not second-guess the judgment of experienced law enforcement officers concerning the risks of a particular situation." Id.

The district court did not clearly err in finding exigent circumstances under the facts of this case. The officers went to the house on reports from Diaz-Aboytes that he had been held hostage and several others were still being held by an unknown number of captors. When the officers arrived at the house, they were told by the aliens they released that they were not sure if anyone else was around. After releasing the three remaining aliens from the house and searching the house and attic, Officer Leija searched the garage because he did not know if additional aliens or suspects were hiding there. The aliens could have been injured or sick and any additional suspects could have posed a safety risk to the officers. These facts are sufficient to uphold the district court's finding. See United States v. Mendoza-Burciaga, 981 F.2d 192, 196-97 (5th Cir.1992) and Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Under these circumstances, the delay of approximately 45 minutes before the officers entered the garage does not by itself preclude a finding of exigent circumstances.

De Jesus-Batres and Jose also argue that the plain view exception does not apply to the gun because the firearm's incriminating nature was not readily apparent when the officers seized it. This basis for suppression was not raised in the district court and is therefore subject to plain error review. The plain view exception allows officers to seize evidence in plain view if they are lawfully in the position from which they view the evidence, the incriminating nature of the evidence is immediately apparent, and the officers have a lawful right of access to the evidence. United States v. Munoz, 150 F.3d 401, 411 (5th Cir.1998). At the time the officers searched the garage, they were responding to charges that the aliens had been held against their will for money, although they were not clear as to whether Diaz-Aboytes had told them that his captors were armed. Under these circumstances, the district court did not commit error, plain or otherwise, in concluding that the incriminating nature of the gun was apparent.

B.

Walberto and Jose argue that their initial detention at the fire station was a warrantless arrest without probable cause. The district court rejected the argument, finding that no arrest occurred at that point, only a detention for investigatory purposes. An officer with specific and articulable facts that reasonably lead the officer to...