U.S. v. Leal

• Decision Date: 26 January 1996
• Docket Number: No. 94-60279,94-60279
• Citation: 74 F.3d 600
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor LEAL, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 600

74 F.3d 600

UNITED STATES of America, Plaintiff-Appellee, v. Victor LEAL, et al., Defendants-Appellants.

No. 94-60279.

United States Court of Appeals Fifth Circuit.

Jan. 26, 1996.

Julio A. Garcia, Laredo, TX, for Victor Leal.

Victor Leal, Three Rivers, TX, pro se.

Abraham C. Kazen, Austin, TX, for J. Ramirez.

Aurdiano Salinas, Jr., Three Rivers, TX, Jose Luis Ramos, Rio Grande City, TX, for A. Salinas, Jr.

Luis Antonio Figuero, Laredo, TX, for A. Salinas, Sr.

Eustorgio Perez, Laredo, TX, for Alberico Salinas.

Paul Gallego (court-appointed) Laredo, TX, for R. Becerra.

James L. Powers, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for appellee.

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

Before KING, DeMOSS and STEWART, Circuit Judges.

STEWART, Circuit Judge:

FACTS

The defendants were charged with conspiring, from on or about October, 1991, through January 17, 1992, to possess with intent to distribute over 1,000 kilograms of marijuana (count one) in violation of 21 U.S.C. Secs. 846 and 841(a)(1). The underlying events occurred around November 5, 1991. The defendants were arrested in San Antonio on charges of marijuana trafficking.

Becerra's Motion to Suppress

Before trial, defendant Ruben Gil Becerra moved to suppress statements he made to investigating agents in two interviews, one in January of 1992 and the other in June of At a suppression hearing in Laredo on September 29, 1993, the district court denied Becerra's motion.

                1993.  He too had been arrested in November 1991 but was released on December 24, 1991, when charges were dismissed.  On his way home to the Dallas area, federal agents approached Becerra, allegedly telling him that "any cooperation he'd give would be made known to whatever prosecutor was prosecuting the case."   Becerra claims that he was told that he would not see his family for another 20 years if he did not cooperate.  Becerra met with federal agents in San Antonio on January 18, 1992.  He was not advised of his rights.  He spoke of the events of November 5 and "his relationship with the people involved in the [drug] case."   The government says that the agents did not threaten Becerra and promised "only that his cooperation would be made known to a prosecutor at the time charges may be leveled against him."   They informed him that charges were likely to be refiled later.  Becerra says the agents did not record his statement.  It was not even typed until April 1992.  Agents reviewed Becerra's statement in June 1992.  By this time, Becerra was serving in the Mansfield Correctional Institute in Mansfield, Texas, following his arrest on charges stemming from the November drug trafficking arrest
                

The Trial

Supporting the government's case were the testimony of several law enforcement agents, a confidential informant ("CI"), tape recorded conversations, and various documents and photographs. The CI worked with a Texas Department of Public Safety officer named De La Garza and an FBI agent named Martinez.

The CI was in contact with the appellants well in advance of November 5 in order to arrange the transaction. According to the government the CI met five times with Aureliano Salinas, Sr., in September and October to discuss plans to transport marijuana to San Antonio. The CI had access to private property along the border between Texas and Mexico through his work in the oil and gas industry. This was helpful because crossing on private property would be easier than trying to carry drugs past a checkpoint. In October, the CI met with Aureliano Salinas, Jr., and Jorge Luis Ramirez to show them an entrance to the ranch. He reported this meeting to De La Garza. By that time, Salinas, Sr., Salinas, Jr., and Ramirez had decided to move between 1,000 and 1,200 pounds of marijuana from the Laredo area to Mathis, Texas.

On November 2, Salinas, Sr., told the CI he would be ready to transport the marijuana on November 4. In preparation for a meeting at the home of Salinas, Sr., agents wired the CI with a recording device. The CI went to the house with a friend named Reymundo Garcia, who did not know the CI was working undercover. The CI testified that they were to pick up the truck for transporting the marijuana the next morning, November 5. They then were to pick up the trailer Salinas, Jr., would bring to a roadside park near a ranch and drive it to Mathis. Although at the meeting they discussed the route over ranch property, the CI hid the fact that he meant to take the truck through the checkpoint. Alberico Salinas ("Beco") and Ramirez arrived at the house about a half hour into the meeting. The CI testified that it was then that the final touches were put on the plan. Ramirez was to be in charge of transporting the marijuana after they left Zapata, a small South Texas town. Beco played a minor role in the discussions, but he was aware of the plan and was to help in shipping the drugs. Beco and Ramirez were supposed to let the CI know the next morning when the truck would be ready to be picked up. According to the tape recording concealed by the CI and played in court:

1. Salinas, Sr., said that Ramirez was to be in charge of the marijuana transportation after the former left for Houston.

2. Salinas, Sr., said that the marijuana was "wrapped up" and ready to go.

3. Beco said that we went to leave the trailer.

4. At some point (Mathis), another driver to be hired by Ramirez was to take over for the CI 5. Salinas, Sr., told the conspirators to return to move other loads if this one proved successful.

6. Beco said he would be driving a black BMW during the trip.

7. When Ramirez arrived at the meeting, he told the CI that he would get a second driver for the second half of the trip.

8. Ramirez was supposed to ride with the CI in the truck for a portion of the trip.

9. Leal was to be the second driver.

The CI and Garcia picked up the truck the next morning (November 5), as scheduled. It was already loaded. On the way to Mathis, the CI met Beco and Ramirez in a black BMW. Victor Leal was with them. Following Ramirez's instructions, the CI drove the truck to Tynan, a small town near Mathis, and left it in front of a house.

A few weeks later, the CI returned to Salinas's house. Salinas, Jr., and Beco were also there. By this time the authorities had seized the drugs from November 5. Salinas, Jr., told the CI that he had a friend who had two thousand pounds he wanted to move and needed the help of the CI and Garcia.

The CI met with Leal who told him that his attorney had informed him that the November 5 operation had been under steady surveillance. The CI then met with Salinas, Sr., again, who told him to ask Leal "if he would take ten thousand dollars if he would say that he never did see Beco during the first transaction." Salinas, Sr., was to put up the money himself.

The CI met a week later with Salinas, Jr., who introduced him to "Jorge Red." Salinas, Jr., told the CI that this man had been in charge of the first load of marijuana. The CI had no further meetings with any of the defendants. He also was never paid by them for his part in the trafficking. Salinas, Jr., told him that "the people from Mexico" were holding up all payments until they could fully investigate how the authorities learned of the operation.

The agents conducting surveillance corroborated what the CI had to say about the events surrounding the November 5 load and provided additional testimony. De La Garza, the investigator with the Department of Public Safety, said that he noticed Beco, Ramirez, and a man named Ovidio Reyes in the BMW forty miles outside San Antonio. Later he saw the large truck parked near the BMW at a truck stop. He noticed that Leal was driving the truck with the trailer attached.

De La Garza followed the truck and the BMW to a motel in the San Antonio area. He noticed Beco, Leal, and Ramirez enter a room there. Leal later left in the truck, heading east on the interstate, followed by a white Chevrolet. Ramirez subsequently drove off in the BMW. De La Garza was among the agents who tracked the large truck and trailer north of San Antonio to a small ranch called the Kirchner Ranch. The agents waited at the ranch entrance. There they stopped the white Chevrolet which contained Beco and Garcia. Three hours later the officers stopped the large truck as it left the ranch. De La Garza noticed Leal and Becerra outside on either side of the truck. When they examined the truck, the officers detected the strong odor of marijuana coming from a porthole on the top of the trailer. They also found a false compartment inside the trailer. Behind the ranch house, in a shed on the ranch property, they found about 3,100 pounds of marijuana.

The agents arrested Beco, Leal, Becerra, and Garcia but dismissed the charges at the request of the United States Attorney's office. The officers seized between $1.8 and $2 million dollars worth of marijuana at the ranch.

Leonardo Perez, a Texas Department of Public Safety officer testified that he went to the Relay Station Motel at 11:00 PM on November 5 and knocked on the door to room 230. He said Salinas, Jr., and a woman occupied the room and consented to a search. Earlier that day Perez was involved in the stop of the white Chevrolet containing Beco and Garcia.

An FBI agent who analyzed the phone records testified regarding calls on November 5 among Salinas, Sr., Leal, the Relay Station Motel, and a phone in Mathis.

Special Agent Rayfield testified about Becerra's statement to agents in January 1992 The government presented evidence of Leal's participation in the shipment of marijuana in South Texas in 1987 over his objection. The district court allowed the evidence after giving a limiting instruction that it was to be considered only as to the issue of "criminal knowledge or intent." Part of that evidence was testimony from William Jenkins, a Laredo Border...