U.S. v. Leos-Quijada

• Decision Date: 20 February 1997
• Docket Number: LEOS-QUIJAD,No. 95-2100,D,95-2100
• Citation: 107 F.3d 786
• Parties: 97 CJ C.A.R. 264 UNITED STATES of America, Plaintiff-Appellee, v. Reginaldoefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 786

107 F.3d 786

97 CJ C.A.R. 264

UNITED STATES of America, Plaintiff-Appellee, v. Reginaldo LEOS-QUIJADA, Defendant-Appellant.

No. 95-2100.

United States Court of Appeals Tenth Circuit.

Feb. 20, 1997.

John B. Leyba, Las Cruces, NM, for Defendant-Appellant.

Charles L. Barth, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before ANDERSON, McWILLIAMS, and WEIS ^*, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Appellant Reginaldo Leos-Quijada was charged with one count of aiding and abetting in the importation of more than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and (b)(3), and 18 U.S.C. § 2, and one count of aiding and abetting in the possession of marijuana, with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. Leos-Quijada filed a motion to suppress evidence obtained as a result of a traffic stop that allegedly violated his Fourth Amendment rights. After an evidentiary hearing, the district court denied the motion to suppress. Leos-Quijada subsequently went to trial and the jury acquitted him of the importation charge, but convicted him of aiding and abetting the possession of marijuana with intent to distribute. Leos-Quijada now appeals his conviction arguing that (1) the district court erred in denying his pretrial motion to suppress evidence; (2) the evidence presented at trial was insufficient to support the conviction for aiding and abetting in the possession of marijuana with intent to distribute; and (3) the prosecutor's alleged misconduct during closing argument denied him his constitutional right to a fair trial. We reverse.

I. Background

The evidence adduced at the suppression hearing revealed the following facts. On March 17, 1994, Deputy Schneider of the Hidalgo County Sheriff's Office in Animas, New Mexico, ¹ received a call at 6:50 a.m. from a confidential informant who said that a vehicle was parked at an area called Taylor Mill. The confidential informant had not personally observed the vehicle, but was relating information from a third party, the grandson of the owner of Taylor Mill, who had called her to report an unfamiliar vehicle at Taylor Mill. The confidential informant explained that she was concerned because the vehicle was on private property and might have been criminally trespassing. Based on this information, Deputy Schneider drove southbound on state road 338 toward Taylor Mill. While en route, Deputy Schneider received another call from the confidential informant who said that since her first report, she had driven toward Taylor Mill and personally observed the vehicle with field glasses or binoculars from a quarter to half mile distance. ² She confirmed the vehicle description which she had relayed earlier as a silver or gray Jeep Cherokee with Arizona license plates occupied by two males. She then reported that the vehicle had left Taylor Mill heading northbound on state road 338 at a "high rate of speed." The average volume of traffic on this segment of state road 338 includes about five or six vehicles on "a real busy day." R. Vol. II at 75-76. Shortly after Deputy Schneider learned that the vehicle was traveling northbound, he observed a vehicle matching the description, and occupied by two males, heading toward him at a high rate of speed. He immediately turned around and pulled the vehicle over without incident. The stop took place about fifteen miles from Taylor Mill.

Deputy Schneider testified that he pulled the vehicle over based on the tip from the confidential informant, which he believed revealed a number of suspicious factors. First, he considered the confidential informant reliable because she had provided previous tips to the Hidalgo County Sheriff's Office and the Border Patrol regarding possible drug smuggling loads, illegal aliens, and people wanted for other crimes. Based on her previous tips, Deputy Schneider personally had discovered three marijuana loads. Deputy Schneider testified that her tips led to successful apprehension approximately fifty percent of the time. ³ Deputy Schneider also testified that the vehicle seemed suspicious because it was parked in the Taylor Mill area about fifteen miles north of the Mexican border. Taylor Mill is private property with two windmills and a set of corrals owned by Gray Ranch as part of a "viable cattle operation." R. Vol. II at 13. It is an isolated desert area approximately 125 yards away from state road 338 and is accessed by a dirt road. The area is the center of a known trail for smuggling aliens and narcotics from Mexico. Id. at 46-48.

After stopping the vehicle because he suspected the occupants might be involved in smuggling narcotics or aliens, Deputy Schneider called the license plate number into the dispatcher. He then approached the vehicle on the driver's side and asked the driver, in his limited Spanish, to produce a driver's license. The driver, Leos-Quijada, indicated that he did not have a driver's license but provided a resident alien card. Deputy Schneider then asked the passenger, Hector Haro-Banuelo, where he lived and he replied Mexico. But when asked for identification or immigration documentation, Haro-Banuelo could not provide any. Deputy Schneider testified that because the men apparently spoke little English, he had difficulty communicating with them.

After discovering that Leos-Quijada did not possess a driver's license and that Haro-Banuelo was a resident of Mexico who could not provide identification or documentation, Deputy Schneider returned to his car and radioed Deputy Umphries to provide backup and the Border Patrol to provide Spanish assistance and to check on Haro-Banuelo's immigration status. Deputy Schneider then checked New Mexico and Arizona driver records and found no information on Leos-Quijada. Deputy Schneider testified that under the laws of New Mexico, Leos-Quijada could not drive without a valid license. Deputy Schneider testified that while he was waiting for backup to arrive, Leos-Quijada was "very cool, calm, [and] possessed," while Haro-Banuelo was "exceedingly nervous." R. Vol. II at 41. Before the other officers arrived, Deputy Schneider received the license plate check results indicating that the vehicle was not registered to either Leos-Quijada or Haro-Banuelo, but rather to an owner from Tucson, Arizona, with an English surname.

Deputy Umphries, a narcotics officer, arrived within ten to twenty minutes of the initial stop. Deputy Umphries interviewed both Leos-Quijada and Haro-Banuelo, asking them where they were coming from and where they were going. Leos-Quijada told him they were going to work in Animas at a ranch owned by Don Lakateka for whom Leos-Quijada had previously worked. Deputy Umphries testified that this story was suspicious because he knew all the ranch owners in Animas and he had never heard of Lakateka or any similar name. Haro-Banuelo, on the other hand, told Deputy Umphries they were looking for work on a farm to pick chile. Deputy Umphries considered the men's stories inconsistent and implausible. He testified that there are no chile ranches in the area and that it was not chile picking season. Deputy Umphries then asked Leos-Quijada if he had any money, narcotics, or other contraband in the vehicle to which he responded in the negative. Deputy Umphries asked if he could search the vehicle and Leos-Quijada consented. Deputy Umphries testified that he asked to search because the vehicle had come from Taylor Mill, a known narcotics smuggling area, and because he smelled a strong scent of air freshener, a known cover scent for marijuana. Deputy Umphries found no drugs or drug residue, but he did find a small bottle of air freshener in front. He did not find any work clothes or lunches, which he found inconsistent with the men's stories that they were going to work.

Deputy Umphries testified that he believed the men had gone to Taylor Mill to pick up a load of marijuana, basing his conclusion on the following facts: Haro-Banuelo was nervous, the presence of a cover scent, the inconsistent stories, the vehicle registered to another owner, and the "suspiciously clean vehicle." He explained that the vehicle was suspiciously clean because there were no clothes, lunches, stray soda cans, or any other personal belongings typically found in vehicles. He further testified that this was consistent with drug smuggling because all the space would be needed for the narcotics.

Border Patrol Agent Hackworth, who speaks Spanish fluently, arrived at the scene at about 7:40 or 7:45 a.m. Upon Deputy Schneider's request, Agent Hackworth asked Leos-Quijada about the status of his driver's license and asked both men about their citizenship. Leos-Quijada indicated that he last had a driver's license in California which was suspended in 1986. The officers called the dispatcher who ran a driver's license search in the California records and confirmed that Leos-Quijada's license was suspended in 1986 for driving while intoxicated. In response to Agent Hackworth's questions about citizenship, both men indicated they were citizens of Mexico. Haro-Banuelo said he entered the United States on visitor status in 1992. He said he had been granted two week visitor status, which led Agent Hackworth to conclude that Haro-Banuelo had overstayed his visit by about two years. Haro-Banuelo also indicated that he had been working in the United States, which Agent Hackworth knew violates visitor rules. Agent Hackworth arrested Haro-Banuelo as an illegal alien and advised him of his Miranda rights. Haro-Banuelo agreed to speak and told Agent Hackworth that Leos-Quijada knew Haro-Banuelo was in the United States illegally. Based on this information, Agent Hackworth arrested Leos-Quijada for transporting an illegal alien. Deputy Schneider issued a ticket to Leos-Quijada for driving on a suspended...