U.S. v. Lopez-Moreno

Decision Date08 August 2005
Docket NumberNo. 04-30633.,04-30633.
Citation420 F.3d 420
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eleuterio LOPEZ-MORENO, also known as Eleuterio Lopez, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Josette Louise Cassiere (argued), Robert Watts Gillespie, Jr., Asst. U.S. Attys., Shreveport, LA, for U.S.

Patricia A. Gilley (argued), Gilley & Gilley, Shreveport, LA, for Lopez-Moreno.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Eleuterio Lopez-Moreno was convicted of transporting undocumented aliens in furtherance of their illegal presence in the United States. 8 U.S.C. § 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(i). He now appeals the district court's decision to: (1) deny his motion to suppress evidence against him; (2) deny his motion in limine challenging the admission of documents contained in the passengers' A-files; and (3) deny his motion for acquittal based on the insufficiency of the evidence against him. We AFFIRM.

A. Factual Background
1. Preliminary Matters

On the morning of August 21, 2003, Earlton John Parker, a police officer with the Greenwood Police Department in Greenwood, Louisiana, was on a routine traffic patrol. At 2:36 a.m., Officer Parker pulled over a white van because neither of its side brake lights was functioning. Only the van's center window brake light was operating.1 Officer Parker testified in court that he believed the non-functioning brake lights violated La.Rev.Stat. Ann. § 32:306A (West 2002), which in 2003 required all motor vehicles registered and operating in Louisiana to have at least two functioning brake lights. Before he initiated the stop, Officer Parker turned on the dashboard-mounted camera in his police cruiser. The entire stop was thus videotaped (with sound). Before pulling over the van, Officer Parker also called in the van's Texas license plate number to the police dispatcher.

The van that Officer Parker pulled over was owned by Faustino Martinez, the proprietor of El Cadete Autotransportes ("El Cadete"). El Cadete is what is known colloquially in parts of the South Texas Hispanic community as a camioneta. Camionetas are van services that provide point-to-point transportation within the United States and to destinations in Mexico. On the morning in question, the van was driven by Lopez-Moreno, a Mexican citizen and lawful permanent resident of the United States. He had left Houston a few hours earlier with nine passengers who were destined for Atlanta and other locations on the East Coast.

2. Events Before the Warrant Check Came Back Clean

As soon as Lopez-Moreno pulled over, Officer Parker requested his driver's license. Officer Parker then explained that he had pulled over the van because of problems with the brake lights. Officer Parker next proceeded to ask Lopez-Moreno various questions about the nature of his trip. Officer Parker first asked Lopez-Moreno about his destination. Lopez-Moreno told him that he was going to Atlanta. Officer Parker next asked him who he worked for, to which Lopez-Moreno responded that he worked for the company named on the door of the van. Officer Parker then started questioning Lopez-Moreno about the passengers, including how many there were, who they were, and where they were from. Lopez-Moreno was not certain how many passengers there were and did not know their names, but he told Officer Parker that they were from various places.

With these questions asked, Officer Parker began questioning Lopez-Moreno about the immigration status of his passengers. When asked by Officer Parker if they were present legally in the United States, Lopez-Moreno told him "I guess, I don't know," and "I just work for the company." At that point, Officer Parker again asked Lopez-Moreno where he was taking the passengers. Lopez-Moreno told Officer Parker that he was taking the passengers to various destinations. Parker then asked if they were being taken to work. Lopez-Moreno said that they were going to work at their destinations. Based on these responses, Parker stated to Lopez-Moreno, "Some of them probably ain't legal." Although not readily discernible on the videotape, Officer Parker has testified that Lopez-Moreno responded by saying either "might" or "might be."

At 2:40 a.m., Officer Parker went back to his police cruiser to request a backup officer. He also called in Lopez-Moreno's driver's license number to run a check on his license and to see if he had any outstanding warrants. He then went back and continued to question Lopez-Moreno about the details of his trip. While this next round of questioning was proceeding, the dispatcher radioed back to Parker at 2:43 a.m. to tell him that the driver's license was valid and that she was still checking to see if Lopez-Moreno had any outstanding warrants.

After the dispatcher radioed back, Officer Parker asked Lopez-Moreno about the immigration status of the passengers for either the third or fourth time. Officer Parker stated: "None of them are legal. Be honest with me." This time, rather than offer a verbal response, Lopez-Moreno shrugged. In response to the shrug, Parker stated "probably not." Lopez-Moreno then volunteered to go back to the van and retrieve the passenger manifest.

At 2:44 a.m., while Lopez-Moreno was going back to the van, the dispatcher called back and told Parker that there were no outstanding warrants. Parker told the dispatcher to hold onto Lopez-Moreno's information.

3. Events After the Warrant Check Came Back Clean

When Lopez-Moreno returned from the van, he went over the manifest with Officer Parker to ascertain how many passengers were in the van. They determined that there were nine passengers. This conversation was interrupted at 2:48 a.m., when the backup officer arrived.

Once the backup officer arrived, Officer Parker called United States Bureau of Immigration and Customs Enforcement ("BICE") Special Agent Craig Griffin. Agent Griffin was the Resident Agent in Charge of BICE's Texarkana, Arkansas office. Agent Griffin had earlier requested the Greenwood Police Department to call them if they suspected that they had undocumented aliens at a traffic stop. Parker explained to Agent Griffin that he had pulled over the van and that Lopez-Moreno was paid to drive the passengers to various destinations. Because of a bad connection, Agent Griffin said that he would call back in a few minutes. While Officer Parker was waiting for Agent Griffin to call him back, he can be heard speaking with the other officer about an earlier episode when Officer Parker had participated in a traffic stop of a van of undocumented aliens. He mentioned that the driver of the van in that previous stop had been arrested for transporting illegal aliens. At 2:54 a.m., Agent Griffin called back. Officer Parker again explained the circumstances. While Officer Parker had Agent Griffin on the phone, he handed the phone over to Lopez-Moreno and Agent Griffin spoke briefly with Lopez-Moreno. Agent Griffin asked a few questions, including where Lopez-Moreno was born, where the passengers were from, and what immigration documentation he had on him. Lopez-Moreno told him that he was born in Tampico, Mexico, he did not know where the passengers were from, and he did not have any immigration documents. Based on his conversation with Lopez-Moreno, as well as what Officer Parker had told him, Agent Griffin told Officer Parker to detain Lopez-Moreno and the passengers until he could arrive from about an hour away.

When Agent Griffin arrived on the scene, he first interviewed Lopez-Moreno and then interviewed the passengers. Lopez-Moreno again stated that he was from Mexico. However, at this point he produced a resident alien card, i.e., a green card. Griffin then spoke with the passengers. Because neither Officer Parker nor his backup officer spoke Spanish, Agent Griffin was the first law enforcement officer actually to interact with the passengers. Agent Griffin asked them their names, their place of birth, their country of citizenship, their date and place of entry into the United States, the status of their entry, and their current place of residence. Based on their responses to his questions and the other circumstances he observed, Agent Griffin suspected that they were not present legally in the United States. As a result of Agent Griffin's investigation, his interview with Lopez-Moreno, and the passengers' responses, Agent Griffin arrested Lopez-Moreno for suspicion of transporting undocumented aliens. Officer Parker issued him a ticket for failing to comply with Louisiana's brake lights statute, La.Rev.Stat.Ann. § 32:306A, and for failing to have a vehicle registration slip, in violation of La.Rev.Stat.Ann. § 47:506 (West 2002).2 BICE also detained the van's passengers on suspicion of being present in the United States illegally.

B. Procedural Background

On August 27, 2003, a federal grand jury issued a nine-count indictment against Lopez-Moreno charging him with transporting undocumented aliens and with conspiracy to transport said aliens, in furtherance of their illegal presence in the United States and for commercial advantage knowing that they were illegally present, or in reckless disregard of the fact that they were illegally present, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(i). The nine counts corresponded to each of the nine passengers in the van.

Immediately after his arraignment on August 27, Lopez-Moreno made several oral motions. In the first motion, Lopez-Moreno's attorney stated: "I would ask that the Court maintain in custody the [passengers] until I have had a time, a chance to question these people, take their depositions if need be." The...

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