U.S. v. Maltos

Citation985 F.2d 743
Decision Date30 November 1992
Docket NumberNo. 92-2040,92-2040
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose Armando MALTOS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Ray Taylor, Phillip R. Spicer, Jr., Taylor, Holiner & Spicer, San Antonio, TX, for defendant-appellant.

Thomas I. Meehan, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

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

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jose Armando Maltos ("Maltos") appeals his conviction, by a jury, of one count of conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Finding the evidence insufficient as a matter of law to sustain the jury's verdict, we reverse.

I.

Sometime before May 12, 1991, members of the Houston High Intensity Drug Trafficking Area Task Force established surveillance on two individuals believed to have been engaged in narcotics trafficking in Houston, Texas. On May 12, a surveillance team followed a Chevrolet Blazer occupied by Roman Suarez and Antonio Rios, Maltos's codefendants, and being driven from Houston to San Antonio, Texas.

The surveillance team observed Rios stop at a Denny's Restaurant, where Suarez proceeded to make a number of telephone calls from a pay phone. Shortly afterwards, a pickup truck arrived, and Suarez entered the truck and left, while Rios remained behind.

Agents following the truck observed it making "heat" runs and eventually followed it to a residence at 154 East Ackard Street, San Antonio. Suarez and the driver entered and remained inside for approximately one hour. The two then drove back to the restaurant, where Suarez got back into Rios's vehicle. The unidentified driver then drove the pickup truck to a motel parking lot adjacent to the restaurant, where he parked the truck and left the area on foot; the driver was not seen again. Rios and Suarez left the restaurant parking lot and set out in the direction of downtown San Antonio.

At 3:45 p.m., Maltos and his brother, Rolando Maltos ("Rolando") arrived at the motel in a gray Ford LTD. Rolando entered the abandoned pickup truck and drove to South Park Mall; Maltos followed him in the gray LTD. At the mall, the brothers proceeded to the Chelsea Pub, where five minutes later Rios and Suarez joined them for a thirty-minute meeting.

After the meeting, surveilling police followed the Maltos brothers to the East Ackard address. Rolando left the pickup truck and entered the gray LTD with Maltos. Together, they drove to the Amber apartments complex, where Maltos parked his vehicle on the street and entered a blue Mercury parked in the apartment complex lot. The brothers then proceeded in their separate cars to a gas station, where Maltos fueled the Mercury, while Rolando used a pay phone. From the gas station, Rolando returned to the East Ackard residence; the police were unable to keep track of Maltos. At this time, agents noticed that a black-over-white Ford LTD was now parked at the East Ackard house.

Surveillance agents followed the Blazer in which Rios and Suarez were traveling east on Interstate 10 toward Houston. At Highway 6 near Houston, Rios and Suarez met up with Maltos, driving the Mercury in which he had last been seen. Both vehicles then proceeded southbound on Highway 6 to another mall, where Suarez used a pay phone while Maltos waited in the Mercury. Both vehicles then left the mall, Maltos following Rios, for the Ashford Creek Apartments, where Maltos parked his car and left with Rios in his. They proceeded to a Fiesta Mart parking lot, where they met Suarez. Maltos again switched cars exiting Rios's vehicle and leaving with Suarez in a silver Toyota pickup truck.

Suarez drove to a nearby liquor store to use a pay phone. Suarez and Maltos then drove past the Mercury, still parked at the apartments, and agents noted that the taillights of the truck lit up, indicating that the car had slowed so that Maltos could point out the location of the Mercury to Suarez. The truck regained speed, eventually stopping at a convenience store, where Suarez again made some calls from a pay phone. Agents observed the truck repeat this behavior--successive stops to make calls from public phones--before they lost track of the vehicle containing Suarez and Maltos.

At about 10:00 p.m., Rios arrived at the Ashford Creek Apartments. The police followed the Blazer and the Mercury to the Hector Torres residence at 11103 Kerwin Street, where the Blazer made several "heat runs." The driver of the Mercury got out and entered the Torres residence, re-emerging five minutes later after various vehicles had been moved to facilitate the Mercury's access to the garage. Agents would later seize 294 kilograms of cocaine from the residence during the execution of a search warrant.

The Mercury remained in the garage until the next morning, when, at approximately 8:00 a.m., agents watched it being taken from the garage with the rear end "jacked up" very high. The car was driven to a local Motel 6 in that condition, where it was left in the motel parking lot. Shortly thereafter, Suarez and Maltos emerged from the motel, and Maltos opened the trunk of the Mercury with a key in his possession. One of the two (it is not clear which) then lowered the air shocks to an apparently normal condition. After a brief conversation with Suarez, Maltos returned the Mercury to San Antonio, interrupting his trip one time to make several calls from a pay phone.

When he arrived back at the Amber apartments in San Antonio, Maltos was met by the silver Toyota truck in which agents earlier had observed him with Suarez. He left the apartments as a passenger, and the driver proceeded to another public phone to make several calls. Approximately ten minutes later, they returned to the Amber apartments. Sometime during the intervening ten minutes, Rolando Maltos had joined Maltos and the driver of the truck.

At the apartments, Maltos walked behind the complex and emerged shortly thereafter, driving the same Ford LTD in which he had been observed the previous day. He was not tailed, but agents later observed him backing the car up to Apartment 28 at 1831 Sherwood Forest, sometime after 6:00 p.m. that evening. The car left almost immediately, driven by Rios to a local La Quinta motel parking lot where he left it.

Suarez and Maltos were later observed at the La Quinta between 9:00 and 9:30 p.m., Suarez arriving in the Blazer and Maltos driving the silver Toyota pickup. Both Suarez and Maltos made several calls from the motel's public phones. At this time, surveillance agents arranged to have the Ford LTD searched by a dog trained to sniff out drugs. The dog alerted to the trunk of the LTD.

On May 15, 1991, a search warrant was executed, resulting in the seizure of eight green duffle bags and a black plastic garbage bag of cocaine found under the stairs at the Sherwood Forest apartment where Maltos had previously left the Ford LTD. In all, 225 kilograms of cocaine were seized.

Prior to the arrests of the defendants on May 15th, surveillance agents assigned to Suarez and Rios observed Suarez leave a room at a Motel 6 and proceed next door to a gas station where he made several calls from the pay phone. He remained at the station approximately ten to fifteen minutes, then returned to his motel room. Shortly thereafter, Rios arrived at the motel and entered the same room.

Prior to Rios's arrival, Suarez had left the room twice to make more phone calls, again at public pay phones. After Rios's arrival, the two left the motel together, stopping several times along the way to make still more calls from public phones. Eventually, the two arrived at a travel agency in South Houston, where they remained approximately one to one and one-half hours. Upon leaving, they entered a Mexican restaurant in the same mall, remaining there for a similar period of time.

When Suarez and Rios left the restaurant, they made additional stops to place phone calls. When they arrived later at the Memorial City mall, Suarez was observed using his cellular phone before entering the mall. Yet on their return to the Motel 6, the two again stopped at a mall to use the public phones. Finally, Suarez and Rios arrived back at the motel at approximately 6:30 p.m. As they proceeded toward room 221, they were met on the staircase by Maltos and one Maximeno Hernandez, whereupon all four were arrested. Later, Maltos signed a consent-to-search form for room 221, claiming it was his. The motel's records, however, showed that the room had been rented by Suarez.

II.

Maltos raises two issues on appeal. His first issue is that the evidence was insufficient to uphold his conviction on the conspiracy charge. Second, Maltos contends that his acquittal on the substantive charges of aiding and abetting the possession with intent to distribute and distribution in excess of five kilograms of cocaine (counts two and three of the indictment, respectively) reflects an inconsistent verdict necessitating the reversal of his conviction on the conspiracy charge (count one).

In evaluating the sufficiency of the evidence, a reviewing court must consider the evidence in the light most favorable to the verdict and determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Chavez, 947 F.2d 742, 744 (5th Cir.1991). Our evaluation must give the government the benefit of all reasonable inferences and credibility choices. United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988).

In a drug conspiracy prosecution under 21 U.S.C. §§ 841(a)(1) and 846, the government must prove beyond a reasonable doubt (1...

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