U.S. v. Mendoza-Burciaga

• Decision Date: 29 December 1992
• Docket Number: J,No. 91-8477,MENDOZA-BURCIAG,91-8477
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrewuan Alberto-Gonzalez, Vincente Salinas-Rodriguez, and Arturo Campos-Zamora, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 192

981 F.2d 192

UNITED STATES of America, Plaintiff-Appellee, v. Andrew MENDOZA-BURCIAGA, Juan Alberto-Gonzalez, Vincente Salinas-Rodriguez, and Arturo Campos-Zamora Defendants-Appellants.

No. 91-8477.

United States Court of Appeals Fifth Circuit.

Dec. 29, 1992.

Rehearing and Rehearing En Banc

Denied Feb. 16, 1993.

Nancy B. Barohn, San Antonio, Tex. (court-appointed), for Andrew Mendoza-Burciaga.

Law Offices of Robert Rangel, Robert Rangel, San Antonio, Tex. (court-appointed), for Juan Alberto-Gonzalez.

Ronald P. Guyer, San Antonio, Tex., for Vincente Salinas-Rodriguez.

George Scharmen, San Antonio, Tex., for Arturo Campos-Zamora.

Mark R. Stelmach, Richard L. Durbin, Jr., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for U.S.

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

Before DAVIS and JONES, Circuit Judges and PARKER, ¹ District Judge.

EDITH H. JONES, Circuit Judge:

Appellants Mendoza-Burciaga, Alberto-Gonzalez and Salinas-Rodriquez and Campos-Zamora were all convicted of (1) conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and (2) possession with intent to distribute more than five kilograms of cocaine in violation of § 841(a)(1). Mendoza-Burciaga and Alberto-Gonzalez were additionally convicted of unlawfully carrying firearms during and in relation to a federal drug trafficking felony in violation of 18 U.S.C. § 924(c). The defendants were assessed sentences ranging from 262 to 420 months imprisonment.

Among a variety of challenges to their conviction, appellants raise two thought-provoking arguments. First, they contend that the DEA agents' warrantless search of a residence did not fall within the "protective sweep" exception to the Fourth Amendment's warrant requirement. Additionally, they complain that the district court incorrectly excluded the defendants and their counsel from the in camera hearing to take testimony of confidential informants. While both of these arguments raise constitutional issues, we have decided that the district court did not err in rejecting appellants' assertions. We find no merit in the appellants' other arguments concerning the sufficiency of evidence, juror challenges, jury instructions and sentencing guidelines. We therefore affirm the convictions.

BACKGROUND

In December 1990, members of a combined state and federal drug task force received information from confidential informants that a trailer at 25 Gaila Lane in Del Rio, Texas had received a large shipment of narcotics and that the trailer was to be used as the distribution point. The task force began surveillance of the trailer.

On December 18, an empty truck arrived at the trailer and pulled into a covered garage. Forty-five minutes later it left with boxes in its bed. Air and ground surveillance followed the truck en route to Normandy, Texas. Mendoza-Burciaga drove the truck and Alberto-Gonzalez was the passenger. The truck arrived at the home of Salinas-Rodriguez near Normandy, and backed up on the driveway next to the house.

The agents observed four people entering and exiting the house from the back of the truck, but from their vantage point, the agents could not see whether the people were carrying anything. At this point undercover agent Bowles drove by the house in an unmarked car. Agent Bowles testified that Alberto-Gonzalez, a convicted felon, recognized him. The four people then began acting nervously. Alberto-Gonzalez and Mendoza-Burciaga left the house in the truck.

The agents stopped the truck based on their belief, fortified by the truck's evasive maneuvers, that the suspects were aware of the presence of law enforcement personnel and were attempting to flee. A rifle was visible in the cab of the truck. Alberto-Gonzalez and Mendoza-Burciaga were arrested. A search of the truck turned up two more firearms in a bag. The agents notified the other members of the task force still watching the home that they found weapons in the truck.

Agents swiftly converged on the Normandy home. Campos-Zamora was captured while attempting to flee. Salinas-Rodriguez was also apprehended. The agents next conducted a "protective sweep" of the house to determine whether there were any weapons or persons there, to prevent the destruction of evidence, and to secure the premises. Inside, they saw, in plain view, 300 kilogram size packages, which were later determined to contain cocaine. State officers assigned to the task force then obtained a search warrant for the residence from a justice of the peace in Eagle Pass. That search produced documents belonging to Campos-Zamora. Upon another warranted search of the Del Rio trailer, 239 kilograms of cocaine were found.

DISCUSSION

Confrontation of the Informants

Permeating the entire appeal is the appellants' inability to confront for cross-examination the confidential informants who provided the information that laid the groundwork for probable cause in the original warrants.

The Supreme Court has permitted the government to avoid, under certain circumstances, disclosure of confidential informants' identity since its decision in Roviaro v. United States, 353 U.S. 53, 71, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957). In applying Roviaro, this court has developed a three-part balancing test, under which the trial court must consider (1) the level of the informant's involvement in the alleged criminal activity, (2) the helpfulness of disclosure to the asserted defense and (3) the government's interest in non-disclosure. United States v. Singh, 922 F.2d 1169, 1172 (5th Cir.1991); United States v. Diaz, 655 F.2d 580, 586 (5th Cir.1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982); United States v. Vizcarra-Porras, 889 F.2d 1435, 1438 (5th Cir.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2192, 109 L.Ed.2d 520 (1990). This court applies the clearly erroneous standard to findings of fact and the abuse of discretion standard to the conclusions reached by the trial court. Vizcarra-Porras, 889 F.2d at 1438.

In an in camera hearing, the district court reviewed the evidence of the government and determined that protecting the identity of the confidential informant was proper in light of Roviaro. The evidence and findings are in a sealed record, which this court has carefully reviewed. To permit the defendants' inquiries to be answered, the court tape-recorded questions posed by their counsel before the in camera hearing and then had the government agents furnish their answers during the in camera hearing. The court itself questioned government counsel and the agents vigorously. The informant tip was found to have related only to the presence of cocaine in the Gaila Lane Trailer. Consequently, the informant's information had nothing to do with what the government learned from and after it initiated air and ground surveillance, nor did it involve the events at the Normandy residence. Under factual situations analogous to this, other circuits upheld the exclusion of both the defendant and his attorney. U.S. v. Johns, 948 F.2d 599, 606 (9th Cir.1991) (citation omitted). We are therefore satisfied that Judge Garza neither made clearly erroneous findings of fact nor abused his discretion in reaching his conclusions.

Although this court has suggested allowing counsel for the defendant at in-camera hearings along with the issuance of a gag order as a second best way to ensure the defendants confrontation rights, Singh, 922 F.2d at 1172, the use of this procedure is still within the judge's discretion subject to the same standard of arbitrariness. In this case, although Judge Garza banned the defendants' attorneys from the hearing, we find that the judge did an adequate job of protecting the rights of the defendants as regards possible defenses. See Johns, 948 F.2d at 606 (discussing this procedure). This being so, we uphold the nondisclosure of the identity of the informants.

Suppression of the Evidence

Search of the Truck.

Only Mendoza-Burciaga, the driver, has standing to challenge the search. Alberto-Gonzalez, the passenger in the truck, has no standing to challenge the search. United States v. Harrison, 918 F.2d 469, 472 (5th Cir.1990) (citations omitted).

The agents were justified in stopping Mendoza-Burciaga's truck because they were operating under exigent circumstances. They had reason to fear that Mendoza-Burciaga and Alberto-Gonzalez were fleeing. United States v. Johnson, 862 F.2d 1135, 1138 (5th Cir.1988). They had information from a reliable informant that two men had picked up and delivered narcotics. Their surveillance of the suspects corroborated the tip. The officers knew that Alberto-Gonzalez had been previously convicted of possession of eighteen tons of marijuana. They had observed the truck make a u-turn as if to determine whether it was being followed. Further, the officers were correct in searching and seizing the other weapons in the truck. Officers may legally search for weapons if they believe that the safety of themselves or others is in danger. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201 (1983).

Search of the Normandy House

Only Salinas-Rodriguez has standing to challenge the search of his house in Normandy. Campos-Zamora is incorrect in the assertion that he also has standing to challenge the search. Fourth Amendment rights are personal and may not be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). Campos-Zamora neither owned the Normandy home nor claims that he had a reasonable expectation of privacy there. Campos-Zamora had no possessory interest in the Normandy house which he neither owned nor occupied, and no expectation of privacy is created simply by presence. United States v. Whitley, 670 F.2d 617, 619 (5th Cir.1982).

As to the constitutionality of the actual search, the Supreme Court recently...