U.S. v. Mendoza, 95-50110

• Decision Date: 11 March 1996
• Docket Number: No. 95-50110,95-50110
• Citation: 78 F.3d 460
• Parties: 96 Cal. Daily Op. Serv. 1660, 96 Daily Journal D.A.R. 2801 UNITED STATES of America, Plaintiff-Appellee, v. Gilbert MENDOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 460

78 F.3d 460

96 Cal. Daily Op. Serv. 1660, 96 Daily Journal

D.A.R. 2801

UNITED STATES of America, Plaintiff-Appellee, v. Gilbert MENDOZA, Defendant-Appellant.

No. 95-50110.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 5, 1996.

Decided March 11, 1996.

James P. Walsh, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

Donald C. Randolph, Santa Monica, California, for defendant-appellant.

Appeal from the United States District Court for the Central District of California; Terry J. Hatter, Jr., District Judge, Presiding.

Before: BEEZER, BRUNETTI and JOHN T. NOONAN, Jr., Circuit Judges.

NOONAN, Circuit Judge:

Gilbert Mendoza pleaded guilty to a charge of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841 and to a charge of possessing with intent to distribute 42,000 pounds of cocaine in violation of 21 U.S.C. § 841(a)(1). He reserved the right to appeal a denial of his Kastigar motion and to appeal his sentence. We affirm his conviction and remand for reconsideration of his sentence.

FACTS

On October 3, 1989 at approximately 2:00 p.m. Mendoza was arrested in Hollywood, California by a team of local police officers. He was informed that he was charged with possession of cocaine with intent to distribute. Advised of his constitutional rights, he stated that he understood them and declared that he was willing to answer questions without the presence of a lawyer. He was interviewed by task force officer Dean Caputo and DEA Special Agent John Emerson, who asked him to explain how he became a driver for "the organization." He declared that he had been approached by Hector and Carlos (persons known to the agents as Hector Tapia-Anchondo and Carlos Tapia-Ponce), who in 1986 asked him to drive a tractor-trailer for them. He said that he would pick up the vehicle on Bradley Street in El Paso, Texas after being called by Hector Tapia-Anchondo and would drive it to the Los Angeles area. He stated that he was paid $11,000 per trip and had made "countless" trips from Texas to California in the last three years. He said that there was no co-driver. He said that he had taken the trailers to three different warehouses in the Los Angeles area, including a warehouse in Sylmar and a warehouse in Sherman Oaks. He would carry boxes of pottery and paintings which never changed: the items, in fact, were never unloaded. He had suspected that there was something suspicious about what he was doing.

At the Huntington Park Police Department Mendoza was interviewed the same day by DEA Special Agent James Capra, who was the case agent, and by Detectives William Huffman and D.J. Fitzgerald of the Huntington Park Police Department. Fitzgerald asked Mendoza if he understood his constitutional rights and Mendoza answered yes and stated that he was willing to talk. He repeated that he had been hired by Hector and Carlos and was paid $11,000 to drive a loaded tractor-trailer from El Paso to Los Angeles, adding that his profits ran from $9,000 to $10,000 per load and that he made four trips per month from El Paso to Los Angeles. He also stated that the tractor-trailer had been purchased by Hector for $52,000 in cash, but the vehicle was registered in Mendoza's name because Hector was illegal. He identified Hector and Jose Manuel Vasquez by photograph.

Mendoza declared that he always took the same merchandise back and forth on these trips. On the way from El Paso to Los Angeles the fifth wheel was unusually heavy whereas returning the same merchandise to El Paso the fifth wheel was noticeably lighter. After he picked up the loaded trailer in El Paso Hector Anchondo would have four or five vehicles follow the trailer over a distance of several hundred miles. Anchondo and Manuel Vasquez would drive ahead of the trailer and inspect the checkpoints and scales to insure that narcotics-sniffing dogs were not present at them. Anchondo told Mendoza to avoid tractor-trailer scales and on numerous occasions Mendoza would alternate the route to avoid the scales. After clearing the checkpoints Anchondo would give Mendoza new manifests showing the loads of merchandise had originated from New Mexico and not El Paso. Anchondo would sign the bills of lading under the name "Tom Lee." Anchondo would place new magnetic signs on the sides of the trailer. On arrival at the warehouse in the Los Angeles area Mendoza would drop off the tractor-trailer and would be taken to a hotel, usually by Carlos Tapia or one of the Tapias' associates.

Mendoza would stay at the hotel for two or three days and then be called by Tapia or Anchondo to pick up the tractor-trailer.

Mendoza stated that he had last seen Hector two weeks ago at Hector's house in El Paso and mentioned a white building there on Bradley Street with the name "Lopez Imports." He also mentioned a Carlos Anchondo who was the father and a Carlos Anchondo who was the son. He stated that he had a blue car in his name that actually belonged to Hector. He mentioned "Ruidoso" and "Ruidoso Arts and Crafts." He also gave the names of "Hugo" and "Jimmy" and "Mario" and "Bobby." He provided a number of telephone numbers which the detectives wrote down. He identified one "Ponchito," who took care of the property at Canutillo, Texas which was the "location of the organization" where there were vehicles, motorcycles, a bulldozer and two mobile homes. He gave exact directions how to reach this place.

On October 4, 1989 Mendoza was further questioned by Detectives Dominguez and Key of the Southgate Police Department. He told the same story of being offered a job to drive a trailer for Hector and Carlos, adding that he first did it driving for them from Ruidoso, Texas to El Paso, Texas and being paid $1,500 for this run. After six months Hector and his associates offered him a regular job with their association to be their sole driver, adding that they would buy him a tractor-trailer. He continued to make runs for them within Texas, being paid $3,000 for each round trip and at Hector's direction avoiding the scales. After a period he was asked to make the trips from El Paso to Los Angeles for $11,000 per trip. He told the same story he had told the other officers about the El Paso to Los Angeles trips, and he repeated how associates of Hector "would drive by him in Jaguars, Mustangs or BMWs and that they would instruct him to wait there as they drove through the scales or border stops just to see if there were any narcotic-sniffing dogs at those sites." After he got past the checkpoints one of the associates would change the magnetic signs on the side of his truck to show a different company name. He was always paid in cash by Hector, always paid before his departure and always given extra money for expenses.

Detective Dominguez, Sergeant Key and Detective Affeld then drove Mendoza so he could show them different warehouse locations to which he had driven his trailer. Two of these warehouses he identified as having belonged to Hector and his associates. The third location Dominguez found had been registered to Tapia-Ponce. A fourth location Mendoza said belonged to Hector and he had been told that it was "the emergency location."

On October 5, 1989 Mendoza appeared in state court for his first appearance on the state charges. He was assigned Rita Smith, Deputy Public Defender, to defend him. She entered into an agreement with Los Angeles County Deputy District Attorney Court Hazell which provided that anything Mendoza said to officers after October 5, 1989 "would not be used against him." The agreement expressly did not apply to earlier statements by Mendoza. On October 25, 1989 DEA agents Capra, William Sherman and Mark Trouville, visited Mendoza at the Huntington Park jail. Rita Smith agreed that they could ask him about the case. Mendoza declined to talk with the agents until he spoke with the federal prosecutor. On November 3, 1989, Assistant United States Attorney Walsh, who was in charge of the federal case, Special Assistant United States Attorney Susan Bryant-Deasan, Sergeant Huffman and Rita Smith met with Mendoza at the jail to discuss whether he would cooperate with the federal government. Mendoza telephoned a member of his family and then informed this group that he was terminating his cooperation.

PROCEEDINGS

On November 28, 1989 Mendoza was federally indicted along with Hector Anchondo and several others. On December 4 he was arrested by federal agents. On December 11 he was arraigned and pled not guilty; counsel was appointed to represent him in the federal case. On June 13, 1990 Mendoza moved to suppress statements he claimed to have made to the authorities after October 5, 1989.

On November 21, 1991 Mendoza was arraigned on the third superseding indictment, charging him with the counts to which he ultimately pleaded guilty. The defendants also charged as conspirators on count 1 were Hector Tapia-Anchondo, Hugo Fernando Castillo Alvarez, Miguel Chavez, and Alexander Herrera. The conspiracy charged was establishing a network including individuals and businesses in El Paso, Texas, Ruidoso, New Mexico, and Los Angeles for the purpose of distributing cocaine in the Los Angeles area. Unindicted coconspirators Tapia-Ponce was charged with establishing Fiesta Arts and Crafts with a warehouse in Sylmar, California where large amounts of cocaine were stored after their delivery by tractor-trailer from El Paso. Unindicted coconspirators James McTague and Mauricio Monroy were said to have maintained the inventory and records at the Sylmar warehouse. Mendoza was specifically charged with driving the cocaine by truck from El Paso to Los Angeles using false bills of lading and using shipments of arts and crafts materials as a cover for the cocaine.

On May 4, 1992 Anchondo moved to sever his trial from that of Mendoza; the motion was granted, and Mendoza's trial was ordered to trail that of his codefendants. On December 22, 1992 the...