U.S. v. Mendoza-Salgado, MENDOZA-SALGAD

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore LOGAN and BRORBY; BRORBY
Citation964 F.2d 993
Parties35 Fed. R. Evid. Serv. 1029 UNITED STATES of America, Plaintiff-Appellee, v. Hilarioefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ramon Edwardo GARCIA, Defendant-Appellant.
Docket Number90-2286,Nos. 90-2283,D,MENDOZA-SALGAD
Decision Date15 May 1992

Page 993

964 F.2d 993
35 Fed. R. Evid. Serv. 1029
UNITED STATES of America, Plaintiff-Appellee,
Hilario MENDOZA-SALGADO, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
Ramon Edwardo GARCIA, Defendant-Appellant.
Nos. 90-2283, 90-2286.
United States Court of Appeals,
Tenth Circuit.
May 15, 1992.

Page 996

Presiliano Torrez, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., and James D. Tierney, Asst. U.S. Atty., with him, on the brief), Albuquerque, N.M., for plaintiff-appellee.

Salvador C. Ramirez, Anthony, N.M., for defendant-appellant Mendoza-Salgado.

Mary Stillinger (Bernard J. Panetta, II, with her, on the briefs), Caballero, Panetta & Ortega, El Paso, Tex., for defendant-appellant Garcia.

Page 997

Before LOGAN and BRORBY, Circuit Judges, and CARRIGAN, * District Judge.

BRORBY, Circuit Judge.

A grand jury indicted sixty-three-year-old Defendant Hilario Mendoza-Salgado (Mendoza) on charges he conspired to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. Co-defendant Ramon Edwardo Garcia was indicted on the conspiracy count as well as charges he distributed more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A), and 18 U.S.C. § 2. Mr. Garcia filed a pretrial motion to suppress evidence seized during a warrantless search of his residence. The United States District Court for the District of New Mexico denied the motion and admitted the evidence at trial. A jury returned guilty verdicts against both defendants on all counts. Defendants allege numerous points of error in this consolidated appeal.

Mr. Mendoza claims the district court rendered his trial fundamentally unfair because it denied him access to a confidential government informer defendant considered essential to his entrapment defense. Mr. Mendoza also contends the government entrapped him as a matter of law because agents induced him to locate a cocaine supplier. Furthermore, he asserts no reasonable jury could reject his entrapment defense since the government failed to prove he was predisposed to commit the conspiracy offense. In the alternative, Mr. Mendoza argues the government produced insufficient evidence to sustain his conspiracy conviction. Finally, Mr. Mendoza claims the district court abused its discretion when it allowed prosecutors to introduce firearms and cocaine seized at Mr. Garcia's residence as evidence against him.

Mr. Garcia contends the district court erred in denying his motion to suppress evidence agents seized during a warrantless entry and search of his home. Mr. Garcia also claims the district court denied his Sixth Amendment right to counsel of choice when it required him to proceed to trial with attorneys whom he met only four days prior to the hearing and whom he did not want representing him. We have jurisdiction under 28 U.S.C. § 1291 and affirm the convictions of both defendants.


Testimony and evidence produced during the pretrial suppression hearing and subsequent trial detail the following course of events. As part of an undercover operation, Drug Enforcement Agent (DEA) Jesus Gallo instructed a confidential informer to spread the word he was a narcotics buyer interested in purchasing cocaine. In early January 1990, the informer notified Agent Gallo that Mr. Mendoza could supply large quantities of the drug. In a telephone conversation with Agent Gallo on January 18, 1990, Mr. Mendoza confirmed he could supply kilogram quantities of cocaine. Although the record is unclear as to who placed the telephone call, Mr. Mendoza indicated he did not want to discuss "business" on the phone and preferred instead to meet in person to pursue the matter further.

During a collect call to Agent Gallo on March 12, 1990, Mr. Mendoza arranged a meeting between the officer and defendant's supply source. 1 Mr. Mendoza insisted that Agent Gallo work through him in

Page 998

all future transactions, assured the agent no harm would come to him and promised delivery of a sample of cocaine at their meeting.

Agent Gallo, along with another individual, met Mr. Mendoza and his supplier, Alberto "Beto" Sierra Salas (Sierra), at a

Page 999

restaurant in El Paso the following day. 2 Both Mr. Mendoza and Mr. Sierra openly discussed past drug transactions in front of Agent Gallo, describing an ongoing distribution scheme involving hundreds of kilos of cocaine supplied by an unidentified member of the Mexican Federal Judicial Police. During this meeting, Mr. Sierra and Mr. Mendoza agreed to deliver thirty kilograms of cocaine to Agent Gallo in Las Cruces, New Mexico the following week for a sale price of $570,000. Mr. Sierra promised to pay Mr. Mendoza for his services, and from then on the agents should conduct all business directly with him. Before leaving, Mr. Sierra gave Agent Gallo a sample of cocaine.

A week later, undercover DEA Agents Gallo and Alfredo Ortega met Mr. Sierra at a restaurant in Las Cruces to arrange delivery of the cocaine. At first, Mr. Sierra indicated he could deliver only nine kilograms of cocaine because his source, whom he identified as a man who owned two bars in El Paso, had sold much of the supply since their previous meeting. After the agents displayed $475,000 in cash, however, Mr. Sierra reversed himself and promised delivery of the full thirty kilograms originally agreed upon.

The next day Mr. Sierra again met with Agent Gallo to finalize the delivery terms. 3 They settled on a two-part transaction. First, Mr. Sierra agreed to pick up nine kilograms of cocaine from his source and deliver the load to Agent Gallo at a rest stop just inside the New Mexico state line. In exchange, the agent promised to hand over $171,000 cash. Afterwards, Mr. Sierra planned to retrieve the remaining twenty-one kilograms and complete a second delivery within two hours.

Following the meeting, DEA Special Agent Jimmy Garza and other agents using aircraft surveillance trailed Mr. Sierra to Defendant Garcia's house in El Paso. At approximately 2:20 p.m. Mr. Sierra left Mr. Garcia's residence carrying a fifty pound pet-food bag which he placed in the trunk of his car. Ten minutes later, Mr. Sierra called Agent Gallo on his cellular phone and stated he was en route to the prearranged rest area. Surveillance teams again kept Mr. Sierra under watch during the forty-five minute drive from Mr. Garcia's house to the meeting site. Agents promptly arrested Mr. Sierra after he showed Agent Gallo nine kilograms of cocaine stuffed inside a pet-food bag in his trunk.

At 3:40 p.m. agents decided to secure Mr. Garcia's residence, and either obtain a search warrant or seek consent to search his house for the remaining twenty-one kilograms of cocaine. Agents watched the house, while officers from the DEA, the Texas Department of Public Safety, the El Paso Police Department, and the United States Border Patrol met in a nearby parking lot.

At 5:30 p.m. seven agents, some with guns drawn at their sides, approached Mr. Garcia's residence and knocked on the door. Mr. Garcia's eleven-year-old son appeared in the entrance. The officers identified themselves as drug agents, asked if they could come inside, and walked past the boy after he allegedly motioned them in. 4 The agents found Mr. Garcia and nine

Page 1000

others in the house, including his wife, four children, a sister, his ninety-year-old mother, and an unrelated male.

Mr. Garcia admitted joint ownership of the house with his wife, but refused to grant the agents consent to search the premises. He also admitted he owned a bar in El Paso, which agents testified was a frequent hangout for members of the Mexican Federal Judicial Police. Soon thereafter, officers arrested Mr. Garcia under the mistaken belief he was the same individual named in an unrelated arrest warrant police learned of after entering the house. Mr. Garcia insisted he was not the same individual named in the warrant, and a cursory check revealed he did not have the identifying tatoos on his arms as described in the warrant. However, his name, height and general appearance matched the named individual. He also produced two driver's licenses with different addresses which aroused police suspicion. As a result, officers took Mr. Garcia to the El Paso Police Department to verify his identity.

The agents immediately told Mrs. Garcia the reason for her husband's arrest and explained that they suspected cocaine on the premises. Agents indicated they would guard against removal of drug evidence by remaining in the house while other officers completed attempts to obtain a search warrant. Mrs. Garcia, who agents testified appeared "calm, quiet, observing, listening, friendly [and] cooperative," insisted she knew nothing about cocaine and said, "go ahead and search." Mrs. Garcia signed a search consent form after agents read her the terms in Spanish and advised her of the right to withhold consent. Agents insisted Mrs. Garcia understood the signed document. She asked no questions before or during the search, nor did she withdraw consent at any time.

Agents found eleven loaded firearms in the master bedroom, as well as a briefcase containing 700 grams of cocaine. Mrs. Garcia told agents the briefcase belonged to her husband and he forbade her to open it.



Defendant Mendoza asserts the district court deprived him of due process and a fair trial by denying his motion to disclose the identity of the DEA's confidential informer. Mr. Mendoza claims the informer was essential to his entrapment defense because he was the only individual capable of testifying as to whether or not defendant was predisposed to commit the offense. We find no constitutional error.

Due to the strong public interest in furthering effective law enforcement, the government enjoys a privilege to withhold from disclosure the identity of persons who furnish law enforcement officers with information on criminal acts....

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