U.S. v. Menesses

• Decision Date: 22 May 1992
• Docket Number: No. 90-2660,90-2660
• Citation: 962 F.2d 420
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario V. MENESSES, Jr., Danny Pineda Barreto and Harold Bratovich, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 420

962 F.2d 420

UNITED STATES of America, Plaintiff-Appellee, v. Mario V. MENESSES, Jr., Danny Pineda Barreto and Harold

Bratovich, Defendants-Appellants.

No. 90-2660.

United States Court of Appeals, Fifth Circuit.

May 22, 1992.

Mike Degeurin, Houston, Tex., for Bratovich.

Nancy C. Harrison, Houston, Tex. (court appointed), for Barreto.

George McCall Secrest, Houston, Tex. (court appointed), for Manesses.

James L. Turner and Paula Offenhauser, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before POLITZ, Chief Judge, REYNALDO G. GARZA, and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

PROCEDURAL HISTORY

On November 29, 1989, an indictment was filed in the United States District Court for the Southern District of Texas charging six individuals with violations of federal narcotics laws. The indictment alleged that Soto Angel Andrade, a/k/a Julian Rivera ("Andrade"), Mario Menesses, Harold Bratovich, Carlos Alberto Alegria-Moreno ("Alegria"), Danny Pineda Barreto ("Barreto"), and Frank David Barreto ("Frank Barreto"), ¹ conspired with intent to distribute in excess of five kilograms of cocaine (Count One) and aided and abetted one another in the possession with intent to distribute in excess of five kilograms of cocaine (Count Two), in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. The Appellants pleaded not guilty to all charges. Trial by jury commenced on April 24, 1990 and concluded two days later with verdicts of guilty on all counts.

On July 13, 1990, the district court imposed sentence. Barreto was remanded to the custody of the Attorney General for concurrent 235 month terms of confinement which were to be followed by concurrent five year terms of supervised release. Bratovich was sentenced to concurrent 200 month terms of confinement and concurrent five year terms of supervised release. The district court sentenced Menesses to serve concurrent 420 month terms of confinement to be followed by five year terms of supervised release. All were ordered to pay the mandatory special assessment of $100.

These appeals followed.

FACTS

We review the facts in the light most favorable to the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The indictment returned against Appellants was the end result of a sting operation in which agents of the Federal Bureau of Investigation ("FBI") attempted to infiltrate and target Colombian suppliers of large quantities of cocaine. Specifically, Ishmael Beltran was viewed as being in charge of a major Colombian cocaine exporting organization. FBI agent Enrique Mercadal testified that a "cooperating witness," Raphael Gonzales, introduced him as a cocaine smuggler to Beltran via telephone sometime in June, 1989. They led Beltran to believe that Mercadal and Gonzales were partners.

On August 1, 1989, Mercadal received a telephone call from co-defendant Alegria who stated that he was calling on behalf of Beltran in regards to a 500 kilo shipment.

                Mercadal, however, failed to deliver the cocaine to Alegria;  instead telling him that his smuggling operation had encountered difficulties.   Although Alegria never received the cocaine, he continued to contact Mercadal.   Beltran made arrangements for Mercadal's organization to transport a load of cocaine from Colombia to Houston.   Beltran and Alegria were under the impression that Mercadal's organization handled the cocaine from the moment that it left Colombia.   In fact, the FBI used a Mexican smuggling ring that was unaware that this was a sting operation.   The Mexican smugglers were to bring the cocaine to El Paso, where Mercadal would take control of it.   The smugglers, however, were late in arriving
                

Mercadal stalled Alegria until October 3, 1989, when he received a telephone call from an individual who identified himself as "Julian Rivera," later identified as Andrade. Andrade related that he was Beltran's personal envoy and that he had been dispatched to Miami to look into the delays affecting the shipment from El Paso. Mercadal told him that the watchword of his organization was caution and that if he wanted the job done right, Beltran would have to be patient. Alegria and Andrade telephoned Mercadal daily until October 17, 1989, when a conference was called at a Miami restaurant where Andrade told Mercadal that if the delivery did not occur shortly, "blood would flow."

Finally, Mercadal heard that delivery in El Paso was imminent. He informed Andrade and reserved a room for him at a Ramada Inn in Houston. Mercadal then learned that there would be another delay. He telephoned Andrade, who had already left and had returned to Miami. Mercadal then called Andrade in Miami. Andrade said that he had spotted surveillance in Houston and had left so as not to jeopardize the operation.

Finally, the shipment reached El Paso. Mercadal led Andrade and Alegria to believe that Mercadal was transporting it overland to Houston. Actually, the FBI flew it there. Andrade was staying at the Grand Hotel, and Mercadal telephoned him on November 15th to tell him that the delivery would take place the next day. That night, at dinner, Mercadal told Andrade that he would need $250,000 to pay his people. Despite the fact that the cocaine had a street value of $3,000,000, Andrade hesitated and said that only Beltran could authorize such a disbursement.

The following morning, Mercadal, Andrade and Alegria spoke via telephone. They argued further about the money. Andrade said he was there solely to receive the merchandise and that Alegria was responsible for paying for the transportation. Mercadal pressed for an answer on how soon he would be paid. Andrade said that he would have to examine the cocaine and that would take at least an hour, and that Alegria would pay Mercadal shortly thereafter.

At 11:55 a.m., Mercadal called Andrade and told him that the delivery would take place in one hour at the Two Pesos Restaurant. Meanwhile, FBI agents were loading the cocaine into a rented PENSKE truck. Between 1:30 and 2:00 p.m., Andrade entered the restaurant where Mercadal and his FBI associate Mark Suarez were waiting. Menesses, who was previously unknown to Mercadal, accompanied Andrade. After engaging in shop talk regarding the pitfalls of transporting cocaine across the border, Mercadal handed the keys to the PENSKE to Andrade.

Mercadal made one more phone call to Alegria, asking when he would be paid. Alegria answered that once the shipment was verified, he would call Mercadal.

Meanwhile, FBI agent Dale Rivett had been circling the area in a Cessna aircraft. He had observed two men exit the Two Pesos and get into a white compact pickup truck. The truck drove across the street to where the PENSKE was parked. The truck drove past the PENSKE and circled the parking lot. The truck then left the parking lot and drove to a nearby Circle K, where one man exited the truck, returned to the PENSKE, walked around it, and returned to the truck. Another FBI observer identified this man as Andrade. A Mustang automobile then pulled up behind About 2:39 p.m., the PENSKE came to a stop at a house which FBI agent Douglas John Hanson identified as 9015 Brookwolf as he walked past it. Menesses and Andrade drove off in the PENSKE an hour and twenty minutes later and stopped at a transmission shop off Highway 290 where they unloaded the cocaine. The PENSKE then drove off to a small shopping center where the FBI arrested Andrade and Menesses.

                the truck and the man who had just surveyed the PENSKE walked to the passenger side and appeared to speak with someone in the car.   Both Andrade and Menesses then walked back to the PENSKE and drove off in it, followed by the Mustang.   The Mustang continued to follow the PENSKE until it came to a subdivision where the PENSKE turned.   The Mustang continued past the subdivision
                

FBI agents had continued to observe the Mustang, which drove over to 1819 Bingle. Special Agent Phil Armand observed Bratovich exit on the driver's side and Alegria exit on the passenger's side. The two walked over to a transmission shop on the property. A Nissan automobile pulled up some two hours later. Alegria came from the shop and got in the Nissan. The Nissan proceeded on Bingle to where it became Voss and turned onto Westheimer. The Nissan driver suddenly moved from the middle lane into the left lane, made a sharp U-turn, and started back toward Voss. Travelling quickly through heavy traffic, the Nissan cut past a bus on Westheimer and turned sharply onto Voss.

On Voss, the Nissan became entangled in traffic and the FBI chase vehicle, which had by now flashed warning lights, overtook the suspect vehicle and pulled it over. The agents arrested its passenger, Alegria, and the driver, Ettore Bratovich, Harold Bratovich's brother. A pager was found on the passenger floorboard. The number to the pager corresponded to the one used by Mercadal to contact Alegria.

The agents then returned to the Bingle property and arrested Harold Bratovich, who did not resist arrest. The agents found no drugs, weapons, beepers or drug paraphernalia on Bratovich or, apparently, at the Bingle location. The agents then secured warrants for a search of the Brookwolf premises, which proved more successful. The house was the residence of Frank and Danny Barreto. Frank owned the aforementioned transmission shop, Texas Transmission, where the agents had located the specially constructed pallet in which the cocaine had been secreted on board the PENSKE. The agents found the cocaine, which had been removed by the time the agents found the pallet, at the Barreto residence. Also at the Barreto residence, the agents found laboratory equipment of the type used in making "crack" cocaine, weapons and large sums of cash. The agents arrested the Barretos.

The FBI had summoned Special...