U.S. v. Miranda

• Decision Date: 14 September 2005
• Docket Number: No. 04-15920.,04-15920.
• Citation: 425 F.3d 953
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Adan Gil MIRANDA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

425 F.3d 953

UNITED STATES of America, Plaintiff-Appellant, v. Adan Gil MIRANDA, Defendant-Appellee.

No. 04-15920.

United States Court of Appeals, Eleventh Circuit.

September 14, 2005.

COPYRIGHT MATERIAL OMITTED

Richard A. Rice, Jr., Amy Levin Weil, U.S. Atty., Atlanta, GA, for Plaintiff-Appellant.

Dovre Christian Jensen (Court-Appointed), Foster, Jensen & Gulley, LLC, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, PRYOR and ALARCÓN^*, Circuit Judges.

ALARCÓN, Circuit Judge:

We must decide whether the district court erred in granting Adan Gil Miranda's motion for a judgment of acquittal. Mr. Miranda was convicted by a jury of the crimes of conspiracy to distribute methamphetamine and cocaine, possession with the intent to distribute at least 500 grams of methamphetamine on September 5, 2002, possession with the intent to distribute at least 500 grams of cocaine on the same date, and possession of a Lorcin .380 caliber semi-automatic pistol, and a Glock 9mm semi-automatic handgun, in relation to a drug trafficking crime.

In his motion for a judgment of acquittal, Mr. Miranda did not challenge the sufficiency of the evidence that demonstrates that his co-defendants conspired to possess with the intent to distribute at least five kilograms of cocaine, and at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 846(b)(1)(A)(iii) and 841(b)(A)(viii). Instead, Mr. Miranda contended that the evidence presented by the Government was insufficient to demonstrate that he was a member of the alleged conspiracy.

The Government seeks reversal of the judgment of acquittal on the ground that the District Court failed to draw all permissible inferences in favor of the jury's guilty verdict, and did not view the evidence in the light most favorable to the Government. We reverse the judgment of acquittal because we conclude that the evidence was sufficient to demonstrate that Mr. Miranda was a member of the conspiracy, and that he is guilty of the possession crimes that were committed in furtherance of the conspiracy.

I

A

The evidence, viewed in the light most favorable to the Government,¹ demonstrated that Mr. Sebastian Cambray Cuevas ("Mr. Cuevas") was the leader of a large-scale cocaine and methamphetamine drug-trafficking organization that operated in Atlanta. Through the use of wiretaps and surveillance, a DEA task force identified several members of Mr. Cuevas's organization including Jose Jaime Cambray ("Mr. Cambray"). Mr. Cambray's role in the conspiracy was to operate a stash house, to process methamphetamine, and to "cut" or dilute cocaine. A stash house is a place where drugs or money is stored by narcotics traffickers. Mr. Cambray used the rear bedroom in Apartment 29G at the Worthing at Galleria Apartments in Smyrna, Georgia for this purpose. Apartment 29G has one means of ingress and egress through the door to the hallway. There is a balcony on the left side of the living room. Access to the balcony can be made through sliding glass doors. There is an exit directly from the balcony to the street level which is two levels below.

Antonio Mojica Ramon ("Mr. Mojica") was employed by Mr. Cuevas to serve as a courier of drugs and to collect the proceeds from their sale. On two occasions prior to September 5, 2002, Mr. Mojica delivered drugs to Apartment 29G. On the first occasion, Mr. Mojica delivered two kilograms of cocaine to Mr. Cambray at Mr. Cuevas's request. Mr. Mojica directed Mr. Cambray to add a non-narcotic substance to the pure cocaine to increase the weight to four kilograms. When Mr. Mojica delivered cocaine to Apartment 29G, Defendant Adan Gil Miranda was sitting on the couch in the living room watching television. When Mr. Mojica returned to Apartment 29G the following day after receiving a telephone call that the cocaine had been cut, Mr. Mojica again saw Mr. Miranda sitting on a couch watching television.

Through intercepted telephone calls between members of the Cuevas organization, officers of the DEA Task Force learned that a residence at 499 Alcott Street in Smyrna, Georgia was being used as a stash house. The DEA task force obtained a warrant to search that residence. In what is referred to as a "sneak-and-peek" investigative operation, members of the DEA Task Force entered into the 499 Alcott Street residence at 4:45 a.m. on August 22, 2002, when no one was there and removed three pounds of methamphetamine. They did not leave a copy of the search warrant because they wanted to make it appear that a burglary had been committed. By staging a burglary, the agents hoped to precipitate activity within the Cuevas conspiracy that would provide additional evidence of criminal conduct.

The ruse had the desired effect. Mr. Cuevas discussed the apparent theft of the methamphetamine from the 499 Alcott Street stash house with Jesus Alvear Uribe. The methamphetamine had a street value of $24,000 to $30,000. Mr. Uribe suggested that Mr. Mojica was the thief. Mr. Cuevas suspected that the culprit was a man who had been employed to wash the methamphetamine at the 499 Alcott Street stash house. After the entry into the 499 Alcott Street stash house and the apparent theft of methamphetamine, Mr. Cuevas moved his methamphetamine and cocaine operation to Apartment 29G.

On September 4, 2002, Mr. Cuevas asked Mr. Cambray to deliver a pound of methamphetamine to David Herrera and Jose Cisneros. Mr. Cambray delivered the methamphetamine to Mr. Herrera and Mr. Cisneros at a parking lot next to the La Barca Restaurant. The distribution of the drug was observed by DEA Task Force officers.

Some of the DEA Task Force followed Mr. Herrera and Mr. Cisneros as they drove away from the La Barca Restaurant. The officers requested that Cobb County Police Department officers make a traffic stop of the vehicle. When the car was stopped and searched, a Cobb County K-9 unit discovered a brick of methamphetamine.

Other members of the DEA Task Force followed Mr. Cambray in order to locate the new drug processing site. They followed Mr. Cambray to the Worthing at Galleria Apartments. Later, the officers observed Mr. Cambray deliver a plastic bag to Mr. Mojica outside the Worthing at Galleria Apartments. The following day, the DEA Task Force obtained a search warrant to search Apartment 29G.

At 8:00 p.m. on September 5, 2002, members of the DEA task force went to Apartment 29G to execute a search warrant. The officers assumed that the occupants of Apartment 29G would be armed. The task force members were wearing gray gear that had the initials "DEA" on the front. After an officer knocked on the door, and it was opened a little, the officers yelled "police" and pushed the door open and entered. DEA Special Agent Keith Cromer entered the room first, carrying a bullet resistant ballistic shield. He observed Mr. Miranda and another man sitting on a couch that was parallel to one wall facing a television set placed in front of the opposite wall. A female had opened the door. Special Agent Cromer also observed Jose Calderon Salgado standing next to the kitchen.

The only escape route from Apartment 29G was through the hallway door which was blocked by eleven DEA agents. As Special Agent Cromer approached Mr. Salgado, Mr. Miranda ran past the officer and entered a hallway that led to the back bedroom. Special Agent Cromer shouted: "Stop running down the hallway, stop police." Mr. Miranda did not stop. Instead, he entered the back bedroom and attempted to close the door. Special Agent Cromer stuck his foot in the door and pressed his ballistic shield against it. Special Agent Cromer pushed the door open and saw two guns lying in plain view on a mattress. Special Agent Cromer yelled "gun," at which time Mr. Miranda let go of the door.

Mr. Miranda ran into a bathroom. Special Agent Cromer ordered Mr. Miranda to come out of the bathroom. After a few minutes, Mr. Miranda came out of the bathroom. He was placed under arrest and removed to the living room.

There were two mattresses on the floor in the back bedroom. The two handguns Special Agent Cromer had observed when Mr. Miranda attempted to close the door were lying on top of one of the mattresses. In the middle of the room was a kilo press on a stand. A kilo press is used by narcotics traffickers to compress a kilogram quantity of a controlled substance.

On a folding table was a microwave and the top part of a blender. The control portion of the blender was lying on the floor. In the blender top was a quantity of what appeared to be methamphetamine. The substance was wet.

Special Agent Cromer also found a damp substance in the kilo press which appeared to be methamphetamine. Special Agent Cromer testified that based on his training and experience, he believed that methamphetamine had been mixed with another substance in the blender, and then compressed in the kilo press.

The back bedroom also contained cans of acetone and manitol. Acetone is used to purify methamphetamine. Manitol is a cutting agent used to dilute cocaine to increase its value. In preparing cocaine for distribution, it is placed in a blender and then heated to soften it. Manitol is then added to the cocaine and the two substances are blended together, compressed, and then packaged for distribution.

Special Agent Cromer also found a small digital scale on the floor in the back bedroom. He also discovered several clear plastic bags. Plastic bags are used by drug dealers to package small quantities of drugs for distribution.

In one of the closets in the bedroom, Special Agent Cromer discovered a package of food savers. Food savers are ordinarily used to seal food that is to be stored in a freezer for a long period of time to preserve its freshness. Narcotics traffickers use food savers to seal drugs in an attempt to prevent the odor of the drug from being detected.

In the other closet in the back bedroom,...