U.S. v. Molinar-Apodaca, MOLINAR-APODAC
| Decision Date | 29 November 1989 |
| Docket Number | E,No. 88-7026,MOLINAR-APODAC,88-7026 |
| Citation | 889 F.2d 1417 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Fernandonrique Felix-Avila, Margarita Guillen-Felix, Gloria Elena Hernandez-Guillen, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mary Stillinger, Bernard J. Panetta, II, Caballero, Panetta and Ortega, El Paso, Tex., for Molinar-Apodaca.
Charles Louis Roberts, Joseph (Sib) Abraham, Jr., El Paso, Tex., for Enrique Felix-Avila, Margarita Guillen-Felix & Hernandez.
LeRoy Morgan Jahn, Philip Police, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before WISDOM, JOHNSON and HIGGINBOTHAM, Circuit Judges.
Defendants Fernando Molinar-Apodaca, Enrique Felix-Avila, Margarita Guillen-Felix and Gloria Elena Hernandez-Guillen challenge their convictions for various offenses related to a marijuana distribution enterprise. We affirm.
The four appellants in this case, Fernando Molinar-Apodaca, Enrique Felix-Avila, Margarita Guillen-Felix and Gloria Elena Hernandez-Guillen, were indicted with six others as criminal participants in a marijuana distribution network which operated principally between the cities of El Paso, Texas, and New York, New York. The operation took place during a period of approximately thirteen months, beginning January 1987, and continuing through February 1988. As a result of the Government's investigation of the enterprise, several seizures of marijuana were made. The seizures and related arrests which led to the convictions that are challenged by the appellants herein were made on January 30, 1987, September 9, 1987, November 21, 1987, and February 2, 1988. What follows are summaries of the events leading to each respective seizure.
On the afternoon of January 29, 1987, United States Border Patrol Agent Martinez approached Maria Guadalupe Felix-Avila and Jose Ruben Felix-Avila, co-defendants in this case 1 at the El Paso International Airport and questioned the pair concerning their nationality. In the possession of Maria Guadalupe Felix-Avila were two one-way tickets on American Airlines for travel between El Paso, Texas, and New York, New York. The airline tickets were issued in the names of Maria Candelaria and Frank Garcia. 2
Upon questioning by Agent Martinez, Maria Guadalupe Felix-Avila and Jose Ruben Felix-Avila asserted that they had been given the tickets by an unknown woman in a bar in Cuidad Juarez, Mexico, so that they could go to New York to have their palms read. That explanation aroused Agent Martinez's suspicions and he removed a luggage claim check from the envelope which held the couple's tickets. Although Agent Martinez did not attempt to restrain the couple from boarding the aircraft, he notified the DEA of the aforementioned circumstances and provided the DEA with the luggage claim check number so that the bag could be identified upon arrival in New York. Acting on that information, New York Port Authority detectives located the piece of luggage referenced by the claim check, a blue suitcase, upon its arrival at New York's La Guardia Airport later in the evening. The detectives then placed the blue suitcase on the luggage carousel and positioned themselves so that they could observe the bag's claimant.
As the detectives watched, an individual later identified as Humberto Fabre, a co-defendant in this case, approached the luggage carousel and checked the tag on the blue suitcase. Apparently making a positive identification, Humberto Fabre retrieved the bag from the luggage carousel and placed it on a porter's cart. He also retrieved two brown suitcases from the luggage carousel and placed them on the same cart. The detectives then observed two individuals identified as Claudia Fabre and Dagoberto Lugo, who were later named as co-conspirators 3, claim one piece of luggage each and place it on the porter's cart which held the bags retrieved by Humberto Fabre.
As Humberto Fabre, Claudia Fabre and Dagoberto Lugo were leaving the baggage claim area, the detectives confronted the group and inquired as to the ownership of the bags on the cart. After Humberto Fabre replied "we were stealing them," the detectives arrested the trio and seized all five suitcases.
Upon subsequent inspection, all five pieces of luggage were found to contain marijuana. In all, there were approximately 142 pounds of marijuana divided into packages which had been laced with sheets of fabric softener, wrapped in green plastic garbage bags and sealed with silver duct tape. Two suitcases bore the name "Garcia" and one bag bore the name "Candelaria." From Claudia Fabre, the detectives obtained a slip of paper with the following notations: "2--Garcia," "1--Candelaria," "1 azul [blue]," and 1 "roja [red]." Additionally, from Humberto Fabre, the detectives confiscated an address book containing an entry for "Enrique" with appellant Enrique Felix-Avila's El Paso telephone number. 4
Acting on information that three individuals, including appellant Enrique Felix-Avila, planned to ship a quantity of marijuana through the El Paso Airport on September 9, 1987, United States Customs Special Agent Daniel Urbina established surveillance at the airport. Failing to spot the three individuals, Agent Urbina left the airport. Later that day, however, airport personnel, having been given descriptions of the three individuals, telephoned United States Customs Agent James R. Straba to advise him that two of the individuals had been spotted. Reportedly, appellant Enrique Felix-Avila was not one of them.
Agent Straba learned that the two men reportedly spotted, later identified as Alfonso Jacquez-Chavarria and Humberto Ramos 5, had checked six large suitcases and boarded a Delta Airlines flight to New York. Before the six suitcases were loaded on the Delta aircraft, Agent Straba arranged for a canine inspection of the bags. After a drug detection dog alerted to the bags, a search warrant was obtained. Upon opening the bags, agents found 165 pounds of marijuana wrapped with sheets of fabric softener and green garbage bags. As with the earlier seizure on January 30, 1987, the packages of marijuana were sealed with silver duct tape.
After arrest warrants were obtained and telefaxed to New York, Alfonso Jacquez-Chavarria and Humberto Ramos were arrested by officers of the New York Port Authority. In Alfonso Jacquez-Chavarria's wallet were two baggage claim checks. The officers located and seized two suitcases which were referenced by the claim checks. Inside the suitcases, officers found fifty-seven pounds of marijuana laced with sheets of fabric softener, wrapped in green plastic garbage bags and sealed with silver duct tape. In Alfonso Jacquez-Chavarria's wallet was a slip of paper on which was written "Enrique", "casa [house]" and appellant Enrique Felix-Avila's home telephone number in El Paso. 6
At approximately 9:45 a.m. on November 21, 1987, Agent Urbina observed appellant Enrique Felix-Avila arrive at a motel in El Paso, where certain of his co-defendants, including Juan Victoria, Mildred Merino and Juan Perez were occupying a room. Agent Urbina watched as Enrique Felix-Avila went upstairs to the room, remained a few minutes, and returned downstairs with co-defendant Juan Victoria. Juan Victoria was carrying three suitcases which Agent Urbina perceived to be empty. After Juan Victoria placed the suitcases in the bed of Enrique Felix-Avila's truck, both men drove off in the truck. Agent Urbina followed the two to a store where he observed them purchase a quantity of sheet- type fabric softener, plastic wrap and plastic trash bags.
After leaving the store, Enrique Felix-Avila and Juan Victoria first went to a house in El Paso where appellant Fernando Molinar-Apodaca resided. Enrique Felix-Avila and Juan Victoria, carrying their purchases and the three empty suitcases, went inside. After some forty-five minutes had elapsed, Enrique Felix-Avila and Juan Victoria left Fernando Molinar-Apodaca's house and proceeded to Enrique Felix-Avila's house. Five minutes later, the pair returned to Fernando Molinar-Apodaca's house. Then all three men left Fernando Molinar-Apodaca's house carrying the same three suitcases, which appeared to Agent Urbina to be loaded and heavy. The three men placed the bags in a white Chevrolet Celebrity vehicle registered to another co-defendant and drove back to the motel where each man carried a suitcase upstairs to the room. After some time had elapsed, Agent Urbina watched as Juan Perez and Mildred Merino emerged from the room and carried the three suitcases downstairs. Although Juan Victoria also was carrying a suitcase, it was one that had not been previously seen by Agent Urbina. Juan Victoria, Juan Perez and Mildred Merino left the motel in separate taxicabs and headed for the El Paso Airport.
At the airport, Juan Victoria, Mildred Merino and Juan Perez were arrested. During a search of their luggage, agents found marijuana in suitcases belonging to Mildred Merino and Juan Perez; however, Juan Victoria's bag contained only clothing. The seventy pounds of marijuana that were found in Mildred Merino and Juan Perez's bags were wrapped in fabric softener sheets, green plastic garbage bags and silver duct tape. 7
On February 2, 1988, while driving by Enrique Felix-Avila's house in El Paso, Agent Urbina observed Fernando Molinar-Apodaca, Margarita Guillen-Felix and Maria Asusena Martinez getting into a Ford Bronco parked in front of the house. Fernando Molinar-Apodaca was carrying a suitcase which he placed in the Bronco. Agent Urbina followed the Bronco which was being driven by Fernando Molinar-Apodaca, and watched as Enrique...
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