U.S. v. Mora
| Decision Date | 28 June 1993 |
| Docket Number | No. 92-8438,92-8438 |
| Citation | 994 F.2d 1129 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alfonso MORA, Jesus Medina, Juan Torres Sosa and Ricardo Reyes Lira, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas E. Stanton, El Paso, TX (court-appointed), for A. Mora.
Henry Bemporad, Marc H. Robert, Asst. Public Defenders, and Lucien B. Campbell, Federal Public Defender, El Paso, TX, for J. Medina.
Jose Juarez, El Paso, TX (court-appointed), for J. Sosa.
Rafael Salas, El Paso, TX (court-appointed), for R.R. Lira.
Brett M. Kavanaugh, Atty., Dept. of Justice, Washington, D.C., Richard L. Durbin, Jr., Asst. U.S. Atty., and Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.
Challenging their convictions for drug-related offenses, defendants-appellants Alfonso Mora (Mora), Jesus Medina (Medina), Ricardo Reyes Lira (Lira), and Juan Torres Sosa (Sosa) raise issues of, inter alia, entrapment, discovery abuse, and sufficiency of the evidence. Mora and Medina contest the district court's assessment of their sentences, disputing its findings on the amount of marihuana involved in the offense conduct. We affirm.
Defendants' convictions arise out of a sting operation conducted by the Drug Enforcement Administration (DEA) in El Paso, Texas, on March 5, 1992. Shortly before noon on that day, Special Agent Jack Geller (Geller) of the DEA, acting in an undercover capacity, met with Medina and Mora at a Carrows Restaurant in El Paso to negotiate the purchase and delivery of approximately five hundred pounds of marihuana.
Geller arrived at the restaurant with Roger Russell (Russell), a confidential informant for the DEA who had introduced him to Medina in connection with an earlier marihuana transaction which had fallen through. 1 Medina was accompanied by Mora, whom Geller had not met before. Upon his arrival, Medina took Geller to one side to apologize for not carrying through with the earlier transaction. Medina then introduced Geller to Mora. The four men, Geller, Russell, Medina, and Mora, discussed the mechanics of the anticipated delivery. Geller offered to provide a vehicle, a Ryder van, to make the exchange: the defendants were to take the vehicle, load it with marihuana, and return it to Geller at a specified time and place. During this conversation, Medina told Geller that he had seen three thousand pounds of marihuana at the warehouse which was his source of supply. Medina arranged to meet Geller again at the Carrows Restaurant at approximately 3:00 that afternoon to exchange the vehicles; his people did not leave work until that time. Geller gave Medina his pager number in case of delay.
As planned, Geller met Medina and Mora at the Carrows Restaurant that afternoon; Russell was not present at this meeting. Medina informed Geller that his people could not leave work yet. When Geller hinted at backing out of the transaction, Mora insisted that they continue with it. Geller gave Medina the keys to the Ryder van, and Mora tried them out to ensure that they worked. Geller and Medina, in Mora's presence, agreed upon the place for the transfer of the marihuana and the money; Medina drew a map for Geller, who was posing as a buyer from out of town.
Around 5:00 that afternoon, Medina called Geller's pager, leaving the phone number of a pay phone at a Diamond Shamrock station. When Geller returned his call, Medina told him that the transaction was still on, but that his people were experiencing further delays.
At 7:00 that evening, Russell called Geller to ask him to call Medina at the same number he had used earlier. When Geller reached Medina, Medina ensured him that the arrangement was still on but would be delayed still further. In addition, Medina wanted to change the structure of the transaction. Medina stated that rather than deliver the entire five hundred pounds of marihuana in a single exchange, his people insisted that he deliver only fifty pounds of marihuana at first; they would deliver the remaining four hundred fifty pounds after Geller paid for the first fifty. Geller was reluctant to split the delivery in that manner, and he and Medina agreed to discuss the problem in person at the Diamond Shamrock station.
Geller met Medina at the station. Medina informed him that the Mexican Federal Judicial Police owned the three thousand pounds of marihuana that he had mentioned at the first meeting at Carrows and that the Mexican Police wanted to deliver the marihuana in two parts. At Geller's suggestion, Medina attempted to contact his source, but he was unable to reach them. Geller refused to pay for fifty pounds of marihuana separately, before receiving the full five hundred pounds negotiated. Finally, they agreed that Medina's people would deliver the fifty pounds, place it in Medina's Corvette, then deliver the remaining four hundred fifty pounds, whereupon Geller would pay for the entire shipment of five hundred pounds with a single payment.
Medina paged Geller again shortly before 9:00 that evening; when Geller returned the call, Medina instructed him to go to the Stadium Bar, a bar located in a strip shopping center. When Geller arrived, Medina took him over to the Ryder van which was parked there and, indicating a box that was visible through the window of the van, told Geller that the box contained marihuana. Medina entered the Stadium Bar and returned with Mora, who opened the van. When Geller entered the van, he smelled marihuana and could see that the box contained small, flat bricks of marihuana. Mora insisted that he pay for the fifty pounds before they would continue with the transaction. When Geller realized that the remaining marihuana would not be delivered without prior payment for the first fifty pounds, he gave the arrest signal. 2
Surveillance conducted throughout the day revealed defendants' involvement in the transaction. El Paso Police Detectives Manuel Figueroa (Figueroa) and Luis Marquez (Marquez), 3 both working with the DEA Task Force, surveilled the meeting at Carrows and upon its conclusion followed Medina and Mora, who were in a white Volkswagen Rabbit. 4 Figueroa and Marquez dropped off their tail when Joe Zimmerly (Zimmerly), a detective for the El Paso Police Department, took over and followed Medina and Mora to the Best Buy Tortilla Factory. Zimmerly observed Medina enter the factory and return about five minutes later. Evidence at trial showed that Sosa and Lira worked at that factory.
Figueroa and Marquez surveilled the 3:00 p.m. meeting at Carrows. After the meeting ended, they followed the Ryder van, which Mora was driving, to the shopping center where the Stadium Bar is located. Later in the afternoon, the agents saw Mora and Medina near Medina's house on Prado Del Sol in the white Volkswagen Rabbit.
Around 6:00 p.m., Figueroa and Marquez noticed a white Ford pickup truck arrive at Medina's house; two men got out and went inside the house. The truck was registered to Lira's wife. The men in the pickup truck left and came back after a short time. Around 6:30 p.m., the men left again in the white Ford pickup truck; the agents followed the truck to a Good Time store where they observed a man later identified as defendant Sosa making a telephone call. Around the same time, the detectives saw Medina leaving his house in a blue Corvette; they followed him to the Good Time store where Medina got out and met with Sosa.
About 7:10 that evening, Zimmerly, who had been watching the Ryder van for about four hours that afternoon and evening, saw the white Ford pickup park behind the van. He could not identify the occupants. He observed a person get out of the pickup truck and drive off in the van. Zimmerly followed the van until other agents took over the surveillance. He later drove by the parked van and observed a meeting of two men by the van about 7:35 p.m.
Ron Ayers, a Special Agent with the Immigration Service attached to the DEA Task Force, began his involvement with the surveillance of the defendants around 6:00 in the evening. At 8:30 p.m., Ayers relieved another surveillance team watching the van. He saw a gray pickup truck pull up behind the van. One defendant, later identified by Ayers as Mora, was in the van; two other men were in the gray pickup truck. When Ayers had established his surveillance position, the three men were standing between the van and the pickup truck. One man stood between the bumpers and looked around, one opened the side door of the van, and the third went to the pickup truck and took something from the front seat. The third man walked to the van and put the object he was carrying inside the van and closed its door. The men met once again between the vehicles. One man got back in the van and drove off; the other two men got into the pickup, waited for a few minutes, and then followed the van.
Ayers followed the vehicles, attempting to get the license plate number of the gray pickup truck. At a stoplight, he was able to identify Mora as the driver of the van. Agents maintained constant surveillance of the vehicles until they reached the parking lot of the shopping center. Ayers briefly broke off surveillance trying to set up in the parking lot. As he monitored radio traffic, he saw Lira and Sosa walking back to the pickup truck and position themselves at an angle looking toward where Mora had parked the van. Ayers testified that he knew the identities of the men who met in the parking lot to load the box with marihuana in the van, not because he could see them clearly at the time, but because he saw Mora at the stoplight and later saw Lira and Sosa exit the pickup truck and because he and other agents maintained continuous surveillance from the time the men met and loaded the box into the...
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