U.S. v. Moralez, 90-3661
| Decision Date | 30 June 1992 |
| Docket Number | No. 90-3661,90-3661 |
| Citation | 964 F.2d 677 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Pablo C. MORALEZ, also known as "Paul", Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frances C. Hulin, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Danville, Ill., for U.S.
Kennedy Yardley, Houston, Tex., Curtis L. Blood (argued), Collinsville, Ill., for Moralez.
Before CUDAHY and COFFEY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
Pablo Moralez appeals his conviction and sentence for possession with intent to distribute marijuana. He challenges the sufficiency of the evidence, the trial court's failure to conduct a suppression hearing, certain evidentiary rulings, his sentence, and his trial counsel's performance. We affirm.
On March 21, 1990, a federal grand jury returned an indictment against Pablo Moralez and his son, Gilbert Moralez, charging each of them with one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). Father and son proceeded to trial on July 18, 1990. 1
At trial, Illinois State Trooper Todd Trautvetter testified that on February 28, 1990, he was traveling northbound on Interstate 57 with his patrol dog towards his assigned state police district in the Chicago area when he began pacing a 1985 grey Chevrolet Blazer with Texas license plates. After determining that the vehicle was speeding and that the driver was not wearing his seat belt, Trautvetter activated his flashing lights and pulled the Blazer over to the side of the road. The driver produced a Texas driver's license for Pablo C. Moralez, which was verified by Trooper Trautvetter as valid. According to the officer, Pablo Moralez was evasive when answering questions and became more nervous the longer he was questioned.
Trooper Trautvetter's suspicions were aroused, and he asked the defendant for consent to search the vehicle; the defendant responded, "Sure." The trooper asked the defendant two more times whether he could search the Blazer, and the defendant again replied, "Sure." Trautvetter then informed Moralez that he would be using his police dog to assist him in searching the vehicle. While searching the exterior of the Blazer, the canine showed particular interest in the tailgate area. The trooper observed two spare tires in the tailgate area, and after removing one of them from the Blazer, he noticed that the tire was unusually heavy. In addition, the canine became noticeably excited after sniffing the tire, and at this time the officer asked the defendant whether he could remove the tire from the rim; the defendant again replied, "Sure." After several unsuccessful attempts at prying the tire from the rim, Trooper Trautvetter asked the defendant whether he could take the tire to a gas station for the removal of the tire from the rim, and the defendant consented. The defendant and his son accompanied Trautvetter to the gas station, and when the tire was pried from the rim, Trooper Trautvetter discovered ten freezer bags containing marijuana. The trooper discovered five more packages of marijuana in the second spare tire. The contents of both sets of packages amounted to 29 1/2 pounds of marijuana. Gary Havy, a forensic scientist specializing in latent fingerprints for the Illinois State Police, testified that the defendant's fingerprint was on one of the freezer bags that contained marijuana.
The jury found Moralez guilty of one count of possession of marijuana with intent to distribute. On November 28, 1990, the district court sentenced the defendant to serve 100 months of imprisonment to be followed by a period of supervisory release of four years, and imposed a special assessment of $50.
The defendant raises the following arguments on appeal: (1) the evidence presented at trial was insufficient to sustain his conviction; (2) the trial judge erred in refusing to conduct a suppression hearing on the constitutionality of the search of the vehicle; (3) the prosecutor improperly argued during closing argument that the defendant owned the vehicle that contained the marijuana; (4) the application of the career-offender section of the Sentencing Guidelines to the defendant's sentence resulted in a double enhancement of his punishment; and (5) his trial counsel's assistance was constitutionally deficient.
The defendant contends that his conviction should be reversed because the mere presence of marijuana in the vehicle he was driving, combined with his fingerprint on a bag of marijuana, was insufficient to sustain his conviction. A defendant attacking the sufficiency of the evidence has a heavy burden, and "[o]nly where the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984) (citation and quotation omitted). Furthermore, all reasonable inferences must be drawn in favor of the government. United States v. Douglas, 874 F.2d 1145, 1151 (7th Cir.), cert. denied, 493 U.S. 841, 110 S.Ct. 126, 107 L.Ed.2d 87 (1989).
Moralez was charged with possession of marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). The elements of the crime are (1) knowing possession of marijuana, and (2) an intent to distribute it. As to the first element, knowing possession of marijuana, evidence at trial demonstrated that the defendant was driving a vehicle that contained two spare tires filled with marijuana packets weighing a total of 29 1/2 pounds. In addition, a forensic scientist identified the defendant's fingerprint on one of the marijuana freezer bags. Thus, a jury could reasonably infer that the defendant knowingly possessed the marijuana. In a case similar to the one before us, this court ruled that a defendant apprehended by police as he was attempting to unlock the door of a car containing cocaine was in possession of the drugs. United States v. Garrett, 903 F.2d 1105 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990). The facts in the case before us are even more incriminating than the facts in Garrett, because unlike the defendant in Garrett, Moralez was actually in complete control and possession of the vehicle while driving the car in which the marijuana was discovered.
As to the second element, intent to distribute the marijuana, the fact that the defendant was in possession of approximately 30 pounds of marijuana would allow the jury to reasonably infer that the marijuana was more than the amount usually kept for personal use, and was thus intended for distribution. Indeed, testimony at trial established that the marijuana found in the vehicle driven by the defendant was worth approximately $28,000 to $35,000. Moreover, the marijuana was contained in fifteen separate packages. See United States v. Gooding, 695 F.2d 78, 84 (4th Cir.1982) (). Accordingly, sufficient evidence supported the jury's verdict that the defendant knowingly possessed the marijuana with intent to distribute it. 2
The defendant argues the district court erred when it refused to conduct a suppression hearing even though the defendant waited until the morning of trial to raise the motion. The defendant was arraigned on May 8, 1990, and a pre-trial conference was held on June 29, 1990. The defendant failed to present the suppression motion at the pre-trial conference but instead moved for a suppression hearing for the first time on July 18, 1990, the first day of trial. The district court denied the defendant's motion for suppression hearing, ruling the motion to be untimely.
"A trial court has discretion when considering an untimely motion and a reviewing court may disturb the trial court's decision only for clear error." United States v. Hamm, 786 F.2d 804, 806 (7th Cir.1986) (citing United States v. Mangieri, 694 F.2d 1270, 1283 (D.C.Cir.1982)). Pursuant to Fed.R.Crim.P. 12(b)(3), a motion to suppress evidence must be raised before trial:
"Rule 12. Pleadings and Motions Before Trial
* * * * * *
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
* * * * * *
(3) Motions to suppress evidence...."
(Emphasis added). Absent an extension of time set by the court at arraignment for the filing of pretrial motions, the failure to file a motion to suppress by the date set shall constitute waiver of the opportunity to file the motion. See Fed.R.Crim.P. 12(f). Because the defendant did not file his motion to suppress until the morning of the trial, the issue is deemed waived.
Even if the trial judge had considered the motion on the merits, we are convinced that the motion to suppress the marijuana would have been denied because the defendant specifically consented to the search of the vehicle. Trooper Trautvetter testified at trial that he asked the defendant three separate times whether he could search the vehicle, and that each time the defendant replied, "Sure." Trautvetter also received the defendant's consent before removing the spare tires from their rims. Thus, we are of the opinion that Moralez voluntarily consented to the search of the vehicle. 3 See United States v. Talkington, 875 F.2d 591, 594 (7th Cir.1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The district...
To continue reading
Request your trial
-
U.S. v. Branham
...v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, 510 U.S. 873, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); United States v. Moralez, 964 F.2d 677, 682-83 (7th Cir.), cert. denied, 506 U.S. 903, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.......
-
US v. Benson
...Saunders, 973 F.2d 1354, 1365 (7th Cir.1992), cert. denied, 506 U.S. 1070, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993); United States v. Moralez, 964 F.2d 677, 682-83 (7th Cir.), cert. denied, 506 U.S. 903, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992); United States v. Garrett, 959 F.2d 1005, 1009-11 (......
-
U.S. v. Marcos-Quiroga
...guidelines enhancement constitutes impermissible "double counting" — but the Seventh Circuit Court of Appeals has. In United States v. Moralez, 964 F.2d 677 (7th Cir.1992), cert. denied, 506 U.S. 903, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992), the defendant argued that using a prior conviction ......
-
U.S. v. Navarro
...could be conducted without consent only if there was probable cause or a judicial warrant authorizing the search); United States v. Moralez, 964 F.2d 677, 681 n. 3 (7th Cir.), cert. denied, 506 U.S. 903, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992) (stating that, when consent is given, probable ca......