U.S. v. Moreno-Flores
| Decision Date | 31 August 1994 |
| Docket Number | D,MORENO-FLORE,93-10223,Nos. 93-10222,RODRIGUEZ-MOLIN,s. 93-10222 |
| Citation | 33 F.3d 1164 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sergioefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sergio Albertoefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Francisco Leon, Tucson, AZ, for defendant-appellant Moreno-Flores; and Antonio F. Riojas, Richards & Pennington, Tucson, AZ, for defendant-appellant Rodriguez-Molina.
Thomas L. Fink, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.
Appeals from the United States District Court for the District of Arizona.
Before: FERGUSON, NOONAN, and T.G. NELSON, Circuit Judges.
Opinion by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge FERGUSON.
I
Sergio Moreno-Flores (Moreno-Flores) and Sergio Alberto Rodriguez-Molina (Rodriguez-Molina) appeal their jury convictions for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (count one), and attempt to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (count two). Moreno-Flores claims that the district court erred in refusing to suppress certain post-arrest statements because they were obtained in violation of his Miranda rights. Rodriguez-Molina argues that there was insufficient evidence to convict him on both counts of the indictment. We affirm the convictions of both defendants.
II
The evidence viewed in the light most favorable to the Government is as follows. Federal agents received information that a black Ford Taurus and a white Chevrolet Celebrity were loaded with cocaine and would be crossing into the United States from Mexico through the port of entry at Nogales, Arizona on July 8, 1992. After establishing surveillance at that location, the agents observed two cars matching the description traveling eastbound from the port of entry. Agents followed those vehicles to a garage/car wash approximately one fourth of a mile from the border. They arrived at the car wash at around 2:00 p.m.
The agents saw Rodriguez-Molina 1 constantly moving around the Taurus and Celebrity. Soon thereafter, codefendant Juan Pelayo-Silva 2 arrived and spoke to Rodriguez-Molina and another man for about five minutes. The unidentified man moved the Celebrity and Taurus to different locations in the car wash area and then watched the cars for two hours with Rodriguez-Molina. They drove away from the area in a white pickup at 4:00 p.m., leaving the Celebrity and Taurus at the car wash for an additional two and one half hours. At trial, agents testified that it is common practice for individuals who import drugs to leave a vehicle loaded with drugs in an area and then back away from the car in order to determine whether it draws attention from law enforcement officers.
The unidentified man then returned to the car wash around 6:30 p.m. and backed the Taurus up against a wall. Soon thereafter, Pelayo-Silva, Moreno-Flores, and Rodriguez-Molina arrived at the car wash in a green Buick. A tow truck with a flatbed soon arrived.
Pelayo-Silva spoke with the driver and handed him a piece of paper. They put the Taurus on the flatbed and Pelayo-Silva returned The Buick jockeyed back and forth around the tow truck on the interstate, varying its speed. Appellants would speed up and slow down, passing other cars, including the agents' surveillance cars. At one point, appellants passed one of the agents conducting surveillance and positioned themselves between the agent's car and the tow truck. They exited the interstate, made a U-turn on the road where they had exited and then, without stopping, returned to the interstate and began driving behind the agents. When the Buick pulled up beside Agent Dunlap's vehicle, Rodriguez-Molina, who was in the back seat, looked over at Dunlap. Dunlap was certain that he and the other agents had been identified.
to the green Buick where Rodriguez-Molina and Moreno-Flores were waiting. The tow truck made a detour to a nearby service station with the Buick following. The truck then headed north on the interstate toward Tucson with the Buick again following. Moreno-Flores was driving the Buick; Pelayo-Silva was the passenger; and Rodriguez-Molina was sitting in the back seat.
The agents contacted the Arizona State Patrol (ASP) and had the ASP conduct a traffic stop in order to separate the Buick from the tow truck and to protect the agents. The ASP conducted the stop, detained the appellants for fifteen minutes, and identified the occupants. The agents continued to follow the tow truck to a Church's Fried Chicken parking lot in Tucson. After waiting approximately ten or fifteen minutes, the agents approached the truck and spoke with the driver who gave the agents the piece of paper Pelayo-Silva had given him. The appellants arrived soon thereafter and Moreno-Flores approached the tow truck. He told the driver to take the truck with the Taurus across the street to an apartment complex (Tamarack). As an agent was arresting Moreno-Flores, Pelayo-Silva and Rodriguez-Molina attempted to flee in the Buick. They were arrested and the agents found a key to one of the Tamarack apartments in Pelayo-Silva's possession. That apartment was leased to Moreno-Flores for six months and was empty with no evidence that anyone was living there.
The agents found 200 kilograms of cocaine in the trunk of the Taurus. The cocaine was divided into one kilogram packages wrapped in colored plastic with each package containing a computer label and a "received" mark on it. The next day (July 9), after waiting to determine whether anyone would retrieve the Celebrity, the agents found another 200 kilograms of cocaine in the Celebrity's trunk. The cocaine was packaged and labeled in the same manner as the cocaine found in the Taurus.
Pelayo-Silva admitted that he knew there was cocaine in the Taurus. He also stated that he had instructions to wait at the apartment for other individuals who would retrieve the cocaine. He was to receive $5,000 for his part in the scheme. Moreno-Flores also admitted knowing there were drugs in the Taurus, but he thought the Taurus contained marijuana and not cocaine. He told Agent Dunlap that he was not the "big guy" and that he was to receive $2,500.
A federal grand jury returned a two-count indictment charging Rodriguez-Molina, Moreno-Flores and Pelayo-Silva with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (count one), and attempt to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (count two). Trial commenced on December 14, 1992, and the jury returned guilty verdicts as to all defendants on all counts. The district court sentenced Rodriguez-Molina to 151 months imprisonment on both counts, to run concurrently. It sentenced Moreno-Flores to 235 months imprisonment on both counts, also to run concurrently.
Moreno-Flores claims that the district court erred in refusing to suppress certain post-arrest statements because they were obtained in violation of his Miranda rights. Rodriguez-Molina argues that there was insufficient evidence to convict him on both counts of the indictment.
III
Moreno-Flores moved to suppress certain post-arrest statements based upon the following facts. After he was arrested on July 8, Agent Dunlap advised Moreno-Flores of his Miranda rights in both English and Spanish. Moreno-Flores stated that he understood those rights and he immediately invoked his right to remain silent; however, Dunlap testified that Moreno-Flores never invoked his right to an attorney. Dunlap then asked Moreno-Flores whether there were any other individuals in the vicinity with firearms who could pose a threat to the officers. Moreno-Flores responded that he was unaware of any other people in the area. 3 After Moreno-Flores was booked, Dunlap transported him to the Border Patrol office. During the ride, Dunlap told Moreno-Flores that the agents had seized about 600 pounds of cocaine and that Dunlap was interested in furthering the investigation. Dunlap also told Moreno-Flores that he was in serious trouble and that he was facing a lengthy prison sentence. Dunlap told Moreno-Flores that after he had an opportunity to consult with his attorney, Dunlap wanted to obtain information from him about other individuals who might be involved in cocaine distribution. Dunlap testified that he did not intend to speak with Moreno-Flores until after Moreno-Flores had consulted his attorney.
Moreno-Flores did not make any statements on July 8. The following morning when Dunlap picked Moreno-Flores up to transport him to court, Dunlap asked Moreno-Flores how his night was. A few minutes later, Moreno-Flores said, "Look, I was just going to get paid $2,500 to help Pelayo." Dunlap again advised Moreno-Flores that he had the right to remain silent. Dunlap explained to him that because he had invoked his right to remain silent, Dunlap was not going to question him. Although Dunlap did tell Moreno-Flores again that he had the right to remain silent, he did not repeat a Miranda warning. Moreno-Flores then stated:
Well, after you said it was cocaine, last night, I wanted you to know that it was just marijuana, I thought it was just marijuana, excuse me, and I wanted you to know that I'm not the big guy in this thing. I was just helping Pelayo. 4
The district court denied Moreno-Flores' motion to suppress, reasoning that his statements on the day after the arrest were voluntary. Moreno-Flores argues that the district court erred in denying his motion to suppress. We disagree.
The district court's denial of a motion to suppress is reviewed de novo. United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993)...
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