U.S. v. Nanez, 82-1155
| Decision Date | 15 December 1982 |
| Docket Number | No. 82-1155,82-1155 |
| Citation | 694 F.2d 405 |
| Parties | 12 Fed. R. Evid. Serv. 189 UNITED STATES of America, Plaintiff-Appellee, v. Antonio E. NANEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.
Edward C. Prado, U.S. Atty., Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GOLDBERG, GEE and HIGGINBOTHAM, Circuit Judges.
On February 5, 1982, a jury convicted Antonio E. Nanez of conspiracy to possess heroin with intent to distribute, 21 U.S.C. Sec. 846; possession of heroin with intent to distribute, 21 U.S.C. Sec. 841(a)(1); and unlawfully carrying a firearm during the commission of a felony, 18 U.S.C. Sec. 924(c)(2). His punishment was enhanced to 60 years imprisonment and a lifetime special parole by virtue of a previous felony conviction--possession with intent to distribute 19.1 ounces of cocaine.
Pursuant to 28 U.S.C. Sec. 1291, Nanez now appeals both his conviction and enhanced sentence. He argues that the district court trial violated his constitutional and statutory rights in numerous respects. For the reasons enumerated below, we find Nanez' contentions to be without merit. Accordingly, we affirm the decision of the district court.
The pertinent facts developed at trial show that in February of 1980, Drug Enforcement Administration (DEA) Agent Joe Losoya, acting undercover, met Raymond Nanez Zaragoza and began negotiating with Zaragoza for the purchase of a quantity of heroin. Between February and September 3, 1980, Losoya successfully completed several heroin transactions with Zaragoza. On September 3, 1980, Losoya, accompanied by San Antonio, Texas police department narcotics agent Richard Moreno, met with Zaragoza to arrange a purchase. Zaragoza agreed to obtain approximately six or seven ounces of heroin for delivery to the agents on September 4, 1980. Zaragoza said that his "brother," 1 who managed an ice house, could supply large quantities of heroin.
At approximately 11:00 a.m. on the morning of the 4th the agents went to Zaragoza's house, as agreed. Zaragoza said that he had contacted his "brother" and that the heroin was available; he directed them from his house to Perrera's Ice House at the corner of Durango and Mesquite Streets in downtown San Antonio, which he had said was his brother's business and the place where they were to pick up the heroin. During the drive, Zaragoza repeatedly looked over his shoulder to see if anyone was following.
Appellant Nanez owned this "ice house," and as they approached it, Zaragoza pointed to Nanez' 1978 gray Cadillac which was parked in front of Perrera's, and identified it as belonging to his "brother," the source who could provide large quantities of heroin. The agents parked in the nearby lot of a Church's Fried Chicken Restaurant, and Zaragoza walked to the ice house. After a brief period inside, he returned and told the agents to drive to Lee's Food Store because his "brother" had said that there were a lot of "Federales" in the area and that they would have to move. Again, he repeatedly watched for surveillance agents. Zaragoza made a short telephone call from Lee's to his "brother" and told him that he had checked the area and that it seemed to be clear. He and the agent then drove to the Steak & Egg Restaurant on North Main Street, where Zaragoza made another call during which he was overheard discussing "La Bicicleta"--the alias of a well-known, large-scale drug trafficker in San Antonio. Zaragoza decided to go back to his house where he was to receive another call from his "brother" to arrange the delivery. He explained to the agents that he felt more secure at his house and had been somewhat apprehensive about this deal because he had been caught once selling drugs to a Mexican undercover agent.
During the drive, Losoya and Zaragoza discussed the price and quality of the heroin. Zaragoza told Losoya that it would cost $750 an ounce for as much as five ounces and that it could be cut approximately three times. About 25 minutes after the men arrived at Zaragoza's residence, Zaragoza received a call. He told the agents that he was going to meet his "brother" and would return shortly. He walked across the street to a washateria where he made another telephone call and then literally ran back to his house. He told the agents that they were to go to the delivery site designated by his "brother" at the corner of Pine and Carson Streets. As they were driving, Zaragoza again repeatedly looked over his shoulder to see if they were being followed.
Upon arrival at the corner of Pine and Carson Streets, Zaragoza said that he was going to get the heroin from the source--his "brother". He got out of the car, walked to the corner, turned, and disappeared from the agents' view for several minutes. As Zaragoza walked back to the car, Moreno observed Nanez driving a green and yellow pickup truck near the intersection. Zaragoza told the agents that he needed the money up front so that he could buy the heroin, but Losoya insisted that he needed to see the heroin before he paid for it, so Zaragoza again returned to the corner where he stood at the intersection. After a few minutes, Zaragoza returned, got in the car, and insisted that the agents produce the money "up front." As the green and yellow pickup truck again pulled up to the intersection, Zaragoza pointed to it and said, "There are the boys with the load." At this point, the agents decided that the negotiations for the deal had broken down, as they could not produce the money "up front", and they informed Zaragoza that he was under arrest.
When told that he was under arrest, Zaragoza threw up his arms, a gesture which must have been observed by Nanez, who was watching the agents, since the truck immediately accelerated and departed the area at an extremely high rate of speed. A high-speed chase ensued through downtown San Antonio, and at one point Losoya saw a handkerchief fly from the driver's side of the cab of the truck. He slowed and picked it up. The agents chased the truck to 1300 East Commerce Street; Roberto Casanova, a passenger in the truck, was arrested as he was walking rapidly away from the vehicle and beside a building. Nanez was arrested inside a commercial business at 1300 East Commerce while he was making a telephone call.
Finding no contraband on the two men, the agents retraced the route taken by the truck during the chase and found a .357 revolver and a .22 Derringer near a vacant lot. Both guns were fully loaded and operable. The agents also found 14 packages of heroin, one of which bore Nanez' fingerprint, and a rolled up $5.00 bill. At the DEA office Nanez was advised of his constitutional rights, which he stated that he understood. During processing he told the agents that he and Casanova ran because they had guns and he was on parole. He then requested the opportunity to speak with his lawyer before answering any more questions and questioning ceased.
Nanez' first contention is that Zaragoza's extrajudicial statements were improperly admitted in evidence. As support, he cites United States v. James, 590 F.2d 575 (5th Cir.1979) (en banc), for the proposition that the admission of a coconspirator's extrajudicial statements must be preceded by a showing of independent and substantial evidence of: (1) the existence of a conspiracy, (2) the accused's and the stating coconspirator's involvement in the conspiracy, and (3) that the statement was made in the course and furtherance of the conspiracy. 590 F.2d at 582. While we embrace Nanez' statement of James, we find his reliance misplaced.
On the present facts we have no doubt that there was sufficient evidence, independent of Zaragoza's statements, to warrant the presentation of the government's case to the jury. The pattern of prior narcotics transactions, the flurry of telephone conversations on the date of the failed narcotics transaction, and the circumstances surrounding Nanez' arrest all point to the existence of an elaborate plan to violate the narcotics laws. See United States v. Davis, 666 F.2d 195, 201 (5th Cir.1982). In addition, Nanez' involvement in the conspiracy was fairly shown.
While we have long rejected the proposition that mere presence at the scene of a crime, or close association with an alleged coconspirator, will support an inference of participation in a conspiracy; it is well established that participation and voluntary assent may be inferred from a "development and collocation of circumstances." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Arrendo-Morales, 624 F.2d 681 (5th Cir.1980); United States v. Marx, 635 F.2d 436 (5th Cir.1981). Whether the aggregate of circumstances warrant, in the first instance, the presentation of the government's case to the jury is committed to the discretion of the trial court. It is not our role, as a reviewing court, to substitute our hypothesis of the evidence's import for that of the court below. Rather, it is to evaluate the totality of the evidence and discern whether that court's determination was based upon substantial and independent evidence. Zaragoza's visit to Nanez' ice house, Nanez' subsequent flight from the scene of the failed transaction, as well as the discovery of packets of heroin and weapons along the chase route, substantiate the trial court's determination that the evidence strongly suggested Nanez' involvement in the conspiracy.
Nor are we skeptical of the jury's determination of guilt. In general, no showing of an overt act is necessary in a drug conspiracy prosecution. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). The government need only demonstrate beyond a reasonable doubt that an...
To continue reading
Request your trial
-
U.S. v. Lee
...the work of government agents is attacked, the District Attorney is entitled to make a fair response and rebuttal. United States v. Nanez, 694 F.2d 405, 410 (5th Cir.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983); United States v. Praetorius, 622 F.2d 1054, 1060-61......
-
Irrizari v. U.S.
...v. Flores, 5 F.3d 1070, 1081-82 (7th Cir.1993); United States v. Housley, 907 F.2d 920, 921-22 (9th Cir. 1990); United States v. Nanez, 694 F.2d 405, 412-13 (5th Cir.1982). Petitioner cites U.S. v. Arango-Montoya, 61 F.3d 1331 (7th Cir.1995) for the proposition that even if he is seemingly ......
-
United States v. DiFalco
...attacking the conviction forming the basis of the enhancement information.’ ” Weaver, 905 F.2d at 1482 (quoting United States v. Nanez, 694 F.2d 405, 413 (5th Cir. 1982) ): accord United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006). Section 851(e) provides that “[n]o person who ......
-
State v. Russell
...to attacks made by the defense on the deputy prosecutor, her witnesses, and the work of government agents. See United States v. Nanez, 694 F.2d 405, 410 (5th Cir.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983); Graham, 59 Wash.App. at 428-29, 798 P.2d 314. The Ninth......