U.S. v. Rico, 93-2237

• Decision Date: 21 April 1995
• Docket Number: No. 93-2237,93-2237
• Citation: 51 F.3d 495
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Debra Robinson RICO, and Manuel Armando Rico, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 495

51 F.3d 495

UNITED STATES of America, Plaintiff-Appellee, v. Debra Robinson RICO, and Manuel Armando Rico, Defendants-Appellants.

No. 93-2237.

United States Court of Appeals, Fifth Circuit.

April 21, 1995.

Christopher V. Bacon, Roland E. Dahlin, II, Federal Public Defenders, Dola J. Young, Asst. Federal Public Defender, Houston, TX, for Debra R. Rico.

Keith E. Jagmin (court appointed), Dallas, TX, for Manuel Rico.

Greg Serres, Katherine L. Haden, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before VAN GRAAFEILAND ^*, JOLLY and WIENER, Circuit Judges.

WIENER, Circuit Judge:

In this direct criminal appeal, we review whether evidence challenged as having been obtained in violation of the Fourteenth and Fourth Amendments was properly admitted against Defendant-Appellant Manuel Rico in a joint trial with his wife, Defendant-Appellant Debra Rico, for various narcotics' offenses. We also consider whether Debra's Sixth Amendment guarantee of effective assistance of counsel was violated when she and Manuel were represented by the same attorney at trial. Finding that the evidence was properly admitted and that no constitutional violation resulted from the joint representation, we affirm the convictions of both defendants.

I FACTS AND PROCEEDINGS

In 1992, Federal Bureau of Investigation (FBI) agents in Houston began investigating Debra and Manuel after those agents received information from their colleagues in Philadelphia that a Columbian-based drug group in Houston was the primary source of cocaine for a Philadelphia cocaine trafficking organization. The FBI arranged for a cooperating witness (CW) who was a member of the Philadelphia organization to drive to Houston in a Cadillac (first Cadillac) equipped with false compartments, and there to pick up cocaine from the Houston source and drive it back to Philadelphia.

Pursuant to the plan, the CW drove to Houston, made contact with the Houston source, and arranged a meeting in the CW's hotel room. Later, several unidentified persons met with the CW in his hotel room, obtained the keys to the first Cadillac, drove it to a residence located on Ivy Oaks Lane (the Ivy Oaks residence), parked in the garage of that house, and closed the garage door. About an hour later, the same car emerged from the garage and was driven back to the CW's hotel where the keys were returned to the CW. Accompanied by some of the FBI agents, the CW then drove the first Cadillac to a garage where the false compartments were opened, revealing the presence of 25 kilograms of cocaine.

While that was transpiring, others of the FBI agents trailed the unidentified persons who had delivered the first Cadillac to the CW at his hotel. Those persons led the FBI Early the next morning, agents conducting that surveillance saw a van drive up to the Ivy Oaks residence and watched as a man and woman fitting the descriptions of Manuel and Debra got out of that vehicle and went inside the house. About an hour later, the same female and a male left the residence and got back into the van at the same time that the garage door was being opened. The van and the second Cadillac were driven away together. Surveillance agents recognized Debra as the driver of the van, but could only determine that her passenger was a male.

agents to another hotel at which, according to the CW, another courier was staying. That courier had driven a second Cadillac (second Cadillac) from Philadelphia to pick up narcotics from the Houston supplier. While the agents observed, one of those persons entered the hotel, came out a short while later, got into the second Cadillac, drove it to the same Ivy Oaks residence to which the first Cadillac had been driven, parked the second Cadillac in the garage, and closed the garage door. Agents maintained uninterrupted surveillance on that house while the second Cadillac remained parked inside the garage.

The van and the second Cadillac were driven only four to eight blocks before they were parked in front of a house on Clear Cove Lane (the Clear Cove residence), located in the same subdivision as the Ivy Oaks residence. ¹ Approximately two hours later, FBI agents watched as two hispanic males stood next to the van and talked. The van and the second Cadillac were then driven away in tandem to the hotel where the second Cadillac had been picked up on the previous day. After parking that car, the driver went into the hotel while the woman driver of the van and a male passenger waited in it. A short while later, the driver of the car came out of the hotel and joined the other man and the woman in the van, whereupon the three left together in it. FBI agents later discovered that the van had been rented and that Manuel was listed as one of its drivers.

Later that same day, a dark-complected hispanic male was observed departing from the second hotel and driving away in the second Cadillac. Pursuant to the FBI's request, state police stopped the second Cadillac shortly after it left the hotel and discovered that the driver of that car possessed a Pennsylvania driver's license, which listed a Philadelphia address. The officers obtained the driver's written consent to search the car, during which drug-sniffing dogs positively alerted to the trunk and passenger compartment of the vehicle. That car, the second Cadillac, was then taken to the Sheriff's Office for a closer inspection, which revealed the presence of 36 kilograms of cocaine hidden in compartments under the floorboard.

The following afternoon, FBI agents executed a warrant to search the Ivy Oaks residence. When they entered the house they found it to be unoccupied and sparsely furnished. During the ensuing search, agents discovered a "trap door" leading from the garage to an attic in which ten kilograms of cocaine were stashed. In a station wagon parked in the garage, agents found an automobile title and registration slip in Debra's name, both of which listed the Clear Cove address as her residence. Agents also recovered two boxes containing 42 kilograms of cocaine and numerous papers and documents belonging to Debra and Manuel (many of which were addressed to the Clear Cove residence) in a secret room of the Ivy Oaks residence; the door to that room was hidden behind a large mirror in the master bedroom. The search also turned up $3000 in cash located in a kitchen cabinet.

Based on the information that the agents had gathered from their surveillance of the two Cadillacs and the van and from the evidence obtained during the search of the Ivy Oaks residence, they deduced that the Ivy Oaks residence was used as a "stash house" for the Houston organization. They also suspected, based on such information, that Manuel and Debra were involved in the organization and resided at the Clear Cove residence.

The agents grew concerned that, as the two houses were located in such close proximity, someone connected with the drug operation might travel from the Clear Cove residence to the Ivy Oaks residence and discover the presence of the agents, or might have already noticed them searching the Ivy Oaks stash house. As a precaution against such possibilities, Agent Daniel Bingham was dispatched to watch the Clear Cove residence and to report any unusual activity. Soon after Agent Bingham arrived at that house, he observed some activity inside. Then, as he watched, a man (later identified as Julio Cuero) emerged from the house, approached the driver's side of a blue van which was parked in front of the residence, and reached inside the vehicle. ² Agent Bingham testified that he was immediately concerned that the suspect might be moving drugs, money, or possibly even guns, from the house to the van. Agent Bingham then saw Cuero walk to the rear of the van, get into that vehicle, and, according to the agent, "put[ ] something in or out."

When Agent Bingham observed that activity, he radioed for assistance. He testified that he thought that the van, like the two Cadillacs, must contain cocaine and that Cuero and the persons inside the Clear Cove residence must be preparing to leave. He explained that, "[i]f that was (sic) the case, we wanted to effectuate an arrest or a car stop." Three agents responded immediately to Agent Bingham's call for backup.

The additional agents arrived within minutes, whereupon all four approached the house with guns drawn. While one stopped and apprehended Cuero from the van the other three agents split up: one proceeded to the rear of the house and the other two continued toward the front door. When the two agents arrived at that door they knocked on it, but the door was apparently unlatched and ajar, for it swung open on its own. When it did, one of the agents saw a large hispanic male staring at him. Having been advised that the members of the Houston organization might be armed and violent, the two agents immediately entered the house with guns still drawn, ordered the occupants to lie down on the floor, then conducted a protective sweep to secure the premises. Some of the suspects, including Debra, were then taken outside.

The agents learned from the suspects that Debra and Manuel owned the Clear Cove home, so they asked Manuel for permission to search the premises. He agreed and signed a consent-to-search form. Although the agents uncovered no drugs or drug paraphernalia during that search, they did find various documents and items that tied the Clear Cove residence to the stash house on Ivy Oaks.

The agents also invited Debra and Manuel to discuss the cocaine and documents found in the Ivy Oaks house. Debra refused and asked for a lawyer, but Manuel agreed to talk to the agents. After they advised Manuel of his Miranda rights and he signed an advice-of-rights form, the agents took him upstairs to a bedroom and questioned him about his involvement in the Houston...