U.S. v. Rodriguez-Garcia

• Decision Date: 28 January 1993
• Docket Number: No. 91-4179,D,RODRIGUEZ-GARCI,91-4179
• Citation: 983 F.2d 1563
• Parties: 37 Fed. R. Evid. Serv. 1101 UNITED STATES of America, Plaintiff-Appellee, v. Franciscoefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1563

983 F.2d 1563

37 Fed. R. Evid. Serv. 1101

UNITED STATES of America, Plaintiff-Appellee, v. Francisco RODRIGUEZ-GARCIA, Defendant-Appellant.

No. 91-4179.

United States Court of Appeals, Tenth Circuit.

Jan. 28, 1993.

Richard D. McKelvie, Asst. U.S. Atty. (David J. Jordan, U.S. Atty., with him on the brief), Salt Lake City, UT, for appellee.

Leslie E. Nunn, Burlington, CO, for appellant.

Before LOGAN, BARRETT and SEYMOUR, Circuit Judges.

BARRETT, Senior Circuit Judge.

Defendant Francisco Rodriguez-Garcia (Rodriguez) appeals from his judgment and sentence following his jury conviction on three counts, to-wit, possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), possession with intent to distribute a controlled substance within one thousand feet of a school in violation of 21 U.S.C. § 845a, and possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c). Alternatively, Rodriguez seeks a reduction in the sentence imposed by the district court.

Factual Background

In December 1990, the Organized Crime and Strike Force in Salt Lake City, Utah, began investigating Rodriguez' suspected drug activities. Several federal agents were involved in the narcotics investigation, including Case Agent Brian Seitzinger (Seitzinger) of the Drug Enforcement Agency (DEA). Seitzinger, who initiated this investigation following a call from a confidential informant, contacted Agent Creighton West (Agent West) of the Immigration and Naturalization Service (INS) who spoke fluent Spanish and who could therefore communicate with the Spanish-speaking informant, Jose Huaro (Huaro). Strike force agents determined to work with Huaro once he was verified as a reliable source.

Rodriguez had developed a relationship with Ramon Huaro (Ramon), the informant's brother, some two years before he met Huaro. According to Rodriguez, Ramon suggested that he (Rodriguez) begin trafficking narcotics. Ramon later requested that Rodriguez store several marijuana packages and a gun in exchange for the loan of a vehicle from Ramon to Rodriguez. Though Rodriguez expressed disinterest, he ultimately stored the packages because Ramon threatened that Rodriguez could otherwise experience problems with his family.

Approximately two weeks later, Rodriguez requested that Ramon remove the marijuana, and Ramon indicated that his brother, Huaro, would take care of it. Rodriguez met with Huaro, whereupon Huaro asked whether Rodriguez could obtain three kilograms of cocaine which Huaro could then supply to his nephew. Rodriguez ultimately agreed but testified that he told Huaro that he was uncomfortable storing the drugs, indicating that if the drugs were not removed soon, he would call narcotics officials. Once Huaro learned that Rodriguez would supply the cocaine, he contacted the Salt Lake City DEA and subsequently arranged to meet Rodriguez at Rodriguez' residence to negotiate the purchase of the cocaine.

Before and during the Rodriguez-Huaro negotiation, DEA Agent Brady Mackay (Mackay) maintained surveillance on Rodriguez' residence and was in radio contact with other strike force agents who had surrounded and were observing Rodriguez' apartment. During surveillance, Mackay observed Huaro enter Rodriguez' residence on three separate occasions. Huaro left Rodriguez' apartment after the second meeting and, as planned, located and provided Agent West with a sample which Rodriguez had given him. The sample was then taken to Seitzinger who tested it to verify that it was cocaine. At this point, Seitzinger began preparing an affidavit to obtain a search warrant. Huaro returned to Rodriguez' residence a third time but left shortly thereafter and, as instructed, communicated to officers that he had observed Rodriguez with a kilogram of cocaine.

After Huaro left the third meeting, Rodriguez exited his apartment and placed a large, brown grocery bag in the trunk of a blue Chevrolet Impala which was up on blocks in his driveway. He was then arrested, at approximately 4:30 p.m., outside of his residence by armed officers, some of whom were carrying semi-automatic weapons. Rodriguez was handcuffed and placed in a DEA vehicle while officers awaited arrival of the search warrant.

Officers had obtained DEA consent to search forms which they later used for searches of a storage unit and each of two automobiles located at Rodriguez' residence. At 4:50 p.m., while in the DEA vehicle, Rodriguez signed the first consent form which permitted a search of his residence and the blue Chevrolet in his driveway. Shortly thereafter, the warrant arrived authorizing a search of Rodriguez' apartment. ¹ The residential search resulted in the discovery of a .38 caliber revolver and receipts for a rented storage unit. Rodriguez provided agents with keys to the Chevrolet, and this automobile search resulted in the recovery of three kilograms of cocaine.

At 5:13 p.m., Agent West read Rodriguez his Miranda rights in Spanish, and Rodriguez indicated that he wanted to make no further statements but that he did want to speak with an attorney. At 5:30 p.m., Rodriguez signed a second form consenting to a search of the storage unit. He provided the officers with the storage unit key, and this search yielded twenty pounds of marijuana. At 5:50 p.m., Rodriguez signed the final form, consenting to the search of a yellow Chrysler which had been returned to Rodriguez' residence from a repair shop during the residential search. Nothing was discovered in this search.

Before Rodriguez was taken to jail, officers inquired whether he had valuables in his home which should be secured. He acknowledged that cash was taped to the bottom of a dresser drawer, one which, incidentally, agents had previously searched. Officers found and removed $2,700 from the drawer.

Rodriguez moved to suppress evidence obtained pursuant to the consent forms. This motion was denied, and Rodriguez was subsequently convicted. Rodriguez' motion for judgment notwithstanding the verdict, or, alternatively, for a new trial, was likewise denied.

Rodriguez raises numerous issues on appeal which may be categorized as: whether the district court erred in (1) denying Rodriguez' motion to suppress all statements made, and all evidence seized as a result of the consent to search forms; (2) denying Rodriguez' motion for a new trial; (3) giving particular jury instructions while refusing others; and (4) applying the sentencing guidelines. And finally, for the first time on appeal, Rodriguez raises a claim of juror bias.

Discussion

I. Motion to Suppress

A. Consent to Search Forms

Rodriguez contends that the district court erred in denying his motion to suppress all statements made, and all evidence seized as a result of the consent to search forms. ² In reviewing the denial of a motion to suppress, this court will not "substitute [its] judgment for the factual findings of the district court unless those findings are clearly erroneous." See United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992).

Although a search is generally deemed unreasonable unless it is conducted pursuant to a valid warrant, "it is well-settled that an exception exists for searches made following voluntary consent by an individual with authority over the place searched." United States v. Marin, 669 F.2d 73, 82 (2d Cir.1982). Rodriguez asserts that the consent forms in the instant case were not signed voluntarily. To prove voluntary consent, the government "must show that there was no duress or coercion, express or implied[,] [and] [t]he consent must be 'unequivocal and specific' and 'freely and intelligently given.' " United States v. Price, 925 F.2d 1268, 1270 (10th Cir.1991) (citing Villano v. United States, 310 F.2d 680, 684 (10th Cir.1962)); see generally Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Claiming that the first consent form was voluntarily signed before Miranda warnings were given, the government asserts that the search of the blue Chevrolet was valid. As in United States v. Moreno, 897 F.2d 26 (2d Cir.), cert. denied, 497 U.S. 1009, 110 S.Ct. 3250, 111 L.Ed.2d 760 (1990), when Rodriguez signed the first consent form, he was in custody, had not been apprised of his Miranda rights, and was without assistance of counsel. However, "a person placed in official custody is not thereby rendered incapable of giving his free and voluntary consent to a warrantless search." Id. at 33. The fact that Rodriguez had not been informed of his Miranda rights "does not affect our conclusion, since Miranda does not 'require[ ] the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent.' " Id. (citing Schneckloth, 412 U.S. at 246, 93 S.Ct. at 2058).

Therefore, all three consent forms may be similarly evaluated to determine whether they were signed voluntarily. To determine voluntary consent, "neither the presence nor the absence of any single criteria can be controlling...." Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047.

In the instant case, the consent forms were typewritten in English and handwritten and read to Rodriguez in Spanish. Whether or not Rodriguez comprehended the handwritten Spanish, Agent West believed that Rodriguez understood the forms and their contents. Nonetheless, it is clear that Rodriguez understood the spoken language. Rodriguez was consistently addressed in Spanish and he similarly responded, invoking his Miranda rights, indicating he was aware of his interests and how to protect them. Agent West could not specifically recall explaining the ramifications of signing the forms or indicating that Rodriguez was not required to sign. However, he testified that Rodriguez expressed no reservations or concerns. Rodriguez' words and conduct indicate that he freely consented to the three searches in issue. He provided agents...