U.S. v. Rojas Alvarez, 04-51006.

• Decision Date: 01 June 2006
• Docket Number: No. 04-51006.,04-51006.
• Citation: 451 F.3d 320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lidia ROJAS ALVAREZ; Humberto Pinon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 320

451 F.3d 320

UNITED STATES of America, Plaintiff-Appellee, v. Lidia ROJAS ALVAREZ; Humberto Pinon, Defendants-Appellants.

No. 04-51006.

United States Court of Appeals, Fifth Circuit.

June 1, 2006.

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Joseph H. Gay, Jr., Asst. U.S. Atty., Mara A. Blatt, San Antonio, TX, for U.S.

Alexander Lee Calhoun, Law Office of Alex Calhoun, Austin, TX, for Alvarez.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this action, two co-defendants appeal their convictions. We vacate all counts of conviction as to one defendant. As to the other defendant, we vacate three counts of conviction and remand with instructions to enter convictions on the lesser-included offenses and to resentence. In all other respects, we affirm.

I. FACTS AND PROCEEDINGS

Lidia Alvarez ("Alvarez") and several members of her extended family sold heroin and cocaine in Midland, Texas. Adam Alvarez ("Adam"), Alvarez's grandson, was a street-level dealer, who obtained his supply from Alvarez. In November 2002, the Midland Police Department ("MPD") executed a controlled buy of heroin from Adam. Following the buy, MPD performed a consensual search of Adam's home, at 1306 Carrizo, and discovered quantities of heroin and cocaine. Adam was not arrested at that time. He agreed to cooperate with MPD and the Drug Enforcement Agency ("DEA"), but did not provide useful information. Adam's girlfriend, Maria Lira ("Lira"), lived with Adam and, occasionally, facilitated drug transactions.

In August 2003, MPD engaged in a series of controlled buys. A confidential source, Jeffery Coffee, was used to purchase heroin from members of the Alvarez family. MPD Detective Ed Marker assisted with the controlled buys. In addition to buying from Adam, Coffee made buys from Domingo Alvarez ("Domingo"), Alvarez's son and a street-level dealer. Coffee also bought heroin from Mario Alvarez ("Mario"), another of Alvarez's grandsons. For all of the controlled buys, MPD recorded the serial numbers of the money used.

Before one controlled buy, Coffee, using a recorded telephone, asked Adam for four grams of heroin. Adam informed Coffee that he only had two grams and that, if Coffee wanted all four grams, Adam would have to get more. Adam told Coffee that his grandmother, i.e., Alvarez, was not at home and that Coffee would have to wait until she returned to get the full amount. Following the call, MPD observed Adam leave his home and proceed to Alvarez's home, at 4615 Cherokee. MPD was unsure whether Alvarez was home, but observed her car at the scene. MPD saw Adam leave the residence with Mario. Both Adam and Mario proceeded directly to the pre-arranged location, and Coffee purchased four grams of heroin from Adam. Telephone records revealed that Adam called Alvarez one minute after Coffee's call to Adam; one minute later, according to those records, Adam called Coffee. The time of the calls corresponds with the time Adam left his house for Alvarez's residence. The entire operation took forty-five minutes.

On August 27, 2003, MPD, including Detective Marker, executed a search warrant at the new residence of Adam and Lira, 3804 Anetta, and Alvarez's residence, 4615 Cherokee. MPD found both heroin and cocaine at 3804 Anetta. The 4615 Cherokee search also produced drug paraphernalia and documents indicative of drug distribution. Alvarez and Domingo were present at 4615 Cherokee during the search. MPD found heroin on Domingo's person. In addition, over $6000, including some bills from at least two of the controlled buys, was found in Alvarez's purse.

On January 21, 2004, a grand jury indicted Alvarez, Adam, Domingo, and Mario on a multitude of drug and conspiracy charges. On January 30, 2004, MPD and DEA executed additional search warrants at 4615 Cherokee and 3804 Anetta. Lira assisted MPD and DEA in the searches of both locations; she identified places throughout the residences where contraband was hidden. At both residences, the officers found heroin and cocaine. During the searches, Lira told the investigators that more drugs were hidden in the residence of Humberto Pinon ("Pinon"), Alvarez's husband.

MPD and DEA proceeded to Pinon's residence, a trailer at 2005 South Ft. Worth. After MPD and DEA located Pinon at his place of work, he returned with the officers and consented to the officers' warrantless search of his trailer. During the search, the officers looked behind a large piece of wood that was placed against the trailer's bathroom wall. Behind the piece of wood, the officers discovered a space in the bathroom wall. Inside the space was a pair of boots, and inside the boots were heroin, cocaine, an envelope with over $14,000, and a check for $5,000 made out to Alvarez. On a bed in the trailer among unopened mail, the officers also found an empty plain white envelope, of the same type as that containing the $14,000; on the envelope was written "$2,000."

On February 18, 2004, the grand jury returned a superseding indictment. Pinon was added to the list of indicted persons and was charged with conspiracy and two counts of aiding and abetting possession with intent to distribute within 1000 feet of a school. Ultimately, only Alvarez and Pinon were tried on the indictment.¹ The jury acquitted Alvarez on Count One (conspiracy to possess with intent to distribute and to distribute heroin within 1000 feet of a playground and a school) and convicted her on Count Eight (aiding and abetting distribution of heroin within 1000 feet of a playground), Count Twelve (possession with the intent to distribute heroin within 1000 feet of a playground), Count Thirteen (possession with the intent to distribute cocaine within 1000 feet of a playground), Count Fifteen (aiding and abetting possession with the intent to distribute heroin within 1000 feet of a school), and Count Sixteen (aiding and abetting possession with the intent to distribute cocaine within 1000 feet of a school). The jury acquitted Pinon on Count One and convicted him on Count Fifteen and Count Sixteen. At sentencing, the district court, imposed a sentence of ninety-seven months imprisonment (and 144 months supervised release) on Alvarez and a sentence of fifty-seven months imprisonment (and seventy-two months supervised release) on Pinon.

Before trial, Alvarez filed motions to suppress evidence obtained pursuant to the two search warrants; both motions were denied. Alvarez and Pinon also both timely filed motions for judgment of acquittal; those motions were also denied. Both timely appealed.

II. DISCUSSION

A. Sufficiency of the evidence to support Alvarez's convictions for committing drug offenses "within 1000 feet of a playground"

Counts Eight, Twelve, and Thirteen of the superseding indictment each involve drug activity within 1000 feet of a playground in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) & (C), 860 and 18 U.S.C. § 2. Under § 860, an offender is subject to "twice the maximum punishment" in the event the substantive violation is in, on, or within 1000 feet of a playground. 21 U.S.C. § 860(a). The same provision supplies a statutory definition for the term playground: "The term `playground' means any outdoor facility (including any parking lot appurtenant thereto) intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards." 21 U.S.C. § 860(e)(1). The Government elicited testimony to the effect that drug activity took place within 1000 feet of Beal Park and Kelly Park in Midland, but did not introduce evidence about the existence of any child-play apparatus contained in either park. The jury found that the Government proved, beyond a reasonable doubt, that the drug activity took place within 1000 feet of the parks, as the indictment alleged, but made no specific findings on the existence of child-play apparatus.² At oral argument, the Government could not identify any evidence submitted to the jury indicating the existence or number of child-play apparatus contained in either park.

This court reviews a district court's denial of a post-trial motion for a judgment of acquittal de novo. United States v. Bellew, 369 F.3d 450, 452 (5th Cir.2005) (citing United States v. Greer, 137 F.3d 247, 249 (5th Cir.1998)). In a sufficiency of the evidence claim, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 672, 163 L.Ed.2d 541 (2005). In conducting this review, this court does not question the veracity of the Government's evidence: "[B]ecause the evidence must be viewed in the light most favorable to the verdict, the evidence offered by the prosecution should be assumed to be true." Lopez-Urbina, 434 F.3d at 757 (citing United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir.1997)). "While the jury is free to choose among reasonable constructions of the evidence, [i]f the evidence ... gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, we must reverse the conviction, as under these circumstances a reasonable jury must necessarily entertain a reasonable doubt." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir.1999) (internal citations and quotations omitted) (alterations in original). Nevertheless, the court does "`not consider whether the jury correctly determined guilt or innocence, [only] whether the jury made a...