U.S. v. Salazar

• Decision Date: 26 September 1995
• Docket Number: No. 94-60598,94-60598
• Citation: 66 F.3d 723
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio SALAZAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 723

66 F.3d 723

UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio SALAZAR, Defendant-Appellant.

No. 94-60598.

United States Court of Appeals, Fifth Circuit.

Sept. 26, 1995.

Dorina Ramos, McAllen, TX, for appellant.

Katherine L. Haden, Asst. U.S. Atty., Paula C. Offenhauser, U.S. Atty., Houston, TX, for appellee.

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

Before KING, SMITH and STEWART, Circuit Judges.

PER CURIAM:

On March 31, 1994, following a jury trial, Juan Antonio Salazar was convicted of assisting the escape of a federal prisoner and aiding and abetting the knowing use of a firearm during a crime of violence. Salazar appeals his conviction on the firearm charge, arguing that the evidence was insufficient. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 16, 1994, a second superseding indictment was returned against Salazar, charging him with assisting the escape of a person under arrest for a felony in violation of 18 U.S.C. Sec. 752(a) (count two), and aiding and abetting the knowing use of a firearm during a crime of violence in violation of 18 U.S.C. Secs. 2, 924(c)(1) (count three). Following a jury trial, Salazar was convicted on counts two and three on March 31, 1994. After the government rested, Salazar's attorney presented a motion for acquittal with regard to count three, on the ground that the government failed to present evidence of Salazar's use of a firearm. The court denied the motion. Following his conviction and sentence, Salazar filed a timely notice of appeal.

Raul Valladares-Del Angel ("Valladares") was incarcerated on charges related to his involvement with over 1000 pounds of cocaine when he escaped from jail on April 18, 1993. Salazar was not present and did not participate in the actual escape. However, the Government produced evidence that Salazar helped plan the escape. The evidence adduced at trial demonstrated the following:

In late March or early April 1993, Alfonso Ibanez ("Ibanez"), an attorney practicing in Hidalgo County, was contacted by a Mexican attorney on behalf of the family of Valladares, who wished to retain him to represent Valladares on drug charges for which he was being detained at the Hidalgo County Jail in Edinburg, Texas. Ibanez visited Valladares in jail and learned that the case involved over 1000 pounds of cocaine, and that Valladares was already represented by Bobby Joe Yzaguirre. Ibanez obtained Yzaguirre's permission to join the defense team, and he communicated to Valladares's family that he would require a $100,000 retainer to represent Valladares, and also that he would require Valladares's personal agreement for him to participate in the defense. The family agreed to pay the retainer, but needed time to obtain it.

Over the next few weeks, Ibanez visited Valladares in jail two or three times, after working hours, to inquire if Valladares would hire him. Normal visiting hours were 8 a.m. to 8 p.m. on weekends, but attorneys were allowed to visit at any time. Ibanez would call jail personnel before he arrived so that they could find Valladares and bring him to the front of the jail. Ibanez testified that during these visits, Valladares never mentioned Salazar.

On April 18, 1993, Ibanez arrived home from church about 8 p.m.. His son or daughter told him that Raul Valladares, Jr. ("Valladares, Jr."), with one or two other men, had stopped by Ibanez's home to talk about Valladares. About thirty minutes later, Valladares, Jr. returned with one or two other persons and Ibanez met them outside his home. Ibanez tentatively identified Salazar as the individual accompanying Valladares, Jr., but claimed that he could not positively identify him because he did not get a very close look. Ibanez's son, Jaime Ibanez, also testified that Salazar resembled the man who had accompanied Valladares, Jr.. Valladares, Jr. asked Ibanez to tell his father that the man who wanted to buy their ranch was in Reynosa with the money and to inquire what Valladares, Jr. should do about the real estate sale. Because Ibanez believed that the sale of the ranch was for the purpose of obtaining his retainer, he agreed to visit Valladares at the jail that evening.

Ibanez and his wife, Gloria Ibanez, arrived at the jail about 8:30 or 8:45 that evening. While Mrs. Ibanez stayed in the car, Ibanez entered the building, showed his identification and requested to see Valladares. Ibanez described the entrance to the jail as a glass and metal unlocked door which led into a waiting room. The waiting area contained a glass window at which persons could speak to jail personnel about visiting a prisoner. When coming to see a client, Ibanez would approach this window, identify himself as an attorney, and request that his client be brought to the meeting room. A sliding glass door connected the waiting area to the attorney/prisoner meeting room. This door was operated from the control room and would open and close slowly. The control room was surrounded by windows, enabling its occupants to see into the waiting area and the attorney/prisoner meeting room. The attorney/prisoner meeting room was one room containing small cubicles where attorneys could meet with their clients, a bathroom, and two public phones. The attorneys were not separated from the prisoners by glass or any other type of partition. A separate heavy metal door led from the meeting room into the secured area of the jail, which was also operated from the control room, through which the prisoner was escorted to meet with his attorney.

Ibanez entered the attorney/prisoner meeting room through the sliding glass door, and Valladares was escorted in the meeting room through the heavy metal door on the other side. They sat at a table in one of the cubicles. Ibanez relayed the message about the sale of the ranch, but Valladares did not seem to be familiar with the sale. Ibanez tried to call Valladares, Jr. from the public phone in the meeting room, but he could not locate him. Valladares then complained to Ibanez about his new cell arrangements.

Having concluded their meeting, Ibanez and Valladares approached the window to the control room to tell the deputy sheriff they were done. While they waited to be noticed, Ibanez saw a person, later identified as Jose Angel Hernandez-Ochoa ("Hernandez"), enter the building from outside. This person exchanged gestures with Valladares, both men shrugging their shoulders with palms upraised as if to say "what is going on?". Ibanez asked Valladares if he knew this person; Valladares answered that yes, he was a friend. While Valladares and Hernandez were talking through the window, the sliding glass door opened to allow a deputy and a person in civilian clothes to pass through the meeting room and into the waiting area. While the door was open, Hernandez slipped inside the meeting room. Ibanez directed Valladares and Hernandez (who remained unidentified) to follow him to one of the cubicles, where they continued talking. Deputy Alvarez, who was manning the control room, did not recognize Hernandez, so he called Deputy Perez to watch the control room. Deputy Alvarez entered the meeting room and asked Ibanez if the new individual was a lawyer or investigator with him. Because he was not with Ibanez, the deputy ordered Hernandez to leave the meeting room. At that time, the deputy, Ibanez, Valladares, and Hernandez moved toward the sliding glass door.

As Hernandez moved through the sliding glass door, he told Valladares, "vente," meaning "come on." Valladares then ran through the glass door and followed Hernandez toward the general exit. The deputy and Ibanez tried to grab Valladares as he ran through the glass door, but with no avail. Deputy Alvarez then followed Valladares out the sliding glass door and into the waiting area. As he tried to apprehend Valladares near the general exit, Hernandez pointed a black handgun at him. Deputy Alvarez dropped to the floor and took cover behind a bench. When he looked up, he saw another unidentified man, identified at trial by Hernandez as La Zota, pull what looked like a Coke can out of his left boot, pull the pin, drop it, and exit. Tear gas permeated the room. From the meeting room, Ibanez had lost sight of the men, but he heard a hissing sound, then saw and felt the tear gas coming from the waiting area. The tear gas infiltrated the entire jail, requiring an evacuation. Ibanez had no further contact with Valladares or Valladares, Jr. after the escape. Ibanez testified that the unidentified individual (identified at trial as Hernandez) was not Salazar, and he also averred that he did not see Salazar at the jail on the night of the escape. Deputy Alvarez also testified that he did not see Salazar at the jail on the night of the escape.

While waiting in the car in the jail parking lot, Mrs. Ibanez heard someone say "suete" or "subete," which means "get in." She looked up and saw two men in plain clothes and a man in an orange prison uniform approaching the parking lot. The three men drove away in a black, mid-sized car, heading for Highway 281.

Hernandez testified on behalf of the government at trial. He explained that he had previously pled guilty to assisting the escape of Valladares, and carrying a weapon, and that he was testifying in order to ameliorate the recommendation for his sentencing. Hernandez identified himself as the person who entered the meeting room and led Valladares out of the jail. He stated that he pointed the gun at Deputy Alvarez, but that it was not loaded, although Valladares, Jr. had given him bullets for the gun. He also testified that the man who released the tear gas was called La Zota. After the escape, Hernandez, La Zota and a third man drove Valladares to the Texas-Mexico border, where Pedro Garcia picked him up on a motorcycle. Hernandez met with Valladares and Valladares, Jr. about 15 days later, but did not get paid the remainder of his fee for...