U.S. v. Sanchez-Garcia, 05-3561.

• Decision Date: 05 September 2006
• Docket Number: No. 05-3561.,05-3561.
• Citation: 461 F.3d 939
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor SANCHEZ-GARCIA, also known as Sergio Barraza-Ayon, also known as Mauricio Borjas-Madrid, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 939

461 F.3d 939

UNITED STATES of America, Plaintiff-Appellee, v. Victor SANCHEZ-GARCIA, also known as Sergio Barraza-Ayon, also known as Mauricio Borjas-Madrid, Defendant-Appellant.

No. 05-3561.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2006.

Filed: September 5, 2006.

COPYRIGHT MATERIAL OMITTED

Michael T. Levy, argued, Omaha, NE, for appellant.

Thomas J. Kangior, argued, Special Asst. U.S. Attorney, Omaha, NE, for appellee.

Before ARNOLD, JOHN R. GIBSON and SMITH, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Victor Sanchez-Garcia was convicted of conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, possession with intent to distribute 500 grams or more of methamphetamine, and possession of a firearm in relation to a drug trafficking offense. On appeal, he argues that there was insufficient evidence to submit the conspiracy and firearms charges to the jury and that the district court¹ erred by finding beyond a reasonable doubt that he was previously convicted of a felony drug offense. We affirm.

In June 2003, Agent Gil Balli, a narcotics investigator with the Federal Bureau of Investigations, received a tip from a cooperating informant that an illegal alien named Mauricio Borjas, who resided at an apartment at 6761 "A" Plaza, was involved in narcotics-related activity in and around Omaha, Nebraska. The informant described the suspect as a 5'10" Hispanic male in his mid-twenties with a slim build who drove either a green compact car or a black Grand Prix or Grand Am. Balli relayed this information to Agent Ovidio De La Fuente of the Bureau of Immigration and Customs Enforcement to advise him that Borjas may be in the United States illegally and to request that De La Fuente check into the individual's immigration status.

Agent Balli and another officer set up surveillance on a black Grand Prix parked outside the suspect's apartment building. Shortly thereafter, an individual matching the suspect's description left the apartment building, got into the black Grand Prix, and drove out of the parking lot at a high rate of speed. The officers followed the suspect in their unmarked cars, and, after observing several instances of erratic driving, Agent Balli activated his lights and siren to initiate a traffic stop.

Balli approached the vehicle, displayed his badge, and identified himself in Spanish and English. Upon request, the driver produced identification, although it differed from the name that the informant had provided.² Speaking in Spanish, Balli told the suspect that he had reason to believe that he was in the country illegally and involved in illegal activity. The suspect agreed to cooperate with the investigation and went with Agent Balli to his unmarked police car. After again advising the suspect of the nature of the investigation, Balli requested permission to search the vehicle, as well as the suspect's apartment and the accompanying detached garage. The suspect agreed, provided Agent Balli with directions to the apartment, and identified which keys on his key ring opened the apartment and garage. A contemporaneous search of the suspect uncovered $1,135 in cash: fifty-six $20s, one $10, and one $5.

While Balli was speaking with the suspect, Agent De La Fuente arrived on the scene, having conducted a records check on Mauricio Borjas. As part of that records check, De La Fuente obtained a copy of Borjas' file, complete with a set of fingerprints, a photograph, and a list of the four different aliases Mauricio Borjas-Madrid was known to have employed. Upon his arrival at the scene, De La Fuente showed the photograph to Balli and the suspect. According to De La Fuente, the suspect "just put his head down" when he was presented with the photograph, despite previously maintaining that his name was "Victor Sanchez."

While Sanchez-Garcia was being transported to the police station, Agent Balli and several other Omaha police officers left the scene and proceeded to his apartment. There, they knocked and announced their presence and after receiving no response used Sanchez-Garcia's keys to enter the apartment and begin their search. Inside a kitchen cabinet, officers found a digital scale and a cell phone box containing approximately 886.5 grams of methamphetamine. Inside the kitchen drawers, officers found two identification cards bearing the names Jabier S. Gamez and Jose Eladio Borjas-Madrid, a Cox Communications bill addressed to Sanchez-Garcia's girlfriend, Maria Garcia, and titles to a green Ford Thunderbird LX and a black Pontiac Grand Prix. On a shelf in the bedroom closet, officers found a Hi-Point .40 caliber handgun along with a letter addressed to Maria Garcia and Mauricio Borjas Garcia. Inside a cardboard box in the detached garage belonging to the apartment, an officer found a ziplock bag containing 145.7 grams of crystal "ice" methamphetamine along with some drug packaging materials.

The handgun and the packaging materials were sent to the Douglas County crime lab to be tested for fingerprints. The investigator conducting the test was unable to recover any identifiable fingerprints from the packaging material but was able to lift a latent fingerprint from the trigger guard on the gun. The fingerprint matched that of an individual named Luis Borjas-Madrid, who the investigator learned went by several aliases, including Victor Sanchez-Garcia. Upon comparing the fingerprint cards of Luis Borjas-Madrid and Sanchez-Garcia, the investigator determined that the fingerprints were identical.

About a week after the traffic stop, De La Fuente transported Sanchez-Garcia to the immigration office for further questioning. During that interview, Sanchez-Garcia told De La Fuente that he had last entered the United States in January 2002 and had been continuously unemployed since that time. De La Fuente also took two pieces of identification from Sanchez-Garcia: a Mexican driver's license issued May 20, 2002 and a Mexican voter's card; De La Fuente observed certain irregularities with both cards and concluded that they were both counterfeit. During a follow-up investigation, Agent De La Fuente sent the fingerprint card from Borjas-Madrid's file to the Omaha Police Department's crime lab for a comparison with Sanchez-Garcia's fingerprints; the comparison showed that they were a match.

A Nebraska grand jury returned a three-count indictment charging Sanchez-Garcia with possession with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1); being an illegal alien in possession of a firearm, in violation of 18 U.S.C. 922(g)(5)(A); and criminal forfeiture pursuant to 21 U.S.C. § 853.³ Following Sanchez-Garcia's plea of not guilty, trial commenced on October 12, 2004. At trial the government presented the testimony of Balli, De La Fuente, and the crime lab investigator. In addition, the government called Omaha police officer Mark Negrete, who testified about an incident in March 2003, two months before the traffic stop, when he had arrested an individual named Luis Enrique Borjas-Madrid and found approximately $4,500 in his possession, consisting of twenty-eight $100s, one $50, eighty-two $20s, two $10s, four $5s, and one $1.

The government also called Mark Langan, a retired Omaha Police sergeant with 18 years of experience in narcotics, to testify as an expert on methamphetamine distribution. According to Langan, the typical amount of methamphetamine bought for personal use was approximately one gram. He testified that the vast majority of methamphetamine entering Omaha in June 2003 was produced in "mega labs" in Mexico and then smuggled across the border by people known as "mules." Langan identified two principal forms of methamphetamine—a low purity form known as "street dope" and a high purity form known as "ice"—and then estimated that in June 2003 one gram of street dope sold for $60, while one gram of ice sold for $100 or $120. Langan testified that digital scales, large sums of cash—predominately in the form of $20 bills—packaging materials, and firearms were common to the drug trade. Lastly, he testified that drug dealers in the area often utilize a variety of tactics to avoid detection by police and being "ripped off" by other dealers, including moving frequently, using firearms, and employing multiple aliases. Having reviewed the reports in connection with Sanchez-Garcia's arrest, Langan opined that, based on the large quantities of methamphetamine, the presence of a digital scale and a firearm at the apartment, and the large amount and type of cash found on Sanchez-Garcia's person at the time of his arrests, Sanchez-Garcia was involved in the distribution of methamphetamine.

In his defense Sanchez-Garcia presented, through an interpreter, the testimony of his girlfriend, Maria Garcia, and her mother, Gloria Marin. Garcia testified that she had met the defendant, whom she knew as both Sanchez-Garcia and Mauricio Borjas-Madrid, in October 2000, and that the couple had one child together, Mauricio Alberto Borjas Garcia. Garcia testified that she and Sanchez-Garcia, accompanied by the couple's son, made two separate trips to Mexico in late 2002 and early 2003, in order to visit family there. On each trip, Garcia and her son would reenter the United States without Sanchez-Garcia because he lacked proper documentation. Garcia's mother, who also knew Sanchez-Garcia as Mauricio Borjas, corroborated some aspects of Garcia's testimony about the trips, although the government was able to highlight a number of inconsistencies on cross-examination.

On October 18, 2004, the jury found Sanchez-Garcia guilty of being an illegal alien in possession of a firearm. However, it was unable to reach a verdict on the possession with intent to distribute charge, which led the court to declare a mistrial on that charge. Two days later, the grand jury returned a second...