U.S. v. Sanchez-Sotelo

• Decision Date: 16 November 1993
• Docket Number: No. 92-8611,J,SANCHEZ-SOTEL,92-8611
• Citation: 8 F.3d 202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Aronose Rabelo Renteria, and Ricardo Garcia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 202

8 F.3d 202

UNITED STATES of America, Plaintiff-Appellee, v. Juan Aron SANCHEZ-SOTELO, Jose Rabelo Renteria, and Ricardo Garcia, Defendants-Appellants.

No. 92-8611.

United States Court of Appeals Fifth Circuit.

Nov. 16, 1993.

Henry J. Bemporad, Asst. Federal Public Defender, San Antonio, TX, for Sotelo.

Richard B. Lind, McCostes & Lind, New York City, for Renteria and Garcia.

Diane D. Kirstein, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for U.S.

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

Before SNEED ¹, REYNALDO G. GARZA and JOLLY, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Juan Aron Sanchez-Sotelo, Jose Rabelo Renteria, and Ricardo Garcia appeal their convictions for conspiracy to possess cocaine and possession of cocaine with intent to distribute. We AFFIRM the district court in all respects, except we VACATE the order denying the appellants' motion for new trial based on extraneous jury influence and REMAND the cause for further proceedings.

I. FACTS

This case arises from an undercover narcotics sting operation in El Paso, Texas. Sergio Filemon Sotelo Sanchez ("Filemon"), the key person in the criminal conspiracy, pled guilty and is not a party to this appeal. The appellants are Filemon's brother, Juan Aron Sotelo Sanchez ("Sotelo"); Jose Renteria; and Ricardo Garcia.

On November 13, 1991, an undercover law enforcement agent met with Filemon, purchased a one-half ounce sample of cocaine from him, and agreed to meet with him later that day in the parking lot of a toy store to purchase another half-ounce. After the initial purchase, law enforcement agents tracked Filemon as he drove to several places including the apartment of his brother Sotelo's girlfriend. The meeting between the undercover agent and Filemon was delayed for two hours because, according to Filemon, Sotelo "had sent the guy that takes care of the stash house on an errand." At the meeting, the undercover agent purchased another one-half ounce sample and agreed to purchase a much larger quantity of cocaine after she obtained the money to do so. After this meeting, Filemon drove to his house on Mockingbird Street. The trial testimony conflicts as to whether Sotelo lived at the house on Mockingbird Street with his brother, Filemon.

On November 21, the undercover agent met with Filemon in the same toy store parking lot and agreed to exchange one kilogram of cocaine later that day for $14,500 (the "one-kilo exchange"). Filemon then drove in a maroon pickup truck to a house on Rubicon Street where he picked up his brother, Sotelo. The two men drove to a gas station and met with several other men who arrived in a gray pickup truck. After this meeting, Filemon and Sotelo drove back to the toy store parking lot.

A few hours later, the undercover agent returned to the parking lot where Filemon and Sotelo were waiting in the maroon truck to consummate the one-kilo exchange. Filemon got out of the truck, leaving Sotelo in the passenger side, and entered the undercover agent's truck. In the recorded conversation that followed, Filemon told the undercover agent to retrieve the kilogram of cocaine from an empty Chevrolet Cavalier in the parking lot. After retrieving the cocaine, the undercover agent handed Filemon an envelope containing $14,500. Filemon agreed to meet later that day in the same parking lot to exchange a larger quantity of cocaine (the "four-kilo exchange").

After the one-kilo exchange, Filemon and Sotelo drove to a pool hall where they met with appellant, Garcia. The three men then went to a motel where they were later met by two other men who arrived in a blue pickup truck driven by appellant, Renteria. After the men conversed, Filemon, Sotelo and Garcia drove away in Filemon's maroon truck. Renteria drove away alone in the blue truck. Both trucks arrived at the toy store parking lot where Garcia entered the Cavalier that Filemon used in the earlier one-kilo exchange. Garcia then drove the Cavalier around the parking lot, parking for a short period of time, and then driving around the parking lot again. Simultaneously, Filemon in the maroon truck and Renteria in the blue truck drove around the parking lot in a manner that suggested they were searching for signs of law enforcement personnel. After a short meeting between the two trucks, Filemon drove to a gas station across the street and called the undercover agent regarding the planned exchange.

The undercover agent arrived at the parking lot at 5:15 p.m. to consummate the four-kilo exchange. The agent parked near Filemon's maroon truck. Filemon left Sotelo in the maroon truck and entered the undercover agent's car where he explained, in a recorded statement, that they were "waiting for the delivery of the cocaine." Filemon offered to have Sotelo drive the maroon truck close to the undercover agent's car in order to hand the drugs from the truck to the car, but abandoned this method of exchange at the agent's request. As Garcia drove the Cavalier by the undercover agent's car, Filemon stated that the car was driven by one his "business partners." The gray pickup truck then arrived in the parking lot and parked next to the maroon truck that Sotelo was sitting in. Filemon exited the undercover agent's car, and Sotelo exited the maroon pickup, and then Filemon met with the driver of the gray truck. Afterwards, Filemon took a toolbox from the gray truck and brought it to the undercover agent's car. Agents closed in and arrested Filemon, Sotelo, Renteria and, after a high speed chase, Garcia. ² Others were also arrested, but they are not parties to this appeal.

II. PROCEDURAL HISTORY

The appellants were charged with two counts of federal narcotics violations. The first count charged the appellants with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. sections 841(a)(1) and 846. The second count charged the appellants with possession of cocaine with intent to distribute, in violation of 21 U.S.C. section 841(a)(1).

The case went to trial on July 20, 1992 and on July 22, 1992, the jury convicted Sotelo and Garcia on both counts. The jury convicted Renteria on count one, but acquitted him on count two. On December 1, 1992, Garcia was sentenced to 136 months of imprisonment and to a five-year term of supervised release. Garcia was also ordered to pay $100 for special assessments. Renteria was sentenced to 121 months of imprisonment and to a five-year term of supervised release; he was also specially assessed $50. Sotelo was sentenced to concurrent 151-month terms of imprisonment on each count and to a five-year term of supervised release. Sotelo was also specially assessed $100.

After the trial, defense counsel made two motions for a new trial. First, defense counsel asked for a new trial based on the affidavit of a trial juror that the jury had been exposed to an improper extraneous influence that tainted the verdict. The juror attested that another "juror drove by the residence of one defendant who lived on Mockingbird [Street], and complained during deliberations that the defendants must be drug dealers, otherwise they couldn't afford to live in houses like the one on Mockingbird [Street]."

Garcia moved for a new trial on the basis of ineffective assistance of counsel. He asserted that his lawyer failed to call certain prisoners who overheard Filemon state that Garcia was not involved in the conspiracy. In a recorded conversation, his lawyer stated that he did not call the witnesses because the government could have rebutted with the confession of Garcia's co-defendants.

The district court denied both motions without an evidentiary hearing. The district court denied the motion regarding extraneous influence because it stated that the house on Mockingbird Street belonged to Filemon who pled guilty and was not tried with the defendants. Accordingly, the district court viewed the information as not material to the guilt or innocence of the defendants and not possibly prejudicial to the defendants. The district court denied the motion regarding ineffective assistance of counsel because it viewed the claim as "border[ing] on the frivolous" and because even if proffered, the claim would have been inadmissible as "pure hearsay."

Appellants filed for reconsideration of the district court's order. Appellants attached a supplemental affidavit in which the juror stated that the jurors assumed that the house on Mockingbird Street belonged to one of the defendants on trial, but not necessarily Filemon. The district court denied the motion for reconsideration without a hearing because the allegations related to the mental processes of the jurors and were not admissible under Federal Rule of Evidence 606(b).

III. DISCUSSION

The appellants claim the district court erred in: (1) finding sufficient evidence to support their convictions for conspiracy to possess cocaine and possession of cocaine with intent to distribute; (2) allowing an undercover agent to comment on her tape-recorded conversations referencing Sotelo; (3) not declaring a mistrial with respect to the prosecutor's closing remarks; (4) not defining "knowingly" or "intent" in its jury charge; and (5) denying their motion for new trial based on evidence of an extraneous influence on the jury.

Garcia also claims that the district court erred in denying his motion for new trial based on ineffective assistance of counsel.

The district court did not err in: (1) finding sufficient evidence to support the appellants' convictions for conspiracy and possession with intent to distribute; (2) allowing the undercover agent to comment on her tape-recorded conversations; (3) refusing to declare a mistrial; (4) declining to define "knowingly" and "intent"; and (5) denying Garcia's motion for new trial based on ineffective assistance of counsel.

However, we VACATE the district court's order...