U.S. v. Saucedo

• Decision Date: 14 June 2000
• Docket Number: Nos. 99-5325,99-5411,99-5326,s. 99-5325
• Citation: 226 F.3d 782
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Javier Saucedo (99-5325); Refujio Hernandez (99-5326), Defendants-Appellants. United States of America, Plaintiff-Appellant, v. Jordan Key, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 782

226 F.3d 782 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Javier Saucedo (99-5325); Refujio Hernandez (99-5326), Defendants-Appellants.

United States of America, Plaintiff-Appellant, v. Jordan Key, Defendant-Appellee.

Nos. 99-5325, 99-5326, 99-5411

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 14, 2000

Decided and Filed: September 12, 2000

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 98-20074--Bernice B. Donald, District Judge.

Thomas L. Parker, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for United States of America.

Mary C. Jermann, WAMPLER & PIERCE, Memphis, Tennessee, for Appellants.

Daniel L. Johnson, Memphis, Tennessee, for Appellant.

Bruce I. Griffey, Assistant Federal Public Defender, Thomas J. Gibson, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellee.

Before: KRUPANSKY, NORRIS, and SUHRHEINRICH, Circuit Judges.

OPINION

KRUPANSKY, Circuit Judge.

In case numbers 99-5325 and 99-5326, respectively, the defendants-appellants Javier Saucedo ("Saucedo") and Refujio Hernandez ("Hernandez") have each contested his sentence, and Hernandez has challenged his conviction, for cocaine conspiracy offenses. Saucedo has contended (1) that the sentencing judge should have accorded him a "minimal participant" offense level reduction and (2) erroneously quantified the narcotics chargeable against him. Hernandez has asserted that the district court should have suppressed the evidence against him because his detention, and subsequent seizure of currency from him, purportedly violated the Fourth Amendment and/or the Fourteenth Amendment. In case number 99-5411, plaintiff-appellant the United States of America has charged that the district court abused its discretion by departing downward in sentencing of defendant-appellee Jordan Key ("Key"). The government has argued that the district court erroneously failed to consider if the circumstances of Key's case excluded it from the "heartland" of cases contemplated in the Guideline Manual of the United States Sentencing Commission.

On April 9, 1998, a reliable confidential informant telephoned Officer Joseph Hoing of the Memphis Police Department's Organized Crime Unit who was assigned to the special Drug Enforcement Agency ("DEA") Task Force. The confidential informant advised Hoing that defendant Hernandez would arrive that same day at the Memphis, Tennessee airport on a Continental Airlines flight at 8:45 p.m. from Houston, Texas, with a return ticket for Houston the following day. Cognizant that Houston was a major cocaine source city, Hoing concluded that Hernandez's travel activities comported with the standard practices of narcotics and/or currency couriers, warranting investigation. The confidential informant advised that Hernandez would occupy seat 4B in the aircraft.

Hoing and a fellow agent on the DEA Task Force, Shelby County Sheriff's Deputy Anita Tarwater ("Tarwater"), went to the Memphis airport to meet the 8:45 Continental flight from Houston. From a distance, the two officers observed the occupant of seat 4B, defendant Hernandez. As he exited the aircraft and moved through the airport terminal, he repeatedly peered over his shoulder and otherwise appeared anxious. The subject toted a carry-on bag but claimed no luggage. He placed two calls from a public telephone, then waited curbside outside the terminal. Ultimately, a white 1997 Chevrolet Blazer with co-defendants Thomas Davidson ("Davidson")¹ and Key, arrived to meet Hernandez.

The two police officers, supported by back-up agents, followed the Blazer to the Hilton Hotel, 5069 Sanderlin Avenue, Memphis. They observed the Blazer stop near a parked green 1997 Mercury Cougar which bore a Texas license tag; that vehicle later proved to be registered to Hertz Rent-A-Car in San Antonio, Texas. Hernandez departed the Blazer and entered the Cougar, which was operated by co-defendant Saucedo. Saucedo and Hernandez then followed the Chevrolet to a parking lot near the Gables Apartments, an exclusive gated residential community.

As Officer Hoing observed the scene from his unmarked squad cruiser, Hernandez, Saucedo, Key, and Davidson each exited his respective vehicle and surveilled the area. The four men began walking across the street in the direction opposite the apartment complex. Subsequently, the four suspects turned and walked into the complex, and approached 2845 Morning Lake Drive, unit no. 104. Hoing exited his vehicle to observe Apartment 104 as well as the parking lot.

Subsequently, Davidson exited unit 104 and re-entered the Blazer and drove away. Surveillance operatives followed him to his mother's residence in Raleigh, Tennessee, a nearby suburb. Davidson entered and remained inside his mother's house for only several minutes thereafter, returning immediately to the Gables Apartments. He reentered Apartment 104 with a brown shoulder bag which he carried from the Blazer. Approximately thirty minutes later, the four target individuals left the apartment. Hernandez and Saucedo re-entered the Mercury, whereas Davidson and Key returned to the Blazer. As the two vehicles approached the parking lot's exit, officers surrounded them. The constables ordered all occupants out of the stopped vehicles and interrogated each individual separately.

When DEA Special Agent Brian Chambers asked Key if he had any weapons, Key replied that a gun was on the floor of the Blazer. Detectives confiscated a .9 millimeter handgun from within the vehicle.

Davidson stated that he resided in Apartment 104. He claimed that Hernandez was a "friend" from Texas, although he only knew Hernandez's first name (Refujio), and experienced difficulty pronouncing it. Davidson falsely denied his earlier visit to his mother's home. He also alleged that he had never before met Saucedo and did not know how Hernandez traveled from the airport to his (Davidson's) domicile, contrary to Hoing's eyewitness attestations that Davidson had personally accompanied Hernandez from the airport and had driven him to a parked automobile operated by Saucedo.

Saucedo informed interrogating detectives that he had leased the Mercury in San Antonio, Texas, to drive to Memphis to "hang out" with Hernandez. However, when questioned, Saucedo knew the full name of neither Hernandez nor Davidson. Saucedo disclosed that he had stayed at the Hilton Hotel while in Memphis. A consent search of the Mercury disclosed that its back seat had been unbolted in the standard fashion of a courier vehicle, enabling the clandestine storage of narcotics or bank notes in the area beneath the seat. A trained narcotics detection canine was used to alert the officers to the Mercury's rear seat.²

Upon inquiry, Hernandez initially advised the officers that he had flown to Memphis to pay a personal visit to his friend "Thomas" (Davidson), although he did not know the last name of his purported social host. However, he ultimately stated that Davidson had brought a sizeable sum of cash to the apartment in a shoulder bag, which Davidson purportedly owed Hernandez for an unspecified personal debt. Hernandez had secreted the currency³ inside his underwear. Hernandez verbally consented to Hoing's removal of the treasury bills from inside his clothing. Hoing testified that the currency was packaged in two separate rubber-banded bundles. Hoing and a fellow constable tallied the seized notes, which totaled $14,200. The drug-sniffing dog was attracted to the money, even though officers had inserted it inside an envelop which they deposited under a parked automobile, confirming the past proximity of the bills to a controlled substance.

A subsequent warrant search of Apartment 104 (Davidson's residence) produced 2.478 kilograms of cocaine powder contained in two packages hidden beneath clothing inside a laundry basket, plus an additional 222.5 grams of cocaine powder from inside a briefcase secreted within a bedroom closet.

Further investigation disclosed that Hernandez and Saucedo had supplied cocaine to Davidson on at least four other occasions and that Key distributed the cocaine for Davidson once the drug arrived in Memphis. The first of these transactions occurred during January of 1998, when Davidson agreed to purchase one kilogram of cocaine at the cost of $22,000, apparently on consignment. Approximately two weeks later, Hernandez returned to Memphis, in connection with the second known transaction. Davidson at that time paid for the first kilogram of cocaine, and Hernandez gave Davidson two more kilograms. The third known transaction occurred on March 8, 1998, when Davidson and Key traveled to Houston with $40,000. They met with Hernandez and returned to Memphis with three kilograms of cocaine. Finally, in the fourth known transaction, Hernandez and Saucedo delivered two kilograms of cocaine to Davidson and Key in Memphis, Tennessee, between March 12 and 14, 1998.

On April 21, 1998, a grand jury charged the four confederates with possession of, and conspiring to possess cocaine, with intent to distribute, and conspiring to distribute cocaine, all in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (count one); and aiding and abetting each other in the possession of cocaine with intent to distribute, in offense to 21 U.S.C § 841(a)(1) and 18 U.S.C. § 2 (count two).⁴ Additionally, the indictment charged Davidson and Key with the knowing and intentional carriage or use of a firearm during and in relation to a drug trafficking crime, and aiding and abetting each other in that offense, in affront to 18 U.S.C. § 924(c) and 18 U.S.C. § 2.

On June 4, 1998, Hernandez moved to suppress all evidence against him charging that it resulted from a search that violated his Fourth Amendment rights. Following an evidentiary hearing, a magistrate judge issued a Report and...