U.S. v. Al-Talib

• Decision Date: 30 May 1995
• Docket Number: D,AL-TALI,94-5687,Nos. 94-5584,s. 94-5584
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mohamed Basherefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hector Rivera MUNOZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 923

55 F.3d 923

UNITED STATES of America, Plaintiff-Appellee, v. Mohamed Basher AL-TALIB, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Hector Rivera MUNOZ, Defendant-Appellant.

Nos. 94-5584, 94-5687.

United States Court of Appeals, Fourth Circuit.

Argued April 7, 1995.

Decided May 30, 1995.

ARGUED: John Kenneth Zwerling, Moffitt, Zwerling & Kemler, P.C., Alexandria, VA, for appellant Munoz; Michael William Lieberman, Jonathan Shapiro & Associates, P.C., Alexandria, VA, for appellant Al-Talib. Thomas More Hollenhorst, Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Kyle W. O'Dowd, Moffitt, Zwerling & Kemler, P.C., Alexandria, VA, for appellant Munoz; Jonathan Shapiro, Jonathan Shapiro & Associates, P.C., Alexandria, VA, for appellant Al-Talib. Helen F. Fahey, U.S. Atty., Alexandria, VA, for appellee.

Before WILKINSON and MICHAEL, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Senior Judge CHAPMAN joined.

OPINION

WILKINSON, Circuit Judge:

Mohamed Basher Al-Talib and Hector R. Munoz were convicted of conspiracy to possess and distribute marijuana, as well as attempted possession of marijuana with intent to distribute. Appellants complain that the government improperly "manufactured" venue when they were arrested following a sting operation in Virginia. They also argue that the government violated the Posse Comitatus Act, 18 U.S.C. Sec. 1385, in setting up this sting. Further, Basher and Munoz make a number of individual challenges to the trial court's rulings on suppression of evidence and its factual findings underlying their respective sentences. Because we find no error in the proceedings below, we affirm the appellants' convictions and sentences.

I.

A.

On February 1, 1994, Ronnie Tankersley was stopped by the Nebraska State Patrol for a traffic violation on I-80 in Hall County, Nebraska. After Tankersley signed a search consent form, the officers discovered eight bales of marijuana weighing about ninety kilograms in the trunk. The car, a 1989 Oldsmobile, belonged to Tom Minich, who had given Tankersley written permission to drive it. Tankersley was arrested and agreed to cooperate with the authorities.

Based on information obtained from Tankersley, both state and federal authorities began to investigate a suspected drug ring involving Hector Munoz, Higinio Avilez, Minich, James Lull, Inocento Molina, Michael Pisante, and several others. On February 2, acting on Tankersley's information, U.S. Drug Enforcement Administration ("DEA") agents raided a warehouse in Tucson, Arizona and seized 25 bales of marijuana weighing about 800 pounds, as well as various documents and other supplies.

Tankersley also told the authorities that when he was stopped, he had been on his way to Washington, D.C. to deliver marijuana to one of the conspiracy's buyers. The DEA decided to set up a controlled delivery of the marijuana. Agents arranged to have the Oldsmobile and the marijuana airlifted to the D.C. area by the United States Transportation Command. On February 4, a C-130 transport manned by an Air Force crew flew the car and drugs from Nebraska to Maryland. The car was then parked at a Days Inn in Alexandria, Virginia, and Tankersley was ensconced at the motel. The DEA began surveillance of the site, waiting for Tankersley's contacts to arrive.

On February 6, the DEA monitored several phone calls from Munoz and Avilez to Tankersley. Munoz specifically told Tankersley not to go anywhere, but to stay in Virginia. Tankersley then began to experience heart trouble, and was taken to a nearby hospital in Mount Vernon, Virginia. The next day, the DEA had the car towed to Redman's Fleet Service in Newington, Virginia. Munoz called Tankersley at the hospital, who informed him that the car had been towed. Munoz told Tankersley that he was in Virginia and intended to pick up the car the next day.

Munoz appeared at Redman's on the morning of February 8 to pick up the 1989 Oldsmobile. A DEA agent posing as a clerk told him he needed to bring a license, the vehicle registration, and the owner of the car. Munoz was then observed leaving the area with two other individuals in an 1988 Chevrolet Caprice registered to Mohamed Basher. The following morning, on February 9, DEA agents observed Munoz, Basher, and Avilez together in a 1993 Jeep Cherokee at the Days Inn in Alexandria where Tankersley had been staying. Basher was driving the vehicle. Shortly afterward, the three appeared at the Mount Vernon Hospital. Agents observed Munoz go into the hospital for about ten minutes, and then rejoin Basher and Avilez in the car.

After leaving the hospital, the three went back to Redman's and drove around to the rear of the building. Avilez and Basher waited while Munoz went inside with Tankersley's driver's license and a permission slip. Munoz was arrested as he tried to take possession of the car. Basher and Avilez were also arrested shortly thereafter. A cellular phone and a pager were seized at that time. After Basher's arrest, DEA agents in D.C. seized his car, which contained $35,000 in cash and smelled strongly of marijuana. A search of Basher's D.C. residence also revealed a small bag of marijuana, a gun, and various documents.

B.

All three individuals were charged with conspiracy to possess and distribute one thousand kilograms or more of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and attempted possession with intent to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2. The three defendants pled not guilty, and, on May 31, 1994, were provided a bench trial in the Eastern District of Virginia.

James Lull testified for the prosecution. He detailed how he had worked to distribute marijuana through Munoz's network. Lull testified that he was paid to drive loads of marijuana to various points across the country. Lull described one episode in July, 1993, when Munoz took a motor home to the conspiracy's warehouse in Tucson and loaded it with 743 pounds of marijuana. Tankersley and Lull then drove the drugs to the east coast and delivered them to customers in New York and Massachusetts. They were each paid about $4700 for this trip.

Ronnie Tankersley likewise testified for the prosecution. He stated that he had met Munoz in 1990 in Arizona. Munoz frequently discussed drugs and his drug operations with Tankersley, and ultimately recruited him to assist in his drug enterprise. Tankersley also described the events leading up to his arrest, testifying that the organization had asked him to drive the Oldsmobile with the marijuana load to D.C. Munoz, Avilez, Molina and Minich were involved in planning the trip. Molina gave Tankersley a pager number to call, Minich supplied the car, and Munoz loaded it with the drugs. Tankersley was promised fifty dollars per pound for the delivery. Each day during the trip he called to check in with Munoz. After he was arrested in Nebraska and agreed to cooperate, Tankersley called Munoz and told him that the car had broken down in order to give the authorities time to set up the controlled buy in Virginia.

The rest of the evidence consisted of testimony by various DEA agents and other authorities who set up and conducted the operation in Virginia, as well as corroborating evidence in the form of phone records, notes, airline tickets, receipts, and other documents. The agents described the phone calls between Munoz and Tankersley, outlined the movements of Munoz and Basher while in Virginia (including their counter-surveillance driving tactics), and detailed the records seized from the defendants. Most of the trial consisted of the presentation of the government's evidence. The defendants chose not to take the stand in their own defense, but cross-examined the various government witnesses on the details of their respective testimony. At the close of evidence, the trial court found the defendants guilty on both counts. Avilez disappeared during the course of the trial and was convicted in absentia.

A sentencing hearing for Basher was held on July 29, 1994. The district court imposed a sentence of 262 months on the conspiracy count and 240 months on the attempted possession count, to run concurrently, as well as a period of supervised release. ¹ On September 9, 1994, Munoz was given an identical sentence. Defendants now appeal.

II.

Basher and Munoz first raise a challenge to venue in the Eastern District of Virginia. The Constitution requires that "the Trials of all Crimes ... shall be held in the State where the said Crimes shall have been committed." U.S. Const. Art. III, Sec. 2. For continuing offenses, Congress has provided that venue may be established in any district "in which such offense was begun, continued, or completed." 18 U.S.C. Sec. 3237(a) (1988); Fed.R.Crim.P. 18. Thus, in a conspiracy case like the one before us, a prosecution may be brought in any district in which any act in furtherance of the conspiracy was committed. United States v. Anderson, 611 F.2d 504, 509 n. 5 (4th Cir.1979). To establish venue, the government need only show that an act occurred in the district by a preponderance of the evidence. United States v. Porter, 821 F.2d 968, 975 (4th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988).

Here, the trial court found a number of contacts between the conspirators and the district of Virginia, aside from the events surrounding the sting, which constituted acts sufficient to establish venue. In particular, the government showed that Basher had travelled through Virginia on his way to and from Arizona in late January, 1994. Basher received a speeding ticket in Virginia on his way to Arizona, and airline records show he returned by plane to Washington National Airport in Virginia. This trip was made to set up the purchase of...