U.S. v. Torres-Rodriguez
| Decision Date | 28 June 1991 |
| Docket Number | ESTRADA-SOLORZAN,D,Nos. 89-30298,TORRES-RODRIGUE,s. 89-30298 |
| Citation | 930 F.2d 1375 |
| Parties | 32 Fed. R. Evid. Serv. 900 UNITED STATES of America, Plaintiff-Appellee, v. Calixtroefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ricardo GUARDADO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Trinidad J.efendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Am Paro MADRIZ, Defendant-Appellant. to 89-30301. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Western District of Washington; Jack E. Tanner, District Judge.
Steven E. Teich, San Francisco, Cal., for defendant-appellant Am Paro Madriz.
Victor S. Palacios, San Francisco, Cal., for defendants-appellants Calixtro Torres-Rodriguez and Trinidad J. Estrada-Solorzano.
Robert David Baker, San Jose, Cal., for Ricardo Guardado.
Kenneth Bell, Asst. U.S. Atty., Tacoma, Wash., for plaintiff-appellee.
Before TANG, D.W. NELSON and CANBY, Circuit Judges.
Defendant-appellants Calixtro Torres-Rodriguez (Torres), Am Paro Madriz, Ricardo Guardado and J. Trinidad Estrada-Solorzano (Estrada) were convicted in a jury trial of various offenses arising out of a drug-trafficking operation. Appellants allege numerous errors in the pre-trial, trial and sentencing phases. We find some of their contentions meritorious and reject the rest.
This case stems from a joint investigation by the Royal Canadian Mounted Police (RCMP) and the Drug Enforcement Administration (DEA). As a result of that investigation, the government filed a ten count indictment against the appellants. Just prior to trial, the government filed a superseding indictment charging eleven counts: (1) conspiracy to distribute cocaine from 1986 through March 1989; (2) conspiracy to export cocaine from 1986 through March 1989; (3) interstate travel in aid of racketeering in January 1989; (4) possession with intent to distribute cocaine in January 1989; (5) exportation of cocaine in January 1989; (6) interstate travel in aid of racketeering on March 18, 1989; (7) interstate travel in aid of racketeering in March 1989; (8) possession with intent to distribute cocaine on March 21, 1989; (9) conspiracy to distribute heroin from 1986 through March 1989; (10) possession with intent to distribute heroin on March 21, 1989; and (11) unlawful use of a firearm in connection with drug trafficking.
Torres, Estrada, and Guardado were charged in Counts 1, 2, 7, 8, 9, 10, and 11. Each was convicted of all counts charged, except Count 11. Madriz was charged and convicted of all counts.
In addition to evidence derived from surveillance and monitoring of telephone conversations by the RCMP and the DEA, the evidence at trial consisted primarily of the testimony of Mauricio Freitas and Alfred Lopez. Because several of the defendants challenge the sufficiency of the evidence, we will set forth the facts in some detail. Viewed in the light most favorable to the government, the evidence showed the following:
In 1986, Alfred Lopez was introduced to appellant Madriz. Eventually, Madriz hired Lopez to pick up heroin and cocaine in Mexico and to deliver it in Tacoma. Lopez rented a house at 5423 Clarkston Street in Tacoma for this purpose. Lopez testified that he would drive to Mexico, wait while drugs were concealed in the vehicle, then drive to the Clarkston Street residence. There, he would park the vehicle in the garage where others would remove the drugs.
Mauricio Freitas also participated in the narcotics conspiracy. In June 1988, Freitas began working as a car salesman at Wes Behel Pontiac in San Jose. While working at the dealership, Freitas observed Miguel Diaz, an unindicted co-conspirator and then Freitas' sales manager, purchasing cocaine from Madriz. Eventually, Diaz involved Freitas in his cocaine transactions. Diaz told Freitas that he could earn extra money by finding buyers who wanted to purchase cocaine from Diaz.
Freitas first met Manual Cruz, an unindicted co-conspirator, after joining a soccer club in San Jose with which Cruz had some connection. Cruz became a frequent customer. Cruz purchased cocaine from Diaz at the car dealership and then took the cocaine to Vancouver, British Columbia, where he sold it. Madriz supplied the requested cocaine.
Freitas arranged the transactions. Freitas would call Madriz to check on the availability of cocaine. If Madriz did not have a large enough quantity of cocaine available in San Jose, she would instruct Freitas to fly to Seattle. There, Freitas would pick up the cocaine and he and Cruz would smuggle the contraband across the Canadian border.
In January 1989, Freitas traveled to Seattle to arrange the purchase of 75 kilograms of cocaine for Cruz. At Madriz' Shirley Street residence, Madriz instructed Freitas to check into the Semiahmoo Resort Hotel in Blaine and the cocaine would be delivered to his room. Freitas testified that he saw appellants Torres and Estrada at the Shirley Street house on that visit. The cocaine was delivered and Freitas helped Cruz smuggle it into Vancouver. Before leaving for Canada, Cruz and Freitas again visited the Shirley Street residence. Freitas saw Estrada there on this visit.
In March 1989, Cruz asked Freitas to call Madriz and arrange for the delivery of 20 kilograms of cocaine to Canada. Madriz indicated that she presently did not have any cocaine in Tacoma, but she was expecting a delivery shortly from California. On March 18th, Freitas flew to Seattle to arrange the transaction. Freitas went to Madriz' Shirley Street house. The shipment did not arrive on March 19th. During Freitas' visit, Madriz made several phone calls, attempting to track the delivery. She also negotiated a sale of heroin during some of the phone calls. Finally, Madriz told Freitas to call her the next morning, and Freitas departed.
On the morning of March 20th, Freitas returned to the Shirley Street residence to wait for the shipment. At ten-thirty that evening, Estrada, Guardado, and Torres arrived in a 1978 Ford pickup with California license plates. They parked the truck in the driveway and entered the house. Madriz introduced the three men to Freitas as the drivers and Guardado told Freitas he worked for Madriz.
The next morning, March 21, the truck was driven into a garage below the house. Estrada and Torres worked on the truck in the garage. Estrada removed a package of 360 grams of heroin from the truck and gave it to Madriz. It is unclear what defendant Guardado was doing at this time.
After the truck emerged from the garage, Estrada, Guardado, and Torres replaced the left mirror on the door of the truck. (Apparently, the truck would not fit in the narrow garage with the side mirrors intact.) Freitas then drove the truck to a highway and headed north. A short time later, Freitas was arrested; the truck was found to contain a false fuel tank in which twenty kilograms of cocaine were located. The nuts holding the tank had fresh markings as if they had been recently removed. Agents also found tools--two ratchets--behind the driver's seat. These ratchets fit the nuts that bolted the gas tank on.
Police arrested Estrada and Guardado after they drove away from the house. Police found that the car they drove was registered to a woman who lived at the house on Clarkston Street. Estrada had the telephone number of the Clarkston residence written on a business card in his possession and Guardado had a key to the residence in his pocket.
Madriz and Torres were arrested at the Shirley Street residence. Agents who searched the house found two bundles of black heroin. In Madriz' bedroom agents seized a triple-beam scale, $4,700.00 and a loaded .357 magnum revolver located between the box spring and the bed mattress. In the garage, agents located two ratchet sets. The sets were missing the ratchets found in the cab of the truck.
We address each appellant's arguments in turn.
On appeal Torres challenges: (1) the denial of his motion for substitute counsel; (2) the admission of a rent receipt and repair bill into evidence; (3) the sufficiency of the evidence as to all counts; (4) the jury instructions defining conspiracy; and (5) the calculation of his sentence under the Sentencing Guidelines.
On the morning of trial, Torres requested substitution of counsel. 1 Mr. Palacios, Torres' chosen counsel, identified himself to the court and stated that he was there to represent Torres. Torres' appointed counsel informed the court that, because of the proposed substitution, Torres had refused to discuss the case with him at two extensive meetings. The trial court disallowed the substitution. On appeal, Torres argues that the trial court's refusal to allow the substitution of counsel violated his sixth amendment right to counsel of choice.
We will reverse the trial court's decision to deny substitution of counsel only for an abuse of discretion. United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986). The standard we have recently applied to determine whether there has been an abuse of discretion is drawn from United States v. Mills, 597 F.2d 693, 700 (9th Cir.1979), a case in which a defendant sought to substitute one appointed counsel for another. Mills specified the governing factors to be: (1) the timeliness of the motion to dismiss counsel; (2) the adequacy of the court's inquiry into defendant's complaint; and (3) whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. Id. at 700. We have recently applied the Mills standards in cases where the defendant wished to replace appointed counsel, not with another appointed counsel, but with retained counsel of his choice. See McClendon, ...
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