U.S. v. Vasquez

• Decision Date: 09 July 1976
• Docket Number: No. 75-3623,75-3623
• Citation: 534 F.2d 1142
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto VASQUEZ and Ernesto Chavez-Cortinas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1142

534 F.2d 1142

UNITED STATES of America, Plaintiff-Appellee, v. Roberto VASQUEZ and Ernesto Chavez-Cortinas, Defendants-Appellants.

No. 75-3623.

United States Court of Appeals Fifth Circuit.

July 9, 1976.

Joseph A. Calamia, Charles Michael Mallin, El Paso, Tex., for vasquez.

Sam Dwyer, Alice Dwyer (Court-appointed), El Paso, Tex., for Chavez-Cortinas.

John Clark, U. S. Atty., San Antonio, Tex., William B. Hardie, Jr., Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

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

Before THORNBERRY and AINSWORTH, Circuit Judges, and HOFFMAN ^*, District Judge.

THORNBERRY, Circuit Judge:

Appellants Roberto Vasquez and Ernesto Chavez-Cortinas challenge their convictions for conspiracy to possess marijuana with intent to distribute and for possession of marijuana with intent to distribute. See 21 U.S.C. §§ 841(a) (1), 846. Appellant Vasquez contends that his confession following his arrest, which was introduced against him in the court below, was inadmissible on two grounds: first, the confession was the fruit of an illegal arrest and detention, and second, the confession lacked the requisite degree of voluntariness. Appellant Vasquez contends also that certain testimony given in the trial court violated his rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). With the discussion that follows, we reject these arguments and affirm the convictions of appellant Vasquez. Appellant Chavez-Cortinas, on the other hand, concedes the propriety of his conviction under section 841(a)(1) for possession of marijuana, but he argues that the Government introduced insufficient evidence to link him as a participant in a conspiracy chargeable under section 846. A commonsense review of the evidence introduced by the Government convinces us, however, that sufficient evidence was before the jury to sustain its verdict against appellant Chavez-Cortinas on the conspiracy count. Accordingly, we affirm also his convictions under sections 841(a)(1) and 846.

In the early morning hours of February 26, 1975, Customs Patrol officers Gary Epps and Kenneth Wright were on still watch in the Balluco Arroyo area west of Esperanza, Texas. The area is a known entrance and exit point across the Rio Grande River, the international boundary between the United States and Mexico. At approximately 1:30 a. m., the officers observed automobile headlights approach their position from the direction of the river, then move up the west access road of Balluco Arroyo, and finally turn onto Farm Road 192 in a westward direction. With their automobile headlights turned off, but riding under a full moon, the officers commenced to follow the interloper along Farm Road 192 at a distance sufficient to prevent detection. After travelling three or four miles in this manner, the officers rounded a curve in the road. At this time, Epps and Wright, who had been decreasing steadily the distance between themselves and the interloper, were able to identify the latter as a green and white Ford van. Officer Epps testified also that, as he and his partner rounded the curve into Esperanza, the Ford van "appeared to meet" two other vehicles, a green Dodge van and a gold Oldsmobile Toronado, both of which stopped in the middle of the road to make a U-turn and follow the Ford van in its westward direction. As they came around the curve, it was necessary for the officers to switch on their automobile headlights, swing wide around the Toronado and the Dodge van both stationary in the middle of the road, and continue their pursuit of the Ford van, which had already passed the Toronado and the Dodge van. Alerted to the presence of an unknown automobile, the Ford van accelerated rapidly, and a high-speed chase ensued between the Ford van and the officers. The Ford van failed to negotiate a curve leading up to Interstate 10, the highway to El Paso, and rolled over an indeterminate number of times. As the officers came upon the scene of the crash, they observed a large amount of marijuana scattered over the road and one subject a young male with long black hair and wearing a green fatigue jacket running into the brush away from the demolished van. The fleeing subject turned out to be appellant Chavez-Cortinas, who was apprehended several hours later in the desert. A second occupant of the Ford van was killed in the crash. The Dodge van and the Toronado came upon the accident scene shortly after officers Epps and Wright stopped their Customs Patrol car. Officer Epps stepped into the road where, in full uniform, he was illuminated by the headlights of the overturned van. The rotating red light and other emergency lights on the Customs Patrol car were switched on, and Epps, with flashlight in hand, attempted to wave the two vehicles to a halt to ascertain what they were doing in the area. The first vehicle to pass was the Dodge van. It was necessary for Epps to move out of the road to avoid being struck by this vehicle. He was able, however, to record the license plate number of the Dodge van. Epps's encounter with the second vehicle, the gold Toronado, was somewhat more harrowing. Epps testified that as the Toronado approached the accident scene, it accelerated and swerved toward him. Epps jumped from the path of the Toronado. Recovering his feet, Epps saw both vehicles head west on Interstate 10 toward El Paso. He immediately radioed this information, including the license plate number of the Dodge van, to his Communications Sector, which in turn relayed the information to all available law enforcement authorities.

At 2:30 a. m., one hour after officers Epps and Wright spotted the headlights coming from the river in the Balluco Arroyo, the Dodge van, identified by description and license plate number, was stopped by officers of the El Paso Police Department some sixty miles from the crash site. Appellant Vasquez, his girl friend who testified later for the Government, and two male suspects were taken from the van. All, except the girl friend, were placed face down on the ground. Approximately one hour later, between 3:30 and 4:00 a. m., Special Agent Fuentes with the Drug Enforcement Administration arrived on the scene. The three suspects were allowed to stand at this time for questioning by Agent Fuentes. One of the suspects, Pablo Aguilar, was questioned separately by Agent Fuentes and stated, among other things, that the only person who could provide details to the authorities was appellant Vasquez. Somewhat later, at the El Paso Sheriff's Department Booking Room, Agent Fuentes had his first opportunity to question appellant Vasquez. After being fully informed of his rights, appellant Vasquez stated that he was willing to cooperate with the authorities, but that he preferred to speak with officer Joe Contreras, an El Paso police detective attached to the DEA Task Force. Officer Contreras was notified and arrived at the County Jail around 7:00 a. m. Appellant Vasquez was again advised of his rights, this time by officer Contreras, and confessed in full about his participation in the smuggling conspiracy. In enviable detail, appellant Vasquez stated to officer Contreras that he had been the "money man" for the transaction, that he and the others had been waiting at a local motel for the marijuana to be brought across the border, that they had received word from an unidentified source in Mexico that "someone had put the finger on the deal," and that they had gone out onto the highway to warn the other participants not to bring the marijuana across the border. As fate would have it, appellant Vasquez and the others were too late to salvage the illicit scheme. At 10:00 a. m., the same morning, appellant Vasquez was taken before a magistrate.

We turn first to the argument that the officers of the El Paso Police Department who stopped the Dodge van at 2:30 a. m. lacked the requisite probable cause to arrest and detain appellant Vasquez and the other suspects. In reviewing probable cause decisions made by law enforcement officers in the field, we look to the totality of the circumstances revealed by the record. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). If the arresting and detaining officers are acting on information relayed by police transmission facilities, then the Government must demonstrate that the information so provided "itself had a reasonable foundation." United States v. Impson, 482 F.2d 197, 199 (5 Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 246 (1973); see Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). And where, as here, there is at least minimal communication between the different arms of the law, we look to the "collective knowledge" of the law enforcement authorities in question. See United States v. Nieto, 510 F.2d 1118, 1120 (5 Cir. 1975); United States v. Trabucco, 424 F.2d 1311, 1315 (5 Cir.), cert. denied, 399 U.S. 918, 90 S.Ct. 2224, 26 L.Ed.2d 785 (1970); Moreno-Vallejo v. United States, 414 F.2d 901, 904 (5 Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 76 (1970). Thus, if Customs Patrol officers Epps and Wright possessed sufficient factual information to support a determination of probable cause to arrest and detain, then the actual arrest and detention one hour later by El Paso police officers acting on the information relayed by Communications Sector was supported similarly by probable cause.

There can be no question but that law enforcement authorities had probable cause to arrest and detain appellant Vasquez. When officers Epps and Wright first observed the Dodge van in which appellant Vasquez was riding, the hour was late. See United States v. Pearson, 448 F.2d 1207, 1212 (5 Cir. 1971). Moreover, the area around Farm Road 192 is sparsely populated. See United States v. Maslanka, 501 F.2d 208, 212 (5 Cir. 1974). Officer Epps testified that...