U.S. v. Vasquez, No. 91-2266

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before MOORE and BRORBY, Circuit Judges, and THEIS; THEIS; THEIS
• Citation: 985 F.2d 491
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enrique VASQUEZ, Defendant-Appellant.
• Docket Number: No. 91-2266
• Decision Date: 03 February 1993

Page 491

985 F.2d 491 24 Fed.R.Serv.3d 1367 UNITED STATES of America, Plaintiff-Appellee,
v.
Enrique VASQUEZ, Defendant-Appellant. No. 91-2266. United States Court of Appeals,
Tenth Circuit. Feb. 3, 1993.
Order on Denial of Rehearing April 15, 1993.

Page 492

David N. Williams, Asst. U.S. Atty. (Don J. Svet, U.S. Atty. and James D. Tierney, Asst. U.S. Atty., on the brief), Albuquerque, NM, for plaintiff-appellee.

Richard D. Esper, El Paso, TX, for defendant-appellant.

Before MOORE and BRORBY, Circuit Judges, and THEIS, District Judge. ^*

THEIS, District Judge.

Defendant/appellant Enrique Vasquez was convicted by a jury on charges of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. Vasquez appeals and presents the following five issues for review: (1) whether the district court erred in denying defendant his right to confrontation by limiting his cross examination of one of the government's rebuttal witnesses; (2) whether the district court erred in precluding the defendant from presenting surrebuttal evidence; (3) whether the evidence was sufficient to support a conviction for possession with intent to distribute more than 100 kilograms of marijuana; (4) whether the evidence was sufficient to support a conviction for conspiracy to possess with intent to distribute more than 100 kilograms of marijuana; and (5) whether the district court erred in refusing to give the defendant's requested jury instruction on the issue of identification. We affirm.

Vasquez and codefendant Dennis Mitchell were charged with conspiracy to possess with intent to distribute more than 100 kilograms of marijuana and possession with intent to distribute more than 100

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kilograms of marijuana. Vasquez was tried alone in September 1990. The district court declared a mistrial when the jury was unable to reach a verdict. In July 1991, Vasquez and Mitchell were tried together. The jury convicted both defendants on both counts. Vasquez was sentenced to 66 months in custody to be followed by 4 years of supervised release. Mitchell is not a party to this appeal.

The evidence presented at trial, as summarized in the briefs, ¹ discloses the following. On April 13, 1989, an agent with the Drug Enforcement Administration stationed at the El Paso International Airport intercepted a package containing $70,000 in cash. The package was addressed to Vasquez at his place of business, Total Tan, in El Paso, Texas. The package had been sent by Dennis Mitchell from his place of business, Sun Repair, in Kenton, Michigan. When contacted by law enforcement officials, Vasquez admitted that Mitchell had been a friend of his for 14 or 15 years. Vasquez claimed to have no knowledge why Mitchell would be sending him $70,000 in cash. Vasquez never made claim to the currency, which was apparently the subject of a forfeiture action.

On February 25, 1990, Mitchell flew from Michigan to El Paso, Texas and stayed with Vasquez until February 27, 1990. Mitchell then stayed at a Holiday Inn located approximately three miles from Vasquez' home.

On February 27, 1990, a man (later identified by store employees as Vasquez) purchased approximately $1,100 worth of lumber and building materials from O'Malley's Lumber in El Paso, Texas. Vasquez and Mitchell were identified by employees as being present in the yard when the lumber was loaded onto a trailer being pulled by a brown 1986 Ford pickup truck. O'Malley's Lumber employee Miguel Saldana identified Vasquez as the person who instructed him on loading the lumber. Vasquez wanted the lumber bound over some crates on the trailer.

On February 28, 1990 at approximately 10:00 a.m., Mitchell stopped at the United States Border Patrol checkpoint approximately 15 miles west of Alamogordo, New Mexico. Mitchell was driving the same brown pickup pulling a trailer loaded with crates and lumber. When asked for a bill of lading, Mitchell handed the agent the sales receipt from O'Malley's Lumber. The agent noted that the lumber was bound over nine wooden crates. Mitchell stated that he did not know what was in the crates, as he had not been there when the trailer had been loaded. Mitchell consented to a search of the crates. Over 500 pounds of marijuana was found inside.

After Mitchell was arrested and booked into the Dona Ana County Jail, he was seen making a phone call. Toll records for Vasquez' home phone in El Paso reflected that a collect call was received from the Dona Ana County Jail on March 1, 1990. Toll records also disclosed 161 phone contacts between Mitchell's home phone and Vasquez' residence between January 1, 1989 and February 28, 1990 (the time period of the charged conspiracy).

O'Malley's Lumber employee Miguel Saldana identified a photo of the brown Ford pickup and trailer driven by Mitchell as being the same one he had loaded on February 27, 1990. Saldana testified that the photo (taken February 28, 1990) showed that the crates were in the same position on the trailer as when he had banded them on February 27, 1990. On April 18, 1990, Saldana and coworker Barton, the two O'Malley's Lumber employees who came into contact with Vasquez on February 27, 1990, identified Vasquez from a photo array.

The trailer used to carry the marijuana was purchased by Vasquez on April 21, 1988. Vasquez purchased the 1986 Ford pickup in December 1987.

Vasquez' defense raised the issues of alibi and misidentification. Vasquez asserted he had sold the truck and trailer to one Juan Ochoa Pena, that Ochoa bears a striking resemblance to him, that Ochoa went to the lumber yard with Mitchell, and that he (Vasquez) was elsewhere at the time the crime was being committed.

Vasquez' private investigator Streep testified that he knew a man named Juan Ochoa Pena or Juan Pena Ochoa (hereinafter "Ochoa") who bore an uncanny physical resemblance to Vasquez. Streep had taken a photo of Ochoa at an auto race in Juarez, Mexico. Following the earlier mistrial, Streep showed this photo to the two witnesses

Page 494

from the lumber yard. The briefs reflect that the parties disagree whether the lumber yard employees identified Ochoa as the person who purchased the lumber or whether the employees stated that Ochoa resembled the person who purchased the lumber.

Vasquez testified that he had sold both the brown Ford pickup and the trailer used to haul the marijuana to Ochoa on February 22, 1990. Vasquez produced a receipt which purported to document the sale of the trailer to Ochoa. Vasquez asserted that Ochoa never completed the title transfer on the Ford pickup. Vasquez also testified that he and Mitchell ran into Ochoa at a Ford dealership on February 25, 1990 and that Ochoa was in possession of the Ford. Vasquez asserts that he introduced Mitchell to Ochoa and also mentioned to Ochoa that Ochoa needed to pick up the title so that they could effectuate the change in ownership. Vasquez testified that the person known to him as Juan Ochoa was a citizen of Mexico, residing in Juarez, Mexico.

Vasquez presented several alibi witnesses. Vasquez presented evidence that he was neither in El Paso on February 27, 1990 nor in Alamogordo on February 28, 1990. Vasquez' brother, Joe Vasquez, testified that the two of them, along with another man, left El Paso on the morning of February 27, 1990 to drive to an auto race in Las Vegas, Nevada. The defense presented evidence that the truck broke down outside of Tucson and was towed to a repair shop on the evening of February 27, 1990. Two mechanics identified Enrique Vasquez as being present at the repair shop on the evening of February 27, 1990. Another brother of the defendant, Tony Vasquez, testified that the defendant Enrique Vasquez originally planned to fly to Las Vegas, Nevada on March 1, 1990; however, Tony testified that he flew in Enrique Vasquez' place.

During Vasquez' presentation of his defense, the court admitted a photograph of a Juan Ochoa which had been taken by a bail bondsman who had posted Ochoa's bond after Ochoa's arrest at the El Paso airport in 1988 for possession of marijuana. Both Vasquez and his investigator Streep were questioned by the government as to whether the individual in the photo was Juan Ochoa. Both responded that it was the same individual.

To rebut Vasquez' evidence regarding Ochoa's place of residence (Juarez) and citizenship (Mexican), the government called Border Patrol Agent Francisco Martinez. Agent Martinez had detained Juan Ochoa in March 1988 at the El Paso airport. The agent testified about information obtained from Ochoa concerning his height, date of birth,...