United States v. Hale

• Decision Date: 25 June 2012
• Docket Number: No. 11–40488.,11–40488.
• Citation: 88 Fed. R. Evid. Serv. 999,685 F.3d 522
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Orlando Jesus HALE, also known as Chacho, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

685 F.3d 522

88 Fed. R. Evid. Serv. 999

UNITED STATES of America, Plaintiff–Appellee,

v.Orlando Jesus HALE, also known as Chacho, Defendant–Appellant.

No. 11–40488.

United States Court of Appeals,Fifth Circuit.

June 25, 2012.

Claire McCusker Murray (argued), U.S. Dept. of Justice, Washington, DC, Renata Ann Gowie, Asst. U.S. Atty., Houston, TX, for Plaintiff–Appellee.

Roberto Balli (argued), Oscar A. Vela, Jr., Law Office of Oscar A. Vela, Jr., P.C., Laredo, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DeMOSS and STEWART, Circuit Judges.

PER CURIAM:

This appeal involves former Laredo Police Officer Orlando Jesus Hale's jury trial conviction for (i) conspiracy to possess with intent to distribute more than 5 kilograms of cocaine, and (ii) using or carrying a firearm in relation to a drug trafficking offense or possessing a firearm in furtherance of a drug trafficking offense. Hale challenges numerous aspects of his trial and sentencing. For the following reasons, we affirm Hale's conviction and sentence.

I.

In the fall of 2008, Laredo Police Officer Pedro Martinez, III, contacted his friend Juan “Guero” Hernandez and asked Guero if he could supply cocaine to Martinez's father. At the time, Martinez's father was trying to become a middleman who would resell the cocaine to his known drug dealer acquaintance at a higher price. Martinez believed his father would share with him the profits gained from any future drug transactions. In response to the request, Guero introduced Martinez to Adolfo “Tony” Baesa, Jr., who Guero said was his uncle and who had access to large quantities of cocaine. Unbeknownst to Martinez, Guero was a confidential informant for the Bureau of Alcohol, Tobacco, and Firearms, and Tony was not Guero's uncle but an undercover agent for the Federal Bureau of Investigation (FBI).

In order to gain Tony's trust, Martinez agreed to act as an escort for a vehicle Tony and Guero said was carrying cocaine. On the night of October 15, 2008, Martinez, driving his police cruiser, escorted one of Tony's vehicles across town. Martinez believed the vehicle contained 20 kilograms of cocaine. At one point during the escort, Martinez heard a helicopter and became suspicious of the situation, and at another point he had to pause the escort to respond to a police call because he was still on duty. During the escort Martinez contacted Guero to ask about the helicopter. Guero reassured him that nothing was wrong with the situation and said that the escort was only a “dry run,” meaning no real cocaine was actually being transported. Martinez did not believe that the escort was merely a dry run as Guero suggested, but felt reassured nonetheless and completed the escort as planned. After completing the escort, Martinez met with Tony and was paid $1,000. He and Tony also discussed the possibility of future escorts, at which time Martinez said he had another police officer in mind if Tony needed additional help.

A few days after the initial escort, Martinez told Hale—his friend and fellow Laredo Police Officer—that he had a way for Hale to make some “easy money.” After asking whether Martinez thought his contacts were undercover agents, Hale said he was interested and agreed to meet Guero and Tony. Martinez never told Hale specifics about his prior cocaine escort which Guero had said was only a dry run.

Hale met with Martinez and Guero several times prior to the next escort. On November 7, 2008, Hale, Martinez, Guero, and Tony all met in an Embassy Suites hotel room to discuss plans for another cocaine escort. Upon arriving at the hotel, Hale took a semiautomatic handgun from his vehicle, cocked it, tucked it into the back waistband of his jeans, and covered it with his t-shirt before walking inside. The meeting lasted approximately one hour, during which time everyone agreed that on future escorts Hale and Martinez would keep their weapons on them, use personal vehicles, use police-issued handheld radios to monitor police channels, and use Nextel push-to-talk phones because they are similar to walkie-talkies and difficult to track. Also during the meeting, Tony distributed new Nextel phones still in the boxes. Hale opened the boxes without leaving fingerprints on them and programmed into the phones each of the participants' phone numbers. FBI agents made audio and video recordings of the meeting using a hidden camera.

On the evening of November 13, 2008, Hale and Martinez each escorted across town vehicles which they were told were transporting 20 kilograms of cocaine. Unbeknownst to Hale or Martinez, no actual cocaine was used in the transports. Neither Hale nor Martinez were paid for these escorts until they drove to San Antonio approximately one week later, where one of Tony's associates, also an undercover FBI agent, paid each of them $1,000. Guero and Tony attempted to arrange one more cocaine escort on November 19, 2008—this time using real cocaine—but neither Hale nor Martinez was available because they were both on duty.

At some point in November 2008, Martinez recorded several of his conversations with Guero. Martinez then told Laredo Police Department Narcotics Sergeant Robert Medina that he had received a telephone call from somebody about possibly escorting cocaine shipments. Martinez did not tell Sergeant Medina that he knew the person, that he had already recorded several conversations, or that he had already been paid for performing an escort. Martinez also never mentioned Hale's involvement. Sergeant Medina advised Martinez to take the information to Internal Affairs, which Martinez did not do, and to record any future telephone calls. Martinez later informed Hale about the recordings and about his conversation with Sergeant Medina. Martinez advised Hale that they could use the recordings and his conversation with Sergeant Medina for their defense as an “undercover thing between us” if they were ever caught. However, Martinez was not authorized to organize or sanction an undercover operation and he never told Hale that he had been authorized by Sergeant Medina to engage in an official undercover operation or that he had the authority to permit Hale to do so. At no time did Martinez or Hale receive specialized training on undercover work, follow formal Laredo Police Department protocol for undercover work, or request or receive pay for performing undercover work related to the cocaine escorts.

Approximately ten months later on September 29, 2009, FBI agents lawfully searched Martinez's father's home. When Martinez arrived at the home, his father was already being interviewed by FBI agents. Martinez was also interviewed by FBI agents and during the interview agreed to initiate and record a telephone conversation with Hale. During the call, Martinez said that his father's house had been raided by the FBI. When asked, Hale said he remembered performing the escorts, but he hung up the phone when Martinez broached the subject of receiving payments.

Several days later on October 1, 2009, FBI agents arranged with the Laredo Police Department to have Hale dispatched to a local hotel room under the auspices of a burglary call in order to allow the FBI agents to conduct an interview of Hale. At the hotel room, the FBI agents, led by lead case agent Troy McAdoo, initiated a consensual interview with Hale where they produced several pictures taken from the hidden camera at the Embassy Suites meeting almost a year earlier. Agent McAdoo told Hale that they had been investigating his participation in the cocaine escort operation and that they were aware of his various meetings with Martinez, Guero, and Tony; the November 13, 2008 cocaine escorts; and the $1,000 payment he received in San Antonio. Hale admitted to Agent McAdoo during the interview that he knew Martinez, Martinez's father, and Guero; that he recognized from the pictures where the Embassy Suites meeting had taken place; and that he remembered the purpose of the Embassy Suites meeting. During the interview, Agent McAdoo witnessed Hale's demeanor change from being calm when he arrived at the hotel room to being sick to the point of dry-heaving when he learned of the FBI's investigation into his past conduct. Eventually Hale chose to leave the hotel room and Agent McAdoo terminated the interview.

Around this same time, the Laredo Police Chief ordered that Martinez be placed on administrative duty. Martinez resigned from the Laredo Police Department several months later on February 16, 2010. On February 17, 2010, Martinez pleaded guilty to conspiracy to possess with intent to distribute more than 5 kilograms of cocaine. He was sentenced to 78 months of imprisonment and later became one of the government's key witnesses against Hale.

II.

Hale was indicted for (i) conspiracy to possess with intent to distribute more than 5 kilograms of cocaine, and (ii) using or carrying a firearm in relation to a drug trafficking offense or possessing a firearm in furtherance of a drug trafficking offense. On April 29, 2010, Hale made his initial appearance in court. Thereafter, Hale was placed on unpaid leave from the Laredo Police Department and was released on bond but subject to house arrest and monitoring.

On June 17, 2010, the government filed a motion to continue based on the ends of justice, asserting that Agent McAdoo, the FBI's “primary case agent” and one of the government's “crucial witnesses,” had suffered a family emergency and was unable to be present for trial which was set to begin on June 21, 2010. Hale objected to the motion. The district court granted the government's motion without a hearing and reset the trial date to August 2, 2010.

On July 20, 2010, the government filed a superseding indictment against Hale, charging him with the same two counts contained in the original indictment—the conspiracy and firearms charges—as well as four new counts of mail and...