United States v. Tovar

• Decision Date: 07 June 2013
• Docket Number: No. 12–40557.,12–40557.
• Citation: 719 F.3d 376
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Hector Hugo TOVAR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

719 F.3d 376

UNITED STATES of America, Plaintiff–Appellee,

v.Hector Hugo TOVAR, Defendant–Appellant.

No. 12–40557.

United States Court of Appeals, Fifth Circuit.

June 7, 2013.

Randall Lynn Fluke, Esq. (argued), Assistant U.S. Attorney, U.S. Attorney's Office, Beaumont, TX, for Plaintiff–Appellee.

John Dale McElroy (argued), Assistant Federal Public Defender, Federal Defender's Office, Beaumont, TX, Amy R. Blalock, Federal Defender's Office, Tyler, TX, for Defendant–Appellant.

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

Before KING, DAVIS, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Following a motion hearing and bench trial, the district court convicted Hector Tovar of possession with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), interstate travel in aid of racketeering activity in violation of 18 U.S.C. § 1952, and possession of an unregistered firearm (a short-barrel shotgun) in violation of 26 U.S.C. § 5861(d). Tovar challenges his conviction on three grounds. Specifically, he argues that: (1) double jeopardy bars this case because he was convicted for related conduct in the Eastern District of Pennsylvania; (2) the district court erred in denying his motion to suppress certain evidence and statements obtained during and following a search of his home; and (3) the evidence was insufficient to support his conviction. We AFFIRM.

I.

The relevant criminal conduct ¹ involves three key players:

1. Defendant Tovar, a “broker” who arranged the transportation of marijuana and cocaine from Texas to Pennsylvania;

2. Ramon Anthony “Vex” Nunez (“Nunez”), a wholesale drug distributor in Allentown, Pennsylvania; and

3. Carlos Mejia (“Mejia”), a driver who transported marijuana from Texas to Pennsylvania.

Tovar and Nunez met through a third party in the summer of 2008, while Nunez was in Texas “looking for a source for marijuana.” At that meeting, Tovar and Nunez agreed that Tovar would deliver marijuana to Nunez in Pennsylvania; the parties discussed logistics and settled on a price.

Tovar coordinated four specific shipments of marijuana from Texas to Pennsylvania in late 2008 and early 2009. First, in late 2008, Tovar arranged for the delivery of a 300–pound load of marijuana to Nunez in Pennsylvania. Mejia drove the cargo, and Tovar was present at the time of delivery. Second, in December 2008, Tovar rented a truck and U–Haul camper for Mejia to transport another load of marijuana to Nunez. Tovar did not travel to Pennsylvania for that trip. Third, in January 2009, Tovar—accompanied by his family—arrived in Pennsylvania with another load of 200–300 pounds of marijuana. Tovar and his family stayed in the region while Nunez sold the drugs; Nunez then split the sale proceeds with Tovar. Finally, in February 2009, Tovar coordinated with Nunez to deliver another load of marijuana to Pennsylvania, with Mejia acting as the driver. Officials stopped Mejia in Rusk County, Texas, and seized 306.6 pounds of marijuana on February 25, 2009.

Tovar continued to transport drugs (specifically, cocaine) to Nunez in Pennsylvania after Mejia's arrest. He coordinated shipments for Nunez from about March 2009 to August 5, 2009, when Nunez was arrested.

After their arrests, both Mejia and Nunez cooperated with authorities. A special agent obtained an arrest warrant for Tovar and a search warrant for his residence on January 25, 2010. State, local, and federal authorities executed the warrants at approximately 6:00 a.m. the next morning. Officers entered Tovar's residence, placed him in handcuffs, and performed a search of his home. In the course of the search, officers located and seized a shotgun in a closet. Before he received a Miranda warning, Tovar admitted that he had obtained the gun from a cousin for the purpose of self-protection. Officials later determined that the gun was stolen, unregistered, and had been altered, with a pistol grip replacing the stock and a cut-off barrel.

Officers brought Tovar to the station after his arrest. A special agent advised Tovar of his Miranda rights, and Tovar signed a statement of rights form. Tovar then agreed to participate in an interview, in which he told two special agents that he served as a “broker” between Mejia and Nunez. He admitted that he had rented a U–Haul trailer for Mejia to transport marijuana and that he had personally transported marijuana to Pennsylvania in January 2009. Tovar denied any knowledge of the February transaction, during which Mejia was arrested with 306.6 pounds of marijuana. With respect to the shotgun that officers found at his residence, Tovar again indicated that he had borrowed it from his cousin, and stated that he had not modified the gun in any way since he received it. At some point during the interview, officials allowed Tovar to meet with his wife. Tovar never asked to terminate the interview, and did not request a lawyer.

Federal grand juries in the Eastern District of Pennsylvania and the Eastern District of Texas indicted Tovar on December 16, 2009 and January 26, 2010, respectively. The Pennsylvania indictment focused on Tovar's cocaine trafficking. It charged Tovar with six counts: one count of conspiracy to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846, four substantive counts of distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1), and one count of aiding and abetting in violation of 18 U.S.C. § 2. A jury found Tovar guilty of four counts in the Pennsylvania indictment, including the conspiracy count, and the Pennsylvania district court sentenced Tovar to 200 months' imprisonment.²

The Texas indictment focused on Tovar's marijuana trafficking. It charged Tovar with four counts: ³

Count 1: conspiracy to possess with intent to distribute over 100 kilograms of marijuana from December 19, 2008, until February 25, 2009, in violation of 21 U.S.C. § 846;

Count 2: possession with intent to distribute over 100 kilograms of marijuana on January 24, 2009, in violation of 21 U.S.C. § 841(a)(1);

Count 3: interstate travel in aid of racketeering activity on or about January 24, 2009, in violation of 18 U.S.C. § 1952; and

Count 4: possession of an unregistered firearm (short-barrel shotgun) on January 26, 2010, in violation of 26 U.S.C. § 5861(d).

The District Court for the Eastern District of Texas held a motion hearing and bench trial on November 8, 2011, after Tovar had been convicted and sentenced in the Pennsylvania case.

Tovar made two motions relevant to this appeal. First, he moved to dismiss all counts on double-jeopardy grounds. Second, Tovar moved to suppress evidence seized during the search of his home, as well as statements that he made during and subsequent to the search.

The district court proceeded with Tovar's bench trial before ruling on his motions, reasoning: “I am going to allow the government to put on evidence to meet its burden of persuasion [on Tovar's double-jeopardy motion], which is probably going to be most of the same evidence as to the guilt-or-innocence phase; and I don't see a reason to do it twice.” The government presented several witnesses, including Nunez, Mejia, law enforcement officials involved with the investigation of Tovar's case, and a drug analysis expert. The government also offered physical and documentary evidence, including the gun obtained in Tovar's residence, hotel receipts, and records obtained from U–Haul, which generally corroborated Tovar's involvement in the trips from Texas to Pennsylvania.

After hearing the evidence, the district court considered Tovar's double-jeopardy and suppression motions. It granted Tovar's double-jeopardy motion to dismiss with respect to Count 1, denied it with respect to Counts 2–4, and denied Tovar's motion to suppress. Ultimately, the district court found Tovar guilty on Counts 2–4 and sentenced him to 90 months' imprisonment followed by a four-year term of supervised release.⁴ Tovar timely appealed.

II.

Tovar makes three arguments on appeal. First, he asserts that the district court erred in denying his double-jeopardy motion with respect to the non-conspiracy counts (Counts 2–4). Second, Tovar argues that the district court erred in denying his motion to suppress evidence obtained during the search of his home, as well as all statements that he made to law enforcement during and subsequent to the search. Finally, Tovar contends that the evidence is insufficient to sustain his conviction on Counts 2–4. We address each argument in turn.

A.

The Fifth Amendment's Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This constitutional guarantee “protects against a second prosecution for the same offense after conviction.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (internal quotation marks and citation omitted); see United States v. El–Mezain, 664 F.3d 467, 546 (5th Cir.2011), as revised (Dec. 27, 2011), cert. denied,––– U.S. ––––, 133 S.Ct. 525, ––– L.Ed.2d –––– (2012).

The defendant “bears the initial burden of establishing a prima facie claim of double jeopardy.” United States v. Deshaw, 974 F.2d 667, 670 (5th Cir.1992) (citation omitted). “If the defendant does so, the burden shifts to the government to demonstrate by a preponderance of the evidence that the indictment charges a crime separate from that for which the defendant previously was placed in jeopardy.” Id. (citation omitted).

The longstanding test for determining whether two statutes constitute the “same offense” for double jeopardy purposes arises from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, the Supreme Court explained that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied ... is whether each...