U.S. v. Botello ( 1993 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 92-7134
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MIGUEL BOTELLO,
Defendant-Appellant.
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Appeal from the United States District Court
For the Southern District of Texas
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(May 10, 1993)
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant, Miguel Botello, was convicted by a jury of
murdering Gerardo Luis Quintanilla while working in furtherance of
a continuing criminal enterprise, in violation of 21 U.S.C.
§ 848(e) (1988), and of money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i) (1988). Botello appeals, arguing that the
district court erred by (a) instructing the jury on the law of
aiding and abetting as to the murder charge, (b) denying his motion
to dismiss on account of double jeopardy, (c) denying his motion
for continuance, and (d) denying his motion to suppress evidence
seized during a search of his vehicle. We affirm.
I
Botello was an assassin for the cocaine dealer Juan Garcia-
Abrego, one of the largest drug dealers in Mexico. Quintanilla was
a member of a rival drug organization. Quintanilla was driving his
Ford Bronco in Brownsville when the occupants of a Mercury Grand
Marquis opened fire on his vehicle. Six shots hit Quintanilla, and
he died. Botello was identified as the purchaser of the Mercury
and the driver at the time of the shooting. After the murder, he
returned to the auto dealership and said, "It's done with
Quintanilla." There was conflicting testimony at trial as to
whether Botello was the "trigger man." Botello was arrested after
a routine traffic stop which resulted in the discovery of $148,000
in his car.
Botello was indicted for killing Quintanilla while working in
furtherance of a continuing criminal enterprise, in violation of 21
U.S.C. § 848(e) (1988). Botello was also charged with money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (1988), in
connection with the $148,000 found in his car. Botello's first
trial ended in a mistrial. At the second trial Botello was found
guilty on both counts, and was sentenced to life imprisonment for
the murder, and 20 years imprisonment for the money laundering
charge, to run concurrently with the life sentence.
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II
A
Botello argues that the district court erred by instructing
the jury on the law of aiding and abetting as to the murder count
of the indictment. Botello contends that the instruction violated
his right to be convicted only of the offenses charged in the
indictment, because he was indicted as a principal and not as an
aider and abettor. Botello concedes that, as a general rule, an
aiding and abetting instruction may be given to the jury even
though the indictment does not specifically mention aiding and
abetting, so long as evidence is introduced to support an aiding
and abetting conviction.1 Botello argues, however, that he was
unfairly surprised2 by the aiding and abetting instruction because
the indictment explicitly alleged that he was the principal and not
an aider and abettor. According to Botello, "the Government . . .
allege[d] in the indictment that [he] committed the murder in
question by actually shooting the victim." Brief for Botello at 7.
Botello contends that, "where it is clear that the Government makes
1
See Brief for Botello at 9; see also 18 U.S.C. § 2
(1988); United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992)
("Aiding and abetting is not a separate offense, but it is an
alternative charge in every indictment, whether explicit or
implicit."); United States v. Gordon, 812 F.2d 965, 969 (5th Cir.)
(holding that aiding and abetting instruction was not erroneous,
because "[t]he words `aid' and `abet' need not appear in the
indictment in order to sustain a conviction as an aider and
abettor," and because evidence introduced by the government
indicated that the defendant acted as an aider and abettor), cert.
denied, 483 U.S. 1009, 107 S. Ct. 3238, 97 L. Ed. 2d 743 (1987).
2
See Neal, 951 F.2d at 633 ("Absent a showing of unfair
surprise, it is not an abuse of discretion to give an aiding and
abetting instruction.").
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a specific decision to allege that one Defendant is the shooter and
a co-defendant is the one who aids and abets, . . . they should not
be allowed to change their theory at the end of the trial."3 See
id. at 8. We review the district court's decision to give the
aiding and abetting instruction for abuse of discretion. See
United States v. Neal, 591 F.2d 630, 633 (5th Cir. 1992) (holding
that "it was not an abuse of discretion for the trial court to
instruct the jury on aiding and abetting").
We reject the argument that Botello was unfairly surprised by
the aiding and abetting instruction, chiefly because the language
of the indictment did not limit Botello's conduct to that of a
principal. The superseding indictment stated:
Defendant MIGUEL LUCIO BOTELLO, aided and abetted by
Defendant ARCADIO PEREZ, did intentionally kill Gerardo
Luis Quintanilla while working in furtherance of a
continuing criminal enterprise . . . . [Violation:
Title 21, United States Code, Section 848(e) and Title
18, United States Code, Section 2].
Record on Appeal, vol. 4, at 439 (bracketed material in original).
Botello argues that, because the indictment contained the phrase
"aided and abetted by Defendant ARCADIO PEREZ," the indictment
specifically charged that Perez was the aider and abettor and
Botello was the principal. Botello reads too much into the phrase
"aided and abetted by Defendant ARCADIO PEREZ." That language
describes Perez's role in the offense, not Botello's. With respect
to Botello's conduct, the indictment merely states that he "did
3
Botello properly preserved this issue by raising it at
trial. The district court concluded that Botello was not unfairly
surprised by the instruction and overruled Botello's objection.
See Record on Appeal, vol. 26, at 7-26.
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intentionally kill Gerardo Luis Quintanilla while working in
furtherance of a continuing criminal enterprise." That language
charged Botello both as a principal and as an aider and abettor.
See Neal, 951 F.2d at 633 ("Aiding and abetting is not a separate
offense, but it is an alternative charge in every indictment,
whether explicit or implicit.").
We also disagree with Botello's contention that he was
unfairly surprised by the aiding and abetting instruction because
the prosecution's theory of the case identified him strictly as the
principal in the offense. According to Botello, the prosecutor
alleged in his opening statement that Botello personally fired the
shots that killed Quintanilla. However, because evidence
introduced by the government tended to prove that Botello acted as
an aider and abettor,4 and because the indictment did not foreclose
the possibility of conviction as an aider and abettor, Botello's
counsel should have realized that an instruction on aiding and
abetting was available to the prosecution. See United States v.
Gordon, 812 F.2d 965, 969 (5th Cir.) ("Any early suggestion . . .
that the government expected to prove that Woodcock was the actual
gunman rather than only an aider and abettor did not unfairly
4
Botello does not dispute that evidence presented by the
government supported a conviction for aiding and abetting. The
evidence showed that Botello acquired the vehicle used in the
murder, see Record on Appeal, vol. 23, at 4-165 to 4-168, 4-174 to
4-179, and helped to search for Quintanilla before he was killed.
See id. vol. 24 at 5-42. Certain testimony tended to show that
Botello was the gunman, see id.; id. at 5-180 to 5-190, but other
evidence indicated that he was not. See id. at 5-182; id. vol. 25,
at 6-4 to 6-9. Therefore, the jury could have found Botello guilty
as an aider and abettor, rather than as the principal.
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prejudice his defense."), cert. denied, 483 U.S. 1009, 107 S. Ct.
3238, 97 L. Ed. 2d 743 (1987). We agree with the district court's
conclusion that Botello was not unfairly surprised by the aiding
and abetting instruction, and therefore find no abuse of
discretion.
B
Botello argues that the district court, at his second trial,
erred by denying his motion for dismissal, which was premised on a
claim of double jeopardy. We review de novo the district court's
denial of a motion to dismiss on the ground of double jeopardy.
United States v. Vasquez-Rodriguez, 978 F.2d 867, 870 (5th Cir.
1992); United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992).
At Botello's first trial, a court officer suspected that one
of the jurors was smoking marijuana during recesses. The district
court ordered the U.S. Marshal to observe the juror, but the
Marshal confronted the juror with the suspicion that he had been
smoking marijuana. Later it was learned that the suspected juror
had told other jurors of his encounter with the U.S. Marshal.
Botello moved for a mistrial, and the district court granted the
motion. Prior to the second trial, Botello moved for dismissal on
the grounds of double jeopardy, and the district court denied the
motion.
"A defendant may . . . waive double jeopardy protection by
consenting to a mistrial before a verdict is rendered. . . . [A]
motion by the defendant for mistrial is ordinarily assumed to
remove any barrier to reprosecution, even if the defendant's motion
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is necessitated by prosecutorial or judicial error." United States
v. Bauman, 887 F.2d 546, 549 (5th Cir. 1989) (citations omitted),
quoted in United States v. Nichols, 977 F.2d 972, 974 (5th Cir.
1992). "[O]nly where the governmental conduct in question is
intended to `goad' the defendant into moving for a mistrial may a
defendant raise the bar of double jeopardy to a second trial after
having succeeded in aborting the first on his own motion." United
States v. Weeks, 870 F.2d 267, 269 (5th Cir.) (quoting Oregon v.
Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2088-89, 72 L. Ed. 2d
416 (1982)), cert. denied, 493 U.S. 827, 110 S. Ct. 92, 107 L. Ed.
2d 57 (1989). Botello does not allege, and nothing in the record
suggests, that the Marshal confronted the juror, or was directed to
do so by any representative of the government, in order to provoke
a defense motion for mistrial.5 As a result, Botello's double
jeopardy argument is without merit.
C
Botello argues that the district court committed reversible
error by denying his motion for a continuance to locate and
interrogate Eric Linares, who was suspected of committing the
murder for which Botello was indicted.6 Dr. Victor Leal, a member
5
The district court recognized that the prosecutor had no
knowledge of the incident until it was disclosed in court. See
Record on Appeal, vol. 15, at 41-42. The record reveals that the
incident was the result of a misunderstanding between the district
court and the Marshal, and not of any effort to goad the defense
into moving for mistrial. See id. at 45.
6
Botello argues that his convictions for murder and money
laundering should both be reversed on account of this alleged
error. See Brief for Botello at 14. However, it appears that the
continuance issue is relevant only to the murder conviction, since
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of the Garcia-Abrego organization, reported to the government that
Eric Linares, another member of the organization, had admitted
killing Quintanilla. Dr. Leal also informed the government that he
was unwilling to testify in court, and that he would invoke the
Fifth Amendment if called to do so. Upon learning of Linares's
alleged confession, Botello filed a motion for continuance, to gain
additional time to locate Linares and investigate his statements.
The motion stated that Linares's whereabouts were unknown.
Apparently Linares resided in Mexico))beyond the subpoena power of
the district court))but occasionally traveled to Brownsville. The
district court denied Botello's motion for continuance.
The denial of a motion for a continuance is reviewed for abuse
of discretion. United States v. Walker, 621 F.2d 163, 168 (5th
Cir. 1980), cert. denied, 450 U.S. 1000, 101 S. Ct. 1707, 68 L. Ed.
2d 202 (1981); see also United States v. Khan, 728 F.2d 676, 681
(5th Cir. 1984) (reviewing denial of motion for continuance for
abuse of discretion). When moving for a continuance on the grounds
of the unavailability of a witness, the movant must show:
[that] due diligence has been exercised to obtain the
attendance of the witness, that substantial favorable
evidence would be tendered by the witness, that the
witness is available and willing to testify, and that the
denial of the continuance would materially prejudice the
defendant.
Walker, 621 F.2d at 168 (quoting United States v. Miller, 513 F.2d
791, 793 (5th Cir. 1975)); see also United States v. Siegel, 587
F.2d 721, 728 (5th Cir. 1979). There is no reason to believe that
the exculpatory evidence which Botello hoped to acquire during the
continuance was pertinent to the murder charge only.
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Linares would have testified that he killed Quintanilla, thereby
incriminating himself. See United States v. Sawyers, 902 F.2d
1217, 1219 (6th Cir. 1990) (affirming denial of continuance partly
because "the defendant was unable to indicate whether the witness,
who would have incriminated himself by testifying, would have been
willing to testify"), cert. denied, ___ U.S. ___, 111 S. Ct. 2895,
115 L. Ed. 2d 1059 (1991); Khan, 728 F.2d at 681 (In deciding
whether a continuance is required, "[t]he showing of willingness
[to testify] is essential to insure that judicial resources are not
wasted."). Botello failed to show that Linares was willing to
testify.
Botello also failed to show that Linares was available to
testify. Linares apparently lived beyond the subpoena power of the
court, and his whereabouts were unknown. Furthermore, Dr. Leal,
the person who supposedly had information about Linares, stated
that he would not testify in court. As a result, Botello failed to
show that Linares could be located or compelled to appear. See
Fitzpatrick v. Procunier, 750 F.2d 473, 477 (5th Cir. 1985)
(upholding denial of state prisoner's habeas petition, because
state prisoner, in moving for continuance, failed to show that he
knew where the prospective witness was, or that he could locate
that witness) (applying standard of review more stringent than
abuse of discretion); see also United States v. Costello, 760 F.2d
1123, 1127 (11th Cir. 1985) (affirming denial of continuance partly
because "[n]o one knew [the] exact whereabouts [of the prospective
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witness]" and "there was no positive indication that [he] could
have been located and secured within a reasonable time").
Because Botello did not show either that Linares could be
located, or that his attendance could be procured, or that he would
be willing to testify if located, Botello failed to satisfy the
requirements for obtaining a continuance on account of the absence
of a witness. Therefore, the district court did not abuse its
discretion by denying Botello's motion for continuance.
D
Botello claims that the district court erred in denying his
motion to suppress the $148,000 in currency found in his car, which
led to his conviction for money laundering. Botello argues that he
did not consent to the search which revealed the currency, and
since there was no probable cause for the search, it violated his
rights under the Fourth Amendment.
Officer Eddie Perez conducted the search in question, and
testified regarding the circumstances of the search at the
suppression hearing. Perez stopped Botello's vehicle for speeding.
Because Botello seemed very nervous, Perez asked him for permission
to search the car, and Botello said "yes." See Record on Appeal,
vol. 6, at 31. Botello also executed a written consent form after
Perez read it to him in Spanish. See id. at 34-36. At the
suppression hearing Perez was unable to produce the form, but
another officer testified that he saw it on the day of the search,
and that it had been signed by Botello. See id. at 62. Perez also
informed Botello that he did not have to consent to the search, to
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which Botello responded that he had nothing to hide. See id. at
32. Botello testified at the suppression hearing that he did not
give consent to search the car. See id. vol. 5, at 2. Perez
searched the car and found $148,000 in cash. Botello moved to
suppress the currency, and the district court denied the motion. In
a written order the district court found "by clear and convincing
evidence that the search of [Botello's] automobile was conducted
with [his] consent." See id. vol. 3, at 283.
"[A] finding of consent [to search] may be overturned on
appeal only if found to be clearly erroneous." United States v.
Coburn, 876 F.2d 372, 374 (5th Cir. 1989). "We will reject the
trial court's finding only if, after giving due regard to the
opportunity of the trial court to judge the credibility of the
witnesses, we are left with the `definite and firm conviction that
a mistake has been committed.'" Id. (quoting United States v.
Sutton, 850 F.2d 1083, 1085 (5th Cir. 1988)). In challenging the
district court's express finding of consent, Botello argues only
that the written consent form was not produced at the suppression
hearing. Because the consent form was not produced at the
suppression hearing, the district court's finding of consent turned
on its assessment of Botello's credibility and that of the
officers, based on their in-court demeanor. We will not second
guess the district court's credibility judgment. See id.
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Therefore, the finding of consent was not clearly erroneous, and
the district court properly denied Botello's motion to suppress.7
III
For the foregoing reasons, we AFFIRM.
7
Botello also suggests that his consent was not voluntary
because it was given in acquiescence to a claim of lawful
authority. See Brief for Botello at 16. Botello does not allege
any specific facts to support this claim. Furthermore, this claim
is directly contradicted by Officer Perez's testimony that he told
Botello that he did not have to consent to the search.
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