U.S. v. Mendoza-Burciaga ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 91-8477
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW MENDOZA-BURCIAGA, JUAN ALBERTO-GONZALEZ,
VINCENTE SALINAS-RODRIGUEZ, and ARTURO CAMPOS-ZAMORA,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(December 29, 1992)
Before DAVIS, JONES, Circuit Judges and PARKER,1 District Judge.
EDITH H. JONES, Circuit Judge:
Appellants Mendoza-Burciaga, Alberto-Gonzalez and
Salinas-Rodriquez and Campos-Zamora were all convicted of (1)
conspiracy to possess with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846
and (2) possession with intent to distribute more than five
kilograms of cocaine in violation of § 841(a)(1). Mendoza-Burciaga
and Alberto-Gonzalez were additionally convicted of unlawfully
carrying firearms during and in relation to a federal drug
1
Chief Judge of the Eastern District of Texas, sitting
by designation.
trafficking felony in violation of 18 U.S.C. § 924(c). The
defendants were assessed sentences ranging from 262 to 420 months
imprisonment.
Among a variety of challenges to their conviction,
appellants raise two thought-provoking arguments. First, they
contend that the DEA agents' warrantless search of a residence did
not fall within the "protective sweep" exception to the Fourth
Amendment's warrant requirement. Additionally, they complain that
the district court incorrectly excluded the defendants and their
counsel from the in camera hearing to take testimony of
confidential informants. While both of these arguments raise
constitutional issues, we have decided that the district court did
not err in rejecting appellants' assertions. We find no merit in
the appellants' other arguments concerning the sufficiency of
evidence, juror challenges, jury instructions and sentencing
guidelines. We therefore affirm the convictions.
BACKGROUND
In December 1990, members of a combined state and federal
drug task force received information from confidential informants
that a trailer at 25 Gaila Lane in Del Rio, Texas had received a
large shipment of narcotics and that the trailer was to be used as
the distribution point. The task force began surveillance of the
trailer.
On December 18, an empty truck arrived at the trailer and
pulled into a covered garage. Forty-five minutes later it left
with boxes in its bed. Air and ground surveillance followed the
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truck en route to Normandy, Texas. Mendoza-Burciaga drove the
truck and Alberto-Gonzalez was the passenger. The truck arrived at
the home of Salinas-Rodriguez near Normandy, and backed up on the
driveway next to the house.
The agents observed four people entering and exiting the
house from the back of the truck, but from their vantage point, the
agents could not see whether the people were carrying anything. At
this point undercover agent Bowles drove by the house in an
unmarked car. Agent Bowles testified that Alberto-Gonzalez, a
convicted felon, recognized him. The four people then began acting
nervously. Alberto-Gonzalez and Mendoza-Burciaga left the house in
the truck.
The agents stopped the truck based on their belief,
fortified by the truck's evasive maneuvers, that the suspects were
aware of the presence of law enforcement personnel and were
attempting to flee. A rifle was visible in the cab of the truck.
Alberto-Gonzalez and Mendoza-Burciaga were arrested. A search of
the truck turned up two more firearms in a bag. The agents
notified the other members of the task force still watching the
home that they found weapons in the truck.
Agents swiftly converged on the Normandy home. Campos-
Zamora was captured while attempting to flee. Salinas-Rodriguez
was also apprehended. The agents next conducted a "protective
sweep" of the house to determine whether there were any weapons or
persons there, to prevent the destruction of evidence, and to
secure the premises. Inside, they saw, in plain view, 300 kilogram
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size packages, which were later determined to contain cocaine.
State officers assigned to the task force then obtained a search
warrant for the residence from a justice of the peace in Eagle
Pass. That search produced documents belonging to Campos-Zamora.
Upon another warranted search of the Del Rio trailer, 239 kilograms
of cocaine were found.
DISCUSSION
Confrontation of the Informants
Permeating the entire appeal is the appellants' inability
to confront for cross-examination the confidential informants who
provided the information that laid the groundwork for probable
cause in the original warrants.
The Supreme Court has permitted the government to avoid,
under certain circumstances, disclosure of confidential informants'
identity since its decision in Roviaro v. United States, 353 U.S.
53, 71, 77 S. Ct. 623, 628, 1 L.Ed.2d 639 (1957). In applying
Roviaro, this court has developed a three-part balancing test,
under which the trial court must consider (1) the level of the
informant's involvement in the alleged criminal activity, (2) the
helpfulness of disclosure to the asserted defense and (3) the
government's interest in non-disclosure. United States v. Singh,
922 F.2d 1169, 1172 (5th Cir. 1991); United States v. Diaz, 655
F.2d 580, 586 (5th Cir. 1981), cert. denied, 455 U.S. 910, 102 S.
Ct. 1257, 71 L.Ed.2d 488 (1982); United States v. Vizcarra-Porras,
889 F.2d 1435, 1438 (5th Cir. 1989), cert. denied, 495 U.S. 940,
110 S. Ct. 2192, 109 L.2d 520 (1990). This court applies the
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clearly erroneous standard to findings of fact and the abuse of
discretion standard to the conclusions reached by the trial court.
Vizcarra-Porras, 889 F.2d at 1438.
In an in camera hearing, the district court reviewed the
evidence of the government and determined that protecting the
identity of the confidential informant was proper in light of
Roviaro. The evidence and findings are in a sealed record, which
this court has carefully reviewed. To permit the defendants'
inquiries to be answered, the court tape-recorded questions posed
by their counsel before the in camera hearing and then had the
government agents furnish their answers during the in camera
hearing. The court itself questioned government counsel and the
agents vigorously. The informant tip was found to have related
only to the presence of cocaine in the Gaila Lane Trailer.
Consequently, the informant's information had nothing to do with
what the government learned from and after it initiated air and
ground surveillance, nor did it involve the events at the Normandy
residence. Under factual situations analogous to this, other
circuits upheld the exclusion of both the defendant and his
attorney. U.S. v. Johns, 948 F.2d 599, 606 (9th Cir. 1991)
(citation omitted). We are therefore satisfied that Judge Garza
neither made clearly erroneous findings of fact nor abused his
discretion in reaching his conclusions.
Although this court has suggested allowing counsel for
the defendant at in-camera hearings along with the issuance of a
gag order as a second best way to ensure the defendants
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confrontation rights, Singh, 922 F.2d at 1172, the use of this
procedure is still within the judge's discretion subject to the
same standard of arbitrariness. In this case, although Judge Garza
banned the defendants' attorneys from the hearing, we find that the
judge did an adequate job of protecting the rights of the
defendants as regards possible defenses. See Johns, 948 F.2d at
606 (discussing this procedure). This being so, we uphold the
nondisclosure of the identity of the informants.
Suppression of the Evidence.
Search of the Truck.
Only Mendoza-Burciaga, the driver, has standing to
challenge the search. Alberto-Gonzalez, the passenger in the
truck, has no standing to challenge the search. United States v.
Harrison, 918 F.2d 469, 472 (5th Cir. 1990) (citations omitted).
The agents were justified in stopping Mendoza-Burciaga's
truck because they were operating under exigent circumstances.
They had reason to fear that Mendoza-Burciaga and Alberto-Gonzalez
were fleeing. United States v. Johnson 862 F.2d 1135, 1138 (5th
Cir. 1988). They had information from a reliable informant that
two men had picked up and delivered narcotics. Their surveillance
of the suspects corroborated the tip. The officers knew that
Alberto-Gonzalez had been previously convicted of possession of
eighteen tons of marijuana. They had observed the truck make a u-
turn as if to determine whether it was being followed. Further,
the officers were correct in searching and seizing the other
weapons in the truck. Officers may legally search for weapons if
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they believe that the safety of themselves or others is in danger.
Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3480, 77
L.Ed. 1201 (1983).
Search of the Normandy House.
Only Salinas-Rodriguez has standing to challenge the
search of his house in Normandy. Campos-Zamora is incorrect in the
assertion that he also has standing to challenge the search.
Fourth Amendment rights are personal and may not be vicariously
asserted. Alderman v. United State, 394 U.S. 165, 174, 89 S. Ct.
961, 966-67, 22 L.Ed. 176 (1969). Campos-Zamora neither owned the
Normandy home nor claims that he had a reasonable expectation of
privacy there. Campos-Zamora had no possessory interest in the
Normandy house which he neither owned nor occupied, and no
expectation of privacy is created simply by presence. United
States v. Whitley, 670 F.2d 617, 619 (5th Cir. 1982).
As to the constitutionality of the actual search, the
Supreme Court recently addressed the standards for warrantless
searches in exigent circumstances in Maryland v. Buie, 494 U.S.
325, 110 S. Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie the court
held
that as an incident to the arrest officers
could, as a precautionary matter and without
probable cause or reasonable suspicion, look
in any closets and other spaces immediately
adjoining the place of arrest from which an
attack could be immediately launched. Beyond
that, however, we hold that there must be
articulable facts which, taken together with
the rationale inferences from these facts,
would warrant a reasonably prudent officer in
believing that the area to be swept harbors an
individual posing a danger to those on the
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arrest scene. Buie, 325 U.S. at 334, 110 S.
Ct. at 1098.
The standard of review for the findings of these facts is clearly
erroneous. United States v. Vasquez, 953 F.2d 176, 179 (5th Cir.
1992).
The circumstances that justify warrantless searches
include those in which officers reasonably fear for their safety,
where firearms are present, or where there is risk of a criminal
suspect's escaping or fear of destruction of evidence. Johnson,
862 F.2d at 1138 (5th Cir. 1988); United States v. Caraza, 843 F.2d
432, 435 (11th Cir. 1988); United States v. Gardner, 553 F.2d 946,
948 (5th Cir. 1977); United States v. Kolodziej, 706 F.2d 590, 596
(5th Cir. 1983). The fact that the warrantless search occurred
immediately after the arrest of the suspects supports the finding
of exigent circumstances. Caraza, 843 F.2d at 435.
The district court found that the officers did not know
whether other suspects were in the house. They did know that the
suspects driving the truck were armed. If others were in the house
and armed, the officers would be in great danger. They also
reasonably believed that the suspects were aware of the
surveillance and were attempting to flee. Campos-Zamora attempted
to run when one of the officers approached him. That the suspects
were aware of the officers' presence also supports a finding that
the task force agents reasonably feared evidence might be destroyed
inside the house. Finally, the officers took only minimally
necessary steps to secure the house: they made an immediate and
quick visual search and looked no further until they obtained a
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warrant. Under these facts, the district court was not clearly
erroneous in finding exigent circumstances.
Where officers are lawfully present in a house during a
security sweep they may seize evidence in plain view, Coolidge v.
New Hampshire, 403 U.S. 443, 467-68, 91 S. Ct. 2022, 2039, 29
L.Ed.2d 564 (1971); Caraza, 843 F.2d at 435. There has been no
claim that the 300 kilos of cocaine, stacked high in a room whose
doors were open, was not in plain view. The officers were
justified in seizing the evidence without a warrant.
Because the security sweep was justified by the exigent
circumstances under Buie, and the warrantless seizure of the
cocaine was legal, we need not address the further contentions of
Salinas-Rodriguez that the subsequent search warrant was defective
and the task force agency did not rely on it in good faith.
Sufficiency of the Evidence
Campos-Zamora challenges the sufficiency of the evidence
upon which his convictions of conspiracy to possess and possession
of cocaine were based. In reviewing the sufficiency of evidence to
support a conviction this court asks whether a rational trier of
fact could find that the evidence established guilt beyond a
reasonable doubt. United States v. Carrasco, 830 F.2d 41, 43 (5th
Cir. 1987).
The testimony at trial supports the conviction on
conspiracy and possession counts. Campos-Zamora was present on the
scene where several million dollars in cocaine was stacked in plain
view. The evidence supported an inference that the cocaine was
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brought there in the truck. The evidence supported the further
inference that Campos-Zamora was among the four men who helped
unload the cocaine from the truck when it arrived at the Normandy
house. There was evidence that Campos-Zamora had personal
documents in the house, which supported the inference that once
inside the house he could hardly avoid seeing cocaine. Campos-
Zamora's attempt to escape was also a legitimate ground to infer
guilt. United States v. Alonzo, 571 F.2d 1384, 1386 (5th Cir.
1978). This evidence was sufficient to convict Campos-Zamora of
the offenses charged.
Denial of Juror Challenge
On voir dire, one of the potential jurors identified
herself as an employee at the detention center where the defendants
were held. Under questioning by the district court, the woman
indicated she knew nothing about the trial, could be fair, and
could take instructions. Mendoza-Burciaga's challenge for cause
was denied. Mendoza-Burciaga subsequently used a peremptory strike
to remove the woman, and he appeals the denial of his challenge for
cause.
Mendoza-Burciaga makes no claim that he was prejudiced by
having to use the peremptory challenge to strike the detention
center employee rather than someone else. The judge's
determination as to actual bias by jurors is reviewed for manifest
abuse of discretion. Irvin v. Dowd, 366 U.S. 717, 723-24, 81 S.
Ct. 1639, 1643, 6 L.Ed.2d 751 (1961); United States v. Costner, 646
F.2d 234, 236 (5th Cir. 1981); United States v. Horton, 646 F.2d
10181, 186 (5th Cir. 1981). Here, where the judge took pains to
screen the witness, there was no such abuse. Moreover, there was
no harm to the defendants as the woman never served.
Additional Peremptory Challenges
The district court granted the defense two additional
peremptory challenges and also granted the prosecution two
additional peremptory challenges. Mendoza-Burciaga complains that
the court did not follow Federal Rule of Criminal Procedure 24(b)
and that the court's action upset the ratio of defense to
prosecution preemptory challenges. Mendoza-Burciaga points to no
case authority establishing that this was an error, much less
reversible error. Rule 24(b) does not mandate a ratio of
peremptory challenges. Indeed, Mendoza-Burciaga makes no claim
that he was prejudiced by the ruling or that the jury was
unrepresentative of the community or biased in any way.
Error in Jury Instructions
The trial court instructed the jury that it could find
Mendoza-Burciaga guilty of carrying a firearm during and in
relation to a drug trafficking offense, 18 U.S.C. § 924(c), if it
found:
1. That [he] was a member of the conspiracy
alleged in Count 1 of the indictment; and
2. That the other conspirators committed the
offenses in Counts 2 and 3 [weapons violation]
in furtherance of or as a foreseeable
consequence of that conspiracy.
Mendoza argues that this instruction would permit him to be
convicted of the weapons offense based on a co-conspirator's mere
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possession of cocaine. The argument is groundless. The
instructions explicitly permits the jury to convict only if another
co-conspirator both possessed cocaine and was guilty of the weapons
offense.
Further, the instruction is firmly rooted in the
Pinkerton doctrine, Pinkerton v. United States, 328 U.S. 640, 66 S.
Ct. 1180, 90 L.Ed. 1489 (1946). This court held in United States
v. Raborn, 872 F.2d 589, 596 (5th Cir. 1989), that Pinkerton
permitted a defendant to be convicted under section 924(c) based on
a co-conspirator's possession of a weapon during a drug trafficking
crime even if the defendant was unaware of the conspiratory
possession. Thus, Mendoza-Burciaga was liable for acts of his co-
defendants.
Calculation of Mendoza-Burciaga's Sentence
The Sentencing Guidelines provide that a sentencing court
must consider a defendant's involvement with quantities of
narcotics not charged in the indictment when such conduct was "part
of the same course of conduct or common scheme or plan as the
offense of conviction." U.S.S.G. § 1(b)(1).3(a)(2). A district
court must make findings that the relevant conduct included
narcotics not charged in the indictment. United States v.
Register, 931 F.2d 308, 313 (5th Cir. 1991). In this case, the
trial court considered the 239 kilos found in the Del Rio trailer
in setting Mendoza-Burciaga's base offense level. Mendoza-Burciaga
asserts that the trial court failed to make the requisite factual
finding to support that inclusion, namely, that the 239 kilos left
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behind in the trailer were part of the same course of conduct as
the 300 kilos Mendoza-Burciaga picked up and then delivered to the
Normandy address.
Judge Garza indicated at a sentencing hearing that
"because the 300 [kilograms of cocaine taken from the Del Rio
trailer by Mendoza-Burciaga] was part of the 529 [kilograms of
cocaine originally in the Del Rio trailer] that that is sufficient
under 1(b)1.3. . ." On review of the sentencing transcript, it
appears that the trial court implicitly found that the evidence was
sufficient to satisfy the "same course of conduct requirement"
because all of the drugs were originally stored at the Gaila Lane
address. Mendoza-Burciaga simply misread the record to assert
otherwise.
For the foregoing reasons, the judgments of conviction
are AFFIRMED.
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