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


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  •                     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
    
    
                                              2
    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
    
    
                                             3
    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
    
    
                                      4
    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
    
    
                                                    5
    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
    
    
                                             6
    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
    
                                         7
              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
    
                                           8
    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
    
    
                                        9
    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 10
    181, 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
    
    
                                                 11
    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
    
    
                                                 12
    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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