United States v. Quiroz-Hernandez , 48 F.3d 858 ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-60023
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAUL QUIROZ-HERNANDEZ, ALFONSO HERNANDEZ-LOPEZ
AND SERVANDO LOPEZ
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
(March 16, 1995)
Before REYNALDO G. GARZA, GARWOOD AND DAVIS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
On February 16, 1993, a grand jury indicted several defendants
for drug activities occurring in McAllen, Texas. In count one of
the indictment, Raul Quiroz-Hernandez, Servando Lopez and Alfonso
Hernandez-Lopez (collectively the "Appellants") were charged for
conspiracy to possess with intent to distribute over five kilograms
of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and
846.1 In count two, Raul Quiroz-Hernandez and Alfonso Hernandez-
1
Raul Valladares-Del Angel, Leonel Yanez-Trevino and Jose
Ignacio Lopez, who are not implicated in this appeal, were also
indicted in this count.
Lopez were charged for possession with intent to distribute over
five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) and 18 U.S.C. § 2.2 Likewise, in count three,
Servando Lopez and Jose Ignacio Lopez were charged for possession
with intent to distribute over five kilograms of cocaine.
A jury convicted Raul Quiroz-Hernandez on counts one and two.
He was subsequently sentenced to 210 months imprisonment, followed
by a five year term of supervised release and a $100 special
assessment. The jury also convicted Alfonso Hernandez-Lopez on
these two counts. Accordingly, he was sentenced to 240 months
imprisonment, followed by a ten year term of supervised release and
a $100 special assessment. Servando Lopez was acquitted of the
conspiracy offense. However, he was convicted on count three and
was sentenced to 262 months confinement, followed by a ten year
term of supervised release and a $50 special assessment. The
Appellants appeal these convictions. For the reasons stated below
we affirm the district court.
FACTS
On December 17, 1992, Drug Enforcement Administration (DEA)
Task Force Agent Rolando Garcia was familiarizing his new partner,
Anacleto Martinez, with suspected drug traffickers from the McAllen
area. The "targets" in question were identified as Lorenzo Reyes3
2
Raul Valladares-Del Angel and Leonel Yanez-Trevino were
indicted for this offense as well. The latter defendant was
convicted on both counts one and two.
3
Roland Garcia testified that Lorenzo Reyes was under
surveillance because he was a "known" drug dealer.
2
and Ernesto Gamboa, Reyes' right-hand man. The targets were
followed by the agents to American Automotive, a business owned by
Reyes. At American Automotive the agents observed a new Lincoln
Town Car (Lincoln) with Mexican license plates. Suspecting that
the Lincoln's occupants might be a possible Mexican drug
connection, Agent Garcia phoned the U.S. Customs Service and
learned that the vehicle had been in the United States since
October 9, 1992. After the Lincoln left the business, the agents
attempted to follow it but it was lost in heavy traffic. The
agents then returned to American Automotive where they observed an
individual, later identified as Ramon Olvera, conducting
countersurveillance activities. Seeing no further activity, the
agents left the area.
Later that day, the agents returned to American Automotive
where they again encountered the Lincoln. The occupants were
standing outside the vehicle and looking in the direction of Ramon
Olvera, who was standing outside the business. Raul Valladares was
standing by the driver's door and appeared to be speaking to Ramon
Olvera. Raul Quiroz-Hernandez (Quiroz) was standing by the front
passenger door and Alfonso Hernandez-Lopez (Hernandez) was standing
near the rear passenger door. After several minutes the Lincoln
departed to a local Wal-Mart parking lot, where it stopped behind
a white Astro van. At that time, Hernandez and Leonel Yanez-
Trevino exchanged places: Hernandez exited the Lincoln and sat on
the driver's side of the van and Yanez-Trevino exited the van and
entered the Lincoln. Once Hernandez was inside the van, Quiroz
3
approached him to retrieve a cellular phone and exchange words.
Thereafter, the Astro van and the Lincoln left the parking lot.
Suspecting illegal activity, the agents followed the van and
called for a McAllen police unit to assist in stopping the vehicle.
Police officer Mitchell Reinitz responded to the call and pulled
the van over. After an exchange with the police officer, Hernandez
was arrested.4 The Astro van was searched after a K-9 unit
detected contraband. A total of 23 bundles, with an approximate
weight of 462.7 kilograms, were recovered from the van. Among the
various items seized from the vehicle was a utility bill for a
residence at 3604 North 27th Street.
Leonel Yanez-Trevino, Raul Valladares-Del Angel (Valladares),5
and Raul Quiroz were arrested shortly thereafter when they returned
to American Automotive. Quiroz, the driver of the Lincoln, was
searched and was found to be in possession of $640. Valladares,
the front-seat passenger, was in possession of $8,000 and two
notecards with writing on them. One of these cards bore a notation
of "47" "2" and "94." Another card had "47 bultos" (bundles)
written on it. A leather bag containing $43,450 was recovered from
the front seat of the vehicle. The leather bag also contained a
white index card with the following notation on it: "47 x 20K =
940k." Below the "940K" was "22K" and below the latter figure was
4
The circumstances of the arrest and the search of the van
will be discussed in more detail below.
5
While awaiting for trial, Raul Valladares escaped from
custody and remains a fugitive. The government depicts Valladares
as the ring-leader of the group.
4
the sum of "962K."
On the following day, a search warrant was executed for
Valladares' residence. Ten pounds of cocaine, wrapped identically
to the cocaine found in the Astro van, were recovered from the
master bedroom. The agents also found: the title to the Astro van,
stacks of money totalling $194,336, a money counter and money
wrappers, a triple beam scale, a military identification with the
name Guadalupe Garza but bearing Valladares' photograph and a
second utility bill for the 3604 North 27th Street residence
addressed to Guadalupe Garza.
On January 6, 1993, surveillance was conducted at the
residence located on 3604 North 27th Street. During the
surveillance, agents twice noticed a gray Suburu drive through the
subdivision. On the second such occasion, Jose Ignacio Lopez-Moya
exited the vehicle and walked toward the residence. After several
minutes, the Suburu exited the subdivision with a Ford van
following closely behind. The agents attempted to stop both
vehicles but only the van stopped. The Suburu, driven by Servando
Lopez, led the officers on a high-speed chase before it was
successfully detained. Jose Ignacio Lopez-Moya was later
identified as the driver of the van. A search of the Ford van
revealed 24 bundles of cocaine wrapped identically to those seized
from the Astro van. These bundles contained approximately 481
kilograms of cocaine.
A search of the residence itself revealed large rolls of
cellophane, rolls of duct tape and boxes of fabric softener, which
5
is used to mask the scent of narcotics. Wrappings identical to
those found on the previously seized bundles of cocaine were
discovered. A large bundle of cocaine, weighing 20.5 kilograms,
was also found in a bathtub. Agent Garcia offered testimony to
indicate that this residence was used as a stash house for
narcotics.
DISCUSSION
I. Alfonso Hernandez-Lopez
A.
In his first point of error, Hernandez argues that the
officers lacked reasonable suspicion to make the initial stop of
the vehicle. Therefore, the initial stop and its fruits were
tainted. Absent this illegal evidence, there is insufficient
evidence to sustain his convictions.
Police officers may briefly detain individuals on the street,
even if there is no probable cause to arrest them, if they have a
reasonable suspicion that criminal activity is afoot. United
States v. Michelletti, 13 F.3d 838, 840 (5th Cir.) (en banc), cert.
denied, ---U.S.---, 115 S. Ct. 102 (1994). The Fourth Amendment
requires only some minimum level of objective justification for the
officers' actions--but more than a hunch--measured in light of the
totality of the circumstances. Id. Reasonable suspicion may be
supported by particular and articulable facts, which, taken
together with rational inferences from those facts, reasonably
warrant an intrusion. Id.
During trial, the government demonstrated that the DEA agents
6
were conducting surveillance on two suspected drug traffickers and
that a Lincoln bearing Mexican license plates was observed twice at
American Automotive,6 a business associated with the narcotics
suspects. Furthermore, the officers noticed an individual
conducting what they deemed to be countersurveillance activity at
that establishment. Afterwards, the Lincoln was followed to a
parking lot where one of its occupants exchanged places with the
driver of a second vehicle. The second vehicle was a van, which
the offices knew from experience, was a type of vehicle commonly
used to transport narcotics. Pursuant to all these facts, they
decided to perform an investigatory stop of the Astro van. In
reviewing this evidence as a whole, this Court has no doubt that
the facts were sufficient to create a reasonable suspicion that
criminal activity was afoot, thus justifying the stop.
B.
Hernandez asserts that the lower court erred in denying his
motion to suppress evidence because he had possession of the van
and permission from Raul Valladares, the alleged owner, to drive
it. During the suppression hearing, however, Hernandez failed to
show that the title owner of the van was in turn a corporation
owned by Valladares. Nevertheless, he now claims that the
government unwittingly established this link at trial.7 Therefore,
6
Since the vehicle was registered in Mexico and it was not
being serviced at the business, the officers reasonably believed
that it might be a possible drug supplier.
7
Hernandez failed to raise this issue when the evidence was
actually elicited.
7
he asserts a legal possessory interest in the van and thus contests
the search of the vehicle.8
In the proceeding below, the court ruled that Hernandez did
not satisfy this burden because he failed to show a possessory
interest in the van.9 Yet, this Court need not delve into the
merits of that ruling because we find that Hernandez voluntarily
abandoned the van. It is settled law in this Circuit that an
individual has no standing to complain of a search or seizure of
property that he has voluntarily abandoned. United States v.
8
In the alternative, Appellant contends that as an occupant of
the vehicle he still has standing to challenge the stop and the
fruits of such stop.
9
The court ruled as follows:
The Court is going to deny the Motion to Suppress on the
preliminary matter of fact that this client -- this defendant
cannot establish that on December 17, 1992, he had legitimate
permission from anyone who had a legitimate interest either through
ownership or otherwise of this particular van.
The Court is going to find that on December 17th, 1992, based
on the only evidence presented here, Mr. Valladares, a co-defendant
named in the indictment, asked Mr. Hernandez here to drive this
van. Mr. Hernandez is unaware of what, if anything, gave Mr.
Valladares any kind of interest whatsoever in this particular van.
In fact, the evidence here suggests or is conclusive that this
van is registered to a particular corporation as indicated by Mr.
Tittle earlier, and that nobody with that corporation had, in
effect, given Mr. Valladares or anyone else permission to be
involved with regards to this particular van.
And, therefore, the Court is also finding that Mr. Hernandez
did indicate to the officers when he was stopped that he had stolen
the van. And, at that point, certainly, without even skipping over
the standing question, the officers would have every reason to be
able to go ahead and arrest him and to go ahead and search the van
or look into the van after he's told them it's stolen.
But, the Court doesn't even get -- need to get to the merits
of this motion here because it's going to find that he has not
established any legitimate standing to be able to complain about
the van that is neither registered to him, nor has he presented any
evidence that an owner or a person with legitimate interest in it
had given him permission to be driving this van.
8
Alvarez, 6 F.3d 287, 289 (5th Cir. 1993) (citations omitted), cert.
denied, ---U.S.---, 114 S. Ct. 1384 (1994);10 Barlow, 17 F.3d at 88
("One cannot . . . manifest a reasonable expectation of privacy in
an item once it has been abandoned."). It is clear, however, that
the abandonment must be voluntary and cannot be influenced by
improper police conduct. Alvarez, 6 F.3d at 289. The legal
presence of the police for investigatory purposes or pursuit does
not render an abandonment involuntary. Id. Further, a lawful
arrest does not amount to such compulsion so as to render an
otherwise voluntary abandonment involuntary. Id. at 289-90. We
must carefully review all the relevant circumstances existing at
the time of the alleged abandonment. First, as discussed above,
the officers had reasonable suspicion to conduct an investigatory
stop. During the course of that detention, the officer requested
the registration papers. Initially, the driver began to produce
these papers but he suddenly raised his hands and exclaimed that
the van was stolen.11 Appellant cannot possibly contend that these
10
In Alvarez, the police had an arrest warrant for the
defendant for parole violation. While attempting to serve the
warrant outside his hotel room, the defendant backed up into his
room where he was finally arrested. The officers noticed a garment
bag to which defendant disclaimed ownership. The bag contained a
weapon. Because the defendant voluntarily abandoned the garment
bag he had no standing to object to the search thereof. See also
United States v. Piaget, 915 F.2d 138, 140 (5th Cir. 1990) (upon
opening the truck and questioning defendant about the bag, he
stated he knew nothing about it, thus abandoning the bag and
leaving officers free to examine its contents); United States v.
Thomas, 12 F.3d 1350, 1367 (5th Cir.), cert. denied, ---U.S.---,
114 S. Ct. 1861 (1994).
11
Whether or not the police believed the van was stolen prior
to the investigatory stop is irrelevant. The van was stopped
because they had a reasonable suspicion that criminal activity was
9
actions were involuntary or the result of improper police conduct.
So, at that moment Hernandez effectively disclaimed a privacy
interest in the van, thus depriving him of standing to object to
subsequent searches.
Moreover, stating that the vehicle was stolen during the legal
stop created probable cause to arrest the driver and search the
vehicle, thereby disposing of the standing issue altogether.12
Agent Garcia also detected a strong odor of fabric softener while
walking to the van and observed bundles covered by a sheet through
the van's windows. This further evidence unquestionably gave the
officers probable cause to search the van.
II. Servando Lopez
Servando Lopez (Lopez) claims that the evidence cannot sustain
his possession conviction since he never possessed the cocaine
found in the Ford van. The only evidence connecting Lopez to the
van was the testimony of Jose Ignacio Lopez-Moya (Moya), which
reflected that they were picking up the Ford van at the 3604 North
27th Street residence to collect a $2,300 debt owed to Lopez.
Thus, Appellant characterizes his actions as self-help repossession
in satisfaction of a debt.
Since decisions about the credibility of the evidence are the
province of the jury, we review both the evidence and the
inferences drawn from the evidence in the light most favorable to
afoot. Whether the van turned out to be stolen or not is
immaterial in this case.
12
The lower court hinted as much. See supra note 9.
10
the government. United States v. Lopez, 979 F.2d 1024, 1028 (5th
Cir. 1992), cert. denied, ---U.S.---, 113 S. Ct. 2349 (1993);
Glasser v. United States, 315 U.S. 60, 77, 80 (1942). In weighing
the evidence we note that circumstantial evidence is not
intrinsically different from testimonial evidence. Lopez, 979 F.2d
at 1028. "It is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt, provided a reasonable trier
of fact could find that the evidence establishes guilt beyond a
reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th
Cir. 1982) (en banc), aff'd 462 U.S. 356 (1983). Thus, whether we
deal with testimonial or circumstantial evidence, the inquiry into
the sufficiency of the evidence is whether the jury could
reasonably, logically and legally infer that the defendant was
guilty beyond a reasonable doubt. Lopez, 979 F.2d at 1028-29.
A conviction for possession of drugs with intent to
distribute requires the government to prove that the defendant
knowingly possessed contraband with the intent to distribute.
United States v. Shabazz, 993 F.2d 431, 441 (5th Cir. 1993). The
government may prove actual or constructive possession by either
direct or circumstantial evidence. United States v. Rosas-Fuentes,
970 F.2d 1379, 1382 (5th Cir. 1992). To show constructive
possession, the government must show that the defendant controlled,
or had the power to control, the vehicle or the contraband; mere
proximity to the contraband is not enough. Id.; Shabazz, 993 F.2d
at 441. "Knowledge of the presence of contraband may ordinarily be
11
inferred from the exercise of control over the vehicle in which it
is concealed." Shabazz, 993 F.2d at 441 (quoting United States v.
Garcia, 917 F.2d 1370, 1376-77 (5th Cir. 1990)).
The government's case against Lopez is solely circumstantial
since no evidence was presented that Lopez owned the van, possessed
keys to the van, had driven the van or been in the residence or
garage where it had been stored. Further, no evidence linked him
to the cocaine inside the van. The government did, however,
produce the testimony of Moya to incriminate Lopez.
Moya testified that he entered the United States to borrow
$300 from his cousin, i.e., Lopez. Lopez allegedly told Moya that
he was receiving $2,300 to pick up a van and that he would loan
Moya the $300 needed sometime after they picked it up. Moya then
accompanied Lopez to the same Wal-Mart where the Lincoln met the
first van on December 17, 1992. At that location, Lopez spoke with
two people in a Ford van. After that meeting, Lopez drove Moya to
the stash house at 3604 North 27th Street to pick up the same Ford
van. Apparently armed with the knowledge that the keys would be in
the ignition, Lopez instructed his cousin to retrieve the van. The
cousin entered the garage, found the van with the keys in the
ignition, started it and followed Lopez out of the subdivision.
Agents immediately stopped the van but were unsuccessful in
detaining Lopez; he sped away and led the officers on a high speed
chase. Though evidence of flight is a factor from which a jury
could infer guilty knowledge, see United States v. Sanchez-Sotelo,
8 F.3d 202, 210 (5th Cir. 1993), cert. denied, ---U.S.---, 114
12
S. Ct. 1410 (1994), Lopez contends that he fled out of fear because
it was dark and the agents were in unmarked vehicles. Thus,
Appellant claims he was not evading arrest.
Of course, the jury was free to weigh all these facts and make
any inferences therefrom. So, the jurors could indeed infer Lopez'
"power to control" the vehicle by asking his cousin to drive a van,
that had the keys in the ignition and which contained thousands of
dollars of cocaine, from an established stash house.
Notwithstanding the Defendant's arguments, the jurors could also
determine that the $2,300 that Lopez was to receive was actually a
payment for transporting the cocaine-laden van. See United States
v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir. 1989) (payment
of $300 to drive a truck is circumstantial evidence that is
unquestionably suspicious). The apparent evasion of law
enforcement officers also bolsters the jury's conclusion of guilt.
We find that the totality of the evidence, viewed in the light most
favorable to the government, could lead a rational jury to properly
conclude that Lopez "knowingly possessed" the cocaine. Due to the
large amount of narcotic seized, they could also determine that it
was not for personal consumption but for distribution.
III. Raul Quiroz
A.
Raul Quiroz argues that the evidence was insufficient to
sustain a conspiracy conviction. Quiroz admits to being in the
Lincoln on December 17, 1992, the day the Astro van was seized at
the Wal-Mart parking lot, but characterizes that and all other
13
evidence connecting him to the other defendants as "innocent;" he
was merely running errands with Valladares. Furthermore, Quiroz
attacks the testimony which identified him as one of the
individuals who examined and leased the stash house on September 9,
1992. Without this evidence, the conspiracy charge against him
fails.
1.
To establish a drug conspiracy under 21 U.S.C. § 846, the
government must prove beyond a reasonable doubt (1) an agreement to
violate the narcotics laws, (2) that each alleged conspirator knew
of the agreement and intended to join the conspiracy, and (3) that
each alleged conspirator did voluntarily participate. United
States v. Lopez, 979 F.2d 1024, 1029 (5th Cir. 1992), cert. denied,
---U.S.---, 113 S. Ct. 2349 (1993). Concert of action can indicate
agreement and voluntary participation. Id. The surrounding
circumstances may establish knowledge of a conspiracy. Id. More
importantly, "no evidence of overt conduct is required. A
conspiracy agreement may be tacit, and the trier of fact may infer
an agreement from circumstantial evidence." United States v.
Thomas, 12 F.3d 1350, 1356-57 (5th Cir.) (quoting United States v.
Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir. 1988)), cert.
denied, ---U.S.---, 114 S. Ct. 1861 (1994).
It is undisputed that Quiroz accompanied Valladares when the
latter visited American Automotive and the Wal-Mart parking lot.
While at the parking lot, DEA agents observed Quiroz approach the
van's driver-side window and retrieve a cellular phone. The
14
government argued to the jury that Quiroz' brief proximity to the
driver-side window allowed him to see the suspicious-looking
bundles and detect the strong odor of fabric softener. The
government also introduced into evidence the $43,450 taken from the
front seat of the Lincoln. Although the money was not linked to
Quiroz, it was within his reach since he was driving the vehicle.
A notebook recovered from the Valladares residence was also
submitted into evidence. This notebook, which was characterized as
a drug ledger by the prosecutor, contained Quiroz' name and
telephone number.13
Quiroz counters by stating that his mere presence at the
parking lot and his association with a known drug organizer is not
enough to prove his guilt. Though Quiroz is correct that mere
presence at the scene of a crime or close association with others
will not alone support the inference of a conspiracy, presence is
still a significant factor to be considered within the context of
the circumstances under which it occurs. United States v. Montoya-
Ortiz, 7 F.3d 1171, 1177 (5th Cir. 1993). "Circumstances altogether
inconclusive, if separately considered, may, by their number and
joint operation . . . be sufficient to constitute conclusive proof"
of guilt. Id. (citation omitted). Therefore, we must examine the
13
The defense characterized this evidence as a simple notebook
with some drug related notes and some non-drug related notes. In
addition, Quiroz' sister testified that the telephone number in the
notebook was not her brother's number, and counsel argued that the
appearance of his name was insignificant because "Raul Quiroz" was
spelled "Raul Quiros." Thus, they allege it was not the
defendant's name or number. Of course, the credibility of the
witness and the weight of the evidence was duly considered by the
jurors before making their decision.
15
remaining circumstances to determine the propriety of the jury's
verdict.
The government identified the Defendant as one of two
individuals who examined the stash house at 3604 North 27th Street
prior to its rental. Eduardo Yzaguirre, the real estate agent who
displayed the house, testified that he showed the property to two
young men for approximately twenty minutes. The individuals were
supposedly interested in renting the house because they were
students at the local university. One of the individuals stated
that his grandfather, Guadalupe Garza, would be living with them.
When asked to identify these two individuals, Yzaguirre pointed out
Raul Quiroz and Leonel Yanez-Trevino. This identification
undoubtedly reinforces and seals the government's case against
Quiroz. Understandably, Appellant now attacks such identification.
First, in a post-submission brief, Quiroz argues that the
record is unclear as to exactly who Yzaguirre identified.14
14
The record reflects the following exchange between the United
States Attorney and the witness:
Q. I would ask you to look around the courtroom today. Is there
anyone here in this courtroom who appear to be those two
individuals you met with?
A. Yes, sir.
Q. Could you point to the individuals and identify them by what
they're dressed in today?
A. The gentleman with the moustache over there and there's a
gentleman here that's writing with a pencil.
Q. Okay. There are two gentlemen on that side. Well, actually
there are three gentlemen on that side with a moustache. Which
on with the moustache?
A. The fourth gentleman.
Q. Okay. The one in the black shirt?
A. Yes, sir.
Q. And the other individual?
A. The gentleman that's here, the third one.
16
Alternatively, he states that the witness was equivocal at best in
identifying the individuals.15 We find these contentions without
merit. Though Appellant claims the record is unclear as to who was
identified, no such confusion existed during trial. For example,
none of the defendants objected to the alleged misidentification or
requested a clarification from the court. Moreover, in closing
arguments the government stated that the witness "positively
identified Raul Quiroz and Leonel Yanez" as the two men posing as
students. No objection was made to that specific argument either.
In any event, the only arguable confusion relating to the
court's remarks did not even concern Quiroz, they only dealt with
the identity of Leonel Yanez-Trevino. That confusion, however, was
clearly rectified by the lower court.16 Regarding Defendant's
second argument, he overlooks cross-examination testimony
Q. Third one.
ATTORNEY : Your Honor --
THE COURT : The record will show he's pointed out the Defendants
Raul Quiroz Hernandez and Servando Lopez.
ATTORNEY : Your honor, I believe that the other --
THE COURT : Oh, I'm sorry. That's Leonel Yanez-Trevino. I'm
sorry.
ATTORNEY : Thank you, sir.
15
The following exchange took place between the United States
Attorney and Eduardo Yzaguirre:
Q. Are you sure that these two gentlemen that you've identified
here today are the two gentlemen that came to rent the house?
A. Yeah, I think so, sir.
16
The court corrected itself by stating that the witness had
pointed out Raul Quiroz and Leonel Yanez-Trevino. See supra note
14. Again, reviewing the record in its entirety clarifies that
this was the identification intended by the witness and this was
how it was understood at trial.
17
conclusively establishing the identity of the individuals.17
Quiroz also attempts to bolster his claim of innocence with
evidence adduced at trial. He offers his sister's testimony to
show he was in Monterrey, Mexico, on the day the property was
shown. He points to the fact that no employee from the real estate
office, other than Eduardo Yzaguirre, could identify him as one of
the individuals renting the house. Furthermore, the Defendant
alerts this Court to the testimony of Aaron Javier Gonzalez-Garza
(Gonzalez), a government witness and former neighbor of Valladares,
who testified about the young men that accompanied Valladares the
day the lease was executed. He testified that Quiroz bore a
resemblance to one of the young men with Valladares but was
definitely not one of them.
The government responds that Gonzalez had previously
identified Quiroz as one of the persons present at the property
office during the rental. Any subsequent testimony to the contrary
was a falsehood prompted by fear.18 However, this contradictory
testimony is not determinative of the issue since Gonzalez and
Eduardo Yzaguirre testified about two separate events. The first
event concerned the initial examination of the house. Raul Quiroz
was placed at the scene on that specific occasion. The fact that
he was not placed at the scene by Gonzalez or the realty office
17
Defense counsel asked Eduardo Yzaguirre:
Q. And you're absolutely certain it's these two individuals here in
this courtroom?
A. Yes, sir.
18
"The credibility of a witness may be attacked by any party,
including the party calling the witness." Fed. R. EVID. 607.
18
employee at the time that Valladares, posing as Guadalupe Garza,
rented the house does not damage the government's case. It is
inconsequential whether Raul Quiroz was also present when the lease
was signed since his role in the subterfuge is crystal clear.19
The evidence as a whole supports the allegation that Quiroz
was one of the individuals who participated in renting the home.
The record reveals that he assisted in creating false stories to
facilitate the rental: the house would be used to attend a local
university and Guadalupe Garza, the grandfather, would also live
there.20 The evidence at trial established that Guadalupe Garza,
which was the name on the lease agreement, was in fact Valladares.
This subterfuge supports the allegation that Quiroz knew of the
conspiracy and actively acted in furtherance thereof. There was
also evidence that Raul Quiroz was present during the
transportation of the cocaine. The jury considered all this
evidence and determined that Appellant was a member of the
conspiracy. It was free to reject any testimony exonerating the
19
We do note, however, that the employee from the realty office
did not affirmatively state that Quiroz was not at the office, she
merely stated that the defendants did not look familiar. As for
Gonzalez, his testimony may have been deemed a falsehood by the
jury. Thus, it may have concluded that Quiroz was in fact present
during the execution of the lease as well. Though this
determination is redundant at this point, it would clearly be
proper.
20
Appellant claims the government failed to establish exactly
which individual stated they were students and that their
grandfather, Guadalupe Garza, would be living with them. However,
the case does not hang in the balance because of this omission.
The witness testified that both of the individuals actively did the
talking. Thus, the important thing is that both individuals
knowingly participated in this subterfuge in order to rent a house
for storing and transporting narcotics.
19
Defendant since that evidence turned on the credibility of the
witnesses. Therefore, the conviction will stand.
2.
The Defendant also contests his possession conviction. As
explained above, the government must prove that each defendant
knowingly possessed the cocaine with intent to distribute to
sustain the conviction. Possession can be either actual or
constructive, joint among several defendants and established by
circumstantial evidence. United States v. Lopez, 979 F.2d 1024,
1031 (5th Cir. 1992), cert. denied, ---U.S.---, 113 S. Ct. 2349
(1993). Co-conspirators may also be liable for the substantive
offenses committed by other members of the conspiracy in
furtherance of the common plan. Lopez, 979 F.2d at 1031.
Therefore, a defendant can be liable for a possession conviction on
the basis of both his constructive possession over the contraband
and his status as a co-conspirator. See id.
Since the jury found Quiroz to be an active member of the
conspiracy, he could also be convicted for his co-conspirator's
(Alfonso Hernandez-Lopez) possession over the cocaine-laden Astro
van. Likewise, the jury could infer his joint control over the
contraband from his presence at the scene and all the events
leading to the Astro van's exchange of drivers. The jury could
rationally conclude that Raul Quiroz knowingly possessed the
cocaine and, in light of the large amount involved, that he planned
to distribute it.
B.
20
Quiroz also claims that the trial court denied his right to a
fair and impartial jury due to its failure to ask the venire
members the specific questions requested by defense counsel. The
questions asked were allegedly too broad, effectively denying
counsel the opportunity to discover any prejudices. Therefore, it
impaired the ability to make intelligent peremptory challenges.
The trial judge has broad discretion in conducting voir dire,
Knox v. Collins, 928 F.2d 657, 661 (5th Cir. 1991), including the
decision to submit proposed questions to prospective jurors.
United States v. Saimiento-Rozo, 676 F.2d 146, 148 (5th Cir. 1982).
The exercise of that discretion, however, is limited by the
"essential demands of fairness." Collins, 928 F.2d at 661;
Aldridge v. United States, 283 U.S. 308, 310 (1931). "A voir dire
procedure that effectively impairs the defendant's ability to
exercise his challenges intelligently is ground for reversal,
irrespective of prejudice." Collins, 928 F.2d at 661. Therefore,
the inquiry is "whether the procedure used for testing impartiality
created a reasonable assurance that prejudice would be discovered
if present." United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.
1976); Saimiento-Rozo, 676 F.2d at 148.
During the voir dire proceeding, the trial court did the
following:
1. Informed the panel of the nature of the charges
against the defendants and the government's burden of
proof;
2. Specifically asked "is there anybody on the jury panel
who has anything from your personal experience or
background which makes you feel that you could not be
fair and impartial as a juror in the case;
21
3. Specifically asked "[i]s there anybody on this panel
who has such views about the controlled substances law
or the drug laws in the United States--either you
think they're too strict or they're not strict enough-
-which would make you feel that if you were selected
as a juror in this case, you would base a decision
based on what you think the law ought to be rather
than what the Judge told you the law was;"
4. Asked whether any of the venire members were
acquainted with the parties or their attorneys or
witnesses in the case and asked about their prior
experience as jurors;
5. Asked the panel about their own and any close
relatives' employment in or business relationship with
law enforcement;
6. Asked whether they, or a close relative, had ever been
charged with a narcotics offense.
The court then asked counsel for further suggestions. The
attorneys proposed the following:
1. Whether anybody was a member or attended any meetings
with war on drugs or similar organizations;
2. Whether anybody had any type of bumper stickers on
their vehicle with anti-drug messages;
3. If anybody had been active in the PTA or MADD or any
specific organization that had its main purpose the
education of children;
4. Whether anyone had been a candidate for public office
where the issue of enforcement of drug laws was placed
in issue.
These suggestions were refused because the court believed they had
been adequately covered by prior questions.
After voir dire was concluded and the jurors were excused, but
before the lawyers exercised their peremptory challenges, a school
teacher approached the court and stated her discomfort with the
case because she was "against anybody that uses . . . drugs." The
prospective juror conceded that she had not expressed her concerns
22
sooner because she had misunderstood the questions and because she
was too nervous. The court ultimately excused her because it found
her too nervous to serve on the jury. Appellant asserts on appeal
that this single event alerted the court to potential bias or
prejudice against the defendants. Thus, he argues that the court
should have further queried venire members about prejudices against
persons charged with drug offenses.
It is clear that a court may not inquire generally about a
prospective juror's impartiality in a criminal case. See United
States v. Shavers, 615 F.2d 266, 268 (5th Cir. 1980). Instead, the
court must reach the concerns high-lighted in the accused's
proposed questions to ensure revealing any latent prejudice. See
id. The proposed questions, however, must be reasonably necessary
to enable the accused to exercise his challenges and pertinent to
the inquiry. Id.
After reviewing the record, this Court believes that the lower
court's inquiry reasonably assured that any bias or prejudice
against the defendants would have been discovered if present. The
court below inquired into more than merely whether the prospective
jurors were fair and impartial; it specifically inquired into their
background and personal experiences. In fact, this specific query
proved effective since it elicited an immediate response from a
venire member, who informed the court that her brother worked with
the FBI and thus she harbored resentment against drug dealers.
That query, in conjunction with questions on the prospective
jurors' views on the current drug laws and their ability to apply
23
the law as explained by the court, sufficiently guaranteed the
defendants the fundamental fairness they demand.
More notably, the unasked questions failed to address any new
areas of concern. The court covered the "substance of the
necessary areas" in its own questions. Nell, 526 F.2d at 1230 n.9
(a lower court need not ask every question requested by counsel).
Further, the fact that a single venire member was nervous and
confused during the proceedings is insufficient to taint the entire
jury selection process.21
C.
Finally, Quiroz asserts an error in his sentencing. The total
amount of cocaine seized during the operation was approximately 965
kilograms. Appellant contends that he should not be held
accountable for that part of the cocaine seized after his arrest
since no evidence linked him to it and because it was not
"reasonably foreseeable" to him.
Under the Sentencing Guidelines, a defendant who participates
in a drug conspiracy is accountable for the quantity of drugs,
which is attributable to the conspiracy and reasonably foreseeable
to him. United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.)
(citing U.S.S.G. § 1B1.3(a)(1)(B)), cert. denied, ---U.S.---, 115
S. Ct. 455 (1994). "Reasonable foreseeability does not follow
automatically from proof that [the defendant] was a member of the
21
Though the prospective juror voiced her reservations later
than required, the fact still remains that she did. The court and
the parties seemed to agree that the only cause for her delay was
due to her nervous nature. No one suggested that the juror's
"confusion" was due to the court's inadequate questioning.
24
conspiracy." United States v. Foy, 28 F.3d 464, 476 (5th Cir.)
(quoting United States v. Puma, 937 F.2d 151, 160 (5th Cir. 1991),
cert. denied ---U.S.---, 112 S. Ct. 1165 (1992)), cert. denied, ---
U.S.---, 115 S. Ct. 610 (1994). Reasonable foreseeability requires
a finding separate from a finding that the defendant was a
conspirator. Id. Thus, for a sentencing court to attribute to a
defendant a certain quantity of drugs, the court must make two
separate findings: (1) the quantity of the drugs in the entire
operation and (2) the amount which each defendant knew or should
have known was involved in the conspiracy. United States v. Puig-
Infante, 19 F.3d 929, 942 (5th Cir.), cert. denied, ---U.S.---, 115
S. Ct. 180 (1994). These findings shall be upheld on appeal unless
clearly erroneous. Mitchell, 31 F.3d at 277.
The court below ruled as follows:
The net amount with regards to drugs is 964.2 kilograms.
It includes the 460 or so kilograms that were found in
the van on the date of the arrest of this particular
defendant. It includes the 400 and some kilograms that
were found in the van on the January 6th arrest with
regards to the co-defendant here in the case, co-
defendants. And, it also includes the 22 kilograms of
cocaine that were found inside the residence.
The Court is going to find that all those cocaine amounts
are involved in the same conspiracy. That they were in
furtherance of the conspiracy and were reasonably
foreseeable, as that term has been defined in the case
law, to this particular defendant.
This particular defendant was present when the house that
was involved in the second transaction was rented. There
was a subterfuge with regard to the stories for the
purpose of the rental, including that this defendant was
going to be a student. And, it was his grandfather who
was renting the property, who as it turns out, was not
his grandfather.
And, that on the date of the arrest, Mr. Valladares, who
25
was in the same vehicle as this defendant, had 400 and
some -- had the number of packages listed which is the
exact number of packages that were involved in both of
these dates as far as the transactions, including the
extra package that was found inside the residence.
The residence had packaging materials and scales and
other matters that are associated with drug transactions.
And therefore, the whole amount is attributable to him
under relevant conduct and the case law defined.
After fully reviewing the record, this Court finds these findings
to be free of error. To begin with, the evidence affirmatively
established Quiroz' involvement in the conspiracy, including the
"subterfuge" utilized in renting the stash house. Also, the
government offered evidence to show that by the time of Appellant's
arrest the goal of the conspiracy was to transport approximately
962 kilograms of cocaine. Evidence of that goal consists of a
notecard recovered from the Lincoln after the first van was seized.
The notations on the card were "47 x 20k = 940k." Below the "940K"
was written "22K" for a total of "962k." Three separate seizures
of cocaine were made, totalling an amount almost equal to 962
kilograms. Another notecard was seized with "47 bultos" or bundles
written on it. Not coincidentally, 47 bundles of identically
wrapped cocaine were seized from the two vans. In view of this
evidence, we cannot say that the lower court's findings were
clearly erroneous.
CONCLUSION
Having determined that none of Appellants' complaints present
reversible error, the judgment of the district court is affirmed.
AFFIRMED.
26