United States v. Munera-Uribe

REVISED - August 9, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-20438
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JORGE GUSTAVO MUNERA-URIBE; SAMUEL MORENO-RAMOS;
MELQUECEDEC HURTADO MORENO; CARLOS A. RODRIGUEZ-
ESTUPINAN; SAMUEL VALOIS, a/k/a GERALD EDWIN JAMES,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
August 5, 1999
Before SMITH, WIENER, and affirm.
BARKSDALE, Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge:* On August 11, 1997, at the direction of
Special Agent Michael Dubet of the DEA,
A jury found Jorge Munera-Uribe confidential informant “Sonny” met with
(“Munera”), Samuel Moreno-Ramos Rosina Vinulla Russo, a codefendant not party
(“Ramos”), Melquecedec Moreno to this appeal, at a Benningan’s Restaurant in
(“Moreno”), Carlos Rodriguez-Estupinan Houston, Texas. The purpose of this meeting
(“Rodriguez”), and Samuel Valois (“Valois”) was to discuss the purchase of one kilogram of
guilty of possession with intent to distribute cocaine. It was agreed that Russo would sell
cocaine, in violation of 21 U.S.C. § 841, and Sonny the cocaine for $18,000. The
of conspiracy to do the same, in violation of transaction would take place on August 13 at
21 U.S.C. § 846. Defendants appeal their the Westwood Mall.
convictions and sentences on a variety of
grounds, including sufficiency of the evidence, On August 13, Dubet drove Sonny to the
admissibility of the evidence, alleged Westward Mall. A meeting was held in
government misconduct, and incorrect Russo’s gold Acura sedan among Sonny,
application of the sentencing guidelines. We Russo, and Russo’s boyfriend Valois. At this
meeting, a follow-up meeting was arranged, to
be held at a Bennigan’s restaurant. Because of
*
Pursuant to 5TH CIR. R. 47.5, the court has police presence, this follow-up meeting was
determined that this opinion should not be pub- moved to an adjacent Pappas Barbecue
lished and is not precedent except under the lim- restaurant.
ited circumstances set forth in 5TH CIR. R. 47.5.4.
At Pappas, Dubet, acting undercover, met When Russo and Valois had left Houston’s
with Sonny, Russo, and Valois. A Restaurant (in the Acura), surveillance units
codefendant not party to this suit took Dubet followed them to Barney’s Billiards, where
into the restroom and showed him the Russo was dropped off. Valois continued on
kilogram of cocaine that was for sale. Saying to the Hong Kong Food Market.
he did not presently have enough money on
him, Dubet postponed the transaction’s There, Officer Craig Thomas of the sheriff's
culmination, and the parties dispersed. department saw a black Isuzu Rodeo pull up
to the Acura. The driver of the Rodeo was a
Shortly thereafter, Sonny called Valois, Hispanic male who appeared to be in his mid-
indicating that he had the money. He met thirties (later identified as Juan Hernandez-
Valois in the Pappas parking lot. This time, Colon (“Hernandez”), a defendant not party to
Valois was the passenger of a silver Ford this appeal). The passenger of the Rodeo,
Taurus, which was being driven by his brother, Ramos, left the Rodeo and entered the Acura,
Juan Valois.1 In return for the money, Sonny carrying a blue gym bag with him, later found
received one kilogram of cocaine. Juan Valois to contain five kilograms of cocaine. The
left the scene in his Taurus, Samuel Valois in Rodeo and the Acura then went their separate
the Acura. ways from the parking lot.
Deputy Sheriff William Tipps followed the The Acura was followed back to Barney’s
Taurus to an apartment complex at 4545 Cook Billiards, where Ramos left the vehicle and
Road, where Juan Valois left the car and was replaced by Russo. At a Southwestern
entered apartment 712. Tipps kept an eye on Bell Telephone training center, Russo exited
the apartment throughout the day. Eventually, the Acura and entered a van, which went to
he saw Samuel and Juan Valois leave the the Academy parking lot, to meet with Sonny
apartment complex together in the Taurus. to complete the drug transaction arranged
They drove to a Fiesta Food Mart, where they earlier in the day. Valo is remained in the
met with Ramos. After a ten-minute Acura and followed Russo to Academy. On
conversation, they shook hands and departed arriving there, they were arrested.
their separate ways.
A search of the Acura revealed two blue
In September, Dubet directed Sonny to gym bags in the trunk: one containing five
contact Russo to set up another cocaine kilograms of cocaine, another containing two.
purchase. Sonny and Russo arranged to meet After reading them their rights in Spanish,
on September 18 at Houston’s Restaurant to Dubet interrogated Russo and Valois. He was
discuss the potential drug transaction. Sonny told that two of the kilograms were from one
arrived at the restaurant first, followed by source (a Colombian known as “Fecho,” later
Valois and Russo. Russo and Valois agreed to identified as Moreno), and five from another
sell Sonny seven kilograms of cocaine for (“Sammy” or “El Negro ,” later identified as
$119,000. After Sonny had shown Russo the Ramos).
money, he was told that he would receive a
phone call from them later in the day with Russo agreed to page Moreno and Ramos
details on how to complete the transaction. to her cellular phone and allowed agents to
This subsequent phone call informed Sonny record the subsequent conversations. Russo
that the drug transaction would be completed told Moreno that she had his money and
at an Academy Sporting Goods store. wanted to purchase an additional four
kilograms of cocaine from him.2 Moreno
1
Juan Valois is not a party to this appeal. He
2
will be referred to as “Juan Valois” throughout this As would be expected in a telephone conversa-
opinion; appellant Samuel Valois will be referred tion between drug traffickers, the word “cocaine”
to as “Samuel Valois” or simply as “Valois.” (continued...)
2
agreed to meet Russo at a Fiesta Supermarket in the apartment complex. He then pointed to
to pick up his money. Moreno arrived at the the second floor landing, from which he had
Fiesta in a brown pickup truck. After he was descended, as the location of their apartment.
identified by Russo, Moreno was arrested. His
pager was seized, and it contained Russo’s cell
phone number.
When Ramos returned the page, Russo told
him that his money (for the five kilograms of
cocaine he had provided)3 was available.
Ramos too was told to meet Russo at the
Fiesta to collect his money. When Ramos
arrived at the Fiesta, he was identified by
Russo and subsequently arrested. As with
Moreno, Ramos’s pager was found to contain
Russo’s phone number.
Meanwhile, Thomas had followed the
Rodeo, seen driven by Hernandez, to an
apartment complex at 8300 Sandspoint Drive.
At the apartment parking lot, Thomas lost
sight of Hernandez but did locate the Rodeo
and surveyed it for approximately three hours
until other law enforcement officers arrived.
Sometime after 9:00 p.m., when the other
officers arrived, Thomas observed a Hispanic
male (later co nfirmed to be Hernandez)
descend the stairs of the apartment complex
from a second floor landing. As Hernandez
passed the officers, greetings were exchanged
in English. When Hernandez went to the
Rodeo and unlocked its door, Thomas
approached him and identified himself as a
deputy sheriff. Thomas informed Hernandez
that he had been seen present at a drug
transaction earlier in the day and was therefore
suspected of drug trafficking. Hernandez was
read his rights, and Hernandez acknowledged
them in English.
After some initial denials, Hernandez
confessed to his involvement in the drug deal.
He told the officers that he had delivered drugs
for his friends “Carlos” and “Jorge,” who lived
(...continued)
was never explicitly used by either Russo or
Moreno.
3
Again, the word “cocaine” was never used.
3
While Hernandez was still being apartment 1714 as well.
questioned, DEA Agent Marty Fanning
observed another Hispanic male (later Thomas noticed that the lights were on in
identified as Munera) descend the same stairs apartment 1714. Peering into its window, he
as Hernandez had. They noticed Munera saw a man seated on a couch (later identified
make eye contact with the handcuffed to be Carlos Rodriguez). When the officers
Hernandez and saw him become visibly knocked on the door, Rodriguez jumped up
nervous. They also noticed that Munera was and ran out of view. A woman, Ms. Hurtado,
speaking on a cellular phone as he passed by, opened the door, and the officers identified
in English. Fanning asked Hernandez whether themselves. When asked whether anyone else
Munera was one of his two friends; Hernandez was inside the apartment, Hurtado said “no,”
replied “no.” immediately heightening the suspicions of the
officers. The government contends that the
Nevertheless, Fanning approached Munera officers then asked for and received permission
and asked whether his name was “Jorge.” (from Hurtado) to go inside the apartment and
Munera replied “no” and told Fanning that his have a look around.
name was “Gustavo.” When asked for
identification, Munera produced a driver’s The officers entered with weapons drawn
license with the name “Jorge Gustavo Munera- and “announced” their presence. Not
Uribe.” When asked why he had lied, Munera receiving any response, they began to “clear”
looked down at the ground and proclaimed the apartment, searching rooms, hallways, and
“no hablo ingles.” This despite the fact that all closets for hidden persons.
prior communications between the DEA and
Munera had been in English, along with In one closet, an officer noticed a clear bag
Munera’s conversation on his telephone. on a shelf containing what appeared to be
cocaine, and a gym bag on the floor. The
A pat down of Munera revealed a pager officer made a mental note of this observation
and two cellular phones. At that point, and proceeded with his search. Upon coming
Munera was handcuffed and informed that “he to the apartment’s bedroom, the officers found
was being det ained for narcotics Rodriguez hiding under a bed.
investigation.”
The officers seized Rodriguez and returned
To determine the apartment from which him to the living room. Thereafter, they asked
Munera and Hernandez had come, Fanning for and received permission (from Hurtado) to
asked Munera “which apartment his friend was conduct a more thorough search, during which
in.” Munera again responded: “no hablo they retrieved the clear plastic bag and duffle
ingles.” Fanning pressed Munera to show the bag from the closetSSboth were found to
officers his friend’s apartment, and he nodded contain several kilograms of cocaine.
his head approvingly. He took them to the
second floor landing from which he and A DEA agent fluent in Spanish was
Hernandez had descended. summoned to the scene. He advised
Hernandez, the first of the three Sandspoint
Once there, the officers were presented defendants to be arrested, of his rights.
with a choice of two apartments to search: Hernandez admitted his role in the cocaine
apartments 1714 and 1716. Munera indicated conspiracy: He had helped a Colombian deliver
(by pointing with his nose) that apartment cocaine in the Rodeo.
1716 was the apart ment of his friends. The
agents knocked on that door, but no one The same agent then advised Rodriguez and
answered. They opened the door via a key Munera of their rights. Both of them initially
they had found on Munera. No one was in the denied knowledge of the cocaine. The agent
apartment. Subsequent investigation would told Munera that things would be easier for
reveal that this same key opened the door to him if he cooperated and told the truth. He
4
added that if Munera helped “bring in some v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992).
other people,” he might get a break. Munera
continued, however, to deny everything. Because defendants do not challenge the
Munera and Rodriguez were taken to DEA existence of an agreement, a finding that the
headquarters for processing. evidence was sufficient to convict of
possession of cocaine with intent to distribute
While there, Munera asked to speak to the goes a long way in affirming the conspiracy
DEA agent who had questioned him convictions: A guilty state of mind, combined
previously, because he “wanted to tell the with incriminating activity on the cocaine
truth.” Munera confessed that he and distribution charge, proxies for the knowing
Rodriguez had been paid by a Colombian to and voluntary participation element of the
guard the cocaine in the apartment. Munera conspiracy charge. Thus, if the substantive
then offered to talk to Rodriguez and to charge of possession with intent to distribute
convince him to confess. Munera did this, and cocaine survives challenge, the defendants can
Rodriguez finally admitted that he too had escape a conspiracy conviction only if they are
been paid to guard cocaine in apartment 1714. able to demonstrate that they thought they
acted alone, pursuant to no particular
II. agreement with anyone else.
Ramos, Moreno, and Rodriguez claim
insufficient evidence to convict. If a rational
jury could have found them guilty beyond a
reasonable doubt based, then the evidence in
question was sufficient. United States v.
Gourley, 168 F.3d 165, 168 (5th Cir. 1999).
In undertaking this analysis, we view the
evidence and all reasonable inferences
therefrom in the light most favorable to the
verdict. Id. at 168-69.
“There are three elements to possession
with the intent to distribute cocaine base:
(1) knowing (2) possession of the drugs in
question (3) with intent to distribute them.”
United States v. Suarez, 155 F.3d 521, 524-25
(5th Cir. 1998). To affirm on this charge, we
must find that the evidence was sufficient to
show that each of these elements has been
satisfied. United States v. Miller, 146 F.3d
274, 280 (5th Cir. 1998).
For a conviction of conspiracy under § 846,
the evidence must be sufficient show that
(1) at least two people had an agreement to
traffic in drugs; (2) the defendants were aware
of this agreement; and (3) the defendants
knowingly and voluntarily participated in the
implementation of this agreement. United
States v. Medina, 161 F.3d 867, 872 (5th Cir.
1998). Mere presence at a crime scene, or
close association with conspirators, standing
alone, cannot rise to knowing participation in
a conspiracy as a matter of law. United States
5
A. participation in a drug conspiracy. Id.
The evidence was easily sufficient to
support Ramos’s convictions. He was the one The instant case is different. Ramos
who placed in Valois’s Acura the blue sports personally carried a bag containing several
bag later found to contain five kilograms kilograms of cocaine from one car to another.
cocaine. Although there was no direct proof While not everyone can be expected to know
that Ramos knew cocaine was in the bag, such everything that is hidden in a car he happens to
an inference is reasonably drawn, especially in be driving, it is reasonable to expect an
light of the large quantity of cocaine in individual to know the contents of a gym bag
question. he is carryingSSespecially when it is weighed
down by several pounds of contraband..
Additionally, Ramos responded to a page
from codefendant Russo telling him to meet B.
her to pick up his portion of the proceeds from Although admittedly creating a closer case,
the sale of his cocaine. Of course, as would be the evidence is sufficient to sustain the verdicts
expected in a transaction among drug dealers, against Moreno as well. The government’s
the word “cocaine” was never explicitly used, main evidence against Moreno is the fact that
but Russo explained to the police that cocaine he too responded to Russo’s page regarding
was the subject of the call. The jury had the pick up of drug money. The ensuing
before it only the transcript of this phone call telephone conversation between Moreno and
and evidence regarding its context (namely, Russo was, however, more incriminating than
that the call was made by Russo for the that between Ramos and Russo, for Moreno’s
purpose of telling Ramos that his proceeds phone call discussed the possibility of
from that day’s cocaine deal were available). providing additional amounts of cocaine for
Under these circumstances, the jury had no sale. Moreno indicated to Russo that he could
reason to believe that the call concerned not provide any more cocaine until he received
anything other than cocaine. his money from the day’s earlier transaction.
Again, the transcript of this call is devoid of
Lastly, Ramos was seen cavorting with any specific mention of cocaine by name, but
Valois. This constitutes further evidence that it does constitute quite damning evidence in
Ramos and Valois were drug-dealing partners, light of Russo’s characterization of the
adding to the reasonableness of the jury’s purpose of the call. The transcript of this
verdict of guilty. recorded conversation, in conjunction with its
attendant circumstances, is by itself sufficient
Ramos unsuccessfully attempts to compare to support the jury’s verdicts against Moreno
his situation to that in United States v. beyond a reasonable doubt.
Sacerio, 952 F.2d 860 (5th Cir. 1992), in
which we held that two defendants associated
with a automobile containing cocaine could
not be considered drug deal ing
coconspirators. See id. at 864. But in
Sacerio, police officers needed to conduct
three searches of the vehicle in question
before they were able to find the cocaine. Id.
During one such search, rather than appear
nervous or concerned, one defendant actually
fell asleep. Id. Given that there was scant
reason to believe that defendants in Sacerio
knew that there were drugs in their car, we
could not find that their behavior (namely,
driving an automobile that happened to contain
a hidden stash of cocaine) constituted knowing
6
C. Webster, 162 F.3d at 331.
The evidence is sufficient to sustain the
verdict rendered against Rodriguez. He was The following were the facts and
found in one of the two apartments from circumstances of Munera’s arrest: The police
which Munera and Hernandez had exited. had just followed the Rodeo, involved in a
When police knocked on the apartment door, drug transaction, to an apartment complex.
Rodriguez ran from view and hid under a bed. The driverSSHernandezSShad just been
The apartment in question contained over arrested and had told police that he had been
eleven kilograms of cocaine, and eventually, delivering drugs for his friends Carlos and
Rodriguez admitted that he had been paid to Jorge, who lived in the complex. Hernandez
guard it. All of this is sufficient to establish pointed to a second-floor landing as the
Rodriguez’s guilt in the substantive offense location of his friends’ apartment. This
and in the conspiracy beyond a reasonable landing was also the location whence
doubt. Hernandez came prior to his arrest.
III. Munera was observed descending from the
Rodriguez and Munera claim a long list of landing. Police watched him make eye contact
Fourth and Fifth Amendment violations. We with Hernandez, who was then in handcuffs,
review the district court’s findings of fact on and thereafter become visibly nervous. Police
these issues for clear error and its asked Hernandez whether Munera was one of
interpretation and application of law de novo. the friends he had spoken of; Hernandez
United States v. Carrillo-Morales, 27 F.3d answered in the negative.
1054, 1060 (5th Cir. 1994).
When asked by Fanning whether his name
A. was “Jorge,” Munera replied “no.” When
Munera claims that his arrest at the asked to produce identification, Munera turned
Sandspoint apartment parking lot was over his driver’s license, which portrayed his
unconstitutional because it lacked probable name to be “Jorge Gustavo Munera-Uribe.”
cause. Absent an exception, the fruits of an When asked why he had lied, Munera
arrest lacking probable cause must be proclaimed “no hablo ingles,” despite the fact
suppressed, which in this case would include that all previous communication had been in
Munera’s statements, the personal property English and that police had overheard Munera
found on him (the telephones, pager, and keys speaking in English on a cellular phone as he
to apartments 1714 and 1716), and arguably passed them by. A pat down of Munera
even the cocaine seized in apartment 1714 (to revealed a pager and a second cellular phone.
the extent Munera can show that it would not Pagers and cell phones have been held by other
have been uncovered but for his purportedly circuits to constitute tools of the drug trade.
illegal arrest). United States v. Webster, United States v. Cleveland, 106 F.3d 1056,
162 F.3d 308, 324 (5th Cir. 1998), petition for 1061 (1st Cir. 1997); United States v. Sasson,
cert. filed (U.S. Apr. 29, 1999) 62 F.3d 874, 886 (7th Cir. 1995). Under these
(No. 98-9212). circumstances, the police had probable cause
to believe that Munera was involved in the
Probable cause exists if “the totality of facts drug conspiracy with Hernandez, and thus
and circumstances within a police officer’s their arrest of Munera at that point was
knowledge at the moment of the arrest are entirely lawful.
sufficient for a reasonable person to conclude
that the suspect had committed or was B.
committing an offense.” United States v. Ho, Regardless of the lawfulness of his arrest,
94 F.3d 932, 935-36 (5th Cir. 1996). Munera asserts that the “statement” he made
Additionally, imputed to the arresting officer’s to police at the Sandspoint apartment should
knowledge are all the facts and circumstances have been suppressed. It is undisputed that
known to all law enforcement officials. Munera was not informed of his rights under
7
Miranda v. Arizona, 384 U.S. 436 (1966), Munera’s cohorts could be found.4 The facts
until well after the search of apartment 1714. of the instant case call for the application of
Nevertheless, the police asked him to show this “safety exception” to Miranda, and thus it
them where his “friends’” apartment was, is of no consequence that the officers failed to
prompting Munera to lead the officers to the apprise Munera of his rights.
second floor landing, and thereafter pointing
with his nose to apartment 1716. C.
Munera is correct in noting that his gestures
constitute “statements” for Miranda purposes.
See United States v. Doe, 465 U.S. 605, 612
(1984); Fisher v. United States, 425 U.S. 391,
410 (1976). There are at least two reasons,
however, why the acquisition of these
statements in the absence of Miranda warnings
does not undermine the jury’s verdicts against
Munera.
Firstly, as the government notes, any
Miranda error is harmless in that the evidence
gathered therefrom was not necessary to
finding Munera guilty beyond a reasonable
doubt. See United States v. Paul, 142 F.3d
836, 843 (5th Cir. 1998). In addition to the
circumstances of his arrest (his recognition of
Hernandez, his lying about his name, his lying
about his ability to speak English, and his
possession of instrumentalities of the drug
trade), there is Munera’s subsequent
confession, made after he had been read his
rights.
Additionally, the “fruits” of his purportedly
unlawfully acquired statement would have
been inevitably discovered by the police
anyway: The officers were already aware of
the landing from which Munera had
descended, and they would most likely have
searched apartment 1714 regardless of
Munera’s gestures (which were misleadingly
directed toward apartment 1716). See Nix v.
Williams, 467 U.S. 431, 448 (1983); United
States v. Lamas, 930 F.2d 1099, 1102 (5th
Cir. 1991).
Secondly, police may dispense with 4
Miranda warnings when necessary for their As mentioned, in this case, Munera originally
led police to the wrong apartment number. This
protection. New York v. Quarles, 467 U.S. could have had disastrous consequences for the
649, 655 (1984); Webster, 162 F.3d at 332. officers, should criminal occupants of 1714 have
The dangers that law enforcement officials decided to ambush the officers as they searched the
face from drug dealers and the like are well wrong apartment. It was precisely to guard against
known, and it was important for the officers to such risks that the officers needed to know what
identify precisely the apartment in which room Munera’s comrades were in.
8
Munera challenges the legality of the search Exigent circumstances do not, however,
of apartment 1714 on the ground that the enable the police to conduct a full-fledged
officers lacked a warrant. See United States v. search. Instead, they are permitted to conduct
Richard, 994 F.2d 244, 248 (5th Cir. 1993). only a “protective sweep,” limited to searching
We find the lack of a warrant unproblematic in those areas where a suspect might be hiding.
this case, as it fits squarely within the well- See Kirkpatrick, 870 F.2d at 282. The record
established “exigent circumstances” exception reflects that this is exactly what they did.
to the warrant requirement.5 See Kirkpatrick
v. Butler, 870 F.2d 276, 281 (5th Cir. 1989). Munera argues next that any exigency was
created by the officers, and this precludes them
Exigent circumstances justify an exception from engaging in a warrantless search on this
to the warrant requirement if officers have basis. In support of this, Munera refers us to
“cause to believe either t hat evidence in the United States v. Richard, 994 F.2d 244, 248
house may be destroyed or removed, or that (5th Cir. 1993). The facts of Richard do
the lives of police officers or other persons parallel, to some extent, those here: Police
may be endangered by persons inside of the had announced their presence outside of an
house.” Kirkpatrick, 870 F.2d at 281 apartment door and thereafter feared what the
(footnote omitted). Each of these exigencies apartment’s occupants might be doing. Id. at
was present. 246-47, 248. We did not find police-created
exigency as a matter of law in Richard, but
Based on their surveillance and the rather we merely affirmed the finding of
confessions of Hernandez and Munera, the police-created exigency under the clear-error
officers had strong reason to believe that drugs standard of review. Id. at 248-50.
and drug dealers were located in either
apartment 1714 or 1716. The officers testified In the instant case, the court held precisely
that they “fear[ed] for their safety when the opposite, and did so without error in light
Rodriguez bolted” from the living room, and of the particular facts and circumstances.
they feared that “Rodriguez may have been Unlike the situation in Richardson, where
armed or was trying to flee.” Additionally, “[t]he agents had secured [the room] from the
they feared that Rodriguez might be outside, successfully and covertly,” id. at 249,
attempting to destroy evidence. in this case the police were trying to figure out
which of two apartments was the one
Moreover, whether exigent circumstances
exist is a question of fact for the district court,
whose findings we review for clear error. Id. (...continued)
Given that the officers needed to protect Rodriguez-Estupinan, who they believed was still
against both the destruction of contraband and in the apartment and could pose a threat to the
potential harm to themselves, the court was officers’ safety.”
not clearly erroneous in finding exigency.6
Rodriguez also asserts that a finding of
exigency under these circumstances (that is,
5
following the arrests of Munera and Hernandez) is
Although there is evidence that Hurtado may incorrect as a matter of law, relying on Maryland
have consented to the initial search of apartment v. Buie, 494 U.S. 325 (1990). Rodriguez
1714, we decline to resolve this issue on such a misconstrues when the exigency attached: It did
disputed factual ground. not attach when the arrests of Munera and
Hernandez were made, but rather when officers
6
Rodriguez asserts that the district court did witnessed Rodriguez flee from the living room.
not make a factual finding of exigency. This Had Rodriguez not fled, but instead remained in
contention is incorrect, as the district court plain view, and if the officers had secured
explicitly noted that “[t]he officers engaged in a apartment 1714, then a warrantless arrest (absent
proper protective sweep to look for and to locate consent) might have been inappropriate. But those
(continued...) are not the facts of this case.
9
containing contraband and coconspirators. powder was indeed cocaine.
Additionally, we have no evidence Secondly, the doctrine of inevitable
regarding how well secured the apartments discovery dispenses with Rodriguez’s
were or what their means of ingress and egress argument in that the officers obtained
were. Further still, the events of Richardson voluntary consent to search the apartment
transpired in the morning, whereas the events (from Hurtado) following Rodriguez’s arrest.
of the matter before us transpired in the more See Nix, 467 U.S. at 448; Lamas, 930 F.2d at
treacherous setting of nighttime. Lastly, in 1102. Thus, even if Thomas did not have
Richardson the police at least knew that the probable cause to believe that the white
apartment’s occupants were not attempting to powder was cocaine, he validly seized and
flee, id.; in the case before us, the police examined it following his receipt of permission
witnessed Hernandez’s attempted escape. to search the apartment. See United States v.
Thus, if the creation of exigency can be Kirk, 111 F.3d 390, 392 (5th Cir. 1997).
attributed to any particul ar person,
responsibility would lie with Rodriguez, whose E.
suspicious act of bolting from view alarmed Rodriguez denies that the officers received
the officers. In sum, the district court did not valid consent to search apartment 1714.
commit clear error in reaching its Because the plain view doctrine allows the
determination that exigent circumstances introduction into evidence of the cocaine in the
justified the warrantless search of apartment clear plastic bag, the only evidence that could
1714. be excluded via this argument is the cocaine
contained in the closet’s gym bag.
D.
Rodriguez independently challenges the As Rodriguez correctly explains, for
seizure of a clear plastic bag containing consent to be valid, it must be freely and
cocaine found in the closet of apartment 1714. voluntarily given by someone with authority to
He rejects the government’s assertion of the consent. Illinois v. Rodriguez, 497 U.S. 177,
doctrine of “plain view,” arguing that Thomas, 181 (1990). Rodriguez concedes that the
who came upon the cocaine, “could not be consent by Hurtado was given freely and
sure that the white powder residue found was voluntarily; his dispute is over whether she had
cocaine.” Rodriguez cites United States v. authority to consent to a search of the
Buchanan, 70 F.3d 818, 826 n.6 (5th Cir. apartment.
1995), in which we noted that “the mere
presence of white powder residue in a plastic Hurtado identified herself as a resident of
bag, by itself, will [not] always give rise to apartment 1714. Defendants have introduced
probable cause.” no evidence challenging this. So, the officers
came to the objectively reasonable conclusion
The white powder was easily in Thomas’s that Hurtado had the authority to consent to a
plain view; the only question is whether he had search. See United States v. DeLeon-Reyna,
probable cause to believe that it constituted 930 F.2d 396, 399 (5th Cir. 1991) (per
cocaine. See id. at 826. As we explained in curiam) (en banc) (holding that “officers' belief
Buchanan, whether such probable cause exists that they had consent, in light of all the
depends on the “totality of the circumstances.” circumstances,” comports with Fourth
Id. This was not a case of the “mere presence Amendment if “objectively reasonable”).
of white powder in a plastic bag, by itself,” id.,
but rather of white powder found in an The court did not commit clear error in
apartment already suspected of containing ratifying the officers’ conclusions. The extent
drugs and under suspicious circumstances of Hurtado’s knowledge of Rodriguez’s
(namely, Rodriguez's flight and Hurtado's wrongdoingSSsomething Rodriguez considers
deception). For these reasons, Thomas had important in ascertaining Hurtado’s authority
probable cause to believe that the white to consentSSis irrelevant to this inquiry. See
10
id. argument.
F. IV.
Munera argues that the court erred in Munera contends that Fanning perjured
failing to suppress a statement he made to a himself on the stand and that the government
DEA agent, because “no evidence was knowingly sponsored this perjury. If true,
presented that defendant waived his Miranda such a finding on our part would merit a
warning at the time he was questioned and that reversal of Munera’s conviction. Munera
he was not informed of his right to carries the burden of proof on this tall
communicate with consular or diplomatic accusation. See United States v. Lochmondy,
officers of his country as required by Vienna 890 F.2d 817, 822 (6th Cir. 1989).
Convention treaty and INS regulation.” It is
black letter law that a defendant’s waiver of To prevail, Munera must demonstrate that
his Miranda rights must be knowing, (1) Fanning’s testimony was actually false, id.
intelligent, and voluntary. United States v. at 822; and (2) that the government
Collins, 40 F.3d 95, 98 (5th Cir. 1994). This “knowingly sponsored” it, United States v.
is a question of fact for the district court that Harrison, 103 F.3d 986, 989 (D.C. Cir. 1997).
we review for clear error. Id. at 99. Inconsistent testimony, by itself, does not meet
Government witnesses testified that this burden. See United States v. Bortnovsky,
(1) Munera was read his rights, in Spanish, and 879 F.2d 30, 33 (2d Cir. 1989).
(2) Munera affirmatively requested to make a
statement to the DEA and was permitted to do According to Munera, at the suppression
so. From this evidence, the district court hearing Fanning testified that he knew to head
could and did properly conclude that Munera’s for apartment 1714, because “Officer Thomas
statements did not run afoul of Miranda. had watched Jorge Munera-Uribe walk from
his apartment complex, from the door, the
Munera presses, however, that his Miranda 1714.” When pressed with the question “Is it
warnings were not repeated at the DEA possible that you saw him come from the
holdover jail cell where his confession was landing where there were two apartments 1714
tendered. But because the DEA agents did not and 1716?”, Fanning responded: “It is
recommence questioning of Munera at the jail, possible.” He then elaborated, stating:
a second set of warnings was not required;
instead, Munera voluntarily initiated the telling We did not know the apartment
of his story. See Moore v. Dugger, 856 F.2d doorSSI must correct myself. Officer
129, 133 (11th Cir. 1988). Thomas said he saw some, the landing
up there, that we wereSSthat’s when we,
Munera’s Vienna Convention argument is that was the reason for taking Jorge
meritless in light of existing precedent. Munera-Uribe up to the landing, is for
Although his rights under the Convention may him to knock on the door or show us
have been violated, he has not adequately the door that his friend was in, Carlos.
explained how this may have prejudiced his
defenseSSa critical predicate were we to When asked whether Munera did indeed show
fashion a remedy for him under the him the door he had come out of, Fanning
Convention.7 We accordingly reject this testified: “No, he didn’t.”
7
See Faulder v. Johnson, 81 F.3d 515, 520
(5th Cir. 1996); United States v. Lombera- (...continued)
Camorlinga, 170 F.3d 1241, 1244 (9th Cir. 1999) to contact his consulate, the defendant in a criminal
(“Upon a showing that the Vienna Convention was proceeding has the initial burden of producing
violated by a failure to inform the alien of his right evidence showing prejudice from the violation of
(continued...) the Convention.”).
11
At trial, Fanning testified that “to determine (5th Cir. 1997). The offending comments
what apartment these two individuals [Munera were as follows:
and Hernandez] had come from . . . [he] asked
Mr. Munera-Uribe which apartment his friend 1. “Mr. Ash [Rodriguez’s attorney]
was in.” Fanning continued, explaining that would have you think that the Gestapo
Munera pointed to apartment 1716 for them. had showed up at the door to 1714 at
8300 Sandspoint, that it was this
Contrary to Munera’s characterization, massive show of force that caused poor
Fanning’s suppression hearing and trial [Rodriguez] to jump from the couch,
testimony are not “in direct conflict.” Munera run to the back of the apartment, hide
blazons the fact that in his suppression hearing under a mattress.”
testimony, Fanning failed to mention that
Munera gestured toward the landing for the 2. “If you recall the testimony,
officersSSindicating the apartment from which [Rodriguez] was gone on the knock.”
he came. But Fanning was never specifically
asked that and was available to Munera’s 3. “[T]he officers and agents had no
attorney for cross-examination. Instead, reason to get on the stand here and lie to
Fanning was asked whether Munera accurately you.”
identified apartment 1714 for himSSMunera
did not (instead motioning with his nose to None of this deprived Rodriguez of a fair trial.
apartment 1716), and Fanning testified as
such. The first comment accurately captured
Rodriguez’s theory of the case: He had
At trial, Fanning reiterated that he turned to argued that the presence of a large force of
Munera for help in locating the correct armed police officers gathered on his balcony
apartment, and that Munera pointed the alarmed him and caused him to flee. To
officers toward apartment 1716. This hardly characterize the image conjured up by
constitutes perjury: Fanning’s testimony at the Rodriguez’s explanation as a “gestapo” force
suppression hearing was at most is not extraordinary. We do not find the word
incompleteSSit did not, however, contradict “gestapo” to be so inflammatory as to destroy
anything he later told the court. the fairness of a trial. In fact, the term has
taken o n a generic meaning in modern usage
Secondly, even if Fanning can be said to and no longer refers solely to the secret police
have perjured himself, Munera has brought of Nazi Germany. See WEBSTER’S THIRD
nothing to our attention purporting to show NEW INTERNATIONAL DICTIONARY 952
that the government sanctioned such (1986).
testimony, the second vital element of his
claim. For these reasons, there was no error The second comment is also an accurate
portrayal of events: Rodriguez indeed fled
V. after the officers knocked on his door.
According to Rodriguez, the federal Although use of the expression “gone on the
prosecutor made improper comments at knock” does not exactly help Rodriguez’s
closing that deprived him of a fair trial. cause, it is well within the prosecutor’s
Rodriguez bears the burden of establishing that prerogative to use such expressions in his role
these comments did in fact deprive him of a as an advocate. The prosecutor need not
fair trial. United States v. Bermea, 30 F.3d avoid honest, truthful characterizations of the
1539, 1562 (5th Cir. 1994). In determining facts helpful to his argument.
whether he was deprived of a fair trial, we
consider whether the comments, taken as a Lastly, telling the jurors that “the officers
whole within the context of the trial, and agents had no reason . . . to lie” does not
prejudicially affected substantive rights. constitute the impermissible use of a
United States v. Rasco, 123 F.3d 222, 229 prosecutor’s status to bolster the testimony of
12
a witness, but only presents a permissible B.
summary of the evidence. Rodriguez Ramos assisted in the delivery of cocaine
suggested that the police were being untruthful on August 13 and September 18. On
in their testimony; the prosecutor could fairly August 13, he was observed carrying a blue
respond to this suggestion by making note of gym bag containing cocaine into Hernandez’s
the fact that there was nothing in the record car. Lat er that day, he came to Fiesta to
supporting this accusation. See United States collect money for the drugs he had provided.
v. Vaccaro, 115 F.3d 1211, 1216 (5th Cir. Again, given Edwards, we cannot say the
1997), cert. denied, 118 S. Ct. 689 (1998). court committed clear error by failing to afford
Ramos minor role status in light of these facts.
VI. As with Rodriguez, Ramos supplies us with no
Section 3B1.2 of the Sentencing Guidelines countervailing caselaw suggesting that a minor
instructs the court to grant a downward role adjustment would be appropriate under
adjustment for defendants whose roles in a these circumstances.
criminal offense are “minor.” Rodriguez and
Ramos challenge the decision not to grant VII.
them such an adjustment. We review for clear Under the “safety valve” provision of the
error. United States v. Valencia-Gonzalez, Sentencing Guidelines, a court must sentence
172 F.3d 344, 346 (5th Cir. 1999). defendants below statutory mandatory
minimums (and in accord with the lower
A. applicable Sentencing Guidelines range) if five
Rodriguez was responsible for “guarding conditions are met. U.S.S.G. § 5C1.2. Valois
16.52 kilograms of cocaine (worth nearly asserts that the court improperly denied him
$200,000).” Sentencing Proceedings at 8 the benefit of this provision.
(May 15, 1998). Such a large responsibility
does not suggest a minor role. Indeed, under Valois bears the burden of establishing that
our precedent, a defendant whose role is all five conditions are met. See United States
“limited to holding or delivering drugs” is not v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
ordinarily entitled to a minor role adjustment. This is an issue of fact to be determined by the
See United States v. Edwards, 65 F.3d 430, court. United States v. Torres, 114 F.3d 520,
434 (5th Cir. 1995). Rodriguez has furnished 527 (5th Cir.), cert. denied, 118 S. Ct. 316
us with no precedent suggesting that, under (1997). Accordingly, we review for clear
the facts of this case, we or any other circuit error. United States v. Wilson, 105 F.3d 219,
has held that a minor role adjustment is in 222 (5th Cir. 1997).
order.
Only satisfaction of the fifth condition is
before us, with the government apparently
conceding that the other four have been met.
The fifth condition requires that “the defendant
has truthfully provided to the Government all
information and evidence the defendant has
concerning the offense or offenses that were
part of the same course of conduct or of a
common scheme or plan.” U.S.S.G. § 5C1.2.
According to the government, Valois had
(1) failed to admit that he accompanied Russo
on the August 13 cocaine pickup; (2) lied
about the delivery of drug proceeds to Ramos
later that day; and (3) denied being with Russo
when she met Moreno on September 18 to
obtain two of the seven kilograms involved in
13
that day’s transaction. Valois counters by Section 3E1.1(a) of the Sentencing Guidelines
arguing that he recited all the facts he knew to instructs a court to decrease a defendant’s
the best of his recollection. He adds that none offense level by two if “the Defendant clearly
of the government’s examples of demonstrates acceptance of responsibility for
untruthfulness is “specific enough to his offense.” Moreno bears the burden of
determine, even by a preponderance of the establishing acceptance of responsibility.
evidence, that Valois was not being honest . . . United States v. Thomas, 120 F.3d 564, 575
.” (5th Cir. 1997), cert. denied, 118 S. Ct. 721
(1998). Our standard of review on this issue
As a matter of law, Valois argues, he is “more deferential than that of clear error.”
cannot be denied relief under § 5C1.2, because Id.
“the record does not contain specific findings
of, or support for, the government’s Although he participated in the same
allegations of untruthfulness.” In support of defense as did his codefendants, Moreno
this proposition, he refers us to United States argues that he is entitled to the two-level
v. Miranda-Santiago, 96 F.3d 517, 527-30 reduction of § 3E1.1 because “he did not
(1st Cir. 1996). testify at trial nor did he deny the allegations of
the indictment during the trial.” Moreno
Miranda-Santiago does not support attempts to fit his litigation strategy into the
Valois’s position. There, the government narrow exception to § 3E1.1 recognized for
proffered no direct evidence tending to show those defendants who raise solely legal
that the defendant in question was being defenses. See U.S.S.G. § 3E1.1, comment.
deceitful. Id. at 529. Instead, the government
asserted that the defendant must have known The court did not err in holding that
more than he was revealing in light of the fact Moreno has failed to carry his burden of proof
that he “shared living quarters with other on this issue: There is absolutely no evidence
codefendants.” Id. Such “mere conjecture” in the record indicating acceptance of
cannot be the basis for denying the benefit of responsibility on the part of Moreno, who had
§ 5C1.2. Id. an opportunity to present such evidence
pretrial but passed it up, failing to distinguish
In Valois’s case, the government did not himself from his codefendants’ full-fledged
offer up “mere conjecture,” but concrete defense. See Thomas, 120 F.3d at 575. So,
evidence tending to show Valois’s Moreno cannot avail himself of § 3E1.1. Id.
untruthfulness (such as statements from
Valois’s codefendants). The court held a IX.
hearing on the matter specifically and came to Ramos and Rodriguez challenge the
the conclusionSSafter considering all the calculations regarding the amount of cocaine
evidenceSSthat Valois was being untruthful. for which they were individually responsible.
Thus, the court did not engage in These calculations are important, because the
“speculation” or “mere conjecture” in base offense level (and thus the length of
concluding that Valois was undeserving of imprisonment) for non-violent drug offenders
§ 5C1.2. Id. More importantly, the court did is set in accordance with the quantity of drugs
not commit clear error in sentencing Valois, involved. See United States v. Brito, 136 F.3d
for Valois failed to carry his burden and 397, 415 (5th Cir.), cert. denied, 118 S. Ct.
demonstrate the applicability of § 5C1.1 in 1817 (1998); U.S.S.G. § 2D1.1(c). We
light of the government’s countervailing review for clear error. Brito, 136 F.3d at 415.
evidence.
“For a defendant involved in a drug
VIII. trafficking conspiracy, the quantity includes
Moreno complains that the court both the drugs with which the defendant was
improperly denied him a decrease in his directly involved and the drugs that can be
sentence for acceptance of responsibility. attributable to him through the conspiracy.”
14
Id.
Ramos disputes the attribution to him of
The defendant will not necessarily be five kilograms of cocaine from the
held responsible for the full amount of September 18 transaction and one kilogram
drugs involved in the conspiracy, rather from the August 13 transaction. With regard
the defendant will only be held to the five kilograms, the government
accountable for those amounts of drugs introduced statements from Hernandez in
that he knew or reasonably could have which Hernandez claims that Ramos asked him
known or believed were involved in the for a ride to the gas station so he could deliver
conspiracy. In order to calculate this the five kilograms. Hernandez also stated that
amount, a court may consider the co- he helped Ramos put the five kilograms into a
conspirator’s role in the conspiracy, his bag and thereafter did indeed drive Ramos to
relationship to the other conspirators, the gas station. The court couldSSand
and any other information with didSSproperly base its determination on this
“sufficient indicia of reliability.” uncontradicted evidence.8
Rodriguez disputes the attribution to him of
Id. (citations omitted). five kilograms of cocaine from the
September 18 transaction. The government
The court felt that it had sufficiently reliable introduced circumstantial evidence linking him
information tying Ramos and Rodriguez to to these drugs: Hernandez testified that he
more t han fifteen kilograms of cocaine each obtained the five kilograms from the
and based the sentence on that quantity. Our Sandspoint apartment, and Rodriguez admitted
review of the record reveals no error. to guarding the cocaine stored there. Putting
these two facts together, the court couldSSand
didSSreasonably conclude that Rodriguez
should have known about this quantity of
drugs. The court did not commit clear error in
attributing them to Rodriguez for sentencing
purposes.
AFFIRMED.
8
As to the one kilogram of cocaine from
August 13, the agents seemed to testify in
conclusional fashion that the cocaine came from
Ramos. Such testimony is not specific enough to
contain “sufficient indicia of reliability.” Id. The
only thing in the record to bolster this assertion is
the ten-minute evening encounter between Ramos
and the Valois brothers. Although the one-
kilogram cocaine transaction of earlier that day
may very well have been the subject matter of this
meeting, the court could not properly come to such
a conclusion based on this meager evidence alone.
Thus, the court should have found Ramos
responsible for sixteen kilograms of cocaine, not
seventeen. This does not affect the sentence,
however, because the relevant threshold is fifteen
kilograms.
15