United States v. Hector Tovar
2013 U.S. App. LEXIS 11568
| 5th Cir. | 2013Background
- Tovar was tried in the Texas district court on four Counts relating to marijuana trafficking, interstate travel in aid of racketeering, and an unregistered firearm; the Pennsylvania case involved cocaine conspiracy and distributions.
- Texas and Pennsylvania prosecutions involved overlapping but distinct offenses; the Texas case proceeded after a Pennsylvania conviction and sentence had been imposed.
- Tovar acted as a broker coordinating shipments of marijuana from Texas to Pennsylvania, with Nunez and Mejia as key co-conspirators; shipments occurred in late 2008 through 2009 including a 306.6-pound seizure in Texas.
- A search of Tovar’s home on January 26, 2010 yielded a short-barrel shotgun, which was unregistered and later found to be altered; statements were obtained before and after Miranda warnings.
- The district court denied suppression and double-jeopardy challenges for Counts 2–4, sentencing Tovar to concurrent terms; Count 1 (Texas conspiracy) had been dismissed.
- On appeal, Tovar challenged double jeopardy as to Counts 2–4, suppression of evidence and statements, and sufficiency of the evidence for Counts 2–4; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy bars prosecution? | Tovar contends Counts 2–4 duplicate the Pennsylvania conspiracy conduct. | Kalish-type analysis shows same conduct; but Blockburger requires different elements. | Counts 2–4 not barred; separate offenses with distinct elements. |
| Was the search warrant-supported seizure valid? | The warrant/affidavit lacked probable cause and Leon cannot save it. | There was substantial detail and corroboration; good-faith exception applies. | Search suppression denied; good-faith reliance sustained. |
| Were statements obtained before Miranda/after Miranda admissible? | Pre-Miranda statements taint post-Miranda admissions. | Post-Miranda statements were voluntary and not the fruit of the initial illegality. | Post-Miranda statements properly admitted; no fruit-of-poisonous-tree suppression. |
| Is the evidence sufficient to sustain Counts 2–4? | Accomplice testimony plus driver/admission proves possession and interstate travel; weapon knowledge shown. | Insufficient to prove knowing possession and firearm features; weight and constructiveness questioned. | Evidence sufficient; Count 2 for possession with intent to distribute, Count 3 for interstate travel, Count 4 for unregistered firearm. |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (1932) (test: each offense must require proof of a fact not in the other)
- Iannelli v. United States, 420 U.S. 770 (1975) (conspiracy and substantive offense are separate for Blockburger analysis)
- Kalish, 734 F.2d 194 (5th Cir. 1984) (conspiracy and underlying offense are separate for double jeopardy purposes)
- United States v. Deshaw, 974 F.2d 667 (5th Cir. 1992) (overt acts charged in conspiracy may be charged as substantive offenses)
- Brown v. Ohio, 432 U.S. 161 (1977) (two-step interrogation and voluntariness considerations under Wong Sun/Elstad framework)
- Wong Sun v. United States, 371 U.S. 471 (1963) (fruits of the poisonous tree define admissibility of derivative evidence)
- El-Mezain, 664 F.3d 467 (5th Cir. 2011) (necessity of proper suppression analysis under 4th Amendment)
- Seibert, 542 U.S. 600 (2004) (two-step strategy to obtain post-warning statements requires suppression)
- Elstad, 470 U.S. 298 (1985) (voluntary post-warning statements may be admitted if not tainted)