United States v. Fulgencio Pantoja-Soto, Raul Pal-Sali, Nelio A. Nunez and Manuel Roberto Guerrero
739 F.2d 1520
11th Cir.
1984
Check Treatment

*2 CLARK, Before TJOFLAT and Circuit *, Judges, and GOLDBERG Senior Circuit Judge.

GOLDBERG, Judge: Circuit Senior Appellants Fulgencio Pantoja-Soto, Raul Pal-Sali, Nelio Nunez and Manuel Guerrero appeal their convictions two counts of federal law violations. We find no reversible error the conviction of Panto- ja-Soto jury’s and therefore affirm the ver- respect dict as to him. With * Irving Goldberg, L. U.S. Circuit tion. Honorable Circuit, Judge sitting by designa- for the Fifth spot had left the however, that he because Guerrero, we find people heading full his a car observed by suf- supported their convictions $37,000 did not want way and he and reverse. ficient evidence that no “ripped off.” assured Velazco According

FACTS “rip off” had been intended. *3 Diaz, girlfriend, only Pantoja, Pantoja’s Agent Pedro Special April On Diaz, girlfriend, the Cl had been Diaz’s and Drug Enforcement Adminis- of the Velazco on, was still Diaz said the deal in the car. via a information (DEA) received tration but, changed. The was to be the location “Cl”) (the that a informant confidential place to take at a gas deal was now area Miami Beach person particular known as in a section of Miami “Little methaqualone tab- large amount had Havana.” a.m. of the 11:30 At around lets for sale. and the Cl day, Agent Velazco following proceeded Agent and Cl Velazco apartment. Pantoja the latter’s met with vicinity gas station. Velazco 50,000 methaqua- approximately A sale then, p.m., and around 9:30 searched the Cl meet- negotiated at that was tablets lone Diaz and dropped the Cl near the station. obtain the he could ing. said that in the maroon auto- several others arrived each, for a seventy-five cents for tablets mobile, Cl, him to picked up the and drove $37,000, that it would take and total thereafter, the Cl Shortly gas' station. Agent Velazco- arrange. thirty minutes to handed him Agent Velazco and returned apartment, leave the were to and the Cl Agent Velazco “field test- three tablets. phone Pantoja was to Agent Velazco and them to be ed” the tablets and determined called, Agent Ve- thirty minutes. When pharmaceutical “bootleg” rather than on the pills were told that lazco was arrangements quality. Velazco then made yet arrived. had not way but agents police the local DEA with other through- times called several more Velazco p.m., At gas station. 9:55 to raid afternoon; produced each call out the hand, Velazco, pistol each Agent with a not arrived. same answer—the offi- charge of law enforcement led a evening, Agent approximately 7:30 that At drawn, cers, gas weapons into all with apart- Pantoja’s dropped the Cl Velazco station. problem. Velazco ment to find out the lot, station, has on a located .corner a location several parked his car at then streets, an pumps fronting on both About appellant’s apartment. blocks office, bays. At the time and three service later, another forty the Cl and minutes open for raid the station was not individual, Diaz, in a maroon Angel arrived business, pump areas lamps and the in- location. Diaz at Velazco’s automobile illuminated. A door connects were not 50,000 the owner of the that he was dicated bays. service On office to two of the only tablets raid, doors night of the the overhead making was that the Cl the deal problem closed and bays were those two service assured Diaz money. Velazco owed him office, only door to the other locked. he, pills deliver if Diaz' would outside, open, and the leading was the door paid Velazco, Diaz was make sure would lights illuminated. office agreed to the he was owed. what approached the agents When the in the maroon sale; left with the Cl he then appellants Pantoja and Guerrero later, Diaz and surveillance A while other car. short kneeling together outside the station the maroon were Velazco that agents notified an automobile inside, building. Next to them was was vehicle, individuals with five vehicle up. Behind that with its hood Velazco returning to Velazco’s location. with two unidentified Pantoja's another automobile the location. He called then left vehicles standing it.1 Both persons beside p.m., explaining at around 8:45 apartment not involved in the of the raid were determined time Agent that he Velazco testified detained, briefly but five were deal. The individuals these two unidentified Record, Vol. II at 76-77. were not arrested. the station lot at the who were on three others away from the office The Fourth Amendment Claim “some distance” Record, Vol. II at bays. and service Appellant Pantoja claims that the immediately Snyder arrested Agent DEA failing suppress erred in court below Diaz, Appellants Pantoja, and Guerrero. evidence that was seized when law enforce standing in Nunez were Pal-Sali and bay ment officers entered the service area As Velazco of the station. office He the service station.5 contends that ran out the office’s approached, Pal-Sali violated the Fourth Amendment officers door and was arrested Velazco. front obtaining a search warrant before en office’s side door into Nunez ran out the tering reviewing the. service station.6 police Two officers the service area.2 claim, initially this we note that Fourth building entered the and Velazco then protection Amendment extends business min- looking for Nunez. About ten began premises. Leasing Corp. v. G.M. later, hid- the officers located utes *4 States, 338, 354, 619, 629, 429 U.S. 97 S.Ct. a rack of tires a storeroom. ing behind (1977). protection 50 L.Ed.2d 530 Such Nunez, Agent During the search for Ve- contemplates that a neutral and detached large four boxes lazco discovered warrant, magistrate by supported issue a bays. Two of of the service floor of one cause, probable of before law enforcement open; the boxes were may premises. Only ficers enter the plainly visible. were tablets circumstances,” “exigent face of where ob BELOW PROCEEDINGS taining greatly compro a warrant would important objectives, law enforcement mise Pal-Sali, Pantoja-Soto, Nunez and Guerrero yield. requirement When does warrant charged in the same two-count were all proba exigent circumstances coexist with alleges appellants I that indictment. Count cause, intentionally possessed, ble the Fourth Amendment has been knowingly and distribute, quantity intent permit with held to warrantless searches and charges II methaqualone tablets.3 Count generally seizures. See United States v. knowingly wilfully con- appellants that and (11th Cir.), Blasco, 702 F.2d cert distribute, spired possess, intent to with nom.; denied sub Jamardo by. appel- — methaqualone.4 Upon motion States, -, U.S. S.Ct. Guerrero, the dis- lants Nunez and L.Ed.2d 256 Galvan United their trial from Panto- trict court severed — -, States, sup- ja’s. appellants All moved to four (1983). L.Ed.2d 256 press evidence seized at the time of exists Probable cause to arrest arrests. That motion was denied after a and circumstances within “where the facts hearing magistrate. before a A con- knowledge of the law en collective Pal-Sali, Nunez and Guerrero on victed officials, of which had rea forcement appellants’ counts, and the three sub- both information, sonably trustworthy are suffi sequent judgment acquittal motion for a person to cause a of reasonable cau cient Appellant Pantoja-Soto was was denied. tion to believe that an offense has been or by jury separate in a trial. All convicted being,committed.” appellants prison received terms. Id. States v. Appellants 5. and Pal-Sali do The record indicates that all of the Guerrero 2. appeal suppress the trial court's refusal to employees not of the station. claimed to have been methaqualone. trial, however, Agent testified that he At Velazco Record, investigated Vol. II never these claims. suggest ques- in this record a serious 6. The facts at 78. Pantoja legitimate expecta- tion whether had a privacy in the station's See tion interior. 841(a)(1); of 21 U.S.C. 18 U.S.C. § 3. In violation Illinois, S.Ct. Rakas v. 439 U.S. (1978). 2.§ question L.Ed.2d 387 Because this appeal, neither raised below nor briefed on 841(a)(1); 21 U.S.C. In violation of 21 U.S.C. appellant’s § because Fourth Amendment claim grounds, we do not reach the § fails on other Raleas issue. raid, more (5th Cir.), denied, little than an hour before Perez, cert. arrest, 846, 97 L.Ed.2d 118 that the transaction was appellants’ ease, Moreover, offi (1976).7 law place In this enforcement at the station. to take prior to the raid to cause probable had cials to indicate that Ve- there is no evidence individuals at the ser certain believe knew, prior time Cl’s lazco ' involved in the distribu vice station tablets, three with the return Cl, The leav methaqualone. after tion methqualone would in an enclosed area be Pantoja, had returned ing building. of the service station with three tablets. the service well have been in the maroon car could strongly indi point, circumstances At that lot. the station After the Cl somewhere on Diaz and least that at cated re- the situation returned from sell. drugs at the station to While holding law en- quired immediate action arresting Diaz and raid and executing the Delay in consummat- officers. forcement Pal Pantoja, observed officers suspi- ing the deal could have aroused the service station of standing inside Sali suspects Pantoja. of Diaz and cion approached, Nunez As fice. Velazco Finally, be lost. evidence would through a side door office from the fled particular that necessitat- circumstance point, given At bay. the service into entry i.e., warrantless Nu- ed officers’ — his at the station and presence Nunez’s one flight into the nez’s station —is probable to be flight, officers cause easily anticipated have offi- could been way in some involved *5 that he was lieve cers. Moreover, any delay drug transaction. the suspect conceivably the apprehending known that the Had officials danger to increased the officers have could legality the inside the station had and de premises and allowed the station entry depended on a of their warrantless - Exigent evidence. circum struction of circumstance, this predictable case more justified the officer’s warrantless stances question. different presented would have a building pursue Nu entry of the However, the facts here we cannot under Santana, v. 427 nez. See United States failure to obtain fault the officers for their 38, 2406, 2410, 44, 49 L.Ed.2d 96 S.Ct. U.S. a Fourth Amendment search warrant. No t (1976) (pursui fleeing suspect); 300 occurred.8 violation Blasco, (danger at 1326 to officers 702 F.2d warrantless, exploratory search of justified Sufficiency the Evidence residence). Once inside the station build a Guerrero Appellants lawfully then ing, the seize officers could lay challenge on the basis which in the their convictions methaqualone the tablets v. to establish “plain view.” Texas that the evidence trial failed officer’s See Brown, 730, 1535, 103 75 460 U.S. S.Ct. the possession either their (1983); Coolidge v. New L.Ed.2d 502 charged participation or their in the con 443, 2022, 29 Hampshire, 403 91 S.Ct. U.S. spiracy. passing In on these claims (1971). L.Ed.2d 564 w;e evidence, must view the insufficiency of light most favorable facts lead The facts of this case also us government. Blasco, supra, 702 at 1331. involved in the conclude that officers Considering totality, in their facts illegitimately exi- did not manufacture raid DeSimone, 532, v. 660 United States Agent did not gent circumstances. Velazco Cir.1981)(Unit (5th B), p.m. night cert. denied sub until around 8:45 of 539 know Pantoja-Soto prosecutor radically a also raises a claim of cause" defines different 7. “Probable misconduct, citing appel- "beyond certain references a reasonable doubt.” standard than during testimony upon Ve- p. arrest stand lant's wife 16. An must See infra closing arresting during government’s argu- and suspicion, but "the officer lazco more than strength Due to the of the evidence ment. need not have hand sufficient 740, Rieves, against Pantoja very slight pos- and level of v. 584 F.2d convict.” United States (5th 1978). prejudice, any harmless. sible error 745 Cir.

1525 States, Cir.1974). nom., case, v. United 455 In this Butler U.S. indictment and (1982), charge 72 L.Ed.2d 149 jury 102 S.Ct. also allowed the to find States, v. United and Broderick guilt possession charge on the if it found 72 L.Ed.2d pos- aided and abetted credibility- inferences and all reasonable Record, II session others. at 150. Vol. made in favor of the choices must then be aiding To an sustain conviction under However, if it is never Ibid. jury verdict. abetting theory, prosecution must show case that a trier of theless the reasonable that “the defendant associated himself with fact could not find that evidence estab venture, participated a criminal in it as doubt, guilt beyond a reasonable we lishes about, something bring he wished to duty jury’s bound to reverse the ver sought by his actions to make it succeed.” id.; Bell, v. dict. See United States Bryant, v. States 671 F.2d Cir.1982) (Unit B) banc), (5th (en F.2d 547 Schwartz, (11th Cir.1982); 356, 103 grounds, on other affd (11th Cir.1982). prov- (1983). 76 L.Ed.2d 638 ing that a defendant aided and abetted prove conspiracy, To the offense of possession of a controlled substance with government must demonstrate that an distribute, intent to “must agreement existed between two or more connecting introduce evidence defendant crime, that people to commit a the accused aspects crime, possession both knowledge least the essential Schwartz, su- and intent to distribute.” objectives agreement, of that and that arm pra, again, 666 F.2d at 463. And the es- knowledge, voluntarily with that he ed sential aiding abetting may elements of illegal joined participated venture. proved by be direct or circumstantial evi- Blasco, supra, 1330; F.2d at Smith, dence. Vera, F.2d 1349, (11th Cir.1983). join Even if a defendant did not against Pal-Sali, The evidence Nu conspiracy inception, until after its nez and Guerrero on both the substantive played only if role in the even minor *6 possession charge conspiracy and the scheme, may whole he still be convicted. charge extremely Specifically, is thin. the 887, Tamargo, 672 F.2d government any never established that of (11th Cir.1982). Inferences the 889 or the three had ever known even encoun alleged participants conduct of the or from Pantoja night tered or Diaz before the of circumstantial evidence of a scheme other Although the raid. Guerrero was observed may provide establishing the basis for talking Pantoja night and Diaz on the with existed. Blas conspiratorial agreement raid, regarding there is no evidence co, supra, 1330; F.2d at 702 724, (11th long how Guerrero had known the two. Spradlen, 662 F.2d 727 Cir. Nunez, 1981) standing . Pal-Sali and inside the of fice, were nowhere near and Diaz Likewise, possession of a con trial, At when officers arrived. Ve to trolled substance with intent distribute specifically during nego lazco testified that may proved be circumstantial as well as Pantoja, tiations of the deal with not one of States v. Bustos- United direct evidence. appellants’ the other three names was ever Guzman, 685 F.2d 1278, (11th 1280 Cir. mentioned. Velazco had never even heard 1982) may . Intent to distribute be inferred Record, appellants of before their arrest. from the amount of contraband. Tamar 78, guilt by IIVol. at 83. While association go, supra, 672 F.2d at 890. Possession attach, Blasco, su sanguinity may or not constructive; may either actual or if the be pra, 702 F.2d at 1330, United States v. accused exercised “some measure of do Jackson, (5th Cir.), 588 F.2d 1056 contraband,” minion or control over the denied, cert. 99 exclusively either association with preexist L.Ed.2d 310 evidence of a others, constructively possessed it. relationship among may supra, 1330; ing the accused Blasco F.2d at be (5th Maspero, 496 F.2d considered as a factor. United States v. States v. (11th Cir.1983); much the his fa- ment makes of fact that Cole, MacPherson, Although that ther owned the station. (Unit B). Cir.1981) likely is (5th That factor fact makes it somewhat more being the instant case. the Guerrero knew that station was notably absent transaction, drug the the used for evidence showing that is also no evidence There significant in other facts in is not view of han- appellants had ever any of the three short, many assumptions the case. too they knew of drugs or that even the dled ownership his father’s stand between bay. presence in service drug’s the the the conclusion that Guerre- the station and fingerprint government presented no ro knew about or aided the deal.9 The methaqualone. from the boxes evidence suggests premis- record that others on the any of testimony appellants placed No night employees to es that claimed be bay prior to the raid. While in the service There is no evidence to indi- the station. undertaking was knowledge that a criminal Guerrero, some other cate that rather than occurring not be sufficient sustain would employee, the station to be used authorized convictions, be such evidence would drug importantly, for a deal. there is More Smith, States v. probative. See United nothing to show that authorization was Again, actually given. That his father owned not to be though, that is found evidence exculpatory station could even be seen as this case. Guerrero; regard likely he more with is government did establish What being legitimate present had a reason for appellants was on each closing after the station’s time. Guerrero’s premises closing with after service conviction, only presence on his based That pump lights not illuminated. area ownership the station and his father’s open for business and the station was entirely odds lights extin- pump area “reasonable doubt” standard. of the other guished, even context against Pal-Sali and facts, hardly link established insufficient, above, clearly while is somewhat As drug transaction. noted presented stronger against than that Guerrero. Pal- no evidence that employees Nunez were closer than Guerrero three were not station. Sali and And, employees, if were not They even when the raid occurred. operating presence adjacent the station after were in the office to the service hours does not itself indicate that in which the boxes of present play part some This, however, does not dem- were found. beyond controversy sale. It is a matter that Nunez or knew that onstrate Pal-Sali *7 presence physical that mere at the of scene drugs at the station. The ser- there were support a crime cannot a conviction. Unit- room, bay separate is connected to vice a Miller, 1051, v. 1053 ed States 693 F.2d being In by the office a door. addition to (11th Cir.1982); MacPherson, supra, 664 however, present at the Pal-Sali 74; Ferg, F.2d at States v. 504 F.2d United attempted they to flee and Nunez when (5th 914, Cir.1974); v. Still, approached by armed officers. 1353, (5th Stephenson, Cir. 474 F.2d factors, presence two at scene of these 1973). Conspiracy implies much than more more, flight, without crime and proximity purported coconspira- to physical prove insufficient to commissionof a crime. tors; possession physical entails more than Lopez-Llerena, States v. to proximity the controlled substance. 311, (11th Cir.1983); DeSimone, supra, (cid:127) 537; Flores, at 660 F.2d regard in this States appellants With to three 718-19 In case, 564 F.2d has demonstrated Pintado, 715 F.2d 1501 very presence their little besides (11th Cir.1983), case, a con- govern- the Court reviewed Guerrero’s station.. Barrera, containing de is to United. contraband insufficient con- 9. Cf. (mere (5th Cir.1977) ownership possession). a vehi- stitute of constructive marijuana. possession prior viction for of The precedent, Consistent with we find present defendant was in a house where a presence that the Nunez Pal-Sali and delivery occurred, and marijuana police coupled flight the site of raid hiding in Reversing found him a closet. support from officers is to insufficient conviction, the defendant’s the Court relied their convictions.12 holding presence on that the DeSimone The doctrine that must be evidence suffi- flight prove is inadequate followed to a prove cient to guilty that a is defendant specific crime. Recognizing subse- beyond a in reasonable doubt has recent quent adopted DeSimone Circuit years become somewhat more elastic. In- sufficiency a new for standard evidence deed, deciding claims of insufficient evi- review,10 the Pintado Court nonetheless dence, longer courts no must assure them- good held that continued as DeSimone law. selves that every the evidence excludes rea- 715 F.2d at 1504. hypothesis Bell, sonable of innocence. su- “objective Absent or facts circumstances pra, mean, 678 F.2d at 549. That does not appellant’s knowledge from which however, juries can convict on the inferred,” ongoing operation pres- could be suspicion, basis of mere on the barest of plus flight inadequate ence up- remains circumstantial evidence that can be hold a conviction. Id. at 1505. No such squared hypotheses with endless of inno- objective or facts circumstances exist in the cence. proof beyond doctrine instant There case. is no evidence that the doubt, though reasonable of ancient vin- appellants three being saw the boxes tage, yet has not been discarded. The placed the service or that had government put must still be to its consti- bay prior been inside the raid.11 No tutionally mandated task. odors; noises, one testified as to telltale of appellant Pantoja-Soto conviction sights at the station from which a is appel- AFFIRMED. The convictions could have inferred that knew of lants Pal-Sali and Guerrero are RE- drug’s presence. Compare Blasco, su- VERSED. pra, 1332(marijuana offloading operation created noise that could be heard TJOFLAT, Judge, dissenting: Circuit in the house where defendants arrest- ed, I pungent marijuana per- compelled and a odor am I dissent because am house). vaded the air majority around convinced that the have directed Bell, supra, Analysis Guilty 10. 678 F.2d at cal Plea Practices in the Fed- Courts," eral 89 Harv.L.Rev. Supra at 11-12. right except not to be convicted guilt proves beyond provides a reasonable doubt Virginia, 12. Justice Stewart in Jackson v. very protections. plead guilty real Those who (1979) 61 L.Ed.2d 560 forego procedural safeguards that inhere in observed process; they guar- protections the trial eschew reasonable doubt is not confined those de- Boykin anteed bama, the constitution. See v. Ala- morally fendants who are blameless. Under (cid:127) 23 L.Ed.2d system justice our of criminal even a thief is (1969). important pragmatic complain 274 sense, however, Most entitled to that he has been uncon- stitutionally imprisoned up any give convicted and as a chance burglar, jury might acquit [citation omitted]. that a free them and them *8 only rights But it is not the individual any penalty. many criminal In instances thief that are stake when courts review a guilty plead defendants make the choice to after “beyond claim of insufficient The evidence. a balancing jury acquit the chance that a will goes pragmat- to the reasonable doubt standard” against possible them the reduction reduc- ic, idealogical well the as as core our crimi- penalty negotiated guilty plea tion in that a standard, justice system. evidentiary nal The brings. juries To allow to when convict against under weighed, an accused which is existing level of certitude is low the distorts directly bears most whether gives government balance and the more lever- imposed individual will suffer a age bargaining. deprives plead in It those who penalty. It so both who is for defendants chose guilty protection provided by of the basic the go to trial those who do not. For the "beyond a reasonable doubt” standard. large percentage of federal criminal defendants Finkelstein, plead guilty, see M. "A Statisti- who, not to turn on the outside traffickers ro’s decision acquittal drug of three the obviously something His submit, guilty. lights suggested sinister. I explanation, that he was concerned about time-honored, of review Our standard location, high crime was re- the station’s repeating. We must view yet worthy of held jected jury. the We have that such light in case in the a criminal the evidence explanations may give rise to implausible government, the with all favorable to most positive guilt. evidence of the evidence inferences from reasonable Eley, jury’s verdict. in favor of the Glas- drawn 60, 80, States, 315 U.S. ser v. United Fourth, the four boxes of (1942); L.Ed. 680 garage tablets were on the floor the (11th Cir.1982). Thomas, open bay. the were service Two of boxes if rea- be sustained Their verdict must drugs plain the The outside with view. of the evidence al- construction sonable were so that the could doors locked guilt beyond a to find reason- lowed them only through the office. Nunez be reached Bell, able doubt. jury in the The and Pal-Sali were office. (5th Cir.1982) (Unit B), affd they sta- was entitled' infer that were 76 L.Ed.2d guard drugs tioned there while mind, (1983).1 firmly I this With They away. certainly were authorized to suggest jurors were given to the would not have been access following facts. find view, 50,000 plain were capsules, which First, Diaz, drugs, sug- owner of the they part gang. of the unless meeting at the Texaco station. gested the Fifth, night high in a this all occurred at sufficiently acquainted with the He was neighborhood crime while the station was felt owner that he comfortable station’s Guerrero, he if was a member closed. drugs. using as a site to traffic the station investigated the gang, of the would have suggests that the sta- Common sense situation, There with haste. were unau- drug trafficking, well suited for tion was persons property on the thorized time, buy- especially night because light unlocked with the turned office was in the could be concealed ser- er’s vehicle had no investigate. on. But he did not He transfer, bay during narcotics thus vice to; gang a reason was member suspicion. avoiding going on. The and knew what was Second, Pantoja- p.m. Diaz and at 9:30 per- only common sense inference drew to the the confidential informant Soto took evidence; everyone missible from the hard sample get a of the meth- Texaco station to why they were at the knew each other and Pantoja-Soto Diaz and aqualone tablets. night. Drug traffickers like station that $35,000 not have left worth would $35,000 do not conduct narcotics these 50,000 All tablets were unattended. strangers around. transaction with bay, have some garage Finally, Nunez ran from the guard them. and Pal-Sali trusted confederates police. The law enforcement officers an- appearance of the Texaco station at police immedi- nounced that police impor- is a third the time of raid ately upon their arrival. Several marked large It relevant consideration. was tant police were involved Miami cruisers high in a a corner' lot service station on police The Miami officers were in raid. The station closed area of Miami. crime uniform, fact, carrying shotguns. some p.m. Only 5:30 for business office agents specifically enforcement police light was on when arrived. police requested the Miami to ensure their son, Guerrero, kneeling owner’s officers, recognition police as immediate Pantoja-Soto, who owned Diaz and thereby preventing appellants’ claim of driveway. drugs, by a car in the Guerre- *9 Securities, Inc., September handed down after Reynolds Fifth Circuit In Stein v. 1. (11th Cir.1982), adopted binding as this court 1981. precedent Unit B of the former all decisions of Flight police un- identity. mistaken supports strong circumstances

der these apparently guilt; majority

inference agree.

do not sum, jurors plenty of evidence to convict

on which Their should be af-

Guerrero. convictions

firmed. America,

UNITED STATES

Plaintiff-Appellant, COMMISSION, et COUNTY

DALLAS

al., Defendants-Appellees.

No. 82-7362. Appeals,

United States Court Circuit.

Eleventh

Aug.

Opinion Rehearing on Denial of

Oct.