United States v. Gilbert Espinoza-Seanez, Ernesto Espinoza-Seanez and Raul Lazarin-Becerra

These packaging * materials and the in- GEE, Before SNEED and creased activity them suspicious made WILLIAMS, Judges. Circuit illicit border traffic was taking place. On the 18th August of patrol the border inves- WILLIAMS, JERRE S. Judge: Circuit tigated the area between pillbox and appellants, Gilbert Espinoza-Seanez, the Burchfield Gate, and used helicopters Espinoza-Seanez and Raul Laza- to blow sand into old tracks so they (hereafter Gilbert, rin-Becerra Ernesto, could later determine if fresh tracks Lazarin, and respectively) were found would appear. guilty conspiracy of possess marihuana When Jennings was informed the sen- of with intent in distribute violation of 21 sory “hit” in the August 19th, area 841(a)(1) 846(1). U.S.C. and §§ Gilbert was had already observed a car driving toward also found guilty of the substantive of- pillbox area from the direction El fense possession. Gilbert received con- Paso. Jennings continued aerial surveil- current years sentences five for each lance the pillbox. around He saw vehicle count, a three-year term of supervised re- stop, parked remain lights its off for lease for possession, offense of and roughly five minutes, and then turn around $100 pursuant assessments to 18 U.S.C. and head back east towards El Paso. 3013(a); § Ernesto and Lazarin each re- year ceived five sentences special and as- At 5:50 a.m. Jennings called help sessments pursuant of $50 to 18 tracking U.S.C. the vehicle dispatcher radio 3013(a). They appeal § their convictions. called pilot, another Pilot Loren Nichols. * Judge Circuit, Circuit sitting the Ninth by designation. step bf out asked Gilbert agents helicopter in his airborne was

Nichols if he him asked then international along the west flew 5:55 and this At trunk. anything carrying informed flight he During his border. search had asked point Gilbert and was events previous Jennings phoned then The border warrant. Jen- vehicle. to the Jennings guided advice, and request supervisors their vehicle following the been nings had vehicle.” “stay clear told arriving at the spotted it he first the time Bor- phoned agent who After Nich- point at which a.m. 6:15 until pillbox back, he came Headquarters Patrol der Nich- surveillance. aerial over took ols under Gilbert, him he told handcuffed surveil- ground requesting ols called rights. Miranda his arrest, him and read by col- the automobile lance, identified and stated, arrested, Gilbert having been After person only one a sedan with as and or Go in there. It’s open it. and ahead “Go Santa near waited agents patrol it. Border agents asked The it.” open and ahead to follow began and Teresa, Mexico New that certain if he was times several Gilbert Both it. identified Nichols after the vehicle car of the a search to authorize he wanted followed the units ground the and Nichols affirmatively each replied trunk, he and onto Inter- Teresa through Santa vehicle roughly occurred conversation This time. El Paso. into and 10 East Highway state stopped. car the was after 10 minutes another meantime, Jennings and the that they were concerned stated Agents Burchfield in the landed pilot helicopter trunk, in the aliens been have might there or five four They discovered area. Gate out. them to they let wanted and so Border the fresh since footprints, of sets consent, agents the gave his he After day, previous of the investigation Patrol’s war- search a without up the trunk opened the to border the Mexican coming from marihua- of pounds They found rant. information relayed the They area. pillbox na. crossing toon Jen- apparent of the Border Patrol the taken to was Gilbert ground sur- the Jennings informed nings. cooperate to agreed He Headquarters. they stop that requested units and veilance prearranged making a DEA the with suspect vehicle. the went He marihuana. the drop off a.m., roughly 7:30 at made stop was Agent, The Garcia, Customs one agent DEA Park, in mile east Sunland one I—10 to 7-11 Agents a Patrol Border several and n Magdaleno Agent Javier Patrol have El Paso. to scheduled was he where store the stop saw the he prior to that containing testified the marihua- car over turned back, riding very low on this suspect vehicle is unclear record Although the na.1 heavy load a carrying it was was indicating that contact Gilbert’s point, apparently early an proceed- was vehicle The trunk. Gilbert store. convenience at sedan. Pontiac blue/gray name call. phone model 1970’s make toed was that there saw disclosed Magdaleno also was not called Agent he person directly El be- Señorial to the the vehicle went inside then tire spare trial. Gilbert brother, he Paso, where Gilbert’s asked where When seat. front El Bar hind the a.m. Ernesto driver, appellant Gil- at 11:30 from, Ernesto, him met coming was to questioned “Anapra, New When arrested. said Espinoza-Seanez, bert con- Pontiac that knew that he knew agents whether The border Mexico.” re- marihuana, Ernesto load of Gilbert’s car had had they tained false, because there he was that he did past two sponded surveillance direct under indicated He also up. agents pick Furthermore, the border hours. mari- transport plans knew nervous Gilbert testified El Paso. huana profusely. sweating vehicle,” Pontiac.” or "the younger broth by Gilbert's owned car was 1. The the "load to it as refer we will Hereafter er. agreed

Ernesto also to cooperate with him of the conspiracy charge. We address agents DEA and told that he each of these contentions turn. phone to make a supposed call and then I. The Search the Automobile and leave the El an Paso restaurant. Gilbert’s Arrest. After the and Agent call Ernesto Garcia to the La parked drove Rosita Cafe and in Warrantless searches must fall within parking Roughly later, lot. 40 minutes one or more well exceptions defined or Lazarin drove into parking lot and considered unreasonable and in viola- parked yards several tion of ear the Fourth Pon- Amendment. Coolidge There Hampshire, tiac. were also two New 443, 454-55, other men in the them, 2022, 2031-32, car. One of Hispanic unidentified male, We find that the got out of search in Lazarin’s this quickly got case falls within a exception, valid up- the load and we into vehicle away and drove hold the district court’s order denying agents Gil- stop could him. After this oc- motion suppress bert’s curred, evidence. arrested Lazarin and search the Pontiac justified can be coindictee Gandarilla-Castro, Jose the third as an extended border search or as an man in the car. In Lazarin’s car was a automobile search probable with cause. telephone mobile and Lazarin himself had justification Because we find for the search $1,760 person. on his Ernesto also had of the automobile on either of these $1,700 approximately possession grounds it is not necessary to consider the time of his arrest. whether Gilbert voluntarily consented to The three defendants tried and con- the search. Also Gilbert’s arrest without victed the same proceeding conspir- justified warrant can be as one for which acy possess to marihuana for distribution. there probable cause. Further, Gilbert also convicted for the possession. crime of substantive There are A. The Extended Border Search Justifi- four issues on appeal: (1) raised Gilbert cation. contends that the marihuana should have The United Supreme Court been suppressed as evidence because the has held that “[ejxcept at the border and search of the vehicle was in violation of the its functional equivalents, officers rov Fourth Amendment and because his arrest ing patrol may stop vehicles only they probable was without (2) cause. specific aware of facts, articulable to argues that the confession of Gilbert was gether with rational inferences from those used to him convict and because Gilbert facts, that reasonably suspicion warrant never took the stand he was denied his that the vehicles contain aliens may who right Sixth Amendment confront wit- illegally in the Country.” United States v. against ness him. Lazarin makes an identi- Brignoni-Ponce, 422 873, 884, U.S. 95 argument cal respect to Ernesto’s con- 2574, 2582, 45 (1975). L.Ed.2d 607 fession. Both Ernesto and Lazarin claim See also United Ortiz, States v. the use of the confessions was in 891, 896-97, 2585, 2589, 45 L.Ed.2d violation of the Supreme ruling Court’s 623 The same requirement must be Bruton v. States, 123, 88 met if the vehicle contains contraband rath During er illegal than aliens. United States v. the trial counsel for both Ernesto and Laza- Cortez, rin moved for trial severance on Bruton (1981) (referring to grounds, and both now claim that the re- reasonable suspicion of “criminal activity” grant fusal severance was reversible generally rather transportation than of il (3) error. Ernesto claims that the district legal aliens specifically). An officer at the court committed reversible error because it border or its equivalent functional may failed to a hearing hold on the voluntari- search vehicle probable without cause ness of his admissions. Lazarin claims or a warrant for reasons relating to sover that there is insufficient evidence to convict eignty; the United States as a sovereign Melendez-Gonzalez, able to control what comes United States must be state (5th Cir.1984). F.2d 410-11 through its international borders. goes applies for an A different standard satisfy The facts of this case police For a search.” “extended border requirements for an extended border three border as an extended qualify search agents stopped Before the search. border factors must be demonstrated. three search go they Pontiac had observed the First, showing of “a must be the there two miles from the isolated area high degree certainty” “a or suspicion had border where crossing has oc a border probability” that smuggling activity taking place early Delgado, curred. United morning. stopped in the The car there for Cir.1987); F.2d minutes, five then turned around and head Niver, F.2d immediately Pena-Cantu, ed back direction from (5th Cir.1981). cer Reasonable Upon investigating it had come. which requires tainty is a more standard which immediately left, area after cause, proof less probable but than than patrol footprints found fresh sets of beyond a reasonable doubt. United States previous had been made since the which Driscoll, F.2d footprints day. The went to and from the law is the established This standard place where the car had border to Niver, Fifth Circuit. applied See time, location, stopped. Given the Delgado, F.2d at 526 and evidence, physical there was a “reasonable Second, justify application 484. probability” certainty” “high or that a doctrine, the the extended border search crossing occurred, although had not border reason must with court also convinced change necessarily proof beyond condi a reasonable that no certainty able being inspected has tion of the vehicles doubt. they the time were loaded occurred “from no requirement The that there be second stopped, they until and at the border from change in the vehicle substantive when was in the that whatever [vehicles] is also satisfied. time it left they in them they when were searched patrol observed From time the border Fogel v. left the border.” United States pillbox to the by the time Gilbert’s vehicle Cir.1978). (5th man, also 586 F.2d 337 See by Barbin, apprehended he was the car was trailed States v. United (5th Cir.1984). rea Finally, there must be ground agents. It helicopters and both activity criminal suspicion that is sonable sight. their never left activity occurring. Suspicion of criminal requirement of sus- The reasonable third may arise from: activity is also satisfied. picion of criminal (1) in which characteristics of area eight of characteristics At least five encountered; (2) proximity is the vehicle in Melendez-Gonzalez listed this Circuit border; (3) patterns of traf- to the usual area in case. The where were fulfilled this road; (4) experience previous fic on the traffic; stopped, proximity its (5) the vehicle was information about alien area; (6) illegal crossings border, recent patterns of traffic the usual driver; (7) of appearance of the behavior illegal area, about recent information number, vehicle; (8) appearance and appearance of the ve- crossings, and the passengers. or behavior rear) (that riding low in the all it was hicle supra, 422 Brignonie-Ponce, States patrol agents to a reason- led the border 2582. Reasonable 95 S.Ct. at activity illegal was oc- suspicion that able any or all of suspicion is not limited Furthermore, held we have that curring. Instead case must these factors. “[e]ach near an isolated “hit” a traffic sensor particular cir- totality of the turn on the when combined with area on the border and officer is entitled cumstances” “the sus- may lead to reasonable other factors experi- light of his assess the facts in activity. illegal See United picion of entry smug- detecting illegal and ence Gordon, 712 F.2d States v. gling.” Aguirre-Va- avoided being the car away driven while lenzuela, sought. warrant South Dakota v. Opperman, 364, 367, 428 U.S. 96 S.Ct. appellant argues that there are no 3092, 3096, (1976); 49 L.Ed.2d 1000 Cooper facts in this case which distinguished his v. California, 60-62, 386 U.S. automobile and its activities from other 788, 790-91, 17 L.Ed.2d 730 In being public driven generally. Ross, 798, 806, Lacking specific suspicion, and directed 2157, 2163, urges requirements that the extended an point Court made the “[gjiven

border search were not met. authority, As nature an automobile in transit ... appellant upon relies Fris immediate intrusion necessary bie, police Cir.1977), 550 F.2d 335 in which officers are to secure the illicit particular we held that a substance.” stop was not We explicitly have held justified. Frisbie, however, that “an automo- there was mobility exigent bile’s is an no belief that activity reasonable criminal circumstance permitting a search stopped. afoot the car was without warrant before so long probable as there is cause. United court held that sensory Frisbie hits Petty, day and the time of alone could not create Cir.1979). A second justifying reason suspicion activity. reasonable of criminal exception automobile is that there is a less- The officers presence did observe the expectation er privacy in an automobile might the other factors which giv- have than in a home and close or an its office. en suspicion until the ve- after Cady Dombrowski, 433, 442, hicle already signaled had been stop. In 2523, 2528, contrast, us, case in addition to the hits and sensory day, the time of Addressing how extensive such a search crossing ascertained a border be, can we have held “police officers occurred, they saw the car drive who have legitimately stopped an automo up, stop, and double back on itself. Fur- bile who probable have cause to believe ther, they observed the condition the contraband is concealed somewhere vehicle before stop decided to it. may within it conduct a warrantless search of the automobile that is as thorough We that all a conclude three factors which magistrate could required are authorize warrant.” for search to qualify as an Mendoza, 96, 100 United States v. extended 722 search F.2d are met in this (5th Cir.1983); ease. quoting United States v. Ross, 798, 2157, 456 U.S. 72 L.Ed. B. Probable Cause and the Automobile (1982). 2d 572 Hence, agents since the Exception. could search the automobile Gilbert drove they could also search the trunk. exception Another to the Fourth Amend- requirement ment of a is the warrant probable The standard for cause for an exception” “automobile recognized first by automobile search is delineated in United Supreme Court in Carroll v. United Shaw, 367, 701 (5th F.2d 376 States, 132, 280, 267 U.S. 69 L.Ed. Cir.1983), denied, 1067, cert. 465 U.S. 104 (1925). 543 There the Court that held an 1419, S.Ct. 79 (1984). There automobile could be searched for contra- we stressed probable cause consists warrant, band without provided the offi- not of each individual datum of information cers had probable Carroll, cause to do so. being weighed but rather that the informa 155-56, 267 U.S. at 45 S.Ct. at 286. tion should be considered as a “laminated The Court justifications has stressed two total” and that it synthesis consists of a of for the exception. First, automobile police what heard, “have what mobility of an automobile know, creates risk and what they have observed as if law enforcement officers are re- 376, trained officers.” Id. at quoting quired to obtain a warrant after stopping it v. States, Smith United 833, 358 F.2d 837 but it, before searching (D.C.Cir.1966), search can be denied, cert. 1008,

533 justi- 1350, (1967). unnecessary is for us evaluate that 448 See 18 L.Ed.2d S.Ct. 87 Santos, fication, 810 however. We need not consider also, v. De Los States Tar 1326, (5th v. the voluntariness of the consent—some- 1336 U.S. F.2d (5th 1174 Cir. Here question. 791 F.2d times a difficult there are ango-Hinojos, Edwards, F.2d 1986); independent justifications v. 577 States the two other denied, Cir.1978) (en banc), (5th cert. car 883 search. 968, 458, 427 99 58 L.Ed.2d

439 S.Ct. U.S.

(1978). C. Gilbert’s Arrest. Espinoza Appellant Gilbert chal heli given information of lenges probable the existence cause for ground agents created

copter pilots to the his arrest. cause for arrest ex Probable blue/gray Pontiac the reasonable belief ists “when the facts and circumstances driving either contained which Gilbert knowledge of arresting offi from within or contraband. Aside illegal aliens hits, reasonably cer and of which he has trust time, of place, and evidence sensor border, worthy in them information sufficient foot traffic across person in a riding selves to warrant the car low also observed caution the belief that offense has been back. being committed.” or search, any stop, The initial (5th Tarango-Hinojos, F.2d by the standard of “reasonable justified Cir.1986),citing Woolery, v. United States suspicion,” a standard below articulable Cir.1982), (5th de v. cause. prohable United States nied, 74 L.Ed.2d Cir.1987), (5th Martinez, 808 F.2d Mal See also United States v. denied, rt. ce Cir.1984). donado, 735 F.2d met stop This Simply put, same series facts which not, infor If it further that test. probable stop constituted cause to stop garnered after the mation which was probable search it also constituted “An search. justified not have could cause arrest Gilbert. by a made after and caused observation grounds into stop bootstrapped cannot II. The Admission of Confessions. suspicion warranting the for reasonable Frisbie, Espinoza argues that he was stop.” Cir.1977). prejudiced the admission Gilbert’s also United See confession, Cruz, argues Cir. and Lazarin that was States 1978), prejudiced by the admission Ernesto’s grounds, overruled on other making argument both (en banc), this confession. Causey however, fact, Cir.1987). rely defendants on Bruton v. United (5th the Given 123, 1620, 20 States, S.Ct. of reason 391 U.S. stop proper because that the (1968). agent prop L.Ed.2d 476 suspicion, the border then able Gilbert, erly talked with who lied about right has under the Every defendant agent coming he was from. where “to confronted with Amendment be Sixth very nervous saw that Gilbert was against him.” Bruton holds the witnesses spare He saw sweating profusely. also right of confrontation is violated that the rear If there was in the Pontiac’s seat. tire are all tried several co-defendants when probable for search already not cause confession is used jointly, one defendant’s facts, combined with these crime, implicate another defendant agents already suspicion stand. does not take the and the confessor had, prob strengthened suspicion into cannot is that the co-defendant result 1055; United able cause. Martinez non-confessing cross examined 791 F.2d Tarango-Hinojos, States Supreme In this situation defendant. co-defendants has held that Court de- separately so that the might be tried should Finally, the search Gilbert’s can be clause It mands of the confrontation justified by his consent. been also have Cir.1984), York, See Cruz v. New met. 186, Satterfield, 827, (11th 743 F.2d 1714, (1987); 107 S.Ct. 95 L.Ed.2d 162 Bru denied, rt. 471 U.S. S.Ct. ce States, ton v. United 123, 391 U.S. 88 S.Ct. 2362, (1985); 86 L.Ed.2d 262 1620, (1968). Further, 20 L.Ed.2d 476 Cir.1981), Tavelman, 1133, 650 F.2d Supreme has Court held that if a confes denied, rt. 939, 455 U.S. 102 S.Ct. ce sion directly implicates co-defendant, 1429, (1982). 71 L.Ed.2d 649 highly prejudicial confession is so that a curative instruction is not sufficient to ob statement, Gilbert’s standing alone, of the Bruton rule. Cruz application viate identify did not implicate or Ernesto. York, v. New 186, 193, 481 U.S. confession, In Gilbert’s he said that he 1714, 1719, 95 L.Ed.2d 162 agreed to phone make a call and go then (not

The defendants meet the moved several man naming him) times dur- who was ing severance, the trial help him maintaining in transporting and distributing that the introduction of Gilbert and Ernes- marihuana. Ernesto his own arrival to's confessions prejudicial against rendezvous and implicat admissions their co-defendants. The motions were de- ed himself. Similarly, Lazarin was not upon nied our holding reliance that Bru- identified either name or any other char ton inapplicable unless the co-defend- acteristic in Ernesto’s confession. Rather ant’s confession directly incriminates the Ernesto said that he would take the Ponti non-confessing defendant without refer- ac meeting to a place where some one else other, ence to admissible evidence. “A crit- pick up. would Lazarin brought then ical Bruton claims is consideration himself picture. into the It was Lazarin’s whether the out of court statement at issue actions rather than identification of clearly implicates co-defendant; if the him in Ernesto’s confession which raised so, statement does do no serious Bru- suspicion of participation in the conspir ton issue is presented.” acy. Rather than making an identification Basey, 980, Cir.1987). past tense co-defendants “This Court has held consistently that the part of the conspiracy, both of the Bruton rule is not violated unless co-de- confessing defendants predictions made fendant’s directly statement alludes to the about future behavior part of their defendant, complaining (citations omitted). unnamed co-conspirators and the behavior true, This is even the evidence makes it implicated them. apparent that the defendant was implicated argue and Lazarin that United by some indirect references.” Pickett, 1132-33 Webster, 1054 n. 6 (6th Cir.1984), denied, cert. 469 U.S. (5th Cir.1984), sub denied nom. Hos 84 L.Ed.2d 362 sup States, kins v. ports their claim that their Bruton rights See also have been violated. That case distin v. Heffington, guishable, however, from the circumstanc Cir.1982), cert. denied sub es here. In Pickett nom. States, Giella v. United co-defendant’s name was not used and the term “the indi (1983); vidual” was inserted Castro, United v. instead. The confes States 596 F.2d 674 sion in denied, Pickett Cir.), cert. clearly implicated 963, 444 U.S. the co-de 100 S.Ct. fendant, 448, Polsgrove, (1979); 62 any L.Ed.2d 375 without States other inde Stewart, v. pendent evidence; 356, jury 579 F.2d the Cir.), 359 could recognize denied, 936, the 439 332, U.S. 99 co-defendant directly the redacted L.Ed.2d 332 Further, To confession. the same government effect at the decisions torney, of other Circuits. See United in closing argument, stated that Wilkinson, v. States 1427, “the individual” was “none other than the (2nd Cir.), cert. denied sub nom. Shipp v. defendant, Polsgrove.” Don Id. at 1132. States 1019, case, 105 S.Ct. In a similar Hodges Rose, v. (1985); L.Ed.2d 617 States cert. denied sub nom. Lewis (6th Cir.), Columbia, confession, 2243, Rose, a as defined in 98 S.Ct. (1978) (e) hereof, confes- a subsection be admissible L.Ed.2d co-defendant’s shall to referred voluntarily given. was admitted if it is sion which in evidence Be- non-confessing but the court re- defendant in such fore confession received evi- the confession and his name from dacted dence, judge shall, trial out Nevertheless, the a instead. inserted blank any determine presence jury, issue itself, standing by any confession without judge If the trial as voluntariness. jury indicated to additional evidence determines the confession was vol- at had filled blank. Id. name whose untarily it shall be admitted made evi- the Sixth Hodges and Pickett 647. both judge permit and the trial shall dence re- that the admission of the held Circuit jury to evidence on the hear relevant directly implicated the dacted confessions instruct issue voluntariness shall non-confessing such co-defendant weight jury give such the con- rights. violated his Bruton jury fession as the feels deserves un- judg- Supreme Court has reserved der all the circumstances. on issue raised the Sixth Cir- ment require The statute does not cases, express stating that “we no cuit trial court to hold a Jackson Denno admissibility of a confession opinion on the hearing when the issue of voluntariness of name has been in which the defendant’s properly a confession is not before it. symbol pro- a or neutral replaced with Gonzalez, Marsh, 481 U.S. noun.” Richardson v. requires Gonzalez 1709 n. only objection an to the introduction of But event raised, a that it confession be but also here Hodges inapplicable and Pickett are sufficiently to the court that a made clear' confession not suffi- because Gilbert’s hearing being request v. Denno Jackson Ernesto; implicate it took cient alone to v. Moffett, ed. also United See outside and statements reference to actions (5th Cir.1975). Further implicate Similarly, himself. by Ernesto to more, properly if a to chal defendant fails appearing Lazarin’s action of rendez- lenge the introduction of confession suspicion as to him—Ernesto’s vous raised raising court, he is precluded from later not. The confessions confession alone did appeal the absence a Jackson v. Denno properly admitted. 1190; hearing as error. See Gonzalez at 1380. III. The Claim. Voluntariness Moffett court erred Ernesto claims that trial raised the issue of ad Ernesto failing finding specific make re- missibility only once dur of his confession garding whether his confession was made entire course of the trial. When ing the Denno, voluntarily. In Jackson officers, Garcia, arresting Agent one of following being collo questioned, Supreme proper de- Court held that a place: quy took be made termination of voluntariness must right, and what did Mr. Question: All presence judge jury’s the trial out of say Espinoza have about the disclosure of a confession to the load of or not knew about the whether principal concern of the Court

jury. marihuana? jury if the found a confession I Your honor would make Mr. Roberts: ig- an instruction to involuntary additional objection as to voluntariness. futile, its contents was and the consid- nore objection’s overruled. The Court: The destroyed of the confession fair eration Go ahead. holding trial. This was later codified in provides in subsection U.S.C. 3501 which in the middle of objection was made § This (a): fell of notice to the court trial. It far short hearing re- brought v. Denno any prosecution that Jackson criminal attorney made quested. defendant’s of United States or the District

536 suppress no motion to Ernesto’s confession able doubt. United States v. Gardea-Car trial, explained rasco, prior any never detail (5th 830 Cir.1987). F.2d 41 It is not objection voluntariness,” his casual “as to necessary that the evidence exclude every request a Jackson Denno hear- did not hypothesis of innocence. Unit ing presence of the jury, outside failed Bell, ed States v. (5th 678 F.2d 547 Cir. Agent regarding Garcia cross-examine 1982) Unit B June on grounds, other aff'd confession, voluntariness never 2398, 76 L.Ed.2d 638 presented any evidence which raised a (1983). But, there must be substantial evi question regarding the voluntariness of Er- uphold dence to the verdict of the jury. confession, argue nesto’s and did not that Malatesta, 1379, 590 F.2d the confession was or involuntary. coerced (5th Cir.1979), sub 1382 denied nom. genuine No issue of voluntariness was States, Bertolotti v. 962, raised, and the trial court committed no 1508, 99 S.Ct. 59 L.Ed.2d 777 Fur failing reversible error in to hold a Jackson ther, when reviewing the evidence all rea v. Denno hearing.2 sonable inferences and credibility choices Finally, assuming even that a Jackson must be light viewed most favorable Denno request properly had been made to government. to the United States v. Nix court, nevertheless, the finding of the on, (5th Cir.1987), 816 F.2d 1022 cert. de — district court would stand this case. Be- nied, U.S. -, 108 S.Ct. 98 L.Ed. prisoner fore a hearing entitled to a on (1988); Glasser 2d 762 States, v. United voluntariness his confession peti- 60, 80, 315 457, 469, U.S. 86 L.Ed. tioner must “show that version (1942). A jury may choose its verdict events, true, require would the conclu- among reasonable constructions the evi sion that his confession was involuntary.” long so dence as there is evidence to estab Estelle, Martinez v. (5th 612 F.2d guilt beyond lish a reasonable doubt. Nix Cir.1980) citing to Procunier v. Atchley, on at 1029; Thomas, United States v. 446, 451, 485, 488, U.S. (5th Cir.1985). See also United L.Ed.2d Davidson, 768 F.2d 1266 In a conspiracy prosecution under Cir.1985). The defendant has present- 21 U.S.C. government § must ed any competing version of the facts ei- prove beyond (1) a reasonable doubt ther at his appeal, trial or on much less agreement existence of an between two or facts from which involuntariness of the persons more to violate the laws, narcotics confession could be inferred. (2) and that conspirator each knew of the (3) conspiracy, it, join intended to (4) Sufficiency the Evidence on IY. participate did in the conspiracy.. Lazarin’s Conspiracy Charge. States v. Magee, 238-39 Appellant urges Lazarin Natel, the evi- dence support was insufficient Cir.1987). his con- All four elements viction for conspiracy. When reviewing a uphold must found to a conspiracy con to the challenge sufficiency of the Thus, evidence proof viction. of “mere knowing conviction, to support a we decide presence” must is not sufficient to per convict a jury whether a rational could find evidence of participation son in a conspiracy. Unit which guilt beyond establishes a reason- Robertson, ed States v. appellant argues 2. The Georgia, judicial Sims v. determination whether statement voluntarily was made isit read to the applies to this case. easily However that case jury-” Id, distinguished present from the one 541-42, because: 87 S.Ct. at 641-42. In Sims the defense counsel called court's attorney attention defense raised the issue the volun- ruling the Jackson v. Denno Furthermore, this Court tariness of the confession. in that and stated that he did not “know whether the alleged case was that the defendant had his procedure being followed this time satisfies confession allega- beaten out of him. No such Supreme rule decided case, Court on tions were made in this the issue 22nd, June Court properly must make never raised.

537 1981). States, Although each element of v. (5th Cir. Hicks United U.S. charge proved (1983) must be conspiracy be S.Ct. L.Ed.2d one of the doubt, defendants, no element need

yond Talmadge Whitley, a reasonable entered a evidence, may be proved direct but conspir- be restaurant in which the rest of An from circumstantial evidence. shortly inferred phone ators were located after a agreement may be inferred “concert placed by had been drug call one Vergara, v. of action.” United States dealers to an unidentified outside associate. (5th Cir.1982). Voluntary par phone The content of the call intro- was not may “a ticipation be inferred from colloca into duced at the trial. evidence Nor was v. tion of circumstances.” United States put content of call evidence Marx, 635 F.2d plan Lazarin’s case. The for some of Malatesta, drug to dealers leave the restaurant to (5th Cir.), nom. Ber denied sub drugs test agents which undercover States, U.S. tolotti v. United them, purporting to sell while others 59 L.Ed.2d 777 Knowl safeguard money remained there to “surrounding edge may inferred from until purity drugs after the had been 61; Vergara circumstances.” at Whitley ascertained. While the res- Arredondo-Morales, spoke he taurant never to of the con- spirators, although agents he was testified very comings goings “watchful” and hand, In case entire restaurant, constantly turning his head against government case Lazarin consists to right. from left Jackson at 184. The (1) undisputed of four facts: After Ernesto court found that the most the evi- “[a]t call, phone made a and took the DEA Whitley dence shows that associated with Cafe, agents La over to Rosita Lazarin conspiracy.” others who were involved in a drove to rendezvous with two other Id. 184. The evidence was found to be (2) parked men in the After Lazarin car. infer, legally jury insufficient a to for be- got an unidentified man out of yond doubt, a Whitley and Lazarin’s and into load car knowingly voluntarily participated and in a agents quickly, eluding it off who drove conspiracy possess cocaine with intent to (3) stop attempted to him. After Lazarin may distribute. “His conviction not rest on arrested, found a cellu conjecture suspicion.” mere and Id. at phone in his car. Lazarin lar/mobile 185-186. $1,700, person approximately on his had money Er roughly the same amount of as reproduce While no case will the same nesto had. us, pattern of facts the case as three additional of this decisions Court do dispute conspiracy that a There no provide analogies. useful In both United existed, already that has es- because been Cir.1984), Blessing, 727 F.2d 353 through Ernesto tablished and Gilbert’s nom., Rodriguez rt. denied sub confessions. All the four factual show- ce States, 469 ings go remaining must three ele- (1985)and ments; con- whether Lazarin knew of the Gardea-Carrasco, Cir. join it, spiracy, participated intended to and 1987), a co-defendant was shown to have question in it. The we must ask on review closely drug trafficker, a associated evidence is whether the stated above have taken actions which rational find jury sufficient a rational knowl- interpreted advancing jury could have intent, edge, participation beyond ease, however, In each we re conspiracy. reasonable doubt. the conviction. versed presence Mere cannot establish either knowledge or participation conspiracy. Blessing in a defendant arrived in Lazarin’s, Treacy, attempting In a case somewhat similar to town with who was Jackson, agent. purchase drugs 700 F.2d 181 from an undercover nom., (5th Cir.1983), arrive in Treacy cert. denied sub stated that would “partner,” (although town with his he nev- the owner of house or one of the loaders of Blessing specified partner). er marihuana, the we found that there was Blessing rented two vehicles Treacy, with insufficient evidence to pos- convict him of government which the van con- and session of marihuana. presence Mere dur- transport were to be used to tended ing activity was not enough. however, illegal drugs. Blessing, was nev- appeared Lazarin at the rendezvous at government partic- er shown to have appointed time, Witley as did in Jack- ipated any negotiations in of the for the son, but with companions. two One of his drugs, sale he never met the undercover companions drove away. the Pontiac A agent, accompany Treacy and he not did jury might have found that La- pick up the car which was used to transfer zarin participated in conspiracy purchase money. Although evidence of a transporting the Hispanic unidentified male conspiracy and activities in furtherance of who drove off But, the load car. as in inferred, held Treacy’s could we Jackson, Blessing, Gardea-Carrasco, and knowledge conspiracy of a could not. no evidence was ever introduced from Gardea-Carrasco, defendant, Jesus, which jury a reasonable could find that was to have conspira- shown been with the Lazarin knew of the conspiracy. tors a car in which while mak- drove The presence of the telephone cellular ing arrangements furthering drug their Lazarin’s car and large trafficking, amount of cash but he was never shown to person on may have any have heard a reason- the conversations or convinced jury able participated infer it more principal likely of them. The that Laza- rin organizer drug was a smuggling of the operation visit- trafficker than if he had not ed during days Jesus’ house in had with They two them him. could have decid- operation planned, being which was and ed that these are the “tools of the trade” helped Jesus carry containing drug suitcases for a applicable trafficker. The stan- airport dard, marihuana a van at to a however, is not one of likely “more private plane. These three combined not”; facts than phone prove cash do not together, however, legally held Lazarin’s knowledge of the conspiracy be- prove knowledge sufficient to that he had yond a reasonable doubt.

of the conspiracy. We must hold that the four facts An significant additional case United together are prove insufficient to Lazarin’s Sneed, 705 F.2d 745 Cir. knowledge of the conspiracy. Although no 1983). previ Martin Sneed Jr.’s father explanations other were offered the de ously been guilty deep found involve fense, there was no proof burden of on ment organization in an imported which possible, Lazarin. It is for example, that 35,000 pounds of marihuana. Evidence Lazarin driving a friend over to the was presented present that Sneed Jr. was request restaurant the friend’s so the in a house on property the older Sneed’s “pick car,” friend could up a Texas, or some Orange, day before marihua purpose. other many “Too arrived, na innocent sce along roughly with a crew of jibe narios sparse men who later facts.” helped unload the record marihua Gonzalez, na. The marihuana was stored in house, give later one We jury Sneed all two sons helped questions pounds load 1000 deference credibility marihuana into of tes timony, a truck. There but this were two is not a case houses com where peting property, explanations Sneed being one of which one of offered. The question Sneed’s simply two sons either owned or lived in. whether the four undis It testimony puted was unclear from by the circumstantial facts are sufficient to government witnesses, however, convict conspiracy which son Lazarin of beyond a rea helped owned the house and load the mari sonable doubt. enough It is not that the huana. Because no evidence present merely defendant associated with someone ed directly identified Sneed Jr. as the who knowingly participating in a con- the to his confederate because likely was the evidence enough that is it nor spiracy the cooperation his with activi- fruits of climate of in “a defendant the places producing that individu- upon his something depended foul.” United reeks of that ty (5th parked “sever- Galvan, car al. Lazarin-Becerra v. States Immediately the evidence Pontiac. Cir.1982). yards” conclude that from the We al prove got to into the passengers not sufficient record is his two one of Lazarin doubt that away. it Lazarin-Becer- a reasonable and drove beyond Pontiac Espinozas with conspiring passengers were arrested. guilty the other was ra and distrib- intent to unquestionably with marihuana arrest possess to cause to Probable Thereafter, that La- it. it was found ute existed. telephone in his a had mobile zarin-Becerra of Gilbert uphold both summary, we In roughly equal to cash car and an amount of and Ernesto convictions Espinoza-Seanez’s suggests This that on Ernesto. found conspir- for conviction Espinoza-Seanez’s in- buyers are where two practice usual Lazarin-Becerra’s Raul reverse acy. We volved, those wholly situations not unlike conspiracy. conviction co- payable made to a check is in which RE- AND IN PART AFFIRMED payees. IN PART. VERSED did not Lazarin-Becerra It is true that concurring immediately park- in Judge, upon his car SNEED, step from Circuit Pontiac, away. it dissenting part: and drive ing, get into part so, had he been did who individual excellent Judge Williams’ I concur argue he that would no doubt apprehended, respect to its reversal except with opinion join to required intent too lacked conviction for Lazarin-Becerra’s Raul court I this would conspiracy. believe jury rational my view a conspiracy. true, Should be argument. this sustain establishes which find evidence could the fail- appears to hold that majority doubt. beyond a reasonable required intent to drive of Lazarin-Becerra ure support of Lazarin-Becer- evidence in possibility that away creates sufficient which stronger that than conviction ra’s conspirator aof an innocent chauffeur in which the four cases exists beyond a reasonable finding preclude v. Gar majority relies. See re- Lazarin-Becerra doubt that (5th Carrasco, F.2d dea agree. I cannot quired intent. F.2d 353 Blessing, 727 v. States denied, Cir.1984), cert. a con- in full realization say I this (1985); Unit L.Ed.2d prosecutions drug spiracy conviction (5th Cir. Sneed, F.2d 745 v. States ed Not easy to made obtain. not be should Jackson, 700 F.2d 1983); United States edges standing everyone around Cir.), denied, 464 U.S. conspirators. proscribed transaction 139, 78 L.Ed.2d 132 hand, which the circle into other theOn so should not must fall conspirators authorities, United States these four Of physical- only those who to include small as closely in supra, is the most Blessing, awith substance the controlled ly handled con- Blessing’s connection point. who sell and those intent pre- manifested ambiguous to sufficiently spiracy buy. intent awith manifested that he hold cash jury finding by a rational clude circuit in place this case does not specific While this deliberate, knowing, and “had step in that direction. position, it is 727 F.2d at conspiracy.” join intent Gordon, not take. step I would It is a (quoting Cir.1983)). Here Laza- quite different. case is This following Ernesto’s appeared

rin-Becerra sufficiently proximate time call at a

phone permit the inference call to very call to it. Ernesto’s response in

Case Details

Case Name: United States v. Gilbert Espinoza-Seanez, Ernesto Espinoza-Seanez and Raul Lazarin-Becerra

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 1, 1989

Citation: 862 F.2d 526

Docket Number: 88-1026

Court Abbreviation: 5th Cir.