UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID EUGENE KESSLER, WILLIAM PEARSON KESSLER, AND GEORGE ROBERT HURLBURT, Defendants-Appellants.
No. 98-50071
United States Court of Appeals, Fifth Circuit
December 2, 1998
Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.
Appeal from the United States District Court for the Western District of Texas (EP-97-CR-602-DB)
David Kessler, William Kessler, and George Hurlburt, the defendants-appellants, challenge their individual convictions and sentences relating to a conspiracy to distribute marijuana. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Balderrama stopped and searched the van, finding no narcotics. The driver, Leonardo Valencia, told Balderrama that the van‘s side door was open because it was broken, but upon inspection, Balderrama determined that the door would close and was not broken. Balderrama asked Valencia where he was coming from, and Valencia responded “from here,” “from my ranch, here,”
The ranch was enclosed by pipe fencing, and when the agents arrived the gate to the property was open. The agents noticed a sign next to the open gate that read “Car Parking,” with an arrow pointing onto the ranch property. Valencia identified a barn inside the gate as containing marijuana. The agents drove through the open gate and entered a driveway, following the sign‘s directions toward parking.
When additional officers arrived, they approached the barn that Valencia had indicated contained marijuana. Officer Frank Hernandez stated that he smelled marijuana and heard voices as he approached the barn. Hernandez subsequently looked through an open door to the barn and saw boxes and an individual walking next to a van. An officer asked the occupants of the building to step outside, and all three appellants exited the barn and were arrested. Incident to the appellants’ arrests, the agents conducted security sweeps of the barn and the house. During the
After conducting the security sweep, two agents left the ranch to obtain a search warrant for the barn, the residence, and the vehicles. The affidavit in support of the warrant did not reference any observations made during the security sweep. The agents returned to the ranch with a warrant three hours later and searched the barn, yielding what they had found before, as well as packing materials, an odor gun, cat litter, and a document that appeared to be a drug ledger. The officers also found $36,000 in cash in the house. In all, the agents found about 4000 pounds of marijuana, including 1800 pounds found in a van parked inside the barn.
George Hurlburt (Hurlburt) allowed an FBI special agent to search his trailer. Upon entering the trailer, the agent saw a revolver on the night stand and crack cocaine and marijuana on a bureau in the bedroom. After Hurlburt was advised of, and waived, his constitutional rights, he disclaimed ownership of the marijuana in the barn.
After William Kessler was advised of his constitutional rights, he admitted that there was marijuana in the barn, but claimed that he had only entered the barn twenty minutes earlier to talk to Hurlburt and David Kessler, his brother. After initially denying knowledge concerning who owned the ranch,
The appellants, along with two other codefendants, were charged with possession with intent to distribute marijuana, see
Following a jury trial, William Kessler was convicted of both counts. David Kessler and Hurlburt were convicted of the conspiracy count and acquitted of the possession charge. David Kessler and William Kessler were sentenced to 130 months of imprisonment followed by five years of supervised release and were ordered to pay a $2000 fine. Hurlburt received the same penalty with five additional months of imprisonment.
Appellants then filed a motion for a new trial based on newly discovered evidence. The evidence referred to in the motion (collectively referred to as the Oklahoma City evidence) consisted of government documents concerning investigations of narcotics trafficking from El Paso to Oklahoma City, which the
II. DISCUSSION
The appellants make several arguments in support of their appeals. The appellants first contend that the trial court erred in denying their motion to suppress evidence, and that the admissible evidence was insufficient as a matter of law to support their convictions. Next, the appellants argue that the trial court erred in refusing to force the government to reveal the identity of the informant and in denying their motion to depose a foreign witness. The appellants also argue that the district court erred in denying their new trial motion based on newly discovered evidence, and that the government‘s failure to disclose this evidence violated Brady v. Maryland, 373 U.S. 83 (1963).
A. The Suppression Motion
The appellants challenge the agents’ entry onto the ranch, the security sweep, their arrests, and the search conducted after the agents obtained a warrant on Fourth Amendment grounds. In reviewing a district court‘s ruling on a motion to suppress, we review questions of law de novo. See United States v. Baker, 47 F.3d 691, 692-93 (5th Cir. 1995); United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993). We consider the evidence in the light most favorable to the prevailing party and accept the district court‘s factual findings unless clearly erroneous or influenced by an incorrect view of the law. See Baker, 47 F.3d at 693; Alvarez, 6 F.3d at 289.
The entry by the agents onto the ranch property and their subsequent drive to the barn did not violate the appellants’ Fourth Amendment rights. It is true that warrantless searches violate the Fourth Amendment unless they fall within a specific exception to the general rule. See United States v. Karo, 468 U.S. 705, 717 (1984); United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997), cert. denied, 118 S. Ct. 726 (1998), and cert. denied, 118 S. Ct. 1084 (1998). However, consent to search is one such exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995). Here, the agents relied on Valencia, a third party, to consent to the search. When the government seeks to justify a consent search on the theory that consent was lawfully obtained from a third party, the government must prove by a preponderance of the evidence that the third party had either actual or apparent authority to consent. See Gonzales, 121 F.3d at 938; United States v. Jaras, 86 F.3d 383, 388-89 (5th Cir. 1996). To establish that a third party had apparent authority to consent, the government need only show that the agents “reasonably believed that the third party was authorized to consent.” Gonzales, 121 F.3d at 938 (citing Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)); see Jaras, 86 F.3d at 389.
The district court found that the agents reasonably believed Valencia had the authority to consent to the agents’ entering the ranch. The court credited Balderrama‘s testimony that Valencia told him he left marijuana at “his ranch,” that he had seen Valencia exit the ranch in the van, that Valencia had identified the barn as the place where he had left marijuana, and that Valencia had consented to their entry onto the property. The district court also explicitly found Valencia‘s testimony that he had not consented incredible. The district court‘s findings of fact are not clearly erroneous, and they suffice to prove that the agents reasonably believed Valencia had authority to consent to their entry onto the property and their drive toward the barn.
In addition, the driveway leading to the barn was not entitled to Fourth Amendment protection. The Fourth Amendment protects homes and the areas immediately surrounding homes, known as the curtilage of the dwelling. See United States v. Dunn, 480 U.S. 294, 300 (1987). The primary issue in determining whether an area is part of the curtilage is whether the area “is so intimately tied to the home itself that it should be placed under the home‘s ‘umbrella’ of Fourth Amendment protection.” Id. at 301.
Areas that are accessible to the public, such as the driveway leading to the barn, are afforded less protection than residences. See, e.g., United States v. Thomas, 120 F.3d 564, 571-72 (5th Cir. 1997), cert. denied sub nom. Harmon v. United States, 118 S. Ct. 721 (1998) and cert. denied, 118 S. Ct. 721 (1998) (finding that principal means of access to an apartment was not protected by Fourth Amendment); Krause v. Penny, 837 F.2d 595, 597 (2d Cir. 1988) (stating that there is substantial “authority for the proposition that areas such as driveways that are readily accessible to visitors are not entitled to the same degree of Fourth Amendment protection as are the interiors of defendants’ houses“).
In Dunn, the Supreme Court articulated a four-factor test as an analytical tool in assessing whether an area is part of the
The district court‘s factual findings, which the appellants do not contest, strongly support a conclusion that, under Dunn, the driveway at issue here is not part of the curtilage. First, the district court found that the parking area where the agents parked was twenty yards away from the home. From this finding, we can infer that the driveway and the barn “should be treated as an adjunct” of the house, and should not be granted the same protection as the house itself. Dunn, 480 U.S. at 302; see United States v. Traynor, 990 F.2d 1153, 1158 (9th Cir. 1993) (finding that a structure about twenty five yards from a home was not protected) (citing United States v. Pace, 955 F.2d 270, 273 (5th Cir. 1992)); United States v. Calabrese, 825 F.2d 1342, 1350 (9th Cir. 1987) (finding that a structure located fifty feet from a residence was not protected under the Fourth Amendment).
While the district court found that the driveway area was surrounded by a fence, we agree with its analysis that the second Dunn factor weighs only slightly in favor of the appellants, as the fence encloses a rural area much larger than the house itself. As such, the fence does not “demark a specific area of land immediately adjacent to the house that is readily
The district court‘s factual findings regarding the third and fourth Dunn standards strongly indicate that the driveway should not be considered curtilage. The court found that the driveway is used by ranch residents, visitors, and others for access to the house and barn and for parking; that the gates to the driveway were open; that the owner had not taken any steps to indicate that permission was necessary to gain entrance to the driveway; that there was no bell or buzzer with which the agents could have announced their arrival; that the “Car Parking” sign indicated that parking was readily available further down the driveway; and that the pipe fence provided no visual privacy. These factual findings, all amply supported by the record, indicate that the driveway was put toward public use and that there were no steps taken to protect the area from observation. See Thomas, 120 F.3d at 571 (finding that an open gate and other
Based on the application of the Dunn factors to its factual findings, the district court properly concluded that the driveway was not so intimately tied to the home that it should protected by the Fourth Amendment. The agents therefore did not violate the appellants’ Fourth Amendment rights in entering the ranch property and driving on the driveway toward the barn. See Thomas, 120 F.3d at 571-72; Pace, 955 F.2d at 275.
The appellants next argue that the agents’ security sweep of the barn and the home violated their Fourth Amendment rights. However, the district court found, and our review of the record confirms, that the search warrant eventually obtained by the agents to search the property did not contain any statements regarding evidence found during the protective sweep. Because, as we explain below, the agents’ reliance on the search warrant was not unreasonable, the district court did not err in refusing to suppress evidence on this ground. See United States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997) (finding no Fourth Amendment violation based on alleged protective sweep because officers relied on observations made before sweep in warrant request); United States v. Warren, 16 F.3d 247, 253 (8th Cir. 1994) (“The motion to suppress was properly denied because the search warrant was not based on any evidence discerned from the entry and protective sweep.“) (citing Segura v. United States, 468 U.S. 796, 805 (1984)). We therefore need not address the question of whether the search of the barn and house conducted before the agents obtained the search warrant was valid as a protective sweep under Maryland v. Buie, 494 U.S. 325, 334-35 (1990).
The appellants next attack the validity of the search warrant eventually obtained to search the property. We employ a two-step process for reviewing a district court‘s conclusion concerning the sufficiency of a warrant. See United States v. Richardson, 943 F.2d 547, 549 (5th Cir. 1991). First, we determine whether the good-faith exception to the exclusionary rule applies. See United States v. Leon, 468 U.S. 897, 922-23 (1984); United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). Only if a novel legal question is presented or the good-faith exception does not apply must we then “ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (ellipses and brackets in original) (internal quotation marks omitted). If the good-faith exception applies, the court need not reach the question of probable cause. See Satterwhite, 980 F.2d at 320; United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence
In Leon, the Supreme Court established the good-faith exception, holding that “evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible in the prosecution‘s case-in-chief, even though the affidavit on which the warrant was based was insufficient to establish probable cause.” Craig, 861 F.2d at 821 (citing Leon, 468 U.S. at 922-23). “Issuance of a warrant by a magistrate normally suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to the warrant.” Id. However, an officer cannot establish good faith reliance when a warrant is “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923 (internal quotation marks omitted).
The affidavit in support of the search warrant in this case provided sufficient “indicia of probable cause” for reasonable law enforcement officers to believe that the procured warrant was valid. The affidavit recounted the circumstances concerning the initial stop of Valencia, including his exit from the ranch, his apparent counter-surveillance driving, and his statement that the stop of his van concerned marijuana. The affidavit also related that Valencia had taken the agents to the ranch and pointed out a large building as containing marijuana. In addition, it stated
Lastly, the district court did not err in concluding that the warrantless arrests of the appellants were valid. The Fourth Amendment requires that a warrantless arrest be based upon probable cause. See United States v. Shugart, 117 F.3d 838, 846 (5th Cir. 1997), cert. denied, 118 S. Ct. 433 (1997); United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996). Probable cause exists when “the totality of facts and circumstances within an officer‘s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed an offense.” United States v. Hebert, 131 F.3d 514, 524 (5th Cir. 1997), cert. denied, 118 S. Ct. 1571 (1998) (citing United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995)); see Shugart, 117 F.3d at 846.
The agents who arrested the appellants had sufficient knowledge to conclude that Hurlburt and the Kesslers had committed an offense. The district court found at the suppression hearing that Valencia told the agents there was
B. The Sufficiency of the Evidence
The appellants next contend that the evidence presented at trial was insufficient as a matter of law to support their convictions for conspiracy to possess with intent to distribute marijuana and/or possession with intent to distribute marijuana. In reviewing a challenge based on factual sufficiency, this court must determine whether a rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. See United States v. Hemmingson, 157 F.3d 347, 353 (5th Cir. 1998); United States v. Dupre, 117 F.3d 810, 818 (5th Cir. 1997), cert. denied, 118 S. Ct. 857 (1998). The court must view the evidence in the light most favorable to the government and accept all reasonable inferences in the government‘s favor. See Hemmingson, 157 F.3d at 353; United States v. Ivey, 949 F.2d 759, 766 (5th Cir. 1991). Inconsistency in a jury‘s verdict is not ground for appeal. See Harris v. Rivera, 454 U.S. 339, 345 (1981); United States v. Price, 750 F.2d 363, 365 (5th Cir. 1985).
Only William Kessler was convicted of the
All three appellants argue that the evidence was insufficient to support their convictions for conspiring with intent to distribute marijuana, in violation of
The crux of the appellants’ argument is that they were “merely present” in the barn and that there is no evidence specifically linking them to a conspiracy with intent to distribute the marijuana found inside the barn. Although it is true that “mere presence” alone will not support an inference of participation in a conspiracy, see id. at 537, presence combined with other circumstantial evidence is sufficient, see United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997), cert. denied sub nom. Peoples v. United States, 118 S. Ct. 1059 (1998), and cert. denied sub nom. Green v. United States, 118 S. Ct. 1060 (1998). Rational inferences from the evidence presented at trial belie the appellants’ claim that they were merely present inside the barn and provide sufficient evidence of concert of action. The three appellants emerged together from the barn, in which the 4000 pounds of marijuana was found scattered on the floor, in boxes, in bundles, and inside a van. There were three sets of gloves found inside the barn, near packing materials such as tape, boxes, and cat litter. Several of the boxes were in various stages of packaging. Agents found marijuana residue on Hurlburt‘s clothes and hands. “[P]articipation in a conspiracy can be inferred from a development and collocation of
C. The Identity of the Confidential Informant
Appellants next contend that the district court erred in refusing to order the disclosure of the identity of the confidential informant. In determining whether to order the disclosure of the identity of a government witness, a trial court must balance three factors: (1) the level of the informant‘s involvement in the alleged activity, (2) the helpfulness of disclosure to the asserted defense, and (3) the government‘s interest in nondisclosure. See United States v. Singh, 922 F.2d 1169, 1171-72 (5th Cir. 1991); United States v. De Los Santos, 810 F.2d 1326, 1332 (5th Cir. 1987). This court may reverse a conviction on the basis of the trial court‘s decision not to force the release of the identity of a government informant if the trial court abused its discretion in balancing these factors. See United States v. Vizcarra-Porras, 889 F.2d 1435, 1438 (5th Cir. 1989); De Los Santos, 810 F.2d at 1332. Any factual findings on which the court‘s legal conclusion rests are subject to the clearly erroneous standard. See Vizcarra-Porras, 889 F.2d at 1438.
D. The Foreign Deposition
Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition.
The district court found that there were no exceptional circumstances under
The district court‘s decision not to permit the foreign deposition was not an abuse of its considerable discretion. When
E. The Newly Discovered Evidence
The appellants next argument concerns the Oklahoma City evidence, which the appellants claim identifies other individuals
We review the district court‘s Brady determination de novo. See United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997), cert. denied, 118 S. Ct. 1581 (1998); United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995). To succeed on their Brady claims, the appellants must show (1) that the prosecution suppressed or withheld evidence (2) favorable to their defense and (3) material to guilt or punishment. See Brady, 373 U.S. at 87; United States v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996), cert. denied, 117 S. Ct. 965 (1997). Undisclosed evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). A reasonable probability is one that “‘undermines confidence in the outcome of the trial.‘” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678).
The appellants’ principal contention is that the evidence, specifically the testimony of Michael Bakios, a government agent testifying in the Oklahoma City criminal trial, exculpates them by proving that the marijuana found in the barn was not owned by
The Oklahoma City evidence is not material. At best, this evidence supports an inference that the appellants were part of a larger conspiracy, perhaps including Contreras and Samaniego. This inference is irrelevant--the government never alleged that the appellants were the only distributors and suppliers of the marijuana. In fact, as the district court pointed out, the appellants’ indictment stated that the conspiracy involved “others unknown to the Grand Jury.”
Title to the marijuana is not an element of either offense with which the appellants were charged. Regarding the possession charge, the government merely needed to prove that the appellants knowingly possessed the drugs with an intent to distribute them. As discussed above, possession under
The appellants also maintain that the district court erred in denying their motion for a new trial based on the newly discovered Oklahoma City evidence. We review a denial of a new trial based on newly discovered evidence for an abuse of discretion. See United States v. Jaramillo, 42 F.3d 920, 924 (5th Cir. 1995); United States v. Miliet, 804 F.2d 853, 859 (5th Cir. 1986). We disfavor these motions and view them with great caution. See Jaramillo, 42 F.3d at 924; United States v. Pena, 949 F.2d 751, 758 (5th Cir. 1991). To receive a new trial on the
We find no merit to the appellants’ argument that the district court abused its discretion in denying the new trial motion. As discussed in our analysis of the Brady issue, the evidence is not material; the possibility that the appellants were part of a larger conspiracy and that not all alleged conspirators were tried together in the same trial does not exculpate the appellants in any way. In addition, the appellants must fail with regard to the fifth new trial element, as evidence is only material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. Therefore, under the fifth element, we are confident that the evidence would not have produced an acquittal. The appellants
F. The Calculation of the Sentences
Lastly, the appellants argue that the district court erred in basing their sentences upon the 3987 pounds of marijuana found throughout the barn from which the appellants emerged. Specifically, the appellants assert that the district court erred because only a small percentage of the bundled substance found in the barn was tested, because it included the marijuana found inside the van parked in the barn, and because it did not make foreseeability findings related to the marijuana.
The trial court‘s determination of the amount of drugs attributable to a defendant at sentencing is a factual finding reviewable under the clearly erroneous standard. See United States v. Alix, 86 F.3d 429, 436 (5th Cir. 1996); United States v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990). A clearly erroneous finding is one that is not plausible in the light of the record viewed in its entirety. See Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985); United States v. Murillo, 902 F.2d 1169, 1173 (5th Cir. 1990) (applying the Anderson standard in a sentencing guideline context). In determining drug quantities, the district court may consider any evidence which has
The presentence report (PSR) recommended that William Kessler be held accountable for 1808.50 kilograms (3987 pounds) of marijuana, the quantity of marijuana seized from the barn and from inside the van parked in the barn. The probation office recommended that Hurlburt and David Kessler be held accountable for this quantity as well as an additional 498.96 kilograms of marijuana seized from them in Mississippi in a different case. Hurlburt and David Kessler objected that the marijuana from the Mississippi case should not be used to determine their sentences, and the district court granted their objection. All appellants objected that they should not be held accountable for the marijuana inside the van and that they should not be held accountable for any substance not actually tested. These objections were overruled.
The district court therefore did not clearly err in sentencing the appellants based on the full amount of marijuana found inside the barn on the night of their arrests. Other than objecting to the PSR, the appellants provide no support for their assertions that not all of the substance found in the barn was marijuana and that they should not be held accountable for the marijuana found inside the van parked in the barn. The court was permitted to rely on the PSR conclusions and the trial testimony that trained agents determined that all of the substance in the barn was marijuana, and that the marijuana found in the van was part of the repackaging operation being conducted in the barn. These findings are plausible in light of the record, and we will
Finally, the appellants’ contend that the district court erred in failing to make an express finding that the conspiratorial activity was foreseeable. We find no merit to this claim. U.S.S.G. § 1B1.3 requires that in a conspiracy, drug quantities reasonably foreseeable to the defendant and those quantities with which he is directly associated be used to determine the offense level. We have rejected the proposition that a court must make a “catechismic regurgitation of each fact determined” when the findings in the PSR at issue are clear enough that the reviewing court is not left to second-guess the basis for the sentencing decision. United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994) (quoting United States v. Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992)); see United States v. Hooten, 942 F.2d 878, 881 (5th Cir. 1991). Here, the PSR set forth specific facts demonstrating that all of the marijuana found in the barn was part of a common scheme or plan and that it was reasonably foreseeable to the appellants that the entire amount was part of the criminal activity. No appellant has
III. CONCLUSION
For the foregoing reasons, the appellants’ convictions and sentences are AFFIRMED.