United States v. Ricardo Alonza Gomez, Antonio Reyes Espinoza and Gilbert Barnett Hartman

DPS, ad- again contacted tipster mous RANDALL, HILL, Before DAVIS and promised vising them that Judges. Circuit morning place that would take transaction tipster Texas. The Seguin, ranch in at a (cid:127)AMENDED OPINION of the mari- the owner stated that further Texas, ap- Harlingen, and juana was from DAVIS, Judge. W. EUGENE Circuit for own- phone number parently gave a Gomez, Reyes Ricardo Alonza Antonio Finally, the there. supposed residence er’s appeal and Hartman their Gilbert if the individuals stated that informant possess convictions for with they were followed Marriott rooms aiding intent to distribute and up place end would abetting one another in the and substantive to this informa- response transaction. possession offense of with intent to distrib- again tion, were once Marriott rooms ute We find the evidence intro- a.m., At 11:28 Es- put under surveillance. duced at trial was insufficient to sustain drove room 1406 and emerged from pinoza convictions, but affirm the con- airport, to the woman unidentified an and Hartman. victions Gomez Houston and plane she boarded where genesis telephone in a This case had its returned Espinoza then Harlingen, Texas. Department received the Texas call call hotel, making phone after and to the 5, 1983, (DPS) Safety Public on June Later, to the room. lobby, returned in the anonymous conveyed which an informant luggage from room some moved Gomez following the information contained in the afterwards, Shortly 1406. 1408 to room testimony: to a automobile a Ford Espinoza drove department “This received information Hartman, Inn, and re- picked up Holiday staying in an subjects room 1408 of 12:45 all three the Marriott. turned to At. Antone,” gave hotel in San unknown returned Marriott and left the defendants number, phone which turned out to dropped Holiday Inn. Gomez to the North; Inn be the Marriott Inn; and Hart- Holiday at the off driving a stolen van loaded with toward drove north Ford then man 2,000 pounds marijuana scheduled to jour- point in this At some Texas. Seguin, seven o’clock and be moved between truck or by a U-Haul joined ney they were eight ‘this date’ o’clock which was the by Gomez. van driven 5th of June of and the arriving Seguin, 841(a)(1) and of 21 On U.S.C. and 21 U.S.C. § Kentucky Hartman at a Fried aiding abetting one another § establishment, Gomez drove Chicken while possession intent to distribute country the U-Haul to a residence violation 21 U.S.C. Seguin. outside Officers observed the 841(a)(1)and 18 U.S.C. § § parked next to a metal shed and truck appeal, In this the defendants contend outside standing Gomez the shed observed that a improprieties number of in their individual, speaking to another but saw joint require (1) arrests and trial reversal: nothing actually being or loaded unloaded their arrests and the searches of their ve- approximately truck. After cause, hicles were probable without minutes, Kentucky returned therefore seized from their restaurant, where Fried Chicken Hartman persons and the vehicles was improperly place wheel of took behind the admitted; (2) government’s delay in Hartman then drove east on I—10 U-Haul. obtaining the federal indictment violated U-Haul; in the Gomez and drove right their sixth later, in amendment to a speedy the Ford. A miles west few at time, trial as well approximately police Speedy Act, the same as the Trial 3161(b); (3) both the U-Haul and the Ford. prejudicial U.S.C. poten- the § of the tial evidence seized from the Mar- Kidd that on stopping Officer testified riott room outweighed probative value, its U-Haul he the observed debris and it was erroneously admitted; therefore tailgate portion on the truck and (4) challenges and each defendant the suffi- an smelled odor of Hartman ciency of the evidence sustain respec- to allowing signed consent form a search of truck, 1,181 tive conviction. yielded pounds which agreement bearing and a rental I. Fourth Amendment Issues Ford, at Hartman’s name. Back Go- from seized the de- mez and detained. were After persons fendants’ vehicles or which was in was discovered the U- introduced at trial was the found Haul, they site, were taken to that back U-Haul, in the the small additional amount where both were searched and a small boot, in (apparently) found Gomez’ quantity marijuana, appear- in similar agreement rental from U-Haul. The truck, ance to that found in the was found defendants contend that searches which following in day, Gomez’ boot. The room uncovered this evidence were carried out at San Antonio Marriott was probable necessary without the cause for materials, including searched and various suspicion arrest pages an or the reasonable neces- bearing appeared notebook what to income, computations expense sary Terry stop.1 disagree, for a We be- profit, were agents seized. the law cause enforcement were justify to of sufficient facts a rea- aware Espinoza, Gomez and Hartman were first suspicion sonable that criminal on charges indicted state but for taking place justify an thus initial not immediately apparent reasons from the stop Terry vehicles. After the both record, charges ultimately these were dis- stopped,' events vehicles unfolded missed. June a two-count federal a fashion that arrests and such subse- charging indictment returned three quent probable on possess with searches were defendants mar- based with ijuana intent to distribute violation cause. truck, Ohio, Terry challenge 88 S.Ct. the search of the which Hart- See government argues driving. at least one defendant L.Ed.2d man Since seizure, challenge brief that not all of the defendants have is entitled to each and since its standing challenge constitutionality ultimately challenges to be of the we find these with- evidence; merit, necessary example, of all we do it to reach out not find seizure standing question. should not be allowed to information and conclusion the informant’s stop Terry under investigatory A valid taking place.3 The terms, requires that criminal conduct simplest progeny, its agreement, general are in appeals by police offi- courts conclusion a reasonable anon- however, the details of an that when that some experience, cer, light of his tip are ymous informant’s corroborated taking place.2 activity is kind of criminal may give rise investigation, it independent based on must be suspicion Reasonable degree of which, suspicion.4 The to a reasonable taken facts “specific and articulable upon the required depends inferences from corroboration rational

together case. For particular intru- circumstances facts, reasonably warrant that those anonymous tip from an example, an at when at 88 S.Ct. Terry, sion.” tipster is corroborated observa- untried Finally, these at 906. 20 L.Ed.2d evidence of facts are actual objective tion of which against an judged facts must “be may give rise activity, tip even criminal the facts available Would standard: requires a probable cause5—which seizure ... ‘war- the moment of officer at proof than the reason- greater amount of caution a man of reasonable rant question here. In order suspicion in appropri- able taken was that the action belief 1879-80, tip give rise to reasonable 21-22, for such a at ate?” Id. adequate of an corroboration suspicion at 906. L.Ed.2d may suffice. details of innocent number circumstances which of the factual One White, example, in For making of a reasonable may go into the that a anonymous informant stated an by this case—a suspicion presented is that jumpsuit wearing a blue young black man of untested tip an unknown informant in a certain loca- park an automobile tip “a from would reliability. held that We have tion, described specifically another reliability ordi enter unknown informant of an automobile, and then return away, drive suspicion create a reasonable narily will not Kent, apparently The innocent carrying drugs. v. criminality.” States United by police. Cir.1982), trip were verified 1376, (5th details of this cert. F.2d 1379 691 3086, The District of Colum- 1119, 77 648 F.2d at 30-31. denied, 103 462 U.S. S.Ct. tip that this and verifica- (1983). Circuit held tipa will often bia L.Ed.2d 1348 Such a reasonable past were sufficient the informant’s tion give no indication of 6 stop.5 suspicion Terry and thus a reliability, it indicate the basis nor will (5th Cir.1976), 411, Brennan, Cortez, cert. See, 711 v. 538 F.2d e.g., U.S. United States v. 449 2. 1104, 1092, denied, 690, 694, (1981); L.Ed.2d 417, S.Ct. 51 U.S. 97 66 L.Ed.2d 621 429 101 S.Ct. 1884, Ohio, 30, (1977). 20 Terry U.S. at 88 S.Ct. at 538 v. 392 911; Gordon, v. 722 L.Ed.2d at United States 112, Cir.1983). (5th Andrews, 113-14 600 F.2d States v. 6. See also United nom., (6th Cir.), v. Brooks cert. denied sub 563 1379; Kent, v. 691 F.2d at 3. See United States 166, 878, States, 62 100 S.Ct. 444 U.S. United (5th McLeroy, F.2d 746 United States v. 584 (1979) (name, description, L.Ed.2d 108 29, White, Cir.1978); United States v. 648 F.2d corroborated, flight arrived which individual on 924, denied, (D.C.Cir.), 102 S.Ct. cert. 41 424, drugs delivered to would be tip stated also (1981). Spinelli v. See also 70 L.Ed.2d 233 held, justify investi sufficient known dealer — 410, 584, States, 21 U.S. 89 S.Ct. United 393 Sierra-Hernandez, gative stop); v. United States (1969). L.Ed.2d 637 denied, Cir.), (9th U.S. cert. 439 581 F.2d 760 (1978) (uniden 333, 936, L.Ed.2d 333 S.Ct. 58 99 . Kent, See, e.g., F.2d at 691 4 agent patrol that a individual told border tified 41; 1380; White, at 648 F.2d just loaded with specifically truck had described 563, Andrews, (6th 569 States v. United canebrake, agent caneb knew aat Cir.), v. United cert. denied sub nom. Brooks smuggling past have been site of rake to 166, States, L.Ed.2d nearby sufficient found the truck —held Sierra-Hemandez, (1979); States v. United truck); stop investigatory United justify denied, Cir.), U.S. cert. F.2d 760 (11th Cir.1983) Aldridge, 719 F.2d 368 States L.Ed.2d 333 S.Ct. suspicious in (anonymous tip individuals fooling were automobile Brand, specifically described See, e.g., 556 F.2d 1312 site, description light Cir.1977), construction around U.S. spatial proximity to construe- temporal (1978); This circuit’s discussion United States Thus the defendants’ own actions corrobo- McLeroy significant here. In McLer- tip rated given in this case. Based on oy, an untested and unknown informant all circumstances, of these the officers Chevrolet, stated that “a black and white justified were in entertaining a reasonable tag 1977 Alabama license BMB was suspicion of activity. criminal As the Su- parked Ensley, at 1720 27th Street Ala- preme Court stated in United States v. posses- bama ... Chevrolet was in the Cortez: McLeroy, damaged right side, sion of had a suspicion] [reasonable assessment possibly vehicle, might a stolen must be based upon all of the circum- have been involved a hit and run acci- stances. analysis proceeds with var- addition, McLeroy dent. might ... objective observations, ious information carrying shotgun.” sawed-off police reports, available, if such are at 747. only Officers verified that a car and consideration of the pat- modes or matching description this parked operation terns of of certain kinds of address, registered it was data, lawbreakers. From these a trained McLeroy, and that given the address officer draws inferences and makes de- McLeroy’s. held that a Terry stop We ductions—inferences and deductions that justified, because “none of McLeroy’s might well elude an per- untrained by police actions observed suspi- Long son— before the proba- law of (emphasis origi- cious.” 584 F.2d at 748 bilities such, was articulated practical nal). Since the tip information in the people formulated certain common sense which was was “readily corroborated avail- conclusions behavior; about human jur- to many persons, ... the infor- able [t]hat ors as fact permitted finders are to do mant knew these few corroborated facts the same—and so are law enforcement way reasonably suggests no that the infor- Finally, officers. the evidence thus col- mant could personal have known more lected weighed must be seen and not in McLeroy, facts about such as whether he library analysis scholars, terms of but was involved in crime.” Id. as understood those versed in the case, In this surveillance and inde field of law enforcement. pendent investigation sufficiently corrobo 418,101 atU.S. S.Ct. at 66 L.Ed.2d enough rated aspects of the critical of the at 629. tip informant’s to form a sufficient basis suspicion for reasonable of criminal The defendants make two primary activi con- ty, and hence for a Terry stop valid of the tentions to their conclusion that Ford and the gave stops U-Haul. The informant of their vehicles were not based specific room numbers at a hotel San on a suspicion first, reasonable that much — independent Antonio. Surveillance and in tips of the information in the was unverifia- vestigation inaccurate, verified that the second, individuals oc or ble that such of cupying these rooms undertook the information as was verified investi- predicted jour which informant had gation was as consistent with innocent ac- —a ney Seguin, to Texas. This tivity sort of infor activity. as with criminal With re- mation about an individual is not gard contentions, the sort to the first of these while readily public, available to the and it is much provided by of the information reasonable to infer that an unverifiable, informant hav later proved informant to be ing it is sufficiently well-acquainted portion with and a smaller of the information the individual may proved to know that he simply wrong, be to be the informant activity. arriving predicting involved criminal On significant was correct some Seguin, parties, the individuals undertook activi particularly jour- actions of the ty strange, which reeked not ney Seguin subsequent and their actions particularly drug purchase. more but there were which consistent with a justify investigative stop). site held tion sufficient to hearing, suppression at the Gomez the second fact regard to With

transaction.7 mo Espinoza were detained for a few contention, certain conduct simply because truck, ments, where inno- then returned to the as consistent with may construed be they that this con- arrested and the frisk of Gomez not mean were behavior does cent place for reasonable All took within place. the basis took of this may not form duct officer, many police twenty minutes. These approximately cases suspicion. of a fact, testimony, characteristics findings the salient based on live familiar with activity, may criminal type of particular accepted unless shown to be clear must be meaning and articulate “perceive able Mal ly E.g., erroneous. wholly inno- would be Cir.1984). conduct which given donado, Brown v. observer.” the untrained cent to of the officers Gomez and One who 52 n. Texas, 443 U.S. in Espinoza testified at trial that he was L.Ed.2d of mari discovery formed radio of the prior returning in the truck juana rely on also The defendants point at which the two to U-Haul. DeVita, Cir. 526 F.2d 81 detaining Gomez and officers 1975). from this quite distinct DeVita marijuana had were informed that been tips from an also involved case. DeVita point in the truck was the at which found source, effect that DeVita unknown ripened prob into suspicion the reasonable trans point in the future be would at some period cause to arrest. The brief able Diego type drugs from San porting some stop of the Ford and detention between the Pittsburgh area.” The “possibly to the were the time that Gomez separated by some five months. tips were not unreasonable received, returned to the truck was tips DeVita was After the surveillance, in the circumstances of this case. See long but placed under term - U.S. -, Sharpe, more sinister no the surveillance uncovered (1985). The collecting cardboard L.Ed.2d activity than DeVita car cartons, family and some taken from Gomez’ boot was loading his car, high driving down the untinged by tons into a therefore fourth amendment stop that the way. The Ninth Circuit held impropriety as well. highway vehicle on the Sufficiency the Evidence II. suspicion. 526 supported by reasonable tips and the facts un F.2d at 82-83. The argue and Hartman in this case are by investigation covered an infer is no which allows there specific and corroborate one much more marijuana in the knew of ence degree greater to a than those another pos any truck or of sort of

DeVita. disagree. In eval sess the We sufficiency uating the of the evidence stops of the Terry the initial Since conviction, the evidence support a we view valid, must next deter vehicles were we it in drawn from and the inferences be the searches of the truck and mine whether light to the verdict— most favorable probable cause. of were based on is, light most favorable that from the record that were. It is clear government’s position. E.g., States immediately af testified that Officer Kidd (5th Barnes, 1026, 1030-31 Cir. v. 761 F.2d marijua stopping ter the truck he observed 1985). If reasonable trier of fact could a tailgate. This furnished na debris on the guilt be the evidence establishes truck, find that cause for a search of probable doubt, the conviction yond a reasonable was therefore untainted and this evidence addition, conspir in may stand. Id. impropriety.8 by any fourth amendment case, show government must findings acy court’s According to the district “[t]he apparently gave an significant many note that Hartman also the details of 8. We is also that 7. It unverifiable, tip simply not of the truck. were consent to the search the informant’s valid necessarily inaccurate.

549 beyond ing conspiracy doubt that the defend a reasonable is that a may defendant not deliberate, knowing, specif merely showing and convicted on a ant had that he conspiracy.” participating associated with individuals join E.g., ic intent in 181, conspiracy, or Jackson, merely that 700 F.2d United States places him in “a climate of Cir.), activity that (5th denied, 842, 185 cert. 464 U.S. 9 something reeks of foul.” Examining the 139, (1983). 132 S.Ct. 78 L.Ed.2d 104 facts in this case in light most favor- We find that the evidence is suffi government, nothing able to the more has cient to the convictions of Gomez place done Espinoza been than to in some Hartman, Hartman. In the case of and very company. key bad link in the truck, renting driving in actions government’s missing evidence that is as to pounds with over a thousand loaded of Espinoza drugs is that he knew marijuana, smelling marijuana and hav picked up by truck Gomez and delivered to ing marijuana tailgate debris on the suffice government Hartman.10 The proven has an inference that he was to allow aware Espinoza chauffered Gomez and presence part and was Hartman, who were conspir- involved conspiracy. of a See United States v. acy, spent some time in a motel room 353, (5th Cir.1984), Blessing, 727 F.2d with these individuals. A jury reasonable - U.S. -, denied, 777, cert. simply could not beyond conclude a reason- (1985); 83 L.Ed.2d 773 able doubt from these facts Espinoza 155, Aguila-Reyes, Del 722 F.2d required had the knowledge. Espinoza’s Cir.1983). Likewise, that Gomez drove the convictions must therefore be reversed. truck from San Antonio to farmhouse subsequently turned it over to Hart III. Other Matters condition, man the above described argue defendants ap addition to which similar in government’s delay until June 1984 ob pearance to that found the truck was taining the federal indictment violated their boot, in his found suffices to allow an infer right speedy to a trial under the sixth he presence ence that was aware of the provisions amendment and the of the Fed it, marijuana, possession had Act, Speedy 3161(b). eral Trial 18 U.S.C. § part conspiracy. arrest, however, prior A state if even based however,

In the Espinoza, case of upon operative the same facts as a subse knowledge accusation, the inference of partic quent trigger federal does not ipation cannot be made. right speedy One of the themes sixth to a amendment through Walker, which runs all of our cases involv- trial. United States v. 710 F.2d Galvan, 417, 9. United States v. the vehicle" after the truck was on 1-10. 1982); Jackson, Cir. 700 F.2d at Kidd testified that the odor didn’t "stand out” Fitzharris, 185 United States v. detecting and that he "had a little trouble” denied, (5th Cir.1980), cert. respect Espino- odor in the closed van. With (1981); S.Ct. marijuana, opportunity za’s to see or smell the White, (5th Cir.), is that the truck and all the record indicates 58 L.Ed.2d parked park- in the same Ford automobile were ing lot and that Hartman left in the truck Gomez and left "about” the same time Although argued by government, we in the van. The record does not disclose wheth- sup- have considered whether the record would before er Hartman left in the truck port an inference that smelled the get restaurant to in the Ford. walked out of the marijuana in the U-Haul truck and saw the from the restaurant to Even if walked marijuana tailgate debris on the truck’s while it departed, the Ford automobile before the truck Kentucky parked Fried Chicken got is not disclosed. how close he to the truck parking lot. The officers who had three at the fast food We conclude therefore that the record is inade- defendants under surveillance testify they jury quate restaurant did not that saw or to allow a to infer that smelled in the van while it was in the position in a to see or smell parking lot. Officer Kidd testified that he saw the truck. past as he "walked and smelled the 550 (5th Cir.1983), denied,

1062, possess 1068-69 cert. with intent to distribute 995, 1005, 104S.Ct. 79 L.Ed.2d 229 U.S. 465 aiding abetting one another in the (1984). trigger does a state arrest Neither possession substantive offense of in- provisions Speedy Trial Federal tent to distribute Wilson, v. 657 Act. See United States The standard of review in this case is a 755, (5th Cir.1981), denied, 767 cert. F.2d familiar one. It is set out in United States 951, 102 1456, 455 U.S. S.Ct. 71 L.Ed.2d 667 Jackson, 181, v. 700 F.2d 184-85 Cir. (1982). We therefore find these conten 1983), as follows: to without merit. tions must, course, give We deference to argue The defendants also that their sub- findings jury. United States sequent prosecution, federal after the state White, Cir., 263, 268, 5 569 F.2d cert. abandoned, charges were violates the dou- denied, 1978, 848, 148, 439 U.S. 99 S.Ct. jeopardy of the fifth ble clause amendment 58 L.Ed.2d 149. We must view the evi 11 policy.” and the federal “Petite Since presented dence in the case and the infer produced argument the defendants have no may ences that be drawn from it in a reasoning indicating why or the double light government most favorable to the jeopardy implicated by clause is their feder- and ask whether “a reasonable trier of prosecution, al and since were in fact fact could find that the evidence estab actually brought never to trial in the state guilt beyond lishes a reasonable doubt.” court, we do not address this issue. With Bell, Cir.1982, 5 678 regard policy, government to the Petite 547, F.2d 549. will if only “We reverse policy assures us that implicated is not reasonably jury minded necessarily must case, in this and this assurance suffices for have entertained a reasonable of a purposes. Fry States, our doubt See v. United 303, (5th Cir.1978). guilt.” F.2d 569 304 defendant’s Cir.1982, 57, 60; 5 Vergara, see Finally, the defendants contend Galvin, Cir.1982, also United States v. probative value of the material 417, Nevertheless, 419. we seized from the room at the San Antonio jury must not hesitate to overturn a ver outweighed Marriott completely by its necessary “guard dict when it prejudicial potential, and that its admission against principle guilt dilution of the requires therefore the reversal of their con by probative is to be established Evidentiary victions. rulings of this sort beyond a reasonable doubt.” Estelle are reviewed for “clear abuse of dis Williams, 1976, 501, 503, McMahon, cretion.” United States v. 1691, 1693, 126, S.Ct. 48 L.Ed.2d 871, (5th Cir.), F.2d must on Juries not be allowed to convict U.S. (1979). suspicion mere and innuendo. United We find no abuse of discretion here. Littrell, Cir.1978, ^[574] jury 833. The test is whether the The convictions of defendants reasonably, logically, legally “could Hartman are AFFIRMED. The conviction presented infer from the evidence of defendant is REVERSED. guilty beyond appellant a rea White, HILL, sonable doubt.” United States v. ROBERT MADDEN Circuit Judge, dissenting: F.2d at 266. cases, drug conspiracy govern- respectfully

I majority’s dissent from the prove beyond ment must a reasonable holding in this case that the evidence is existed, conspiracy that a that the insufficient to doubt convictions of Reyes Espinoza conspiracy, Antonio accused knew of the and that policy Department except 11. The Petite is an internal in certain limited circumstances. See States, guideline barring prosecution Justice a federal v. United 25 n. Rinaldi acts, following prosecution a state for the L.Ed.2d 207 same

551 voluntarily joined 3rd, knowingly 1983, Espinoza, he and it.1 On June defendant Cir.1978, Bright, v. 5 550 Ricardo Alonza and Juan Frank 240, 242; White, F.2d States v. United Garcia checked into the Marriott Hotel in previously 569 F.2d at have Antonio; 267. We registered San Garcia for rooms not lightly stressed that we will infer a 1406 and 1408. At the time Garcia was ' acquiescence and knowledge defendant’s wearing some expensive gold jewelry and a 267; conspiracy. in a at Id. United watch. On June Espinoza 6th at 11:28a.m. Cir., Johnson, 885, 439 5 F.2d States left room accompanied by 1406 an unidenti- 888, 1971, 880, cert. Hispanic 92 fied female and drove her in a 213, govern 161. S.Ct. 30 L.Ed.2d 1981 Ford to the Antonio Airport. San At beyond ment must a reasonably show airport the female boarded airplane an doubt that the defendant had the Texas, deliber Harlingen, destined for via Hous- ate, knowing, specific join ton, intent to Espinoza Texas. About noon returned conspiracy. States v. United Gal to Marriott He Hotel. entered the lob- van, 419; 693 F.2d at by States v. and made telephone call.2 He then DeSimone, Cir.1981, 532, 537, 660 5 F.2d returned to room 1406. cert. denied Butler sub nom. v. United Shortly thereafter the defendant Gomez

States, 1982, 1027, 102 S.Ct. removed luggage some from room 1408 to 1732, showing 72 A L.Ed.2d 149. room 1406. At about this time the group merely defendant associated with checked out of room 1408. At p.m. 12:15 participating conspiracy those in a is in Espinoza left room 1406 and drove the Fitzharris, sufficient. United States Ford automobile from the Marriott Hotel to 416, Cir.1980, 423, cert. de Holiday Inn Hotel located a short dis- nied, 1981, U.S. away. tance He met defendant Gilbert 847; 68 L.Ed.2d United States v. Litt Barnett Hartman who entered the Ford rell, 833; 574 F.2d at United States v. automobile and was driven Espinoza White, 569 268. Similarly, F.2d at Hotel; to he Espinoza back Marriott government prove a conspiracy cannot Hartman then entered Marriott Hotel. by presenting only places evidence that p.m. Espinoza, At 12:45 Gomez and Hart- the defendant in “a climate of They man left the Hotel. Marriott traveled something that reeks of foul.” United place Ford to a automobile to fuel Galvan, 419; 693 F.2d at Unit Ford; they Holiday then drove to the DeSimone, 660 ed States v. F.2d at 537. Ford, whereupon Inn. Gomez exited the apply In order to the above standard to this Hartman, with still case, I compelled repeat feel the facts driving, proceeded easterly in an direction opinion out in majority set they Seguin, out San Antonio towards Texas. Espinoza’s relate conduct and at the During trip they the course of this rendez- same time add some thereto other facts being voused with a U-Haul truck driven dealing involvement in the Gomez; the Ford the truck then charges in this I case that have deduced proceeded together. traveling ap- After reading the record. miles, proximately forty the two vehicles facts in Seguin. Espinoza this case as reached relate to Hartman played by Espinoza the role are as Fried Kentucky follows: at a Chicken res- conspiracies, proof government agent suppression Unlike some 1. criminal 2. A testified at a conspiracy overt act in of a hearing an furtherance state he in this overheard necessary not establish a in viola telephone the “deal" conversation would Act, Drug tion of Control U.S.C. 841 & §§ place p.m. approximately take at 1:30 This tes- Cir.1982, Kupper, United States v. however, timony, govern- offered in the 1129, 1134; Brown, ment’s case in trial of these chief defend- Cir.1982, 348; ants. Rodriguez, 5 Cir. 612 F.2d 919 n. States, 1980, sub nom. v. United denied Albernaz U.S. 66 L.Ed.2d 41. parties rural the in the transaction taurant; continued on to a involved were Gomez truck next to a metal parked negotiating area and the sale of After a rural residence. adjoining shed I compelled am to conclude that this evi- hour, p.m., at 3:15 one-half about dence was sufficient to the convic- Kentucky Fried truck to the drove the Espinoza. per- The tion of evidence would he met where Chicken restaurant jury reasonably mit the to find or infer that and Hartman. Garcia, Espinoza possessed and Gomez each other parties visited with The three marijuana which was sold to Hartman and they and then walked moments for a few negotiations the sale of the lot the truck was parking where out to marijuana place took in room 1406 at the entered truck and Hartman located. Hotel, occupied by Marriott which had been easterly direction toward drove it in an Espinoza. Additionally, it was within well Espinoza and Gomez entered the Houston. prerogative jury’s based on the evi- automobile, Espinoza again driv- Ford Espino- to dence conclude that the use of proceeded westerly in a di- ing, za’s 1981 Ford essential to automobile was Shortly Antonio. after towards San rection marijuana transaction. His motor ve- by Seguin it was law the truck left operated through hicle in fact as a life line and Hartman was enforcement officials transaction, tying parties out this arrest. The officers observed placed under places together negotiations in their tailgate of the truck marijuana on back marijua- and in the ultimate transfer of the of and also detected the odor Seguin. na to Hartman in the truck. The truck being emitted from pounds marijua- searched and 1181 was Espinoza’s role has to classified as At time na was found. about same bystander. than that He more drove stopped by law and Gomez were Inn, Holiday from the Marriott Hotel to the placed un- officials and were enforcement Hartman, picked up transported him back A small amount arrest. der Marriott, transported and then Go- he boot when in Gomez’s was found Holiday mez and Hartman back to the Inn. searched. Seguin, He then drove Hartman to checked out On June 7th room delivery to Hart- after rooms, amounting for both the bill man, began he back to San drive Gomez $729.92, Also, paid cash. on June Antonio. 7th a search was executed on room warrant Additionally the evidence found room room, in 1406. The search of this addition significant connecting Espino- 1406 was disclosing personal clothing some parties in this scheme and za with the other gold stationary jewelry, disclosed hotel knowledge conspiracy. revealing his Holiday graph from the Inn and notes on government’s The evidence as to the notes paper figures consisting of that converted expert in room 1406 and the witness- found kilograms pounds, multiplied pounds by notes as involv- interpretation es’ of those dollars, expenses, subtracted and left a net ing drug approximately the same deal figure. profit The notes also contained in this case amount of involved Spanish words written and “Tex-Mex.” reasonably permit jury to draw the would map Also found was a Texas and a drawn drug transaction was dis- conclusion that a map Expert of an area near Houston. map Espinoza’s cussed in room. testimony government offered Houston area also tied into overall figures the effect that the and informa- the direction Hartman events as this was in these related to four tion contained notes possession of the was headed after he took transactions, con- one of which was argu- marijuana. The truck loaded with pound trans- with a twelve hundred sistent the notes could have by Espinoza ment involving marijuana like that in- action persons occupying later of other been those expert further in this case. volved it is rebut- 1406 after he abandoned prepared by to that worn Garcia when he checked Aguirre Aguirre, 293, 716 (5th F.2d 297 into the Marriott Hotel on June 3rd. Cir.1983). Further, it was not a require ment Espinoza be Further, present shown to parties upon conduct of the at the time and location Seguin their arrival in itself indicative of sale of a drug a controlled Immediately upon transaction. substance. ar- United States v. Parrish, rival parted 152, the truck 736 company F.2d Cir.1984); 157 Espinoza and Hartman in James, the Ford United 999, States v. automobile, only to return Cir.), a short time denied, cert. 959, 429 U.S. later. The truck was then 382, delivered to S.Ct. (1976); 50 L.Ed.2d 326 cf. Espinoza’s Hartman. proximity on the Aguirre Aguirre, 716 F.2d at 298. parking same lot where the truck was lo- knowledge Thus by Espinoza of the fact cated, presence marijuana on the that when the truck was delivered to Hart truck, tailgate of the and the odor of mari- Seguin man in it contained juana, along earlier attendant cir- necessary not in order to convict Espinoza. cumstances, would reasonably support a playing His out a chauffeur’s role as a

jury’s conclusion that a transaction member of and in furtherance of the con accomplished. had been The majority in its spiracy, more, nothing was all that was opinion discussing the merits of the fourth required support to his conviction. amendment issues acknowledges this. The The facts in this case are akin to those in opinion arriving states: Seguin, “[o]n Alvarez, United States v. 625 F.2d 1196 individuals undertook activity which reeked (5th Cir.1980) (en banc). In Alvarez the strange particular- but more question presented was whether there was ly of drug purchase.” At 547. sufficient evidence to the defend- The majority’s emphasis on the lack of ant’s convictions of a conspiracy import to Espinoza evidence that actually “knew marijuana. panel A concluded there was drugs were in the truck picked up by Go not; however, the en banc court held other- mez and Hartman,” delivered to 549, wise. narrowly too restricts the burden on the In importation Alvarez the government in this case. con from a farm in by Columbia was discussed viction can be sustained if even he never two agents. individuals with undercover actually knew that the truck contained The owner of the farm was shown to have marijuana. All that government had to spent night with Alvarez. The next prove was that there existed agreement an morning Alvarez drove the owner to an by parties other purpose the unlawful airport where met one of the individu- possess marijuana with intent to distrib planning import als ute, Espinoza agreement knew of the airplane who directed them to an to be used purpose, and its unlawful Espino and that operation. Alvarez and the farm knowingly za voluntarily joined the by owner were identified importer agreement. Alvarez, agents the undercover as the farm owner (5th Cir.1980) (en banc); F.2d present the one who would be at the Jackson, States off-loading site when the (5th Cir.), denied, cert. flown in from Upon being Columbia. It by agents asked one of the if going he was proved need not be all knew site, to be unloading at the Alvarez of the details of the nodded conspiracy or each of members, affirmatively, smiled, agent its or that he and asked the participated in ev if he ery phase going plane. of the criminal on the After venture. United load- Grassi, (5th ing appliances some that had been stored Cir.), apartment plane, at Alvarez’ on to the Al- transporting court ical role as a chauffeur arrested. Alvarez

varez was Antonio, parties incidents that between hotels San two additional also noted Seguin, in and then Hartman to Alvarez’ involvement and Gomez significant to Antonio, supports had access to back to San the reason- person A who the scheme. by plane fulfilling used able inference that landing field to be prior agreement accomplish as did a this un- apartment house in the same resided landing conspiracy. not a lawful Alvarez; site was and the land and plane two likely place for addition, In knowledge part on the to make it so. removed trees had to be explanation of the scheme and an complicity played of the role he as chauffeur is but- finding that Alvarez’ of his scheme reason tressed the notes found the room he drug importation purpose occupied and of knowledge its unlawful at the Marriott Hotel which evi- parties particular drug the to ac- agreement between denced this deal. Like an the established, smile, the court nod of the head and a complish it had been affirmative story they facts: Alvarez’ friend- these notes and the told emphasized these would permit jury Espi- farmer who was infer ship with the Columbian a reasonable to that overnight stay knowledge the farmer’s noza was not innocent of supplier; the apartment; storage “activity in the which reeked not of the Alvarez his with apartment, strange, particularly the their more appliances of the but of a truck, purchase.” in Alvarez’ and their transportation person being plane; loaded on the the hav- Although presence mere at the scene of ing landing field resided in access illegal support conduct is insufficient to a apartment; lastly, and critical to Alvarez’ conduct, defendant’s of criminal conviction evidence, sufficiency the Alvarez’ DeSimone, 660 F.2d importer’s assurance that Alvarez (5th Cir.1981), off-loading would be at the site. (1982), 102 S.Ct. conspiracy The Alvarez court went on to hold that “a conviction of a criminal will parties upheld from the conduct of the overall be ... when circumstances sur scheme, rounding person’s presence it was sufficient to infer that a at the scene conspiratorial activity criminal afoot are so Alvarez knew obvious knowledge fairly and that “it must also have obvious to of its character can been conspiracy him there to him.” import to be attributed (11th prior planning Figueroa, contraband because and con- Cir. 1983) omitted). (citations recog certed have required action would be to load We Columbia, marijuana principle fly it into this coun- nized this as well. try, Dean, upon and unload it its arrival.” 625 States Cir.1982), conspiracy may F.2d at joinder 1198. Alvarez’ in the illicit we held that be scheme was deemed from the concerted action of the inferable from evi- inferred Supreme parties charged dence that he intended to at the off-load- as members. The be site, States, ing from jury which a could deduce Court in v. United Glasser 457, 469, presence 60, 80, that his intended manifested an 86 L.Ed. 680 agreement and, unloading, (1972), gave proposi to assist in the credence to the also alternatively, nodding conspiracy from “a of his head was tion that a is inferrable agent development an assurance to the that he and a collocation of circum would be present off-loading plane to rap- assist stances.” See also United States v. idly. 716 F.2d at 297. Aguirre Aguirre, holding Considering totality of the circum-

Like the Alvarez that the de- wit, here, Espinoza’s presence off-loading intent site stances to fendant’s to be at agreement parties days, for four a confirmation of an to with some of being spent together in unloading some of time assist this here, too, room, Espinoza’s plane, Espinoza’s the use of Espinoza’s from the crit- par- chauffeuring his vehicle. automobile The defendant during playing out of their roles ties received thereafter $300 the driver scheme, presence truck his when the request along with keep calm as to Hartman with the undeni- was delivered approached point; facts, a check these cou- on the rear area presence able pled with silence her at the checkpoint and marijuana, and the odor of of the truck finding with the of traces of descriptive telltale coupled 1984). Blessing In the evidence as to the Jackson, case. In United States v. guilt defendant’s was that he in arrived Cir.1983), (5th F.2d 181 the court held that drug a town where deal was scheduled drug conspiracy the of the conviction parties with one of the to the deal after the Whitley lacked support defendant party had announced he would with arrive evidence. The evidence as it related to partner, without specifying the defend- Whitley’s conspiracy involvement in the ant partner; as the then into checked that he simply joined presence showed the motel; the same room a the defendant in persons of two a restaurant who were thereafter rented two vehicles that were in drug then involved a There transaction. coconspirators drug used the in a trans- Whitley was no evidence that knew the action; party the defendant and the other purpose meeting, nature or of the or that a checked out the motel at the the time large money present. amount of then was pur- party drug other went deliver some Further, although there was evidence Whit- to an money agent chase undercover who ley several had on earlier occasions been in drugs. However, supplying was the de- presence the of two of parties the to the partici- fendant never shown to was have deal, drug there was he proof no negotiations pated in for the of the sale present drug when ever terms of deal a drugs, any never had contact with and had were discussed. With this limited involve- agent during the undercover the crucial ment, the court held that Whitley only had period of time deal was effected. to have been shown associated with others present oth- during Nor was the defendant the conspiracy involved in and that aspects er It critical transaction. proof to support insufficient his conviction that the defendant rented shown knowingly and voluntarily participating two because he alone had a credit vehicles possess in conspiracy drugs a intent with required agency card and rental cred- a Significant to distribute. is the Jackson it card. any activity part lack of on conspiracy, defendant furtherance of the Blessing The court held the Espinoza played whereas role in crucial the defendant’s activities was insufficient this case. support conspiring his conviction for possess intent con- to distribute a In Longoria, United States it Cir.1978), trolled substance. court stated that merely defendant vehicle, required something placing more than ride in a accepted a after which the “in a ‘climate of made known the fact that there was the defendant driver ” (2) possession aiding abetting 727 F.2d at 356 the something foul.’ reeks of Galvan, F.2d with intent to distribute.” (quoting United States United States v. Cir.1982)). Although 298; Aguirre, 716 F.2d at “rent- that the defendant’s court concluded Pozos, (5th Cir.1983). tend to and the car do estab- al of the van established, conspiracy Espino- Once conspiracy with the ... lish his connection za could guilty be found of all well govern- more than what with no [b]ut parties offenses committed to the here, renting two vehicles proven has ment conspiracy in furtherance of the Blessing’s conviction.” cannot sustain while was a of the con- member (citations omitted). Blessing is F.2d at 356 spiracy, long “as as the offenses were because, first, he had distinguishable scope of or were a conse- foreseeable for his rental of the plausible explanation quence conspiracy.” posses- in that he was the two vehicles Parrish, (citing 736 F.2d at 157 Pinker- card, and, second, required credit sor of a States, ton v. United no other action furtherance of he took (1946)). 90 L.Ed. 1489 contrast, conspiracy. Espi- charged The evidence in this case as it relates to also furnished a vehicle that was used noza Espinoza calls for the affirmance of his conspiracy, but in addition he fur- conviction. Therefore I dissent vehicle, played an affirmative role nished a majority’s contrary holding. in furtherance of the scheme to deal marijuana, op- and was shown to have the

portunity privy negotiations to be to the Thus,

regarding the Blessing scheme. support Espinoza’s challenge

fails

sufficiency of the evidence in of his

convictions. majority also overlooks the fact that at the time the truck was delivered to Hart- Lozano, Pedro CERVANTEZ Juan Seguin man at the restaurant there had Individually and of all on Behalf others tailgate be residue of on the situated, similarly Plaintiffs-Appel- and the emitting area truck was an odor of lants, jury It seems for reasonable to infer because of the condition of the truck that point at this became WHITFIELD, Gary Individually and as presence marijuana aware of the Department Officer Texas of Public truck, just as the officers who al., Safety, Defendants-Appellees. et way truck on its to Houston for the same reasons became aware of the existence of No. 84-1736. they approached when the truck. Appeals, States Court of regarding What has been said the suffi- Fifth Circuit. ciency of the evidence as to Nov. apply

conviction would aiding well to his conviction for abetting. aiding crime of

abetting possession of a controlled sub-

stance with intent to distribute does not

require a defendant to commit all elements underlying if substantive offense he element;

aided and abetted each nor is it

required proof that there be that he was

present at the actual distribution. It (1) proof

“requires aiding abetting notes room testified that the while Spanish ted fact that and “Tex-Mex” present words were on the notes and that role, well, in the conspiracy could have jewelry found the room was similar been a minor one. United States v.

Notes

notes with handbag, the defendant’s were deemed to conspiracy found in of this implicate insufficient the defendant room, inescapably to the conclusion leads aiding abetting possession of mari- to have been shown juana intent Again, with to distribute. possess charged conspiracy guilty as there showing was no that the defendant intent marijuana with distribute anything beyond did “negative acqui- aiding abetting his defend- with fellow escence,” description which does not de- possess ants to intent to distribute a scribe the of Espinoza, activities an individ- quantity of played ual who an “affirmative” role to upon by Espinoza relied eases illegal make succeed. government’s show that upon by Espinoza Also relied is United against him fails to conviction Blessing, F.2d 353 Cir. factually distinguishable from this are

Case Details

Case Name: United States v. Ricardo Alonza Gomez, Antonio Reyes Espinoza and Gilbert Barnett Hartman

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 18, 1985

Citation: 776 F.2d 542

Docket Number: 84-2648

Court Abbreviation: 5th Cir.