United States v. Charles Jackson and Anthony Wayne Browning, United States of America v. Michael Ryan

807 F.2d 1185

Opinions

JERRE S. WILLIAMS, Circuit Judge:

Appellants Charles Jackson and Anthony Wayne Browning were convicted of conspiracy to possess controlled substances with intent to distribute and of possession of controlled substances with intent to distribute. Appellant Michael Ryan, in a wholly separate episode, was convicted of possession of controlled substances with intent to distribute. We have consolidated these three cases for consideration on appeal. All three appellants challenge the legality of searches conducted at the Sierra Blanca, Texas, checkpoint, operated by Border Patrol agents of the Immigration & Naturalization Service. We continue to hold that searches at this checkpoint are the functional equivalent of border searches, and we affirm the convictions.

I.

A. Jackson and Browning

On March 31, 1984, appellants Charles Jackson and Anthony Wayne Browning drove a 1984 Chrysler with California plates eastbound on Interstate 10 across west Texas. At about 3:30 p.m., they reached the Sierra Blanca Border Patrol checkpoint, located approximately four miles west of Sierra Blanca, Texas, approximately twenty miles from the Mexican border, and approximately eighty miles southeast of El Paso. Jackson was driving the car, and Browning was lying on the back seat.

At the checkpoint, Border Patrol Agent Fogt approached the car and questioned appellants about their citizenship. Both men answered that they were American citizens. Fogt testified that the men responded to his question reluctantly. Through the window of the auto, Fogt observed cigarette rolling papers on the floor of the back seat, and a small glass pipe on the rear floorboard.¹ After viewing these items, Fogt opened the back door of the car and inspected the pipe and rolling papers, noting that the mouthpiece of the pipe was covered with a white residue.²

At Fogt’s request, Jackson opened the trunk of the car. There, Fogt found a woman’s red cosmetic case, labelled as belonging to Sherry Bradley. Inside the case was a bottle of pills which Jackson identified as antihistamines. In fact, the pills were “Preludin,” a controlled substance. Inspecting the rest of the trunk, Fogt found boxes and sacks containing over 3500 “Preludin” pills. Further inspection of the back seat of the Chrysler led to the discovery of marihuana residue.

At first, appellants denied any knowledge that there were drugs in the car, asserting that the Chrysler had been rented and loaded by a person otherwise not involved in the case, Jim Johnson, in California. However, Jackson was listed as a driver on the rental contract, and he later admitted that he knew the drugs were in the car. Browning never admitted to such knowledge.³ He did admit, however, that he saw in the trunk the boxes and red cosmetic case which contained the pills and that the cigarette rolling papers in the back seat had fallen out of his pocket.

Appellants were indicted for conspiracy to possess Preludin with intent to distribute and for the substantive offense of possession with intent to distribute. At trial, they moved to suppress all the evidence seized at the Sierra Blanca checkpoint, and the district court granted the motion. See United States v. Oyarzun, 582 F.Supp. 121 (W.D.Tex.1984). We reversed and remanded, holding that the search of the car at Sierra Blanca was valid because the checkpoint was the functional equivalent of the border. United States v. Oyarzun, 760 F.2d 570 (5th Cir.1985).

On remand, appellants requested that a traffic survey be conducted at Sierra Blanca to test the validity of the checkpoint’s “functional equivalent” status. The district court granted the request, ordering the Border Patrol to conduct a survey of all traffic passing through the Sierra Blanca checkpoint for a period of two weeks. We stayed the order, then vacated it in a writ of mandamus issued on October 21, 1985. Appellants made a second motion requesting that the Federal Public Defender’s office be given authority to take a survey. The district court granted this motion. After setting various guidelines, we granted the Public Defender’s office the requested authority to conduct a survey from January 8 through January 15, 1986.

The survey, at the request of appellants, asked drivers to state (1) the point of origin of their present trip, and, if that point was outside the United States, (2) whether the traveler had already been stopped and inspected or questioned at a port of entry into this country or at some other checkpoint. The overwhelming majority of the drivers stopped at the Sierra Blanca checkpoint stated either that they had begun their trip in the United States, or that they had already been stopped at a port of entry or other checkpoint.⁴

Appellants presented the survey results to the district court. The court held that the survey evidence, collected in January 1986, did not establish the conditions present in March 1984, when appellants were stopped. Accordingly, the court held that the checkpoint’s status as the functional equivalent of the border in 1984 was unaffected by the new evidence.⁵ Subsequently, the court found appellants guilty on all counts, and sentenced them to concurrent three-year terms of imprisonment.

Before passing sentence on appellant Browning, the district court gave him the opportunity to address the court, and he did so. The court did not, however, give Browning’s counsel the opportunity to address the court on Browning’s behalf before sentence was pronounced. Browning’s counsel pointed out that he had not waived his own right of allocution. The district court apologized, and then gave appellant’s counsel the opportunity to address the court. Browning’s counsel did so, after which the court stated: “I apologize to counsel for overlooking allocution. My sentence would be the same, even though I would consider the remarks.”

Appellants now claim that the Sierra Blanca checkpoint did not meet the requirements for classification as the “functional equivalent of the border” at the time of their arrest, and that probable cause did not exist to search their vehicle. Appellant Browning also challenges the sufficiency of the evidence regarding his convictions for conspiracy and possession, and claims prejudicial error in his sentencing before his attorney’s allocution.

B. Ryan

On February 7, 1986, approximately one month after the Sierra Blanca survey had been conducted by the Federal Public Defender’s office, appellant Michael Ryan drove a white Chevrolet up to the Sierra Blanca checkpoint. Border Patrol Officer Felix Chavez noticed that Ryan’s vehicle swerved and halted suddenly several times as it approached the checkpoint. Chavez questioned Ryan about his citizenship, and Ryan responded hesitantly. He appeared dazed and disoriented, to the point of appearing intoxicated, although Chavez smelled no alcohol.⁶

Chavez asked Ryan to step out of the car and open the trunk. Ryan walked very unsteadily to the back of the car, and had trouble getting his key in the trunk lock. The trunk contained a backpack and a suitcase. Chavez noticed that Ryan became visibly nervous when the officer felt the backpack. Chavez instructed Ryan to open the suitcase. Ryan asked, “Do I have to?”, and Chavez answered, “Yes, sir, you have to.” Chavez discovered approximately seven pounds of cocaine in the suitcase.

Appellant was immediately arrested by the Border Patrol. Four hours later, a representative from the Drug Enforcement Agency arrived to take custody of Ryan. Ryan appeared “totally stoned” to the DEA agent: his speech was incoherent, his gait unsteady, and he smelled very strongly of ether. Ryan told the agent that his occupation was “to move things around.” While being driven to Pecos, Texas, Ryan claimed that he was being kidnapped and asked the DEA agent if he could call the FBI.

Ryan was charged with possession of cocaine with intent to distribute. He moved to suppress all the evidence obtained at the Sierra Blanca checkpoint on the basis that the search conducted there was illegal. The district court held that the checkpoint, in February, 1986, was not “the functional equivalent of the border,” but nevertheless denied appellant’s motion to suppress on the basis that “ample reasonable suspicion” was present to justify the search in his case. The court found appellant guilty as charged, and sentenced him to a ten-year prison term. Appellant now claims that “probable cause,” not “reasonable suspicion,” was the proper standard to apply in order to test the validity of the search, and that such probable cause did not exist.

II.

All of the appellants raise the issue of the status of the Sierra Blanca checkpoint as the “functional equivalent of the border.” We have considered the issue several times, and each time we have held that the classification was appropriate. See United States v. Oyarzun, 760 F.2d 570 (5th Cir.1985); United States v. Dreyfus-de Campos, 698 F.2d 227 (5th Cir.1983), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306; United States v. Luddington, 589 F.2d 236 (5th Cir.1979); United States v. Hart, 506 F.2d 887 (5th Cir.1975), vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706, reaff'd 525 F.2d 1199 (5th Cir.1976) (on remand), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226.

Needless to say, we will not reconsider this issue each time a search is made at Sierra Blanca. In United States v. Salinas, 611 F.2d 128, 130 (5th Cir.1980), we stated:

It is not required that the underlying facts concerning a particular checkpoint location be proved over and over again in each case arising out of the same checkpoint location, so long as such facts remain unchanged. A court may take judicial notice of functional equivalent status once it has been established.

None of the evidence presented by appellants demonstrates any change in traffic patterns at Sierra Blanca. In fact, appellants Jackson and Browning assert that no such changes have occurred since the time of their arrest in 1984.

The established law is clear. Searches at the Sierra Blanca checkpoint are the functional equivalent of border searches and meet the Fourth Amendment requirement of reasonableness. In Hart, we based that finding of reasonableness on “the proximity of the checkpoint to the border, the permanent nature of the checkpoint, and the hours of operation.” 506 F.2d at 895. After discussing these factors in detail, we concluded by commenting on the practical need for law enforcement near the border:

With so much access to a highway parallel to the border by aliens who could easily have walked across the border, we think the Fourth Amendment rule of reason would permit a search for those aliens of vehicles that may have taken them aboard after their arrival by other means within our boundaries. With almost 2000 miles of Mexican border from Brownsville, Texas, to San Diego, California, contiguous to four of the states of the Union, the impracticality of guarding every part where human crossing could be made should be so apparent as to make inexorably reasonable some method of curtailing illegal entry such as established at the Sierra Blanca checkpoint.

Id. at 897. Those circumstances are as fully applicable today as they were eleven years ago. Accordingly, we hold once again that the Sierra Blanca checkpoint is the functional equivalent of the border. It was the functional equivalent in March, 1984 and also in February, 1986. We find nothing in the submitted evidence in these cases to show a change in the nature of the checkpoint which raises doubts about border equivalency. Certainly the survey, taken in the light most favorable to appellants, does not do so. As we have said several times, we will not reconsider a change in the status of the checkpoint absent such a showing of change in the factual circumstances. See e.g. Dreyfus-de Campos, 698 F.2d at 229; Luddington, 589 F.2d at 242. Thus, searches are properly conducted at the Sierra Blanca checkpoint by Border Patrol agents without a finding of probable cause. Appellants’ motions for the suppression of the evidence at their trials were properly denied. We do not accept the conclusion of the district court, however, that the Sierra Blanca checkpoint is no longer the functional equivalent of a border checkpoint. We hold again that it is.

III.

Appellant Browning claims that even if the evidence from the search is admitted, that evidence is insufficient to support both his conviction on the conspiracy count and his conviction on the possession count. In reviewing whether there is sufficient evidence to convict, it is not necessary that the evidence exclude every reasonable hypothesis of innocence. United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd, on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Rather, we need only determine that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict. Glosser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1942).

In order to prove possession with intent to distribute, the government must demonstrate (1) knowing (2) possession of the controlled substance (3) with intent to distribute it. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). These elements may be proved by circumstantial as well as direct evidence. Id. at 61-62. Viewing the evidence and the inferences that may be drawn from it in the light most favorable to the government, we have no difficulty finding that appellant Browning’s conviction for possession of controlled substances is adequately supported.

Browning’s constructive possession of the controlled substances is inferred from his joint dominion and control over the car, established when he admitted that he was being paid by Jackson’s mother to drive with Jackson to Houston. Browning’s knowledge was demonstrated by his admission that he had seen the boxes containing the pills in the trunk, by the discovery of drug paraphernalia in the back seat of the car near Browning, and by his admission (after an initial denial) that the rolling papers found on the floorboard had fallen from his pants. Finally, the quantity of Preludin pills found in the car suffices to demonstrate an intent to distribute. United States v. Richards, 638 F.2d 765 (5th Cir.1981), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638. The evidence thus supports the conviction of Browning for possession of controlled substances with intent to distribute them.

Browning’s conspiracy conviction is also supported by the record. In order to prove that appellant conspired, the government must show knowledge, intent and participation in the crime. These elements, however, need not be proven by direct evidence, but may be inferred. United States v. Dean, 666 F.2d 174 (5th Cir.1982), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303; United States v. Marx, 635 F.2d 436 (5th Cir.1981); United States v. Arredondo-Morales, 624 F.2d 681 (5th Cir.1980).

The evidence demonstrating Browning’s knowledge of possession will support a finding that Browning knew of the criminal purpose of the conspiracy. His intent to conspire to commit the crime can be inferred from his admission that he knew the box containing the pills was in the trunk, and from the evidence that he was in constructive possession of the drugs. Finally, the totality of the evidence and the conclusions that Browning knew and intended to enter into a conspiracy support the inference that he in fact participated in that conspiracy.

IV.

Finally, appellant Browning fails to demonstrate prejudicial error in the district court’s asserted violation of Fed.R.Crim.P. 32(a)(1)(B).⁷ Appellant asserts that the court’s failure to hear an allocution from appellant’s counsel before sentencing him combined with the court’s subsequent failure to change the sentences after hearing the allocution raises an inference that the district court improperly used a “mechanistic” concept of what kind of punishment a particular crime deserves.

The failure of the sentencing judge to change the sentences does not establish error on the part of the district court; it may reflect only that the judge was unmoved by the allocution. Further, the light sentences ameliorate somewhat appellant’s claim of error. The court imposed two concurrent sentences of three years each with a five-year parole term, when appellant could have received sentences of thirty years in prison, lifetime parole, and fines totalling $250,000.00. Certainly these sentences permit an inference that the court was already disposed towards leniency before the allocution was heard.

Finally, when the court corrected its mistake and subsequently heard an allocution, it remedied whatever error it had previously committed. The remedy for sentencing without offering opportunity for an allocution is resentencing by the district court. United States v. Turner, 741 F.2d 696 (5th Cir.1984). This remedy has already been implemented, and remanding the case for resentencing would accomplish nothing. Appellant’s claim of prejudicial error in the court’s failure to hear an allocution before sentencing is denied.

CONCLUSION

Appellants’ claims attacking the validity of the searches conducted at the Sierra Blanca checkpoint are denied. The checkpoint is the functional equivalent of the border, and searches conducted there need not be based upon probable cause. The evidence is sufficient to support the conviction of appellant Browning on both the conspiracy and possession counts. Finally, the district court’s failure to hear an allocution before sentencing appellant Browning was not prejudicial error when corrected by the court. The convictions are AFFIRMED.

1

. While Jackson asserted that Fogt could not have seen the pipe from the window, Browning admits that the agent did see the pipe when he looked into the car.

2

. The residue was later identified as cocaine.

3

. Browning claimed that he went along for the ride from California only because Jackson's mother was paying him $200 .to drive the car to Texas with Jackson.

4

. The survey was conducted at the request of appellants under authority granted by this Court. We do not accept or reject the findings as demonstrative of any traffic pattern at the Sierra Blanca checkpoint. We have great' reservations, however, concerning the reliability of conclusions drawn by appellants based upon the survey. The questions inquired as to the origin of a driver’s journey, not as to whether the journey took him across the border. The irrele-vanee of the answer to the former question is demonstrated by the five drivers who stated that their point of origin was Hawaii. Of course, this answer tells nothing about whether these cars had been across the border and thus constituted "international” traffic. The same can be said for the six-hundred odd drivers travelling east whose origins were in states east of El Paso.

5

. The district court also concluded that the new evidence was sufficient to establish that, as of January, 1986, the Sierra Blanca checkpoint could not enjoy "functional equivalent of the border” status.

6

. Chavez also noticed a black leather pouch on the front seat. The bag contained cocaine and drug paraphernalia. Chavez did not search the pouch, however, until after cocaine was found in a search of the trunk.

7

. Fed.R.Crim.P. 32(a) states:

(1) Imposition of Sentence____ Before imposing sentence the court shall

(B) afford counsel an opportunity to speak on behalf of the defendant;____