United States v. Francisca Rosa Velasquez

885 F.2d 1076
CourtCourt of Appeals for the Third Circuit
DecidedOctober 2, 1989
Docket88-3652
StatusPublished
Cited by162 cases

This text of 885 F.2d 1076 (United States v. Francisca Rosa Velasquez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Francisca Rosa Velasquez, 885 F.2d 1076 (3d Cir. 1989).

Opinions

[1078]*1078OPINION OF THE COURT

COWEN, Circuit Judge.

On July 20, 1988, a jury found Francisca Rosa Velasquez (“Velasquez”) guilty on one count of possession of greater than five kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy, in violation of 21 U.S.C. § 846. On September 30, 1988, Velasquez was sentenced to 151 months in prison on both counts, to be served concurrently. Velasquez appeals her conviction on a number of grounds. For the reasons discussed below, we will affirm the conviction for possession but will reverse the conviction for conspiracy.

I.

On February 8, 1988, at 11:10 a.m., Velasquez and a companion, Ivan Terselich (“Terselich”) were driving a 1982 Ford LTD with Florida license plates northbound on Interstate 95 in Delaware. Corporal Robert Durnan (“Durnan”) pulled the vehicle over for speeding, after clocking the vehicle at 62 miles per hour in a 55 mile per hour zone. At Duman’s request, Velasquez identified herself and produced the Ford’s registration card, which indicated the car’s registered owner to be one Javier Perez, residing at 401 Southwest 18th Avenue, Miami, Florida.

Durnan asked Velasquez to exit the car and accompany him to an area on the shoulder of the turnpike between the rear of her car and the front of his patrol car. He then explained that she was being stopped for speeding. He asked her where she was going, and she answered that she was traveling from Miami to Long Island for a few days vacation with her husband, seated in the car. She also stated that the Ford belonged to her cousin, although she was unable to provide his name. Durnan testified that Velasquez was nervous and stuttered.

Durnan then spoke with Terselich, who was still seated in the Ford. Contradicting Velasquez, Terselich stated that she was not his wife and that he was traveling from Miami to New York on business, not vacation. He stated that the car belonged to his friend named Lopez. Terselich also appeared nervous.

Durnan testified that he asked Velasquez to accompany him into his patrol car to talk because it was warmer and quieter than the shoulder of the highway. When they were seated in his car, Durnan asked Velasquez if she had any contraband in the Ford. She replied that she did not, and he asked her for permission to search the car. He testified that she replied, “Yes, you can search.” Because he detected a Spanish accent in Velasquez’s voice, Durnan produced a written “Consent to Search” form in Spanish. He completed the form, explained it to Velasquez, and asked her to read and sign it. Velasquez examined and signed the form.

After obtaining Velasquez’s consent to the search, Durnan asked Terselich to step from the vehicle. He first searched the passenger area of the car. He then obtained the keys from Terselich, who had removed them from the ignition while Dur-nan was interviewing Velasquez. Durnan opened the Ford’s trunk and, within ten seconds, recognized a false floor in the trunk. While the underside of the car revealed a large well beneath the trunk area, the floor on the inside of the trunk was flat.

Durnan testified that, at this point, he believed that the trunk contained a secret compartment which concealed contraband, such as illicit drugs, weapons or money. He also believed that the secret compartment could only be reached by removing the gas tank, and he did not have the tools or facilities to do so. At approximately 11:20 a.m., Durnan advised Velasquez and Terselich that they were being detained under Delaware’s two-hour “detention” statute, DeLCode Ann. tit. 11, § 1902, and had them handcuffed and, along with the Ford, transported to Delaware State Police Troop 6. On arrival at the station, Velasquez was placed in a holding area by the main desk.1

[1079]*1079The Ford was placed on a lift, and Dur-nan attempted to remove the gas tank to get at what he believed was the secret compartment. He was unable to do so, because the filler tube which would normally flow into the gas tank had been altered to go into the secret compartment, and this hindered his efforts. He then took the vehicle down from the lift, opened the trunk, and removed a loose rug from the floor of the trunk. He noticed on the trunk floor a six inch-by-ten inch hinged door, which was locked. He pried the door open with a crowbar and immediately observed block packages, twenty-one in all, wrapped in a manner which Durnan recognized was customary to cocaine smuggling. On closer inspection and testing, the packages were found to contain twenty-one kilograms of cocaine.

After discovering the cocaine, Durnan testified that he read Velasquez Miranda warnings from a card, reading slowly, in English, and stopping after each sentence to ask if she understood. She answered in the affirmative each time. Durnan also testified that he provided Velasquez with a card containing the Miranda warnings in Spanish, which she held and appeared to read. Durnan then left the detention room and contacted Agent William Glanz (“Glanz”) of the Drug Enforcement Agency (“DEA”).

Between 12:30 and 1:00 p.m., Agent Glanz arrived at troop 6. In an interview room, Durnan introduced Glanz to Velasquez. Glanz showed Velasquez his credentials and explained that he was a federal agent with the DEA and wanted to talk with her. Velasquez immediately indicated that she did not wish to be questioned and that she would like to speak with a lawyer. The conversation ended at this point, and Durnan returned her to the holding room. Durnan and Glanz began attending to administrative details in another part of the building.

One half hour later, Durnan went to the holding area to take Velasquez into federal court to have her bail set by a United States Magistrate. Velasquez told Durnan that she wanted to speak to the federal agent again. Durnan brought Velasquez back to the interview room to speak with Glanz. According to Glanz, she asked him, “What is going to happen?” He explained, truthfully, that she would be brought before a magistrate and her bail would be set, and that the minimum mandatory sentence for possession of in excess of five kilograms of cocaine was ten years. This information was correct.

Velasquez then asked what would happen to her companion Terselich. Glanz testified that at this point he believed she was initiating a conversation about the investigation and that she was thereby waiving the Miranda rights which she had previously invoked. Glanz then provided her with misinformation. He told Velasquez that Terselich was being released because he had given a statement against Velasquez and that he was going to testify against her. Glanz also asked her if she wanted to give Terselich her belongings, because he would be traveling back south that evening.

Velasquez did not respond to these statements. Glanz then asked if she would like to tell her version of the story, and she responded by asking him what he wanted to know. He inquired as to who owned the car, to which she replied that she did not know. He then asked her how she came to be driving a car containing a large amount of cocaine.

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Bluebook (online)
885 F.2d 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-francisca-rosa-velasquez-ca3-1989.