REVISED
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-21094
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PEDRO ELIZONDO GARZA; JORGE INOCENCIO; HOMERO HINOJOSA GARCIA; OZIEL ALANIS,
Defendants-Appellants.
Appeals from the United States District Court For the Southern District of Texas July 16, 1997
Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and DOHERTY,1 District Judge.
DeMOSS, Circuit Judge:
A jury convicted the defendants, Jorge Inocencio, Pedro
Elizondo Garza, Homero Hinojosa Garcia, David Tovar2 and Oziel
Alanis, of conspiracy to possess with intent to distribute more
than five kilograms of cocaine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A) and 846. Tovar and Oziel were convicted on
District Judge of the Western District of Louisiana, sitting by designation.
Tovar died on August 12, 1996, and his cause has been dismissed by order of this Court. other counts of aiding and abetting the possession of cocaine with
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 18 U.S.C. § 2. Inocencio, Garza, and Garcia were
also convicted of money laundering under 18 U.S.C. §§
1956(a)(1)(A)(i)and 1956(g). The defendants appeal from the
judgments of conviction entered and sentences imposed by the
district court following a jury trial. After reviewing the record,
we find that insufficient evidence exists to support the money
laundering conviction as to Garza and Garcia. As to all other
convictions and sentences, finding no error, we affirm.
BACKGROUND
On January 26, 1995, based on information supplied from a
prior investigation, law enforcement officers set up surveillance
on Garcia and Garza at a Days Inn in Houston, Texas. Houston
Police Officer Jerry Nimmo observed Garcia seated in a red Buick
Regal which was parked on a curb near the entrance to the Days Inn
parking lot. Garcia appeared to be waiting for someone and
conducting counter surveillance. Garza approached the Buick,
entered the driver’s side of the car, and drove down the road.
Garza then stopped the car and Garcia got out, looked around, and
reentered the car. Garza then made a u-turn and drove back to the
Days Inn.
Garza then entered the motel while Garcia waited in the back
seat of the Buick. Thereafter, Garza reappeared carrying a tan
sports bag. Tovar walked toward the Buick with Garza. Garza
2 placed the sports bag on the driver’s side floorboard. Officer
Nimmo then observed the three defendants conversing outside their
vehicles. Tovar then turned and walked back to a black Camaro.
Garza and Garcia left in the Buick. Tovar followed in the Camaro.
Garza and Garcia drove to an apartment complex and made two
“heat runs” before entering the complex. Tovar headed toward the
interstate. The Buick parked in front of apartment 2142, which was
later found to be Tovar’s apartment. Garza then drove the Buick to
a “J.D. Sales” store in Pasadena, Texas. He was seen making two
“heat runs” past the store before returning. Garza then drove the
Buick to Mavis Lane in Pasadena where observation of the Buick
ended. A surveillance perimeter was established around the
neighborhood.
Officers saw Garza and Garcia again that afternoon in a blue
Chrysler New Yorker. Garza and Garcia stopped in a Texaco gas
station and used a pay phone at that location. Sometime
thereafter, Inocencio arrived at the Texaco in a black Mercury
Marquis. Inocencio pulled up next to the Chrysler and handed a
green field jacket to Garcia. The two cars then left in opposite
directions.
Around 3:00 p.m., the Chrysler pulled into a Conoco gas
station. Garza used the pay phone and made a “pager type” call and
then left the gas station. Officers stopped the Chrysler at 3:20
p.m. in the 3800 block of Spencer Highway in Pasadena. Speaking in
Spanish, Sergeant Pohlman identified himself and ordered Garza and
Garcia to raise their hands. Garcia kept lowering his hands,
3 forcing the officer to reach inside the vehicle and place his hands
across Garcia’s elbows. The officer saw a 9mm pistol between
Garcia’s leg and the arm rest and seized the gun from the car.
Garza and Garcia then exited the vehicle and Officer Bell advised
them in Spanish that they were being investigated and that the
officers wanted to speak with them.
During questioning, Garza told Officer Bell that he was not
acquainted with anyone owning a black Camaro and that he had just
purchased a pickup from J.D. Sales. Garza then read and signed a
consent form to search the Chrysler. Police found a loaded .40
caliber Smith & Wesson pistol inside the green jacket Inocencio had
handed Garcia. A telephone address book was also seized.
Meanwhile, outside the Mavis Lane residence of Inocencio,
Police stopped Inocencio and explained that they were conducting a
narcotics investigation and asked if they could question him inside
the residence. Inocencio invited the officers inside. Inocencio
first orally consented to a search of the premises and then signed
a consent form to search the house. Police discovered 104
kilograms of cocaine in packages with labels of joker cards and a
"red ace of clubs" concealed in luggage in attic space next to an
upstairs bedroom.3 Officers also found approximately $5 million in
cash as well as ledgers and notebooks documenting drug
transactions. The ledgers and notebooks indicated that 609
kilograms of cocaine had been sold for approximately $7,964,000, of
We are aware of the fact that clubs are traditionally black cards; but the record is clear that red was the color in this case.
4 which $6,189,000 had been received. Officers also found scales, a
Smith & Wesson box with the same serial number as the gun found
between Garza and Garcia in the Chrysler, an adding machine with
adding machine tape, and loaded handguns and ammunition.
Around 4:00 p.m., officers stopped Tovar, Oziel, and another
man in a Lincoln Town Car. After much consternation, Tovar
consented to a search of his car and his apartment. In the car,
officers found one kilogram of cocaine labeled with a red ace of
clubs in a potato chip bag under the front passenger-side seat and
$2,285 in cash in the glove box. In Tovar’s apartment, officers
discovered approximately 6 kilogram-sized packages of cocaine
labeled with a red ace of clubs, two stolen loaded handguns, a
lathe used to design silencers, silencers, silencer parts, and a
digital scale. A date book and address book were also seized.
Inocencio, Garcia, Garza, Tovar, and Oziel were charged in
Count One of a four count indictment with conspiracy to possess
cocaine with intent to distribute. Count Two charged Inocencio,
Garcia, and Garza with aiding and abetting persons to knowingly and
intentionally possess with intent to distribute more than 5
kilograms of cocaine. Count Three charged Tovar and Oziel with
aiding and abetting persons to knowingly and intentionally possess
with intent to distribute more than 5 kilograms of cocaine. Count
Four charged Inocencio, Garcia, and Garza with knowingly and
willfully attempting to launder money in violation of 18 U.S.C. §
1956(a)(1)(A)(i) and 1956(g).
A jury found the defendants guilty on all counts in the
5 indictment. The district court sentenced Inocencio to 365 months
imprisonment. Garcia received 405 months and Garza was sentenced
to 365 months. The defendants filed timely notices of appeal.
ANALYSIS
1. The Search of Inocencio’s Home
On appeal, Inocencio contends that the district court erred in
denying his motion to suppress the warrantless search of his home.
Inocencio contends that law enforcement officers arrived at his
residence and asked if they could question him. Because Inocencio
does not adequately speak nor understand English, one officer
questioned him in Spanish. The Spanish speaking officer testified
that Inocencio verbally consented to a search of his home. The
officer then asked Inocencio to sign a written consent form which,
in Spanish, explained his right to refuse consent. Inocencio
signed the form.
The form states in pertinent part “Persona, Premisas o
Transporte a ser examinado.” Expert testimony revealed that the
form was incorrectly translated from English to Spanish. The
English version of this caption stated “person, premises or
conveyance to be search.” In the translation to Spanish, the word
“premises” was changed to “premisas” which, in Spanish, means
“logical proposition” or “the premise of the argument.” Testimony
revealed that “premisas” does not refer to premises or relate to a
home or residence. Further, officers only filled out Inocencio’s
name under the heading. They did not fill-out the space for place,
6 or conveyance to be searched.
According to Inocencio, this omission suggests that he was
only to be subject to an “examinado.” In support, he contends that
the written form uses the verb “examinar” which means to examine.
Inocencio maintains that he thought this “examination” would be
oral and did not understand that he had consented to a “catear” or
“registrar,” two words which correctly translate to the verb
“search” in English. Inocencio also testified that he did not
understand that his oral consent to search included his home. He
stated that he only agreed to a search of his person and his
automobile. As such, he maintains that the search of his residence
was improper.
We review a motion to suppress based on live testimony at a
suppression hearing for clear error, viewing evidence in the light
most favorable to the prevailing party, in this case, the
government. See United States v. Levine, 80 F.3d 129, 132 (5th
Cir.), cert. denied, 117 S. Ct. 83 (1996); United States v. Piaget,
915 F.2d 138, 139-140 (5th Cir. 1990). The district court based
its decision on the following findings and conclusions:
The fact that the Spanish translation of the consent form contained an incorrect translation of the word “premises” does not invalidate the consent given by Inocencio. Given that Inocencio testified that he never read the form, and given the statements made to him by Officer Bell, Inocencio’s act of signing the document signifies to the Court that Inocencio intended to memorialize what the defendant had previously agreed to when he verbally consented to the search of the Mavis residence.
The district court heard testimony from Inocencio that he had
been living in the United States since 1978. Further, Inocencio
7 testified that he never read the consent to search form. The
district court also heard testimony from the officers and Inocencio
about Inocencio’s verbal consent to search of his home.
After reviewing the record, we find no clear error with the
district court’s decision. The fact that the consent form was
incorrectly translated is irrelevant given that Inocencio never
read the form and could not have mistakenly relied on its
translation. As such, this case turns on whether oral consent to
search was given by Inocencio. In making this determination, the
district court was in the best position to weigh the credibility of
the testimony of Officer Bell and Inocencio and ascertain that
Inocencio did understand that he gave oral consent to search his
home. We will not second guess the district court’s factual
findings as to the credibility of witnesses. See United States v.
Botello, 991 F.2d 189, 194 (5th Cir. 1993); United States v.
Coburn, 876 F.2d 372, 374 (5th Cir. 1989). Further, we will not
disturb findings of fact unless we are left with the definite and
firm conviction that a mistake has been made. See Botello, 991
F.2d at 194. Once the officers obtained oral consent to search
Inocencio’s home, the search was valid, notwithstanding the
incorrectly translated consent form.
2. Sufficiency of the Evidence - Drug Convictions
“In reviewing an appeal based on insufficient evidence, the
standard is whether any reasonable trier of fact could have found
that the evidence established the appellant’s guilt beyond a
8 reasonable doubt.” United States v. Jaramillo, 42 F.3d 920, 922-
923 (5th Cir. 1995). We consider evidence in the light most
favorable to the verdict. See id. at 923.
To establish a violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A), the government must prove that the defendants (1)
knowingly (2) possessed narcotics (3) with intent to distribute.
See United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).
“Possession may be either actual or constructive and may be joint
among several people.” Id. Possession may also be proven by
direct or circumstantial evidence. See United States v. Ojebode,
957 F.2d 1218, 1223 (5th Cir. 1992).
A. Garza and Garcia
Garza and Garcia contend that the government failed to
establish that they joined or furthered the purpose of this
conspiracy. They argue that the government presented no evidence
other than their mere presence and association with the narcotics
found in connection with Inocencio and Tovar. We disagree.
Garza and Garcia participated in counter surveillance before
rendezvousing with Tovar at the Days Inn and en route to Tovar’s
apartment and Inocencio’s house. Garza and Garcia met with Tovar,
whose apartment and car contained narcotics. The packages of
cocaine found in Tovar’s car and residence had the same label as
the packages found in Inocencio’s home. Garza and Garcia also met
with Inocencio at a Texaco gas station where Inocencio gave them a
green jacket with a firearm. Inocencio also told officers during
9 questioning that Garza and Garcia were staying at his home.
Garcia’s fingerprints were found on drug ledgers and adding machine
tapes in Inocencio’s home. Garcia’s fingerprints were also found
on one of the boxes containing money found inside Inocencio’s
residence. Garcia carried Inocencio’s pager number. Finally,
officers found two firearms in the car occupied by Garza and
Garcia.
Based on this evidence, the government clearly presented
sufficient evidence to show that Garza and Garcia “`became
associated with, participated in, and in some way acted to further
the possession and distribution of drugs.’” United States v.
Inocencio, 40 F.3d 716, 726 (5th Cir. 1994) (quoting United States
v. Chavez, 947 F.2d 742, 745-46 (5th Cir. 1991)). Consequently, a
reasonable jury could conclude that Garza and Garcia knowingly
possessed cocaine with intent to distribute.
B. Oziel
Oziel also contends that insufficient evidence exists to
support his conviction. Oziel argues that his name on the drug
ledgers found in Inocencio’s residence, and his mere presence in
Tovar’s car, are the principal evidentiary pieces linking him to
this conspiracy and, these facts alone, cannot support a
conviction.
The government presented evidence that a notebook with a
picture of a “Killer Whale” found at Inocencio’s home had a written
entry that Oziel received 25 kilograms of cocaine on the day he was
10 arrested. Officers found cocaine with a label of the red ace of
clubs and $2,285 in cash in the car occupied by Tovar and Oziel.
Identically labeled packages of cocaine were found in Tovar and
Inocencio’s homes. Oziel’s fingerprints were found on a box
containing two of the six kilograms of cocaine inside Tovar’s home.
Further, Oziel was a passenger in Tovar’s car on the same day that
Tovar met with Garcia and Garza. Evidence also showed that Oziel
entered the United States the day before his arrest. This
evidence, taken together could lead a reasonable jury to conclude
that Oziel was in fact involved in this conspiracy. As such, we
hold that sufficient evidence exists to support his conviction.
3. Sufficiency of the Evidence - Money Laundering
Garza and Garcia contend that insufficient evidence exists to
support their convictions under 18 U.S.C. §§ 1956(a)(1)(A)(i) and
1956(g) for money laundering.4 To secure a conviction for
conspiracy to commit money laundering, the government must prove
that the defendants knew of the conspiracy and voluntarily joined
it. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996).
As to money laundering, the government must prove that the
defendants (1) knowingly conducted a financial transaction (2) that
involved the proceeds of an unlawful activity (3) with the intent
to promote or further that unlawful activity. United States v.
Inocencio was also charged and convicted in Count IV of money laundering. Inocencio did not raise the issue of whether sufficient evidence exists to support the money laundering conviction in his brief on appeal. As such, we do not address the validity of his conviction on this count.
11 Thomas, 12 F.3d 1350, 1360 (5th Cir. 1994).
Garza and Garcia maintain that the government has failed to
show any agreement by them to engage in any financial transaction.
Garza and Garcia also argue that, in fact, no evidence exists to
show that a financial transaction occurred. According to Garza and
Garcia, the only evidence identified by the government consists of
storage of currency and cocaine at Inocencio’s Mavis Lane
residence. No proof of wire transfers or other transactions
involving currency was presented.
After reviewing the record, we agree with Garza and Garcia.
The government failed to present evidence of a financial
transaction involving these defendants. A “financial transaction"
pursuant to § 1956 is "a transaction which in any way or degree
affects interstate or foreign commerce (i) involving the movement
of funds by wire or other means or (ii) involving one or more
monetary instruments. . . ." 18 U.S.C. § 1956(c)(4)(A). “By
definition, then, a `financial transaction’ must, at the very
least, be a `transaction,’ i.e., `a purchase, sale, loan, pledge,
gift, transfer, delivery, or other disposition’ or some action
involving a financial institution or its facilities.” United
States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir. 1994) (citing 18
U.S.C. § 1956(c)(3)).
When some “transaction” that does not involve a financial
institution or its facilities is charged, the government must show
that a “disposition” took place. A “disposition” has been defined
by this Court to mean “`a placing elsewhere, a giving over to the
12 care or possession of another.’” Id. (quoting WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY, 654 (1961)). We also note that currency does
not become proceeds of drug trafficking until a drug sale has been
completed. See United States v. Gaytan, 74 F.3d 545, 555-56 (5th
Cir.), cert. denied, 117 S. Ct. 77 (1996).
In this case, the government argues that “the collection of
more than $11 million in less than a six week period of time,
Oziel’s presence from Mexico, and the presence of $5 million in
drug proceeds support the inference of a disposition of the drug
proceeds handled by Garcia and Garza and the inference of intent to
commit money laundering . . . .” Notwithstanding this inference-
filled expose!, currency found by officers in connection with a drug
trafficking offense, by itself, is insufficient evidence to support
a money laundering conviction. See Puig-Infante, 19 F.3d at 938;
United States v. Ramirez, 954 F.2d 1035, 1039-40 (5th Cir. 1992).
The government presented evidence that $2 million in proceeds
had been collected and forwarded to Colombian producers and a
stockpile of $5 million in cash was found at Inocencio’s residence.
However, no evidence was presented that Garza or Garcia handled
these proceeds or were, in any way, involved in the “disposition”
of these funds. While the jury may draw reasonable inferences from
the evidence presented, nothing reasonable could be inferred from
this evidence. As such, we reverse Garza’s and Garcia’s
convictions for money laundering and remand their cases to the
district court for resentencing in light of this disposition.
13 4. Evidentiary Rulings
Garza and Oziel contend that the district court abused its
discretion by admitting extrinsic evidence of silencers and
silencer-making materials found in Tovar’s apartment in violation
of FED. R. EVID. 404(b). The government contends that this issue
was not properly raised in the trial court and, therefore, should
be reviewed only for plain error. See United States v. Misher, 99
F.3d 664, 670 (5th Cir. 1996).
Even if objections to the admission of this evidence were
properly raised, we find no abuse of discretion with respect to its
admission. The silencers and silencer-making materials were found
contemporaneously with the six kilograms of cocaine found in
Tovar’s apartment. Firearms and silencers are deemed to be parts
of the tools-of-the-trade of drug trafficking and are relevant
intrinsic proof of an ongoing conspiracy. As such, this evidence
tends to show that the defendants were involved in a major drug
trafficking conspiracy complete with a number of firearms and
silencers.
Additionally, the district court properly determined that the
probative value of the evidence was not substantially outweighed by
its potential prejudicial effect. FED. R. EVID. 403. Danger of
prejudice is always present. Consequently, exclusion of extrinsic
evidence based on its prejudicial effect “should occur only
sparingly.” See United States v. Leahy, 82 F.3d 624, 637 (5th Cir.
1996) (quoting United States v. Pace, 10 F.3d 1106, 1115 (5th Cir.
14 1993)). Finding no abuse of discretion, we affirm the decision of
the district court to admit evidence of the silencers and silencer-
parts discovered in Tovar’s apartment.
5. Sentencing Issues
Oziel contends that the district court erred in enhancing his
base offense level by two levels for possession of firearms
pursuant to United States Sentencing Guidelines (U.S.S.G.) §
2D1.1(b)(1). Section 2D1.1(b)(1) provides for a two-level increase
to the base offense level if a dangerous weapon was possessed
during the commission of a drug trafficking offense. Oziel argues
that he did not possess a firearm and that he had no knowledge of
the firearms that were recovered. He further asserts that it was
not foreseeable that his co-defendants would possess firearms,
especially in light of that fact that he arrived in Houston from
Mexico only 48 hours before his arrest.
We review a district court’s decision to apply § 2D1.1(b)(1)
for clear error. See United States v. Rodriguez, 62 F.3d 723, 724
(5th Cir. 1995). Although a conviction on a substantive count
requires proof beyond a reasonable doubt, the district court may
sentence a defendant within the Sentencing Guidelines on any
relevant evidence that “has sufficient indicia of reliability to
support its probable accuracy.” U.S.S.G. § 6A1.3; see also United
States v. Buchanan, 70 F.3d 818, 828 (5th Cir. 1995), cert. denied,
116 S. Ct. 1340 (1996). Further, once the government establishes
that a firearm was present during the offense, the adjustment
15 should be applied “unless it is clearly improbable that the weapon
was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), comment.
(n.3). In this case, there is no question that the firearms were
connected with this offense. Firearms and cocaine were found in
vehicles, in an apartment, and in a house, and all the evidence was
connected to the defendants.
Oziel’s contention that the firearms were not foreseeable also
fails. We have held that a district court “`may ordinarily infer
that a defendant should have foreseen a codefendant’s possession of
a dangerous weapon, such as a firearm, if the government
demonstrates that another participant knowingly possessed a weapon
while he and the defendant committed the offense.’” United States
v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993) (quoting United States
v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990)). It was
readily foreseeable that firearms would be employed as tools of the
drug trafficking trade. As such, we find no error, clear or
otherwise, with the district court’s application of § 2D1.1(b)(1).
Next, Oziel argues that the district court erred in denying
his motion for a downward adjustment for his mitigating role in the
offense under U.S.S.G. § 3B1.2. Oziel relies primarily on his
responsibility for only 25 kilograms of the 1,555.5 kilograms of
cocaine attributable to the conspiracy. He contends his amount of
cocaine represents a mere two percent of the total. However, Oziel
has not demonstrated that he was substantially less culpable than
the other participants in this conspiracy, and, as a result, we
find no clear error. See U.S.S.G. § 3B1.2(b); United States v.
16 Brown, 54 F.3d 234, 241 (5th Cir. 1995).
Finally, Garcia contends that the district court erred in
sentencing him based on the quantity of cocaine memorialized in the
drug ledgers seized from Inocencio’s residence. Garcia maintains
that he was only in Inocencio’s house for two days and that the
government failed to show that he ever bought, sold, traded,
transported or delivered any of the cocaine found in the house.
Further, the district court erred by failing to make specific fact
findings concerning the quantity of cocaine attributable to each
defendant.
Assuming Garcia properly preserved these issues for appeal, we
find no clear error with the district court’s decision to assign
more than 150 kilograms to Garcia. See Rodriguez, 62 F.3d at 724.
The evidence and testimony at trial clearly demonstrated that the
cocaine and money found in Inocencio’s house and in Tovar’s
apartment were the product and proceeds of this extensive drug
trafficking operation. Evidence also showed that Garcia was
present inside Inocencio’s house and that he handled adding machine
tapes and drug ledgers. Garcia’s fingerprints were found on adding
machine tapes, drug ledgers, and on a box containing currency. He
had direct contact with Inocencio and Garza, he received two
firearms from Inocencio, and cocaine residue was found on the
adding machine tapes and ledgers.
“Under the Sentencing Guidelines, a defendant who participates
in a drug conspiracy is accountable for the quantity of drugs[ ]
which is attributable to the conspiracy and reasonably foreseeable
17 to him.” United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.
1994); see also U.S.S.G. § 1B1.3(a)(1)(B). The district court
adopted the presentence report which specifically set out Garcia’s
involvement in this conspiracy. Based on the evidence presented,
the district court did not err in attributing more than 150
kilograms of cocaine to Garcia for sentencing purposes.
CONCLUSION
For the foregoing reasons, we REVERSE the convictions of Garza
and Garcia as to the money laundering count of the indictment and
REMAND for appropriate resentencing. We AFFIRM the remaining
convictions and sentences for Inocencio, Oziel, Garza, and Garcia.