UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-41165
UNITED STATES OF AMERICA
Appellee,
VERSUS
JUAN GONZALES and RAMSEY RAMIRO MUNIZ,
Appellants.
Appeal from the United States District Court for the Eastern District of Texas
March 20, 1996
Before REYNALDO G. GARZA, WIENER, and STEWART, Circuit
Judges.
PER CURIAM:
BACKGROUND
Appellants, Ramsey Ramiro Muniz and Juan Gonzales, challenge
their convictions for possession of cocaine with intent to
distribute, in violation of 21 U.S.C. §841(a)(1), and for
conspiring to possess cocaine with intent to distribute, in
1 violation of 21 U.S.C. §846. Muniz and Gonzales were arrested in
Lewisville, Texas, a Dallas suburb, as a result of a DEA
investigation in March 1994. The DEA was conducting surveillance
of a suspected drug trafficker, Donacio Medina, who arrived in
Dallas on March 10. Muniz, who allegedly had come to Dallas on
legal business with Gonzales at roughly the same time, picked up
Medina at Love Field and took him to Frisco, Texas.1 Muniz and
Medina were observed by Dallas DEA agents who had been informed by
Houston DEA agents of Medina's trip to Dallas. DEA Agent Elliott
was supplied with additional information that Medina was with
Appellants at the Ramada Inn in Lewisville.2
Muniz was a former lawyer and political figure, championing the rights of Mexican-Americans in the early 1970s, until his involvement in drug trafficking brought him a prison sentence and disbarment. After release from prison, Muniz worked as a legal assistant to various firms, helping them obtain clients. He claimed to be in Dallas to find clients for a Corpus Christi lawyer, Ron Barroso. Gonzales was an unemployed construction worker who occasionally served as a driver for Muniz. Gonzales had driven Muniz to Dallas on March 8 from Houston. Muniz had already met with Medina in Houston between February 27 and March 8 ostensibly to arrange legal services for a member of Medina's family. According to Appellants, the events in Dallas relate to continued discussion of this possibility. 2 Elliott confirmed Muniz's and Medina's presence at the Ramada through telephone calls and interviews with the motel staff. Elliott also noted a white Mercury Topaz in the parking lot, the same model in which the cocaine was found. A shadowy figure named "Hernandez" enters the story at this point. Medina was allegedly meeting with him at the Classic Inn in Fort Worth around the same time that negotiations were underway with Gonzales and Muniz. Muniz argued that he heard someone else with Medina at the Ramada on the night of March 10 and that person was Hernandez. Hernandez's name will appear at sporadic points in this opinion though little is known about him. The relevance of this character was unknown to anyone except Muniz who tried to subpoena the desk clerk of the Classic Inn late at trial to verify that Hernandez was at the Classic Inn. The district court's refusal to enforce that late request is discussed infra.
2 On March 11, Agent Elliott and four others set up surveillance
of Medina's room (218) at the Ramada. That morning at
approximately 9:00 AM, the agents observed Medina and Gonzales
leave room 218 and walk down to the lobby. Muniz joined them there
a few minutes later. The three went to Owens' Restaurant, next to
the motel, for breakfast. Seated within earshot were Agents Chavez
and Crawford. Chavez, fluent in Spanish, heard Medina say: "I
don't know them too well, but the deal will go down and there's
going to be a meeting at ten o'clock."3 Appellants and Medina were
in the restaurant about a half hour but the agents heard and
understood no other words. Appellants and Medina returned to the
motel where Medina loaded his bags into Gonzales's Toyota Camry.
Gonzales with Muniz drove Medina to Love Field. 4 Medina went to
the boarding area and was not seen again.
On the return to the Ramada, Appellants stopped three times;
twice Gonzales used a pay phone and once he stopped at a service
station but did not exit the vehicle. Gonzales dropped off Muniz
at the Ramada and went one mile to a nearby La Quinta Inn. Muniz
was seen entering a white Mercury Topaz which he drove to the La
Quinta as well. The five DEA agents followed Gonzales and Muniz to
the La Quinta, requesting assistance from local law enforcement.
3 Muniz claimed this comment was made in reference to fundraising efforts to pay for legal representation for Medina's family member. 4 Muniz allegedly planned to return home on the afternoon of March 11 though Gonzales intended to stay in Dallas. Muniz had made the plane reservations for Medina and someone named Hernandez. The name Hernandez was on a slip of paper with flight information found on Muniz.
3 Gonzales parked his Camry at the entrance to the La
Quinta. DEA Agent Crawford met Gonzales at the door of the motel
and introduced himself. Crawford requested identification from
Gonzales and, on discovering that Gonzales was not a local
resident, asked him his purpose in Dallas. Gonzales claimed he had
come from Houston seeking employment. To Crawford's question as to
whether he was traveling with anyone, Gonzales stated that he had
come alone. Crawford asked for Gonzales's consent to search the
Camry. Gonzales assented, but Crawford discovered nothing.
Agent Elliott arrived and asked Gonzales similar questions.
Gonzales stated that he had come for work and that no one else had
been in his car recently. Elliott also asked if Gonzales was
familiar with the man driving the white Topaz. Gonzales denied
knowing him. Crawford asked for and received permission to search
the white Topaz which Gonzales granted.
Muniz had parked at a different section of the La Quinta Inn
parking lot. He locked the car and headed away from the hotel past
two restaurants toward a Honda dealership. He looked over his
shoulder at the parking lot as he walked off. He also saw Agent
Chavez and waved at him. On his own admission, Muniz had seen the
marked police cars there, suspected possible trouble, and sought to
get to a phone and talk to a lawyer.
Agents Chavez and Cash pursued Muniz, intercepting him at the
Honda dealership. They stopped him, identified themselves and
requested identification from him. Muniz was unable to produce
anything but his business card. The agents requested and were
4 granted permission to pat down Muniz for weapons. Muniz twice
denied having driven a car despite Agent Chavez's statement that he
had seen Muniz in the white Topaz.5 Agent Cash had a few more
questions to which Muniz explained his legal business in Dallas,
told of his arrival in Dallas, denied knowing about the white car,
and stated that a man named Hernandez had driven him to the La
Quinta. In response to other questions, Muniz confirmed that
Gonzales was the man in the Camry and claimed that he (Muniz), was
no longer "in the business."
To escape a growing crowd, the agents suggested that the
conversation be continued at the La Quinta. Muniz voluntarily
consented to go with them to the La Quinta. There, Cash conferred
with Elliott as to what had been learned from Muniz. Crawford went
to assist Chavez. Cash again questioned Gonzales about his
residence and purpose in Dallas. Gonzales repeated his
explanation, stating that he had driven to Dallas early that
morning.6
Upon request by the agents, Muniz went and sat on a grassy
area near the Topaz.7 The court found no evidence of coercion in
the agents' request. Chavez, meanwhile, discovered that the white
Topaz was rented in the name of Gonzales and was three days
5 Muniz asserted that these fabrications emerged from his state of panic. 6 Gonzales left Dallas and drove to his home in Mathis, Texas, on a family matter on March 9 but returned to Dallas on March 11. 7 According to Appellants, one hour passed before the investigation culminated in the discovery of the cocaine.
5 overdue.8 Chavez asked if he could search Muniz for the key.
Muniz reportedly assented. Chavez found the key in Muniz's sock.
Muniz did not respond when asked why he had put the key in his
sock. Crawford took the keys and requested permission from
Gonzales to open the trunk to which Gonzales stated that that was
not a problem.9
Before Crawford could open the trunk, a police canine unit
arrived and the dog alerted to the trunk of the Topaz. Crawford
asked Muniz if he had anything to say about the car, but Muniz
again said nothing. Inside the trunk were 40 kilograms of 88% pure
powder cocaine in boxes. Appellants were given Miranda warnings
and then formally arrested.
Appellants filed a pretrial motion to suppress evidence
gathered after the stops, namely the contents of the Topaz and its
keys found on Muniz. After an evidentiary hearing, the trial court
denied that motion for the reasons stated in oral and written
rulings. The court also denied Muniz's at-trial request to enforce
a subpoena for the desk clerk of the Classic Inn to come verify a
registration record for a man named Hernandez. Appellants were
convicted and the court sentenced Muniz to life in prison and
Gonzales to 168 months.10 Their timely appeals are now before the
8 Gonzales rented the Topaz on March 5, 1994, from Budget Rental Car in Houston, Texas. 9 Muniz claims that the agent first requested his permission to open the vehicle but that he refused. 10 Both defendants had prior drug convictions. Muniz's two prior drug offenses resulted in a sentence enhancement to life imprisonment.
6 Court.
DISCUSSION
Gonzales and Muniz argue that the motions to suppress should
have been granted and that evidence of possession and conspiracy
was insufficient to support the convictions. Muniz additionally
argues that the court wrongfully failed to enforce his subpoena,
that the enhanced sentence was unconstitutional and also
impermissible because the government failed to give proper notice
that it would seek an enhanced sentence based on the prior
convictions.11 These issues will be dealt with in turn.
A. The Appellants' Motions to Suppress.
Prior to trial, appellants filed separate motions to suppress.
Gonzales claimed that the stop, arrest, search and interrogation
and the seizure of items and papers were effected without
reasonable suspicion or probable cause. Muniz also alleges that he
was arrested without probable cause; that any detention exceeded
the scope of a permissible detention based on reasonable suspicion;
and that the seizure of the key and eliciting of statements were
illegal. The government does not assume that the stops were
11 Gonzales also attacks the reliability of the narcotics dog in one paragraph, arguing that no probable cause existed because of the dog's unreliability. The court found the dog to be reliable, rejecting the evidence of Gonzales at the suppression hearing. The government supports its arguments based on consent and reasonable suspicion and scarcely mentions the issue of the dog on this appeal. Because Gonzales has shown no clear error in the district court's finding on the reliability of the drug dog, we will not disturb the finding.
7 investigative detentions but asserts that the encounters were at
least initially consensual, that the searches were by consent, and
that even if the encounters were Terry stops, reasonable suspicion
existed to detain the Appellants. The government also contests
Appellants' standing to challenge the search of the Topaz. At the
suppression hearing, Gonzales did not testify or articulate any
factual dispute and provided expert testimony only as to the
reliability of the drug dog. Muniz conceded that he had no privacy
interest in the vehicle but complained that the statements elicited
from him and the search resulting in the keys were both unlawful.
Muniz also testified as to alleged coercive behavior on the part of
the agents. The district court orally denied both motions, stating
that there was reasonable suspicion to make the stop, that there
was probable cause to make the arrest later, that the dog was
reasonably reliable and that the consents given to search were
voluntary.
Subsequently, the court issued a written order on Muniz's
motion, finding inter alia the following facts: 1) prior to March
11, 1994, the agents suspected that appellants were involved in
illegal drug activity; 2) Agent Chavez determined that the
restaurant conversation was regarding a drug deal, based on his law
enforcement experience; 3) Muniz was not in custody until the
actual arrest, no reasonable person of Muniz's intelligence would
have thought he was, he was never told he had to answer questions
or could not leave the area, and he was aware of his right to
refrain from giving consent; 4) the search and questioning of Muniz
8 were voluntary; 5) the agents were dressed in civilian clothes and
displayed no weapons; 6) Muniz denied knowledge of the car; 7) and
Muniz was not arrested until after the discovery of the cocaine.
The court issued no written order on Gonzales's motion.
Appellate review of a district court's ruling on a motion to
suppress based on testimony at a suppression hearing is subject to
the clearly erroneous standard. U.S. v. Cooper, 43 F.3d 140, 144
(5th Cir. 1995). Questions of law are of course reviewed de novo,
but questions of fact are accepted unless the district court's
findings were clearly erroneous, or influenced by an incorrect view
of the law. U.S. v. Muniz-Melchor, 894 F.2d 1430, 1433 (5th Cir.),
cert. denied 495 U.S. 923 (1990). Furthermore, the evidence must
be viewed in the light most favorable to the party prevailing
below, except where such a view is either not consistent with the
district court's findings or is clearly erroneous considering the
evidence as a whole. U.S. v. Shabazz, 993 F.2d 431, 435 (5th Cir.
1993). We affirm the lower court's denial of the Appellants'
motions.
1. Appellants' standing to challenge the search of the Topaz.
The government contends that appellants lack standing to
challenge the search of the Topaz. Muniz conceded at the hearing
that he lacked standing to challenge the rental car search, that he
had no expectation of privacy in the rental car. Thus, this
discussion will focus on Gonzales. The government argues that
although Gonzales leased the rental car, the fact that he did not
9 drive the car to the La Quinta and willingly gave the car keys to
Muniz eliminated his expectation of privacy in the car. U.S. v.
Nunn, 525 F.2d 958, 959 (5th Cir. 1976) (court found lack of
standing for owner of truck who was not driving it when it was
seized with illegal immigrants lying in the truck's open bed).
The government concedes that it did not raise the issue of
standing before the district court but argues for an exception to
waiver. U.S. v. Amuny, 767 F.2d 1113, 1121 (5th Cir. 1985). It
offers this Circuit's exception to the waiver rule for situations
where "no facts are adduced [by the defendant] at the hearing from
which the government could reasonably have inferred the existence
of the defendant's standing." U.S. v. Cardona, 955 F.2d 976, 981-
982 (5th Cir.), cert. denied 113 S.Ct 381 (1992) (exception to
waiver allowed when defendant had no ownership interest in the
vehicle and did not focus on the search of the car at the hearing).
The government's argument is based on the facts noted above
(Gonzales turned over the keys and let Muniz drive to the La
Quinta) and the fact that Gonzales did not assert standing at the
hearing or testify at the hearing. The government thus contends
that it was not presented with facts from which it could infer that
Gonzales had an expectation of privacy in the Topaz.
The question before the Court is whether facts were adduced
from which the government could have inferred that Gonzales was
claiming a privacy interest. Such a claim would have required a
response on the part of the government. Gonzales leased the car,
drove it around extensively, and, as the government notes, was
10 asked by the agents if they could search the vehicle. According to
the government, Gonzales raised none of these fact concerns in a
brief or testimony. Gonzales did however inquire about the vehicle
on cross-examination and not just in regard to the drug dog. This
should have triggered a government response; thus, the government
waived the issue. Gonzales has standing to challenge the search of
the Topaz.
2. Nature of the initial encounters between appellants and agents.
The district court made a specific finding with regard to
Muniz that the initial part of the encounter was a mere consensual
encounter, unregulated by the Fourth Amendment. This finding of
fact is subject to reversal only if clearly erroneous. U.S. v.
Butler, 988 F.2d 537, 541 (5th Cir.), cert. denied 126 L.Ed.2d 359
(1993). No specific finding on this question was made with regard
to Gonzales. Analysis of the initial part of the Gonzales's stop
is nonetheless necessary in determining the propriety of the
court's general denial of Gonzales's motion to suppress.
Appellants contend that the stops amounted to investigative
detention without reasonable suspicion. The government contends
that the facts surrounding the encounter, viewed in the light most
favorable to the prevailing party, show that the initial part of
the encounters were consensual.
Gonzales argues that he did not feel free to go and that the
initial stop was an investigative detention. An agent stopped
Gonzales at the door to the La Quinta, identified himself and asked
11 Gonzales for identification. Then the agent asked Gonzales's
purpose to be in Dallas and asked permission to search Gonzales's
Toyota Camry. The agent also stated that the car that Gonzales was
traveling in was suspected of being used to transport drugs.
During this discussion, another agent arrived. Shortly thereafter,
Gonzales lied about the Topaz.
Muniz merely assumes that the initial stop was an
investigative detention. Two agents caught up with Muniz as he was
approaching a car dealership. Muniz had seen agents in the parking
lot of the La Quinta and had left the scene. They stopped him and
patted him down; the court found that Muniz consented to the frisk
for weapons. The agents asked for identification and posed several
questions to him about his purpose in Dallas and about the white
car. As a crowd formed, the agents allegedly asked Muniz to
accompany them to the La Quinta. According to the government,
Muniz voluntarily consented to go with them to the La Quinta.
There, Muniz was questioned again and allegedly agreed to another
frisk. That search resulted in the find of the Topaz keys in
Muniz's sock.
The relevant test in determining whether the initial
encounters described above were actually investigative detentions,
enunciated in Florida v. Bostick, 501 U.S. 429, 434 (1991), is
whether a reasonable person in the circumstances presented would
feel free to disregard the agents and go about his or her business.
The government offers the following facts in defense of the court's
finding: 1) the agents wore no uniforms and displayed no weapons;
12 2) the agents did not overwhelm appellants in numbers; 3) the
agents identified themselves truthfully and asked permission to
speak with appellants; 4) the encounters occurred in a public open
place and appellants' movements were not blocked; 5) no threats
were made. According to the government, the circumstances, when
viewed in their totality, support a conclusion that the initial
conversations were not seizures.
There is no indication from the facts of the initial stop of
Gonzales that the agents made any display of authority beyond
identifying themselves or attempted to control Gonzales's movement.
In U.S. v. Galberth, 846 F.2d 983, 989 (5th Cir.), cert. denied 488
U.S. 865 (1988), this Circuit upheld a lower court finding that an
encounter was consensual where the police merely identified
themselves, requested identification and asked questions. See also
U.S. v. Encarnacion-Galvez, 964 F.2d 402, 410 (5th Cir.) (encounter
consensual where police just identified themselves, requested proof
of citizenship, but did not attempt to block movement of
defendant), cert. denied 506 U.S. 945 (1992); U.S. v. Valdiosera-
Godinez, 932 F.2d 1093, 1099 and n.2 (5th Cir.) (neither the fact
that the DEA agents identified themselves nor the presence of other
officers automatically converted encounters into an investigatory
detention), cert. denied 124 L.Ed.2d 275 (1993). There is one
troubling element: the officers informed Gonzales that the car he
was driving was suspected of being used to transport drugs. This
may have pushed the encounter, which was initially consensual, to
being a Terry stop.
13 This Circuit, in Galberth, 846 F.2d at 990 n.11, noted that a
statement by a law enforcement officer that an individual is
suspected of illegal activity is persuasive evidence that the
fourth amendment has been implicated. See also Valdiosera-Godinez,
932 F.2d at 1099 (citing U.S. v. Berry, 670 F.2d 583, 597 (5th Cir.
Unit B 1982) (statement by officer that "'individuals are suspected
of smuggling drugs'" is a factor to be given great weight in
determining whether the stop was investigative detention). The
statement by the agent in the instant case about Gonzales's car
being suspected may have implicated the Fourth Amendment. However,
as discussed below, the agents likely had reasonable suspicion to
detain him at that point anyway and the stop still appears, at its
initial phase, to have been consensual.
The situation with Muniz is only slightly more problematic.
The police initially caught up with Muniz and then asked to frisk
him. Apparently, Muniz voluntarily agreed to be frisked and get in
the car. See discussion infra. There is no evidence of coercion.
He disputes this characterization but, viewed in the light most
favorable to the government, the record supports the finding of the
trial court that the stop of Muniz was at least initially a
consensual encounter.
3. Consent to the searches of person and automobile.
Appellants challenge the legality of the searches performed by
the agents of the Topaz and of Muniz's person. The government
contends that the court properly found in its oral and written
14 rulings that Gonzales and Muniz voluntarily consented to the
searches of their persons and vehicles. The government maintains
that the searches were voluntary regardless of how the encounters
were classified. The district court's finding that the government
had met its burden of proving by a preponderance of the evidence
that appellants' consent was voluntary is reviewed only for clear
error. Cooper, 43 F.3d at 144. Additionally, "'where the judge
bases a finding of consent on the oral testimony at a suppression
hearing, the clearly erroneous standard is particularly strong
since the judge had the opportunity to observe the demeanor of the
witnesses.'" U.S. v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)
(citing U.S. v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988), cert.
denied 124 L.Ed.2d 647 (1993)).
This Court considers six factors in determining whether
consent is given voluntarily: the defendant's custodial status, the
presence of coercive police procedures, the extent and level of the
defendant's cooperation with the police, the defendant's awareness
of his right to refuse consent, the defendant's intelligence, and
the defendant's belief that no incriminating evidence would be
found. No single factor is dispositive. The question of voluntary
consent is a fact to be discerned from the totality of
circumstances. Cooper, 43 F.3d at 144.
The government has a winning argument in favor of voluntary
consent under the six-factor test. As discussed above, arguably
Appellants were not detained at any time until their actual arrest.
According to the government, they were not told they could not
15 leave. Nor is their evidence of coercion. There is a chain of
consent leading down to the finding of the key pieces of evidence.
Gonzales was asked if the officers could inspect the Topaz and he
apparently consented. As stated above, Muniz apparently allowed
the initial frisk, went with officers to the La Quinta and allowed
the search of his person. As for intelligence and awareness of
right to refuse consent, the government wisely notes that Muniz was
a former attorney who undoubtedly was aware that he did not need to
consent to the officers' requests.12 There is no evidence that
Gonzales was of below average intelligence. Additionally, Gonzales
himself had a prior record and experience with law enforcement
procedures. The government did not inform either of Appellants
that they need not consent. However, there is no absolute
requirement that the government establish that the Appellants knew
they could refuse; it is merely one of the factors. Cooper, 43 F.3d
at 148. Thus, the government has met its burden of proof on the
first five elements.
Whether the Appellants believed no evidence would be found is
not difficult to discern. Appellants' actions are consistent with
the government's theory that both Appellants wanted to distance
themselves from the Topaz. That Muniz allowed the second search
suggests that he believed that the Topaz keys would not be
discovered since they had not been discovered on the first search.
Gonzales apparently believed he could avoid association with the
12 The lower court found in its suppression ruling that Muniz had considerable experience in the criminal law and the criminal justice system as a lawyer and convict.
16 car as well since Muniz was the one last seen driving it. Thus,
each may have believed that no evidence connected to them could be
found. No single factor of the six is dispositive,13 so even if
this factor is weak, the court did not err in finding the existence
of voluntary consent. This is especially true given the amount of
deference shown to the lower court's ability to view the demeanor
of the witnesses.
4. Reasonable suspicion for investigative detention.
Though we believe that the searches were by consent, for
completeness's sake, we will address the Appellants' arguments that
the stops were investigative detentions. Appellants analyze the
events, asserting that the stops were investigative detentions made
improperly without reasonable suspicion. The government argues
that even if the stops are classified as Terry stops, the agents
were justified in their actions.
At the time the agents stopped Gonzales and Muniz, the agents
knew the following about them: 1) they were connected with the
activity of Medina, a suspected drug trafficker with whom the DEA
was negotiating a drug sale; 2) On March 11, Medina met with
Gonzales and Muniz and stated that he did not know the other
parties to the deal but that the deal would still occur at 10:00
AM; 3) Medina left town before 10:00 that morning, with the other
two presumably remaining to complete the deal (they were the last
two to meet with Medina before he left town); 4) Gonzales and
13 Cooper, 43 F.3d at 144.
17 Muniz stopped to use pay phones as they headed from Love Field to
the Ramada; and 5) they moved one mile from the Ramada to the La
Quinta. With regard to Muniz, the government also observed him
enter the parking lot and then leave when he realized there were
officers there. He was seen watching over his shoulder at the
parking lot. The government argues that the above facts are enough
to create a "reasonable suspicion" that illegal behavior was
occurring.
In U.S. v. Simmons, 918 F.2d 476, 481 (5th Cir. 1990), two DEA
agents in New Orleans stopped and questioned two passengers exiting
a flight from Los Angeles without specific prior knowledge about
either passenger. One appeared intoxicated, the other nervous, and
both were coming from a known a drug source city. This Court held
that these facts along with an improbable answer from one as to why
he was in New Orleans were enough to allow for reasonable
suspicion. Id.
In our estimation, the instant case presented the DEA agents
with enough reasonable suspicion to merit detention after the
initial consensual encounters. Given both Agent Chavez' 20 years
experience with the DEA and the presence of Medina, Chavez was
probably rational in concluding that the transaction discussed at
Owens' restaurant involved narcotics. The consistent actions after
Medina left would have contributed to the reasonable suspicions of
the agents leading to the questions and searches.
18 5. Conclusion
The district court did not err in denying the motion to
suppress. The stops were at least initially consensual encounters.
From the initial consensual encounters came additional information
to justify investigative detention. The amount of information the
agents had seems to make their suspicions reasonable. Had the
agents lacked reasonable suspicion, the voluntary consent given
with regard to the searches would still allow the evidence to come
in.14 Appellants were not under arrest until the discovery of the
cocaine in the trunk at which time probable cause obviously
existed.15 The evidence on behalf of consent both in the encounters
and the searches is strong enough that the lower court made no
clear error in denying the motions to suppress.
B. Sufficiency of the evidence for convictions of conspiracy and possession.
Gonzales and Muniz challenge the sufficiency of the evidence
on which they were convicted of conspiracy to possess cocaine with
intent to distribute and the completed substantive offense. When
considering a challenge based on sufficiency of the evidence, the
14 The consent obtained in such circumstances is not invalidated by the absence of reasonable suspicion as long as the six factors, when considered as a whole, support the district court's finding. Kelley, 981 F.2d at 1471; Shabazz, 993 F.2d at 439 n.10. See consideration of consent supra. 15 Our conclusion that the stops were at most investigative detentions with reasonable suspicion and that the searches performed were by consent obviates all but cursory disposal of the Appellants' contention that the stops were arrests without probable cause prior to the actual arrests.
19 reviewing court must consider all of the evidence in the light most
favorable to the verdict and determine whether a rational trier of
fact could have found all the elements of the offense beyond a
reasonable doubt. U.S. v. Chavez, 947 F.2d 742, 744 (5th Cir.
1991). Direct and circumstantial evidence are given equal weight,
and the evidence need not exclude every reasonable hypothesis of
innocence. U.S. v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995), cert.
denied 133 L.Ed.2d 696 (1996).
To establish a drug conspiracy under 21 U.S.C. §§ 841(a)(1)
and 846, the government must prove: 1) the existence of an
agreement between two or more persons to violate federal narcotics
laws; 2) the defendant's knowledge of the agreement; and 3) the
defendant's voluntary participation in the agreement. U.S. v.
Gallo, 927 F.2d 815, 820 (5th Cir. 1991). Circumstantial evidence
will suffice to demonstrate the existence of a conspiracy. Id.
The existence of the agreement, the defendant's knowledge, and the
defendant's participation in the conspiracy may be inferred from
the "'development and collocation of circumstances.'" Id. (citing
U.S. v. Lentz, 823 F.2d 867, 888 (5th Cir.), cert. denied 484 U.S.
957 (1987)). Mere presence at the scene of the crime or close
association with co-conspirators will not alone support an
inference of conspiracy but are factors that the jury may consider
in finding conspiratorial activity. Id.
To convict a defendant of possession of cocaine with intent to
distribute under 21 U.S.C. § 841(a)(1), the government must prove
beyond a reasonable doubt that the defendant (1) knowingly (2)
20 possessed cocaine (3) with intent to distribute it. Id. Proof of
possession will usually depend on inference and circumstantial
evidence. Id. When evidence is sufficient to establish the
defendant's participation in a conspiracy to possess narcotics, the
defendant will be deemed to possess the drugs through the co-
conspirator's possession.
This opinion will briefly consider the evidence against each
defendant.
1. Gonzales
Gonzales and Muniz were acquainted prior to the events of
March 1994. Gonzales had served as Muniz's driver on occasion.
The two of them met with Medina, a suspected drug trafficker, in
Houston. Gonzales, though unemployed during this time, rented the
white Topaz and failed to return the car on time. After going home
for a family emergency, Gonzales returned to the Dallas area
despite the fact the Muniz was leaving by airplane. Gonzales was
at the March 11 morning meeting with Medina at which the "deal" was
discussed. Gonzales made several phone calls from pay phones on
his return from the airport.
When questioned by the agents at the La Quinta Inn, Gonzales
claimed he had come to Dallas to seek employment despite the
absence of any evidence of a job search. Gonzales lied to the
agents when he asked whether he had any passengers in his vehicle
recently and whether he had been to the airport. Gonzales had in
fact given the keys of the white Topaz to Muniz shortly before
21 Muniz drove it from the Ramada Inn and after the cocaine had been
placed in the car. The jury also had evidence of Gonzales's prior
convictions on the issue of intent.
While much of the evidence above amounts to mere presence or
association with more culpable figures, the totality of
circumstances would allow the jury to infer participation in the
conspiracy. U.S. v. Dean, 59 F.3d at 1484. The jury chose not to
believe Gonzales's claim that he was on a job search. Gonzales's
presence at the March 11 meeting when combined with his
fabrications regarding the vehicle and delivery of the keys to
Muniz after the cocaine was already in the vehicle are sufficient
evidence to sustain the convictions.
2. Muniz
The circumstances incriminating Muniz are obviously similar to
those above. He met with Medina in Houston, was present at the
March 11 meeting where Medina set the time for the "deal" and lied
about not having driven the Topaz. In addition the following items
of evidence are present: 1) Muniz had a level of reported income
that was inconsistent with his frequent statewide travel,
suggesting income from illicit sources; 2) Muniz met and spoke with
Medina on more occasions than Gonzales, including one meeting on
the night before the arrests (the Topaz, driven by Muniz, was at
the Ramada, Medina's hotel); 3) Muniz drove the Topaz after the
cocaine had been placed in the car; 4) Muniz, watching over his
shoulder, left the area of the La Quinta after spotting law
22 enforcement officers; 5) Muniz hid the keys to Topaz in his socks,
though he allowed the agents to search him.
While none of the above are conclusive proof of conspiracy and
possession, again it is the totality of circumstances that would
allow a jury to find guilt beyond a reasonable doubt. Control of
the vehicle coupled with the attempt to flee the scene and the lies
about use of the vehicle are enough for the jury to conclude that
Muniz possessed the contraband within. U.S. v. Carrillo-Morales,
27 F.3d 1054, 1064-1065 (5th Cir. 1994), cert. denied 130 L.Ed.2d
1119 (1995). From there, one can build the entire conspiracy.
Gonzales possessed the cocaine through his co-conspirator Muniz and
both of them worked together on the "deal." The jury did not have
to believe Muniz's story that he was in Dallas on legal business or
that he left the hotel area looking for a pay phone though he
passed two restaurants before being stopped. The evidence against
the two is sufficient to support the convictions.
C. Muniz's subpoena request.
Muniz appeals the lower court's denial of his request at trial
for the court to enforce the defense subpoena issued to the desk
clerk at the Classic Inn in Fort Worth. Muniz claims the court's
failure to enforce the subpoena is a violation of his Sixth
Amendment right to compulsory process and Fifth Amendment right to
due process. According to Muniz, the desk clerk was in possession
of certain registration records that would allegedly corroborate
Muniz's narration of the events. The lower court denied the
23 request, which was made at the end of the defense's case-in-chief.
This Court will review the decision to deny the subpoena request
under an abuse of discretion standard. U.S. v. Ojebode, 957 F.2d
1218, 1222 (5th Cir. 1992), cert. denied 122 L.Ed.2d 683 (1993);
U.S. v. Bowman, 636 F.2d 1003, 1013 (5th Cir. 1981).
The Fifth and Sixth Amendments guarantee a defendant the
rights to a fair trial and compulsory process but those rights are
not absolute. Butler, 988 F.2d at 540. When requesting a court to
subpoena a witness, a defendant such as Muniz has the duty to
demonstrate the necessity of the witness's testimony. U.S. v.
Ramirez, 765 F.2d 438, 441 (5th Cir. 1985), cert. denied 88 L.Ed.2d
786 (1986); U.S. v. Webster, 750 F.2d 307, 329-330 (5th Cir. 1984),
cert. denied 85 L.Ed.2d 855 (1985); U.S. v. Moore, 917 F.2d 215,
230 (6th Cir. 1990), cert. denied 113 L.Ed.2d 654 (1991). The
government may respond by demonstrating that the facts upon which
the defense relies are inaccurate, or that the evidence sought is
immaterial, irrelevant, cumulative or otherwise unnecessary.
Webster, 750 F.2d at 329-330.
The hotel clerk would have verified the hotel registration
card which showed that a man named Danny Hernandez had stayed at
the Classic Inn from March 6-10.16 Muniz, in an attempt to account
for all of his time in the Lewisville area, hoped that the jury
could infer the following: that D. Hernandez was the Hernandez on
the slip of paper found on Muniz on which Muniz had written airline
16 Government evidence would have shown that Danny Hernandez provided no identification at the Inn and provided a false address.
24 reservations for "Medina, Hernandez", that D. Hernandez was an
unknown person who allegedly called out to Medina on March 10 at
the Ramada Inn and that Hernandez and Medina had access to the
white Topaz. Muniz stated that he did not know Hernandez but that
Hernandez was the owner and driver of the white Topaz. Muniz
attempted to account for his numerous phone calls (30+) from the
hotel as well as the other above-described events. Muniz also
claimed that the evidence would have corroborated Muniz's testimony
that he called the Classic Inn and spoke to Medina about their
alleged legitimate business before the Owens' meeting.
The lower court denied Muniz's request because the
registration records regarding Danny Hernandez lacked relevance and
could possibly confuse the jury. The court pointed to the absence
of any proof that the Danny Hernandez who stayed at the Classic Inn
was the Hernandez about whom Muniz had spoken, especially given the
common nature of the surname Hernandez, and the lack of any proof
that Muniz had made a telephone call to Hernandez at the Classic
Inn. Danny Hernandez who stayed at the Classic Inn checked out a
day before Muniz allegedly made a plane reservation for him.
Additionally, had Muniz been able to connect Medina and Hernandez
together with the white Topaz, this would hardly make either of
these two figures or Muniz look less culpable.
The lower court did not abuse its discretion in refusing to
enforce the subpoena request. Muniz failed to prove that the
evidence was relevant. Even assuming the registration records were
relevant, evidence that a Danny Hernandez had stayed at the Classic
25 Inn would have misled the jury given that there was no evidence
that this D. Hernandez was the Hernandez referred to by Muniz.
D. The lawfulness of Muniz's sentence.
Muniz contests the lawfulness of the enhanced sentence he
received on two grounds. He argues that the government failed to
comply with the formal requirements of 21 U.S.C. § 851(a) and that
21 U.S.C. § 851(e)'s provision precluding collateral attacks on
previous convictions if five years or older is unconstitutional.
The sufficiency of a § 851(a) information and the constitutionality
of § 851(e) are questions of law that will be reviewed de novo.
U.S. v. Steen, 55 F.3d 1022, 1025 (5th Cir.), cert. denied 133
L.Ed.2d 500 (1995).
1. Sufficiency of an Information under 21 U.S.C. §851(a)
Muniz received a life sentence based on the enhancement
provisions of 21 U.S.C. § 841(b) because of his two prior drug
convictions. Several months prior to trial, the government filed
a "Notice of Prior Convictions" for the purpose of informing court
and defendant that the government would seek to use the two prior
convictions to seek an enhanced sentence. Such notice is required
by 21 U.S.C. § 851(a). 21 U.S.C § 851 states:
(a)(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, * * * the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
26 The notice given by the government stated
Notice is given that in accordance with Title 21, United States Code, § 851, the United States intends to prove that RAMSEY RAMIRO MUNIZ, Defendant herein, has two prior convictions by two different courts for felony drug offenses, and as such, if convicted of a violation of 21 U.S.C. 841(a)(1), the penalty range shall be a fine of not more than $8,000,000 and imprisonment for a mandatory term of life without release.
The notice then described the specific convictions (one in the
Southern District of Texas involving 1,100 pounds of marijuana and
the other in the Western District of Texas involving 822 pounds).
Muniz argues that the notice given is inadequate because it is not
called an "Information" as referenced in the statute and does not
state the government will "rely upon" the convictions mentioned in
the notice.
Muniz's requirements are beyond those of the statute. It is
true that the prosecution must comply with § 851's procedural
requirements or the district court cannot enhance a defendant's
sentence. Id. at 1025. The essential question, though, is whether
timely notice (before trial) has been given of which convictions
will be relied on so that a defendant has an opportunity to
respond. Id. at 1027; U.S. v. Gonzalez-Lerma, 14 F.3d 1479, 1485
(10th Cir.), cert. denied 128 L.Ed.2d 484 (1994). More than one
Circuit, including this one, has observed that § 851 does not state
the form in which the "information" is to appear. Steen, 55 F.3d
at 1027 (information with misstated priors sufficient because
defendant not prejudiced); Gonzalez-Lerma, 14 F.3d at 1485
(information sufficient though defendant alleged mistakes on date
and place of convictions); U.S. v. Belanger, 970 F.2d 416, 419 (7th
27 Cir. 1992) (information which failed to specify prior convictions
sufficient when particular conviction were named in a later pre-
trial document).
Muniz does not claim that the notice was untimely or that the
information was incomplete. His criticism is reserved for the
title and wording. Because notice was timely given and the facts
contained were accurate, the information was sufficient under
Steen. As is evident from the "Notice" quoted above, the
government informed the defendant that it would use the prior
convictions, identified those convictions and did so in a timely
manner. § 851 is mentioned specifically in the notice. That the
information was titled "Notice" instead of "Information" and did
not use the words "rely on" is of no significance since the
defendant was aware of the convictions that would be used in
connection with an § 851 sentence enhancement. The Government's
Notice satisfied the requirements of 21 U.S.C. § 851.
2. Constitutionality of 21 U.S.C. § 851 (e).
Muniz attacks § 851 (e) as an unconstitutional violation of
his rights to equal protection of the laws, due process, and his
right not to be subjected to double jeopardy. Muniz claimed that
although the two prior convictions mentioned above arose out of
guilty pleas in separate jurisdictions, they involved a single
conspiracy. Muniz maintained that the Double Jeopardy Clause
barred consideration of both convictions separately for enhancement
purposes.
28 The governemt in this case argues that § 851 (e) has a
rational basis and should be found constitutional. Also, the
government claims that Muniz fails to make out a double jeopardy
claim given the temporal and geographical gap between conspiracies.
21 U.S.C. § 851 (e) states:
No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.
Four circuits have held this provision constitutional. U.S. v.
McChristian, 47 F.3d 1499, 1503 (9th Cir. 1995); U.S. v. Arango-
Montoya, 61 F.3d 1331, 1338 (7th Cir. 1995); U.S. v. Jenkins, 4
F.3d 1338, 1343 (6th Cir. 1993), cert. denied 128 L.Ed.2d 197
(1994); U.S. v. Williams, 954 F.2d 668, 673 (11th Cir. 1992).
The Sixth, Seventh and Eleventh Circuits held that § 851 (e)
is a reasonable limitation on defendants to effectuate the purposes
of sentence enhancement for recidivists and to eliminate a host of
problems with respect to ancient or destroyed records. Jenkins, 4
F.3d at 1343; Arango-Montoya, 61 F.3d at 1338; Williams, 954 F.2d
at 673. In McChristian, the Ninth Circuit ruled that the only
constitutional challenge permitted under § 851 (e) is a claim that
a conviction was invalid because no counsel was appointed to
represent the defendant. 47 F.3d at 1402; Arango-Montoya, 61 F.3d
at 1336. No other constitutional attack on § 851 (e) survived the
Supreme Court's holding in Custis v. U.S., 114 S.Ct. 1732 (1994),
that Congress could totally eliminate collateral attacks on prior
convictions with regard to sentence enhancement if that body so
29 chose. Except in the limited circumstance in which the prior
conviction was obtained in violation of the right to have counsel
appointed, a defendant has no constitutional right to challenge
prior convictions used to enhance a currently imposed sentence.
Id. at 1737-39.
The Court stated that when Congress wants defendants to have
a right to collateral attack, such is stated in the statute. The
Court offered § 851 as an example of Congress authorizing such
attacks when it chose to. Id. The government acknowledges in this
case that the Supreme Court in Custis was reviewing not the drug
enhancement provisions of 851 (e) but similar provisions in the
Armed Career Criminal Act, 18 U.S.C. § 924 (e). Nonetheless, the
Supreme Court's logic and statement regarding § 851 in Custis and
the decisions of our fellow circuits convince us that § 851's five
year limit on collateral attacks is not unconstitutional. A
defendant has no right to make a collateral attack under these
circumstances unless no counsel was appointed for them. Muniz does
not make such a claim and his constitutional attack is thus
untenable.17
CONCLUSION
This Court AFFIRMS the district court's denials of Appellants'
motions to suppress and AFFIRMS in every respect Appellants'
17 Because we hold that 21 U.S.C. § 851(e)'s five year limit constitutional, we do not reach the issue of whether one of the underlying convictions was actually in violation of the Double Jeopardy Clause.
30 convictions and sentences.