United States v. Mendoza

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 30, 2004
• Docket: 03-10819
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 30, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-10819 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR MENDOZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:03-CR-47-19 --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Omar Mendoza appeals his convictions for conspiracy to possess

with intent to distribute 500 grams or more of methamphetamine and

for being a felon in possession of a firearm. Mendoza moved to

suppress the evidence discovered during the search of his

residence. Following a suppression hearing, the district court

denied the motion, finding that the police officers and the judge

issuing the warrant acted in good faith and that the warrant was

supported by probable cause. Mendoza argues that this was error.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 03-10819 -2-

In reviewing the denial of a motion to suppress evidence

discovered pursuant to a search warrant, a court first determines

whether the good-faith exception to the exclusionary rule announced

in United States v. Leon, 468 U.S. 897 (1984), applies. United

States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999). The good-

faith exception applies only where the affidavit supporting the

warrant “establish[es] a nexus between the house to be searched and

the evidence sought.” United States v. Broussard, 80 F.3d 1025,

1034 (5th Cir. 1996).

Mendoza raises two arguments to conclude that the good-faith

exception does not apply. He first argues that the affidavit was

so lacking in indicia of probable cause as to render belief in its

existence entirely unreasonable. See Cherna, 184 F.3d at 407-08.

This argument fails. In United States v. Green, 634 F.2d 222, 226

(5th Cir. 1981), this Court stated:

The justification for allowing a search of a person’s residence when that person is suspected of criminal activity is the common-sense realization that one tends to conceal fruits and instrumentalities of a crime in a place to which easy access may be had and in which privacy is nevertheless maintained. In normal situations, few places are more convenient than one’s residence for use in planning criminal activities and hiding fruits of a crime.

Here, the affidavit contains specific assertions that (1) Mendoza

was distributing marijuana, (2) the police corroborated this

information through a credible source, and (3) 602 South Pittsburgh

was under the control of Mendoza. Under Green, the affidavit No. 03-10819 -3-

established the necessary nexus between 602 South Pittsburgh and

the contraband.

Mendoza’s second argument is that the magistrate judge

abandoned his judicial role in issuing the warrant. See Cherna,

184 F.3d at 407-08. Mendoza speculates that the judge did not give

the warrant sufficient consideration because it was presented late

at night. The record refutes this speculation: Officer Redden

testified that the judge questioned him specifically regarding the

source of the information contained in the affidavit. Mendoza has

not shown that Judge Broad abandoned his judicial role. United

States v. Broussard, 80 F.3d 1025, 1035 n.6 (5th Cir. 1996). The

district court thus did not err in concluding that the good-faith

exception applied in this case. See Cherna, 184 F.3d at 407.

Mendoza next asserts that the evidence was insufficient to

allow the jury to conclude that he participated in the drug

conspiracy to possess with intent to distribute more than 500 grams

of methamphetamine. Because Mendoza failed to move for acquittal

on the basis of insufficient evidence of participation in

the conspiracy, this claim is reviewed for plain error only.

See United States v. Herrera, 313 F.3d 882, 884-85 (5th Cir. 2002)

(en banc), cert. denied, 123 S. Ct. 1375 (2003); United States v.

McIntosh, 280 F.3d 479, 483 (5th Cir. 2002).

Mendoza finally contends that he was not part of the larger

conspiracy because he was an independent businessman paying cash

for the narcotics from his suppliers, that he had no stake in their No. 03-10819 -4-

enterprise, and that they had no stake in his. Although evidence

of a buyer-seller relationship alone is insufficient to support

a conspiracy conviction, evidence indicating that both parties

to the sale knew that the drugs were meant for resale is sufficient

to establish a distribution conspiracy between them. United States

v. Casel, 995 F.2d 1299, 1306 (5th Cir. 1993). Mendoza concedes

that the Government proved an agreement between Denise and Daniel

Contreras and others to distribute large quantities of

methamphetamine. Mendoza also concedes that the Government

presented the testimony of Denise and Daniel Contreras that he

bought between 20 and 40 pounds of methamphetamine from them.

Intent to distribute may be inferred from possession of a large

amount of contraband. United States v. Lopez, 979 F.2d 1024, 1031

(5th Cir. 1992). The evidence presented was sufficient to allow a

jury to find that Mendoza participated in the conspiracy to

distribute methamphetamine.

AFFIRMED.