REVISED - August 9, 1999
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________
No. 98-20438 _______________
UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS
JORGE GUSTAVO MUNERA-URIBE; SAMUEL MORENO-RAMOS; MELQUECEDEC HURTADO MORENO; CARLOS A. RODRIGUEZ- ESTUPINAN; SAMUEL VALOIS, a/k/a GERALD EDWIN JAMES, Defendants-Appellants. _________________________
Appeal from the United States District Court for the Southern District of Texas _________________________
August 5, 1999
Before SMITH, WIENER, and affirm. BARKSDALE, Circuit Judges. I. JERRY E. SMITH, Circuit Judge:* On August 11, 1997, at the direction of Special Agent Michael Dubet of the DEA, A jury found Jorge Munera-Uribe confidential informant “Sonny” met with (“Munera”), Samuel Moreno-Ramos Rosina Vinulla Russo, a codefendant not party (“Ramos”), Melquecedec Moreno to this appeal, at a Benningan’s Restaurant in (“Moreno”), Carlos Rodriguez-Estupinan Houston, Texas. The purpose of this meeting (“Rodriguez”), and Samuel Valois (“Valois”) was to discuss the purchase of one kilogram of guilty of possession with intent to distribute cocaine. It was agreed that Russo would sell cocaine, in violation of 21 U.S.C. § 841, and Sonny the cocaine for $18,000. The of conspiracy to do the same, in violation of transaction would take place on August 13 at 21 U.S.C. § 846. Defendants appeal their the Westwood Mall. convictions and sentences on a variety of grounds, including sufficiency of the evidence, On August 13, Dubet drove Sonny to the admissibility of the evidence, alleged Westward Mall. A meeting was held in government misconduct, and incorrect Russo’s gold Acura sedan among Sonny, application of the sentencing guidelines. We Russo, and Russo’s boyfriend Valois. At this meeting, a follow-up meeting was arranged, to be held at a Bennigan’s restaurant. Because of * Pursuant to 5TH CIR. R. 47.5, the court has police presence, this follow-up meeting was determined that this opinion should not be pub- moved to an adjacent Pappas Barbecue lished and is not precedent except under the lim- restaurant. ited circumstances set forth in 5TH CIR. R. 47.5.4. At Pappas, Dubet, acting undercover, met When Russo and Valois had left Houston’s with Sonny, Russo, and Valois. A Restaurant (in the Acura), surveillance units codefendant not party to this suit took Dubet followed them to Barney’s Billiards, where into the restroom and showed him the Russo was dropped off. Valois continued on kilogram of cocaine that was for sale. Saying to the Hong Kong Food Market. he did not presently have enough money on him, Dubet postponed the transaction’s There, Officer Craig Thomas of the sheriff's culmination, and the parties dispersed. department saw a black Isuzu Rodeo pull up to the Acura. The driver of the Rodeo was a Shortly thereafter, Sonny called Valois, Hispanic male who appeared to be in his mid- indicating that he had the money. He met thirties (later identified as Juan Hernandez- Valois in the Pappas parking lot. This time, Colon (“Hernandez”), a defendant not party to Valois was the passenger of a silver Ford this appeal). The passenger of the Rodeo, Taurus, which was being driven by his brother, Ramos, left the Rodeo and entered the Acura, Juan Valois.1 In return for the money, Sonny carrying a blue gym bag with him, later found received one kilogram of cocaine. Juan Valois to contain five kilograms of cocaine. The left the scene in his Taurus, Samuel Valois in Rodeo and the Acura then went their separate the Acura. ways from the parking lot.
Deputy Sheriff William Tipps followed the The Acura was followed back to Barney’s Taurus to an apartment complex at 4545 Cook Billiards, where Ramos left the vehicle and Road, where Juan Valois left the car and was replaced by Russo. At a Southwestern entered apartment 712. Tipps kept an eye on Bell Telephone training center, Russo exited the apartment throughout the day. Eventually, the Acura and entered a van, which went to he saw Samuel and Juan Valois leave the the Academy parking lot, to meet with Sonny apartment complex together in the Taurus. to complete the drug transaction arranged They drove to a Fiesta Food Mart, where they earlier in the day. Valo is remained in the met with Ramos. After a ten-minute Acura and followed Russo to Academy. On conversation, they shook hands and departed arriving there, they were arrested. their separate ways. A search of the Acura revealed two blue In September, Dubet directed Sonny to gym bags in the trunk: one containing five contact Russo to set up another cocaine kilograms of cocaine, another containing two. purchase. Sonny and Russo arranged to meet After reading them their rights in Spanish, on September 18 at Houston’s Restaurant to Dubet interrogated Russo and Valois. He was discuss the potential drug transaction. Sonny told that two of the kilograms were from one arrived at the restaurant first, followed by source (a Colombian known as “Fecho,” later Valois and Russo. Russo and Valois agreed to identified as Moreno), and five from another sell Sonny seven kilograms of cocaine for (“Sammy” or “El Negro ,” later identified as $119,000. After Sonny had shown Russo the Ramos). money, he was told that he would receive a phone call from them later in the day with Russo agreed to page Moreno and Ramos details on how to complete the transaction. to her cellular phone and allowed agents to This subsequent phone call informed Sonny record the subsequent conversations. Russo that the drug transaction would be completed told Moreno that she had his money and at an Academy Sporting Goods store. wanted to purchase an additional four kilograms of cocaine from him.2 Moreno 1 Juan Valois is not a party to this appeal. He 2 will be referred to as “Juan Valois” throughout this As would be expected in a telephone conversa- opinion; appellant Samuel Valois will be referred tion between drug traffickers, the word “cocaine” to as “Samuel Valois” or simply as “Valois.” (continued...)
2 agreed to meet Russo at a Fiesta Supermarket in the apartment complex. He then pointed to to pick up his money. Moreno arrived at the the second floor landing, from which he had Fiesta in a brown pickup truck. After he was descended, as the location of their apartment. identified by Russo, Moreno was arrested. His pager was seized, and it contained Russo’s cell phone number.
When Ramos returned the page, Russo told him that his money (for the five kilograms of cocaine he had provided)3 was available. Ramos too was told to meet Russo at the Fiesta to collect his money. When Ramos arrived at the Fiesta, he was identified by Russo and subsequently arrested. As with Moreno, Ramos’s pager was found to contain Russo’s phone number.
Meanwhile, Thomas had followed the Rodeo, seen driven by Hernandez, to an apartment complex at 8300 Sandspoint Drive. At the apartment parking lot, Thomas lost sight of Hernandez but did locate the Rodeo and surveyed it for approximately three hours until other law enforcement officers arrived.
Sometime after 9:00 p.m., when the other officers arrived, Thomas observed a Hispanic male (later co nfirmed to be Hernandez) descend the stairs of the apartment complex from a second floor landing. As Hernandez passed the officers, greetings were exchanged in English. When Hernandez went to the Rodeo and unlocked its door, Thomas approached him and identified himself as a deputy sheriff. Thomas informed Hernandez that he had been seen present at a drug transaction earlier in the day and was therefore suspected of drug trafficking. Hernandez was read his rights, and Hernandez acknowledged them in English.
After some initial denials, Hernandez confessed to his involvement in the drug deal. He told the officers that he had delivered drugs for his friends “Carlos” and “Jorge,” who lived
(...continued) was never explicitly used by either Russo or Moreno. 3 Again, the word “cocaine” was never used.
3 While Hernandez was still being apartment 1714 as well. questioned, DEA Agent Marty Fanning observed another Hispanic male (later Thomas noticed that the lights were on in identified as Munera) descend the same stairs apartment 1714. Peering into its window, he as Hernandez had. They noticed Munera saw a man seated on a couch (later identified make eye contact with the handcuffed to be Carlos Rodriguez). When the officers Hernandez and saw him become visibly knocked on the door, Rodriguez jumped up nervous. They also noticed that Munera was and ran out of view. A woman, Ms. Hurtado, speaking on a cellular phone as he passed by, opened the door, and the officers identified in English. Fanning asked Hernandez whether themselves. When asked whether anyone else Munera was one of his two friends; Hernandez was inside the apartment, Hurtado said “no,” replied “no.” immediately heightening the suspicions of the officers. The government contends that the Nevertheless, Fanning approached Munera officers then asked for and received permission and asked whether his name was “Jorge.” (from Hurtado) to go inside the apartment and Munera replied “no” and told Fanning that his have a look around. name was “Gustavo.” When asked for identification, Munera produced a driver’s The officers entered with weapons drawn license with the name “Jorge Gustavo Munera- and “announced” their presence. Not Uribe.” When asked why he had lied, Munera receiving any response, they began to “clear” looked down at the ground and proclaimed the apartment, searching rooms, hallways, and “no hablo ingles.” This despite the fact that all closets for hidden persons. prior communications between the DEA and Munera had been in English, along with In one closet, an officer noticed a clear bag Munera’s conversation on his telephone. on a shelf containing what appeared to be cocaine, and a gym bag on the floor. The A pat down of Munera revealed a pager officer made a mental note of this observation and two cellular phones. At that point, and proceeded with his search. Upon coming Munera was handcuffed and informed that “he to the apartment’s bedroom, the officers found was being det ained for narcotics Rodriguez hiding under a bed. investigation.” The officers seized Rodriguez and returned To determine the apartment from which him to the living room. Thereafter, they asked Munera and Hernandez had come, Fanning for and received permission (from Hurtado) to asked Munera “which apartment his friend was conduct a more thorough search, during which in.” Munera again responded: “no hablo they retrieved the clear plastic bag and duffle ingles.” Fanning pressed Munera to show the bag from the closetSSboth were found to officers his friend’s apartment, and he nodded contain several kilograms of cocaine. his head approvingly. He took them to the second floor landing from which he and A DEA agent fluent in Spanish was Hernandez had descended. summoned to the scene. He advised Hernandez, the first of the three Sandspoint Once there, the officers were presented defendants to be arrested, of his rights. with a choice of two apartments to search: Hernandez admitted his role in the cocaine apartments 1714 and 1716. Munera indicated conspiracy: He had helped a Colombian deliver (by pointing with his nose) that apartment cocaine in the Rodeo. 1716 was the apart ment of his friends. The agents knocked on that door, but no one The same agent then advised Rodriguez and answered. They opened the door via a key Munera of their rights. Both of them initially they had found on Munera. No one was in the denied knowledge of the cocaine. The agent apartment. Subsequent investigation would told Munera that things would be easier for reveal that this same key opened the door to him if he cooperated and told the truth. He
4 added that if Munera helped “bring in some v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992). other people,” he might get a break. Munera continued, however, to deny everything. Because defendants do not challenge the Munera and Rodriguez were taken to DEA existence of an agreement, a finding that the headquarters for processing. evidence was sufficient to convict of possession of cocaine with intent to distribute While there, Munera asked to speak to the goes a long way in affirming the conspiracy DEA agent who had questioned him convictions: A guilty state of mind, combined previously, because he “wanted to tell the with incriminating activity on the cocaine truth.” Munera confessed that he and distribution charge, proxies for the knowing Rodriguez had been paid by a Colombian to and voluntary participation element of the guard the cocaine in the apartment. Munera conspiracy charge. Thus, if the substantive then offered to talk to Rodriguez and to charge of possession with intent to distribute convince him to confess. Munera did this, and cocaine survives challenge, the defendants can Rodriguez finally admitted that he too had escape a conspiracy conviction only if they are been paid to guard cocaine in apartment 1714. able to demonstrate that they thought they acted alone, pursuant to no particular II. agreement with anyone else. Ramos, Moreno, and Rodriguez claim insufficient evidence to convict. If a rational jury could have found them guilty beyond a reasonable doubt based, then the evidence in question was sufficient. United States v. Gourley, 168 F.3d 165, 168 (5th Cir. 1999). In undertaking this analysis, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict. Id. at 168-69.
“There are three elements to possession with the intent to distribute cocaine base: (1) knowing (2) possession of the drugs in question (3) with intent to distribute them.” United States v. Suarez, 155 F.3d 521, 524-25 (5th Cir. 1998). To affirm on this charge, we must find that the evidence was sufficient to show that each of these elements has been satisfied. United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998).
For a conviction of conspiracy under § 846, the evidence must be sufficient show that (1) at least two people had an agreement to traffic in drugs; (2) the defendants were aware of this agreement; and (3) the defendants knowingly and voluntarily participated in the implementation of this agreement. United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). Mere presence at a crime scene, or close association with conspirators, standing alone, cannot rise to knowing participation in a conspiracy as a matter of law. United States
5 A. participation in a drug conspiracy. Id. The evidence was easily sufficient to support Ramos’s convictions. He was the one The instant case is different. Ramos who placed in Valois’s Acura the blue sports personally carried a bag containing several bag later found to contain five kilograms kilograms of cocaine from one car to another. cocaine. Although there was no direct proof While not everyone can be expected to know that Ramos knew cocaine was in the bag, such everything that is hidden in a car he happens to an inference is reasonably drawn, especially in be driving, it is reasonable to expect an light of the large quantity of cocaine in individual to know the contents of a gym bag question. he is carryingSSespecially when it is weighed down by several pounds of contraband.. Additionally, Ramos responded to a page from codefendant Russo telling him to meet B. her to pick up his portion of the proceeds from Although admittedly creating a closer case, the sale of his cocaine. Of course, as would be the evidence is sufficient to sustain the verdicts expected in a transaction among drug dealers, against Moreno as well. The government’s the word “cocaine” was never explicitly used, main evidence against Moreno is the fact that but Russo explained to the police that cocaine he too responded to Russo’s page regarding was the subject of the call. The jury had the pick up of drug money. The ensuing before it only the transcript of this phone call telephone conversation between Moreno and and evidence regarding its context (namely, Russo was, however, more incriminating than that the call was made by Russo for the that between Ramos and Russo, for Moreno’s purpose of telling Ramos that his proceeds phone call discussed the possibility of from that day’s cocaine deal were available). providing additional amounts of cocaine for Under these circumstances, the jury had no sale. Moreno indicated to Russo that he could reason to believe that the call concerned not provide any more cocaine until he received anything other than cocaine. his money from the day’s earlier transaction. Again, the transcript of this call is devoid of Lastly, Ramos was seen cavorting with any specific mention of cocaine by name, but Valois. This constitutes further evidence that it does constitute quite damning evidence in Ramos and Valois were drug-dealing partners, light of Russo’s characterization of the adding to the reasonableness of the jury’s purpose of the call. The transcript of this verdict of guilty. recorded conversation, in conjunction with its attendant circumstances, is by itself sufficient Ramos unsuccessfully attempts to compare to support the jury’s verdicts against Moreno his situation to that in United States v. beyond a reasonable doubt. Sacerio, 952 F.2d 860 (5th Cir. 1992), in which we held that two defendants associated with a automobile containing cocaine could not be considered drug deal ing coconspirators. See id. at 864. But in Sacerio, police officers needed to conduct three searches of the vehicle in question before they were able to find the cocaine. Id. During one such search, rather than appear nervous or concerned, one defendant actually fell asleep. Id. Given that there was scant reason to believe that defendants in Sacerio knew that there were drugs in their car, we could not find that their behavior (namely, driving an automobile that happened to contain a hidden stash of cocaine) constituted knowing
6 C. Webster, 162 F.3d at 331. The evidence is sufficient to sustain the verdict rendered against Rodriguez. He was The following were the facts and found in one of the two apartments from circumstances of Munera’s arrest: The police which Munera and Hernandez had exited. had just followed the Rodeo, involved in a When police knocked on the apartment door, drug transaction, to an apartment complex. Rodriguez ran from view and hid under a bed. The driverSSHernandezSShad just been The apartment in question contained over arrested and had told police that he had been eleven kilograms of cocaine, and eventually, delivering drugs for his friends Carlos and Rodriguez admitted that he had been paid to Jorge, who lived in the complex. Hernandez guard it. All of this is sufficient to establish pointed to a second-floor landing as the Rodriguez’s guilt in the substantive offense location of his friends’ apartment. This and in the conspiracy beyond a reasonable landing was also the location whence doubt. Hernandez came prior to his arrest.
III. Munera was observed descending from the Rodriguez and Munera claim a long list of landing. Police watched him make eye contact Fourth and Fifth Amendment violations. We with Hernandez, who was then in handcuffs, review the district court’s findings of fact on and thereafter become visibly nervous. Police these issues for clear error and its asked Hernandez whether Munera was one of interpretation and application of law de novo. the friends he had spoken of; Hernandez United States v. Carrillo-Morales, 27 F.3d answered in the negative. 1054, 1060 (5th Cir. 1994). When asked by Fanning whether his name A. was “Jorge,” Munera replied “no.” When Munera claims that his arrest at the asked to produce identification, Munera turned Sandspoint apartment parking lot was over his driver’s license, which portrayed his unconstitutional because it lacked probable name to be “Jorge Gustavo Munera-Uribe.” cause. Absent an exception, the fruits of an When asked why he had lied, Munera arrest lacking probable cause must be proclaimed “no hablo ingles,” despite the fact suppressed, which in this case would include that all previous communication had been in Munera’s statements, the personal property English and that police had overheard Munera found on him (the telephones, pager, and keys speaking in English on a cellular phone as he to apartments 1714 and 1716), and arguably passed them by. A pat down of Munera even the cocaine seized in apartment 1714 (to revealed a pager and a second cellular phone. the extent Munera can show that it would not Pagers and cell phones have been held by other have been uncovered but for his purportedly circuits to constitute tools of the drug trade. illegal arrest). United States v. Webster, United States v. Cleveland, 106 F.3d 1056, 162 F.3d 308, 324 (5th Cir. 1998), petition for 1061 (1st Cir. 1997); United States v. Sasson, cert. filed (U.S. Apr. 29, 1999) 62 F.3d 874, 886 (7th Cir. 1995). Under these (No. 98-9212). circumstances, the police had probable cause to believe that Munera was involved in the Probable cause exists if “the totality of facts drug conspiracy with Hernandez, and thus and circumstances within a police officer’s their arrest of Munera at that point was knowledge at the moment of the arrest are entirely lawful. sufficient for a reasonable person to conclude that the suspect had committed or was B. committing an offense.” United States v. Ho, Regardless of the lawfulness of his arrest, 94 F.3d 932, 935-36 (5th Cir. 1996). Munera asserts that the “statement” he made Additionally, imputed to the arresting officer’s to police at the Sandspoint apartment should knowledge are all the facts and circumstances have been suppressed. It is undisputed that known to all law enforcement officials. Munera was not informed of his rights under
7 Miranda v. Arizona, 384 U.S. 436 (1966), Munera’s cohorts could be found.4 The facts until well after the search of apartment 1714. of the instant case call for the application of Nevertheless, the police asked him to show this “safety exception” to Miranda, and thus it them where his “friends’” apartment was, is of no consequence that the officers failed to prompting Munera to lead the officers to the apprise Munera of his rights. second floor landing, and thereafter pointing with his nose to apartment 1716. C.
Munera is correct in noting that his gestures constitute “statements” for Miranda purposes. See United States v. Doe, 465 U.S. 605, 612 (1984); Fisher v. United States, 425 U.S. 391, 410 (1976). There are at least two reasons, however, why the acquisition of these statements in the absence of Miranda warnings does not undermine the jury’s verdicts against Munera.
Firstly, as the government notes, any Miranda error is harmless in that the evidence gathered therefrom was not necessary to finding Munera guilty beyond a reasonable doubt. See United States v. Paul, 142 F.3d 836, 843 (5th Cir. 1998). In addition to the circumstances of his arrest (his recognition of Hernandez, his lying about his name, his lying about his ability to speak English, and his possession of instrumentalities of the drug trade), there is Munera’s subsequent confession, made after he had been read his rights.
Additionally, the “fruits” of his purportedly unlawfully acquired statement would have been inevitably discovered by the police anyway: The officers were already aware of the landing from which Munera had descended, and they would most likely have searched apartment 1714 regardless of Munera’s gestures (which were misleadingly directed toward apartment 1716). See Nix v. Williams, 467 U.S. 431, 448 (1983); United States v. Lamas, 930 F.2d 1099, 1102 (5th Cir. 1991). Secondly, police may dispense with 4 Miranda warnings when necessary for their As mentioned, in this case, Munera originally led police to the wrong apartment number. This protection. New York v. Quarles, 467 U.S. could have had disastrous consequences for the 649, 655 (1984); Webster, 162 F.3d at 332. officers, should criminal occupants of 1714 have The dangers that law enforcement officials decided to ambush the officers as they searched the face from drug dealers and the like are well wrong apartment. It was precisely to guard against known, and it was important for the officers to such risks that the officers needed to know what identify precisely the apartment in which room Munera’s comrades were in.
8 Munera challenges the legality of the search Exigent circumstances do not, however, of apartment 1714 on the ground that the enable the police to conduct a full-fledged officers lacked a warrant. See United States v. search. Instead, they are permitted to conduct Richard, 994 F.2d 244, 248 (5th Cir. 1993). only a “protective sweep,” limited to searching We find the lack of a warrant unproblematic in those areas where a suspect might be hiding. this case, as it fits squarely within the well- See Kirkpatrick, 870 F.2d at 282. The record established “exigent circumstances” exception reflects that this is exactly what they did. to the warrant requirement.5 See Kirkpatrick v. Butler, 870 F.2d 276, 281 (5th Cir. 1989). Munera argues next that any exigency was created by the officers, and this precludes them Exigent circumstances justify an exception from engaging in a warrantless search on this to the warrant requirement if officers have basis. In support of this, Munera refers us to “cause to believe either t hat evidence in the United States v. Richard, 994 F.2d 244, 248 house may be destroyed or removed, or that (5th Cir. 1993). The facts of Richard do the lives of police officers or other persons parallel, to some extent, those here: Police may be endangered by persons inside of the had announced their presence outside of an house.” Kirkpatrick, 870 F.2d at 281 apartment door and thereafter feared what the (footnote omitted). Each of these exigencies apartment’s occupants might be doing. Id. at was present. 246-47, 248. We did not find police-created exigency as a matter of law in Richard, but Based on their surveillance and the rather we merely affirmed the finding of confessions of Hernandez and Munera, the police-created exigency under the clear-error officers had strong reason to believe that drugs standard of review. Id. at 248-50. and drug dealers were located in either apartment 1714 or 1716. The officers testified In the instant case, the court held precisely that they “fear[ed] for their safety when the opposite, and did so without error in light Rodriguez bolted” from the living room, and of the particular facts and circumstances. they feared that “Rodriguez may have been Unlike the situation in Richardson, where armed or was trying to flee.” Additionally, “[t]he agents had secured [the room] from the they feared that Rodriguez might be outside, successfully and covertly,” id. at 249, attempting to destroy evidence. in this case the police were trying to figure out which of two apartments was the one Moreover, whether exigent circumstances exist is a question of fact for the district court, whose findings we review for clear error. Id. (...continued) Given that the officers needed to protect Rodriguez-Estupinan, who they believed was still against both the destruction of contraband and in the apartment and could pose a threat to the potential harm to themselves, the court was officers’ safety.” not clearly erroneous in finding exigency.6 Rodriguez also asserts that a finding of exigency under these circumstances (that is, 5 following the arrests of Munera and Hernandez) is Although there is evidence that Hurtado may incorrect as a matter of law, relying on Maryland have consented to the initial search of apartment v. Buie, 494 U.S. 325 (1990). Rodriguez 1714, we decline to resolve this issue on such a misconstrues when the exigency attached: It did disputed factual ground. not attach when the arrests of Munera and Hernandez were made, but rather when officers 6 Rodriguez asserts that the district court did witnessed Rodriguez flee from the living room. not make a factual finding of exigency. This Had Rodriguez not fled, but instead remained in contention is incorrect, as the district court plain view, and if the officers had secured explicitly noted that “[t]he officers engaged in a apartment 1714, then a warrantless arrest (absent proper protective sweep to look for and to locate consent) might have been inappropriate. But those (continued...) are not the facts of this case.
9 containing contraband and coconspirators. powder was indeed cocaine.
Additionally, we have no evidence Secondly, the doctrine of inevitable regarding how well secured the apartments discovery dispenses with Rodriguez’s were or what their means of ingress and egress argument in that the officers obtained were. Further still, the events of Richardson voluntary consent to search the apartment transpired in the morning, whereas the events (from Hurtado) following Rodriguez’s arrest. of the matter before us transpired in the more See Nix, 467 U.S. at 448; Lamas, 930 F.2d at treacherous setting of nighttime. Lastly, in 1102. Thus, even if Thomas did not have Richardson the police at least knew that the probable cause to believe that the white apartment’s occupants were not attempting to powder was cocaine, he validly seized and flee, id.; in the case before us, the police examined it following his receipt of permission witnessed Hernandez’s attempted escape. to search the apartment. See United States v. Thus, if the creation of exigency can be Kirk, 111 F.3d 390, 392 (5th Cir. 1997). attributed to any particul ar person, responsibility would lie with Rodriguez, whose E. suspicious act of bolting from view alarmed Rodriguez denies that the officers received the officers. In sum, the district court did not valid consent to search apartment 1714. commit clear error in reaching its Because the plain view doctrine allows the determination that exigent circumstances introduction into evidence of the cocaine in the justified the warrantless search of apartment clear plastic bag, the only evidence that could 1714. be excluded via this argument is the cocaine contained in the closet’s gym bag. D. Rodriguez independently challenges the As Rodriguez correctly explains, for seizure of a clear plastic bag containing consent to be valid, it must be freely and cocaine found in the closet of apartment 1714. voluntarily given by someone with authority to He rejects the government’s assertion of the consent. Illinois v. Rodriguez, 497 U.S. 177, doctrine of “plain view,” arguing that Thomas, 181 (1990). Rodriguez concedes that the who came upon the cocaine, “could not be consent by Hurtado was given freely and sure that the white powder residue found was voluntarily; his dispute is over whether she had cocaine.” Rodriguez cites United States v. authority to consent to a search of the Buchanan, 70 F.3d 818, 826 n.6 (5th Cir. apartment. 1995), in which we noted that “the mere presence of white powder residue in a plastic Hurtado identified herself as a resident of bag, by itself, will [not] always give rise to apartment 1714. Defendants have introduced probable cause.” no evidence challenging this. So, the officers came to the objectively reasonable conclusion The white powder was easily in Thomas’s that Hurtado had the authority to consent to a plain view; the only question is whether he had search. See United States v. DeLeon-Reyna, probable cause to believe that it constituted 930 F.2d 396, 399 (5th Cir. 1991) (per cocaine. See id. at 826. As we explained in curiam) (en banc) (holding that “officers' belief Buchanan, whether such probable cause exists that they had consent, in light of all the depends on the “totality of the circumstances.” circumstances,” comports with Fourth Id. This was not a case of the “mere presence Amendment if “objectively reasonable”). of white powder in a plastic bag, by itself,” id., but rather of white powder found in an The court did not commit clear error in apartment already suspected of containing ratifying the officers’ conclusions. The extent drugs and under suspicious circumstances of Hurtado’s knowledge of Rodriguez’s (namely, Rodriguez's flight and Hurtado's wrongdoingSSsomething Rodriguez considers deception). For these reasons, Thomas had important in ascertaining Hurtado’s authority probable cause to believe that the white to consentSSis irrelevant to this inquiry. See
10 id. argument.
F. IV. Munera argues that the court erred in Munera contends that Fanning perjured failing to suppress a statement he made to a himself on the stand and that the government DEA agent, because “no evidence was knowingly sponsored this perjury. If true, presented that defendant waived his Miranda such a finding on our part would merit a warning at the time he was questioned and that reversal of Munera’s conviction. Munera he was not informed of his right to carries the burden of proof on this tall communicate with consular or diplomatic accusation. See United States v. Lochmondy, officers of his country as required by Vienna 890 F.2d 817, 822 (6th Cir. 1989). Convention treaty and INS regulation.” It is black letter law that a defendant’s waiver of To prevail, Munera must demonstrate that his Miranda rights must be knowing, (1) Fanning’s testimony was actually false, id. intelligent, and voluntary. United States v. at 822; and (2) that the government Collins, 40 F.3d 95, 98 (5th Cir. 1994). This “knowingly sponsored” it, United States v. is a question of fact for the district court that Harrison, 103 F.3d 986, 989 (D.C. Cir. 1997). we review for clear error. Id. at 99. Inconsistent testimony, by itself, does not meet Government witnesses testified that this burden. See United States v. Bortnovsky, (1) Munera was read his rights, in Spanish, and 879 F.2d 30, 33 (2d Cir. 1989). (2) Munera affirmatively requested to make a statement to the DEA and was permitted to do According to Munera, at the suppression so. From this evidence, the district court hearing Fanning testified that he knew to head could and did properly conclude that Munera’s for apartment 1714, because “Officer Thomas statements did not run afoul of Miranda. had watched Jorge Munera-Uribe walk from his apartment complex, from the door, the Munera presses, however, that his Miranda 1714.” When pressed with the question “Is it warnings were not repeated at the DEA possible that you saw him come from the holdover jail cell where his confession was landing where there were two apartments 1714 tendered. But because the DEA agents did not and 1716?”, Fanning responded: “It is recommence questioning of Munera at the jail, possible.” He then elaborated, stating: a second set of warnings was not required; instead, Munera voluntarily initiated the telling We did not know the apartment of his story. See Moore v. Dugger, 856 F.2d doorSSI must correct myself. Officer 129, 133 (11th Cir. 1988). Thomas said he saw some, the landing up there, that we wereSSthat’s when we, Munera’s Vienna Convention argument is that was the reason for taking Jorge meritless in light of existing precedent. Munera-Uribe up to the landing, is for Although his rights under the Convention may him to knock on the door or show us have been violated, he has not adequately the door that his friend was in, Carlos. explained how this may have prejudiced his defenseSSa critical predicate were we to When asked whether Munera did indeed show fashion a remedy for him under the him the door he had come out of, Fanning Convention.7 We accordingly reject this testified: “No, he didn’t.”
7 See Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996); United States v. Lombera- (...continued) Camorlinga, 170 F.3d 1241, 1244 (9th Cir. 1999) to contact his consulate, the defendant in a criminal (“Upon a showing that the Vienna Convention was proceeding has the initial burden of producing violated by a failure to inform the alien of his right evidence showing prejudice from the violation of (continued...) the Convention.”).
11 At trial, Fanning testified that “to determine (5th Cir. 1997). The offending comments what apartment these two individuals [Munera were as follows: and Hernandez] had come from . . . [he] asked Mr. Munera-Uribe which apartment his friend 1. “Mr. Ash [Rodriguez’s attorney] was in.” Fanning continued, explaining that would have you think that the Gestapo Munera pointed to apartment 1716 for them. had showed up at the door to 1714 at 8300 Sandspoint, that it was this Contrary to Munera’s characterization, massive show of force that caused poor Fanning’s suppression hearing and trial [Rodriguez] to jump from the couch, testimony are not “in direct conflict.” Munera run to the back of the apartment, hide blazons the fact that in his suppression hearing under a mattress.” testimony, Fanning failed to mention that Munera gestured toward the landing for the 2. “If you recall the testimony, officersSSindicating the apartment from which [Rodriguez] was gone on the knock.” he came. But Fanning was never specifically asked that and was available to Munera’s 3. “[T]he officers and agents had no attorney for cross-examination. Instead, reason to get on the stand here and lie to Fanning was asked whether Munera accurately you.” identified apartment 1714 for himSSMunera did not (instead motioning with his nose to None of this deprived Rodriguez of a fair trial. apartment 1716), and Fanning testified as such. The first comment accurately captured Rodriguez’s theory of the case: He had At trial, Fanning reiterated that he turned to argued that the presence of a large force of Munera for help in locating the correct armed police officers gathered on his balcony apartment, and that Munera pointed the alarmed him and caused him to flee. To officers toward apartment 1716. This hardly characterize the image conjured up by constitutes perjury: Fanning’s testimony at the Rodriguez’s explanation as a “gestapo” force suppression hearing was at most is not extraordinary. We do not find the word incompleteSSit did not, however, contradict “gestapo” to be so inflammatory as to destroy anything he later told the court. the fairness of a trial. In fact, the term has taken o n a generic meaning in modern usage Secondly, even if Fanning can be said to and no longer refers solely to the secret police have perjured himself, Munera has brought of Nazi Germany. See WEBSTER’S THIRD nothing to our attention purporting to show NEW INTERNATIONAL DICTIONARY 952 that the government sanctioned such (1986). testimony, the second vital element of his claim. For these reasons, there was no error The second comment is also an accurate portrayal of events: Rodriguez indeed fled V. after the officers knocked on his door. According to Rodriguez, the federal Although use of the expression “gone on the prosecutor made improper comments at knock” does not exactly help Rodriguez’s closing that deprived him of a fair trial. cause, it is well within the prosecutor’s Rodriguez bears the burden of establishing that prerogative to use such expressions in his role these comments did in fact deprive him of a as an advocate. The prosecutor need not fair trial. United States v. Bermea, 30 F.3d avoid honest, truthful characterizations of the 1539, 1562 (5th Cir. 1994). In determining facts helpful to his argument. whether he was deprived of a fair trial, we consider whether the comments, taken as a Lastly, telling the jurors that “the officers whole within the context of the trial, and agents had no reason . . . to lie” does not prejudicially affected substantive rights. constitute the impermissible use of a United States v. Rasco, 123 F.3d 222, 229 prosecutor’s status to bolster the testimony of
12 a witness, but only presents a permissible B. summary of the evidence. Rodriguez Ramos assisted in the delivery of cocaine suggested that the police were being untruthful on August 13 and September 18. On in their testimony; the prosecutor could fairly August 13, he was observed carrying a blue respond to this suggestion by making note of gym bag containing cocaine into Hernandez’s the fact that there was nothing in the record car. Lat er that day, he came to Fiesta to supporting this accusation. See United States collect money for the drugs he had provided. v. Vaccaro, 115 F.3d 1211, 1216 (5th Cir. Again, given Edwards, we cannot say the 1997), cert. denied, 118 S. Ct. 689 (1998). court committed clear error by failing to afford Ramos minor role status in light of these facts. VI. As with Rodriguez, Ramos supplies us with no Section 3B1.2 of the Sentencing Guidelines countervailing caselaw suggesting that a minor instructs the court to grant a downward role adjustment would be appropriate under adjustment for defendants whose roles in a these circumstances. criminal offense are “minor.” Rodriguez and Ramos challenge the decision not to grant VII. them such an adjustment. We review for clear Under the “safety valve” provision of the error. United States v. Valencia-Gonzalez, Sentencing Guidelines, a court must sentence 172 F.3d 344, 346 (5th Cir. 1999). defendants below statutory mandatory minimums (and in accord with the lower A. applicable Sentencing Guidelines range) if five Rodriguez was responsible for “guarding conditions are met. U.S.S.G. § 5C1.2. Valois 16.52 kilograms of cocaine (worth nearly asserts that the court improperly denied him $200,000).” Sentencing Proceedings at 8 the benefit of this provision. (May 15, 1998). Such a large responsibility does not suggest a minor role. Indeed, under Valois bears the burden of establishing that our precedent, a defendant whose role is all five conditions are met. See United States “limited to holding or delivering drugs” is not v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998). ordinarily entitled to a minor role adjustment. This is an issue of fact to be determined by the See United States v. Edwards, 65 F.3d 430, court. United States v. Torres, 114 F.3d 520, 434 (5th Cir. 1995). Rodriguez has furnished 527 (5th Cir.), cert. denied, 118 S. Ct. 316 us with no precedent suggesting that, under (1997). Accordingly, we review for clear the facts of this case, we or any other circuit error. United States v. Wilson, 105 F.3d 219, has held that a minor role adjustment is in 222 (5th Cir. 1997). order. Only satisfaction of the fifth condition is before us, with the government apparently conceding that the other four have been met. The fifth condition requires that “the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” U.S.S.G. § 5C1.2.
According to the government, Valois had (1) failed to admit that he accompanied Russo on the August 13 cocaine pickup; (2) lied about the delivery of drug proceeds to Ramos later that day; and (3) denied being with Russo when she met Moreno on September 18 to obtain two of the seven kilograms involved in
13 that day’s transaction. Valois counters by Section 3E1.1(a) of the Sentencing Guidelines arguing that he recited all the facts he knew to instructs a court to decrease a defendant’s the best of his recollection. He adds that none offense level by two if “the Defendant clearly of the government’s examples of demonstrates acceptance of responsibility for untruthfulness is “specific enough to his offense.” Moreno bears the burden of determine, even by a preponderance of the establishing acceptance of responsibility. evidence, that Valois was not being honest . . . United States v. Thomas, 120 F.3d 564, 575 .” (5th Cir. 1997), cert. denied, 118 S. Ct. 721 (1998). Our standard of review on this issue As a matter of law, Valois argues, he is “more deferential than that of clear error.” cannot be denied relief under § 5C1.2, because Id. “the record does not contain specific findings of, or support for, the government’s Although he participated in the same allegations of untruthfulness.” In support of defense as did his codefendants, Moreno this proposition, he refers us to United States argues that he is entitled to the two-level v. Miranda-Santiago, 96 F.3d 517, 527-30 reduction of § 3E1.1 because “he did not (1st Cir. 1996). testify at trial nor did he deny the allegations of the indictment during the trial.” Moreno Miranda-Santiago does not support attempts to fit his litigation strategy into the Valois’s position. There, the government narrow exception to § 3E1.1 recognized for proffered no direct evidence tending to show those defendants who raise solely legal that the defendant in question was being defenses. See U.S.S.G. § 3E1.1, comment. deceitful. Id. at 529. Instead, the government asserted that the defendant must have known The court did not err in holding that more than he was revealing in light of the fact Moreno has failed to carry his burden of proof that he “shared living quarters with other on this issue: There is absolutely no evidence codefendants.” Id. Such “mere conjecture” in the record indicating acceptance of cannot be the basis for denying the benefit of responsibility on the part of Moreno, who had § 5C1.2. Id. an opportunity to present such evidence pretrial but passed it up, failing to distinguish In Valois’s case, the government did not himself from his codefendants’ full-fledged offer up “mere conjecture,” but concrete defense. See Thomas, 120 F.3d at 575. So, evidence tending to show Valois’s Moreno cannot avail himself of § 3E1.1. Id. untruthfulness (such as statements from Valois’s codefendants). The court held a IX. hearing on the matter specifically and came to Ramos and Rodriguez challenge the the conclusionSSafter considering all the calculations regarding the amount of cocaine evidenceSSthat Valois was being untruthful. for which they were individually responsible. Thus, the court did not engage in These calculations are important, because the “speculation” or “mere conjecture” in base offense level (and thus the length of concluding that Valois was undeserving of imprisonment) for non-violent drug offenders § 5C1.2. Id. More importantly, the court did is set in accordance with the quantity of drugs not commit clear error in sentencing Valois, involved. See United States v. Brito, 136 F.3d for Valois failed to carry his burden and 397, 415 (5th Cir.), cert. denied, 118 S. Ct. demonstrate the applicability of § 5C1.1 in 1817 (1998); U.S.S.G. § 2D1.1(c). We light of the government’s countervailing review for clear error. Brito, 136 F.3d at 415. evidence. “For a defendant involved in a drug VIII. trafficking conspiracy, the quantity includes Moreno complains that the court both the drugs with which the defendant was improperly denied him a decrease in his directly involved and the drugs that can be sentence for acceptance of responsibility. attributable to him through the conspiracy.”
14 Id. Ramos disputes the attribution to him of The defendant will not necessarily be five kilograms of cocaine from the held responsible for the full amount of September 18 transaction and one kilogram drugs involved in the conspiracy, rather from the August 13 transaction. With regard the defendant will only be held to the five kilograms, the government accountable for those amounts of drugs introduced statements from Hernandez in that he knew or reasonably could have which Hernandez claims that Ramos asked him known or believed were involved in the for a ride to the gas station so he could deliver conspiracy. In order to calculate this the five kilograms. Hernandez also stated that amount, a court may consider the co- he helped Ramos put the five kilograms into a conspirator’s role in the conspiracy, his bag and thereafter did indeed drive Ramos to relationship to the other conspirators, the gas station. The court couldSSand and any other information with didSSproperly base its determination on this “sufficient indicia of reliability.” uncontradicted evidence.8 Rodriguez disputes the attribution to him of Id. (citations omitted). five kilograms of cocaine from the September 18 transaction. The government The court felt that it had sufficiently reliable introduced circumstantial evidence linking him information tying Ramos and Rodriguez to to these drugs: Hernandez testified that he more t han fifteen kilograms of cocaine each obtained the five kilograms from the and based the sentence on that quantity. Our Sandspoint apartment, and Rodriguez admitted review of the record reveals no error. to guarding the cocaine stored there. Putting these two facts together, the court couldSSand didSSreasonably conclude that Rodriguez should have known about this quantity of drugs. The court did not commit clear error in attributing them to Rodriguez for sentencing purposes.
AFFIRMED.
8 As to the one kilogram of cocaine from August 13, the agents seemed to testify in conclusional fashion that the cocaine came from Ramos. Such testimony is not specific enough to contain “sufficient indicia of reliability.” Id. The only thing in the record to bolster this assertion is the ten-minute evening encounter between Ramos and the Valois brothers. Although the one- kilogram cocaine transaction of earlier that day may very well have been the subject matter of this meeting, the court could not properly come to such a conclusion based on this meager evidence alone. Thus, the court should have found Ramos responsible for sixteen kilograms of cocaine, not seventeen. This does not affect the sentence, however, because the relevant threshold is fifteen kilograms.