United States Court of Appeals Fifth Circuit F I L E D Corrected November 2, 1999 August 5, 1999 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III Clerk 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.
_________________________
Appeals from the United States District Court for the Southern District of Texas (H-97-CR-223) _________________________
August 5, 1999
Before SMITH, WIENER, and A jury found Jorge Munera-Uribe (“Mu- BARKSDALE, Circuit Judges. nera”), Samuel Moreno-Ramos (“Ramos”), Melquecedec Moreno (“Moreno”), Carlos JERRY E. SMITH, Circuit Judge:* Rodriguez-Estupinan (“Rodriguez”), and Sam- uel Valois (“Valois”) guilty of possession with intent to distribute cocaine, in violation of * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- * lished and is not precedent except under the lim- (...continued) (continued...) ited circumstances set forth in 5TH CIR. R. 47.5.4. 21 U.S.C. § 841, and of conspiracy to do the in the Pappas parking lot. This time, Valois same, in violation of 21 U.S.C. § 846. Defen- was the passenger of a silver Ford Taurus, dants appeal their convictions and sentences which was being driven by his brother, Juan on a variety of grounds, including sufficiency Valois.1 In return for the money, Sonny of the evidence, admissibility of the evidence, received one kilogram of cocaine. Juan Valois alleged government misconduct, and incorrect left the scene in his Taurus, Samuel Valois in application of the sentencing guidelines. We the Acura. affirm. Deputy Sheriff William Tipps followed the I. Taurus to an apartment complex at 4545 Cook On August 11, 1997, at the direction of Road, where Juan Valois left the car and Special Agent Michael Dubet of the DEA, entered apartment 712. Tipps kept an eye on confidential informant “Sonny” met with Ro- the apartment throughout the day. Eventually, sina Vinulla Russo, a codefendant not party to he saw Samuel and Juan Valois leave the this appeal, at a Benningan’s Restaurant in apartment complex together in the Taurus. Houston, Texas. The purpose of this meeting They drove to a Fiesta Food Mart, where they was to discuss the purchase of one kilogram of met with Ramos. After a ten-minute con- cocaine. It was agreed that Russo would sell versation, they shook hands and departed their Sonny the cocaine for $18,000. The trans- separate ways. action would take place on August 13 at the Westwood Mall. In September, Dubet directed Sonny to contact Russo to set up another cocaine pur- On August 13, Dubet drove Sonny to the chase. Sonny and Russo arranged to meet on Westward Mall. A meeting was held in Rus- September 18 at Houston’s Restaurant to so’s gold Acura sedan among Sonny, Russo, discuss the potential drug transaction. Sonny and Russo’s boyfriend Valois. At this meet- arrived at the restaurant first, followed by ing, a follow-up meeting was arranged, to be Valois and Russo. Russo and Valois agreed to held at a Bennigan’s restaurant. Because of sell Sonny seven kilograms of cocaine for police presence, this follow-up meeting was $119,000. After Sonny had shown Russo the moved to an adjacent Pappas Barbecue res- money, he was told that he would receive a taurant. phone call from them later in the day with details on how to complete the transaction. At Pappas, Dubet, acting undercover, met This subsequent phone call informed Sonny with Sonny, Russo, and Valois. A code- that the drug transaction would be completed fendant not party to this suit took Dubet into at an Academy Sporting Goods store. the restroom and showed him the kilogram of cocaine that was for sale. Saying he did not When Russo and Valois had left Houston’s presently have enough money on him, Dubet Restaurant (in the Acura), surveillance units postponed the transaction’s culmination, and the parties dispersed. 1 Juan Valois is not a party to this appeal. He Shortly thereafter, Sonny called Valois, in- will be referred to as “Juan Valois” throughout this dicating that he had the money. He met Valois opinion; appellant Samuel Valois will be referred to as “Samuel Valois” or simply as “Valois.”
2 followed them to Barney’s Billiards, where wanted to purchase an additional four kilo- Russo was dropped off. Valois continued on grams of cocaine from him.2 Moreno agreed to the Hong Kong Food Market. to meet Russo at a Fiesta Supermarket to pick up his money. Moreno arrived at the Fiesta in There, Officer Craig Thomas of the sheriff's a brown pickup truck. After he was identified department saw a black Isuzu Rodeo pull up by Russo, Moreno was arrested. His pager to the Acura. The driver of the Rodeo was a was seized, and it contained Russo’s cell Hispanic male who appeared to be in his mid- phone number. thirties (later identified as Juan Hernandez- Colon (“Hernandez”), a defendant not party to When Ramos returned the page, Russo told this appeal). The passenger of the Rodeo, him that his money (for the five kilograms of Ramos, left the Rodeo and entered the Acura, cocaine he had provided)3 was available. carrying a blue gym bag with him, later found Ramos too was told to meet Russo at the to contain five kilograms of cocaine. The Fiesta to collect his money. When Ramos Rodeo and the Acura then went their separate arrived at the Fiesta, he was identified by ways from the parking lot. Russo and subsequently arrested. As with Moreno, Ramos’s pager was found to contain The Acura was followed back to Barney’s Russo’s phone number. Billiards, where Ramos left the vehicle and was replaced by Russo. At a Southwestern Meanwhile, Thomas had followed the Bell Telephone training center, Russo exited Rodeo, seen driven by Hernandez, to an apart- the Acura and entered a van, which went to ment complex at 8300 Sandspoint Drive. At the Academy parking lot, to meet with Sonny the apartment parking lot, Thomas lost sight of to complete the drug transaction arranged ear- Hernandez but did locate the Rodeo and lier in the day. Valois remained in the Acura surveyed it for approximately three hours until and followed Russo to Academy. On arriving other law enforcement officers arrived. there, they were arrested. Sometime after 9:00 p.m., when the other A search of the Acura revealed two blue officers arrived, Thomas observed a Hispanic gym bags in the trunk: one containing five male (later confirmed to be Hernandez) de- kilograms of cocaine, another containing two. scend the stairs of the apartment complex from After reading them their rights in Spanish, a second floor landing. As Hernandez passed Dubet interrogated Russo and Valois. He was the officers, greetings were exchanged in Eng- told that two of the kilograms were from one lish. When Hernandez went to the Rodeo and source (a Colombian known as “Fecho,” later unlocked its door, Thomas approached him identified as Moreno), and five from another and identified himself as a deputy sheriff. (“Sammy” or “El Negro,” later identified as Ramos). 2 As would be expected in a telephone conversa- Russo agreed to page Moreno and Ramos tion between drug traffickers, the word “cocaine” to her cellular phone and allowed agents to was never explicitly used by either Russo or Mo- record the subsequent conversations. Russo reno. told Moreno that she had his money and 3 Again, the word “cocaine” was never used.
3 Thomas informed Hernandez that he had been tion.” seen present at a drug transaction earlier in the day and was therefore suspected of drug traf- To det ermine the apartment from which ficking. Hernandez was read his rights, and Munera and Hernandez had come, Fanning Hernandez acknowledged them in English. asked Munera “which apartment his friend was in.” Munera again responded: “no hablo After some initial denials, Hernandez con- ingles.” Fanning pressed Munera to show the fessed to his involvement in the drug deal. He officers his friend’s apartment, and he nodded told the officers that he had delivered drugs for his head approvingly. He took them to the his friends “Carlos” and “Jorge,” who lived in second floor landing from which he and Her- the apartment complex. He then pointed to nandez had descended. the second floor landing, from which he had descended, as the location of their apartment. Once there, the officers were presented with a choice of two apartments to search: While Hernandez was still being ques- apartments 1714 and 1716. Munera indicated tioned, DEA Agent Marty Fanning observed (by pointing with his nose) that apartment another Hispanic male (later identified as Mu- 1716 was the apartment of his friends. The nera) descend the same stairs as Hernandez agents knocked on that door, but no one had. They noticed Munera make eye contact answered. They opened the door via a key with the handcuffed Hernandez and saw him they had found on Munera. No one was in the become visibly nervous. They also noticed apartment. Subsequent investigation would that Munera was speaking on a cellular phone reveal that this same key opened the door to as he passed by, in English. Fanning asked apartment 1714 as well. Hernandez whether Munera was one of his two friends; Hernandez replied “no.” Thomas noticed that the lights were on in apartment 1714. Peering into its window, he Nevertheless, Fanning approached Munera saw a man seated on a couch (later identified and asked whether his name was “Jorge.” to be Carlos Rodriguez). When the officers Munera replied “no” and told Fanning that his knocked on the door, Rodriguez jumped up name was “Gustavo.” When asked for iden- and ran out of view. A woman, Ms. Hurtado, tification, Munera produced a driver’s license opened the door, and the officers identified with the name “Jorge Gustavo Munera-Uribe.” themselves. When asked whether anyone else When asked why he had lied, Munera looked was inside the apartment, Hurtado said “no,” down at the ground and proclaimed “no hablo immediately heightening the suspicions of the ingles.” This despite the fact that all prior officers. The government contends that the communications between the DEA and Mu- officers then asked for and received permission nera had been in English, along with Munera’s (from Hurtado) to go inside the apartment and conversation on his telephone. have a look around.
A pat down of Munera revealed a pager The officers entered with weapons drawn and two cellular phones. At that point, Mu- and “announced” their presence. Not receiv- nera was handcuffed and informed that “he ing any response, they began to “clear” the was being detained for narcotics investiga- apartment, searching rooms, hallways, and
4 closets for hidden persons. to Rodriguez and to convince him to confess. Munera did this, and Rodriguez finally admit- In one closet, an officer noticed a clear bag ted that he too had been paid to guard cocaine on a shelf containing what appeared to be co- in apartment 1714. caine, and a gym bag on the floor. The officer made a mental note of this observation and II. proceeded with his search. Upon coming to Ramos, Moreno, and Rodriguez claim in- the apartment’s bedroom, the officers found sufficient evidence to convict. If a rational Rodriguez hiding under a bed. jury could have found them guilty beyond a reasonable doubt based, then the evidence in The officers seized Rodriguez and returned question was sufficient. United States v. him to the living room. Thereafter, they asked Gourley, 168 F.3d 165, 168 (5th Cir. 1999). for and received permission (from Hurtado) to In undertaking this analysis, we view the evi- conduct a more thorough search, during which dence and all reasonable inferences therefrom they retrieved the clear plastic bag and duffle in the light most favorable to the verdict. Id. bag from the closetSSboth were found to at 168-69. contain several kilograms of cocaine. “There are three elements to possession A DEA agent fluent in Spanish was sum- with the intent to distribute cocaine base: moned to the scene. He advised Hernandez, (1) knowing (2) possession of the drugs in the first of the three Sandspoint defendants to question (3) with intent to distribute them.” be arrested, of his rights. Hernandez admitted United States v. Suarez, 155 F.3d 521, 524-25 his role in the co caine conspiracy: He had (5th Cir. 1998). To affirm on this charge, we helped a Colombian deliver cocaine in the must find that the evidence was sufficient to Rodeo. show that each of these elements has been sat- isfied. United States v. Miller, 146 F.3d 274, The same agent then advised Rodriguez and 280 (5th Cir. 1998). Munera of their rights. Both of them initially denied knowledge of the cocaine. The agent For a conviction of conspiracy under § 846, told Munera that things would be easier for the evidence must be sufficient show that him if he cooperated and told the truth. He (1) at least two people had an agreement to added that if Munera helped “bring in some traffic in drugs; (2) the defendants were aware other people,” he might get a break. Munera of this agreement; and (3) the defendants continued, however, to deny everything. Mu- knowingly and voluntarily participated in the nera and Rodriguez were taken to DEA head- implementation of this agreement. United quarters for processing. States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). Mere presence at a crime scene, or While there, Munera asked to speak to the close association with conspirators, standing DEA agent who had questioned him pre- alone, cannot rise to knowing participation in viously, because he “wanted to tell the truth.” a conspiracy as a matter of law. United States Munera confessed that he and Rodriguez had v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992). been paid by a Colombian to guard the cocaine in the apartment. Munera then offered to talk Because defendants do not challenge the
5 existence of an agreement, a finding that the Lastly, Ramos was seen cavorting with evidence was sufficient to convict of pos- Valois. This constitutes further evidence that session of cocaine with intent to distribute Ramos and Valois were drug-dealing partners, goes a long way in affirming the conspiracy adding to the reasonableness of the jury’s convictions: A guilty state of mind, combined verdict of guilty. with incriminating act ivity on the cocaine distribution charge, proxies for the knowing Ramos unsuccessfully attempts to compare and voluntary participation element of the his situation to that in United States v. Sa- conspiracy charge. Thus, if the substantive cerio, 952 F.2d 860 (5th Cir. 1992), in which charge of possession with intent to distribute we held that two defendants associated with a cocaine survives challenge, the defendants can automobile containing cocaine could not be escape a conspiracy conviction only if they are considered drug dealing coconspirators. See able to demonstrate that they thought they act- id. at 864. But in Sacerio, police officers ed alone, pursuant to no particular agreement needed to conduct three searches of the ve- with anyone else. hicle in question before they were able to find the cocaine. Id. During one such search, A. rather than appear nervous or concerned, one The evidence was easily sufficient to sup- defendant actually fell asleep. Id. Given that port Ramos’s convictions. He was the one there was scant reason to believe that defen- who placed in Valois’s Acura the blue sports dants in Sacerio knew that there were drugs in bag later found to contain five kilograms co- their car, we could not find that their behavior caine. Although there was no direct proof that (namely, driving an automobile that happened Ramos knew cocaine was in the bag, such an to contain a hidden stash of cocaine) con- inference is reasonably drawn, especially in stituted knowing participation in a drug con- light of the large quantity of cocaine in spiracy. Id. question. The instant case is different. Ramos per- Additionally, Ramos responded to a page sonally carried a bag containing several kilo- from codefendant Russo telling him to meet grams of cocaine from one car to another. her to pick up his portion of the proceeds from While not everyone can be expected to know the sale of his cocaine. Of course, as would be everything that is hidden in a car he happens to expected in a transaction among drug dealers, be driving, it is reasonable to expect an indi- the word “cocaine” was never explicitly used, vidual to know the contents of a gym bag he is but Russo explained to the police that cocaine carryingSSespecially when it is weighed down was the subject of the call. The jury had be- by several pounds of contraband.. fore it only the transcript of this phone call and evidence regarding its context (namely, that B. the call was made by Russo for the purpose of Although admittedly creating a closer case, telling Ramos that his proceeds from that day’s the evidence is sufficient to sustain the verdicts cocaine deal were available). Under these cir- against Moreno as well. The government’s cumstances, the jury had no reason to believe main evidence against Moreno is the fact that that the call concerned anything other than he too responded to Russo’s page regarding cocaine. the pick up of drug money. The ensuing tele-
6 phone conversation between Moreno and Rus- Munera claims that his arrest at the Sands- so was, however, more incriminating than that point apartment parking lot was unconstitu- between Ramos and Russo, for Moreno’s tional because it lacked probable cause. Ab- phone call discussed the possibility of provid- sent an exception, the fruits of an arrest lack- ing additional amounts of cocaine for sale. ing probable cause must be suppressed, which Moreno indicated to Russo that he could not in this case would include Munera’s state- provide any more cocaine until he received his ments, the personal property found on him (the money from the day’s earlier transaction. telephones, pager, and keys to apartments Again, the transcript of this call is devoid of 1714 and 1716), and arguably even the co- any specific mention of cocaine by name, but caine seized in apartment 1714 (to the extent it does constitute quite damning evidence in Munera can show that it would not have been light of Russo’s characterization of the pur- uncovered but for his purportedly illegal ar- pose of the call. The transcript of this record- rest). United States v. Webster, 162 F.3d 308, ed conversation, in conjunction with its atten- 324 (5th Cir. 1998), petition for cert. filed dant circumstances, is by itself sufficient to (U.S. Apr. 29, 1999) (No. 98-9212). support the jury’s verdicts against Moreno be- yond a reasonable doubt. Probable cause exists if “the totality of facts and circumstances within a police officer’s C. knowledge at the moment of the arrest are suf- The evidence is sufficient to sustain the ficient for a reasonable person to conclude that verdict rendered against Rodriguez. He was the suspect had committed or was committing found in one of the two apartments from an offense.” United States v. Ho, 94 F.3d 932, which Munera and Hernandez had exited. 935-36 (5th Cir. 1996). Additionally, imputed When police knocked on the apartment door, to the arresting officer’s knowledge are all the Rodriguez ran from view and hid under a bed. facts and circumstances known to all law en- The apartment in question contained over forcement officials. Webster, 162 F.3d at 331. eleven kilograms of cocaine, and eventually, Rodriguez admitted that he had been paid to The following were the facts and circum- guard it. All of this is sufficient to establish stances of Munera’s arrest: The police had Rodriguez’s guilt in the substantive offense just followed t he Rodeo, involved in a drug and in the conspiracy beyond a reasonable transaction, to an apartment complex. The doubt. driverSSHernandezSShad just been arrested and had told police that he had been delivering III. drugs for his friends Carlos and Jorge, who Rodriguez and Munera claim a long list of lived in the complex. Hernandez pointed to a Fourth and Fifth Amendment violations. We second-floor landing as the location of his review the district court’s findings of fact on friends’ apartment. This landing was also the these issues for clear error and its interpre- location whence Hernandez came prior to his tation and application of law de novo. United arrest. States v. Carrillo-Morales, 27 F.3d 1054, 1060 (5th Cir. 1994). Munera was observed descending from the landing. Police watched him make eye contact A. with Hernandez, who was then in handcuffs,
7 and thereafter become visibly nervous. Police constitute “statements” for Miranda purposes. asked Hernandez whether Munera was one of See United States v. Doe, 465 U.S. 605, 612 the friends he had spoken of; Hernandez (1984); Fisher v. United States, 425 U.S. 391, answered in the negative. 410 (1976). There are at least two reasons, however, why the acquisition of these state- When asked by Fanning whether his name ments in the absence of Miranda warnings was “Jorge,” Munera replied “no.” When does not undermine the jury’s verdicts against asked to produce identification, Munera turned Munera. over his driver’s license, which portrayed his name to be “Jorge Gustavo Munera-Uribe.” Firstly, as the government notes, any When asked why he had lied, Munera pro- Miranda error is harmless in that the evidence claimed “no hablo ingles,” despite the fact that gathered therefrom was not necessary to all previous communication had been in Eng- finding Munera guilty beyond a reasonable lish and that police had overheard Munera doubt. See United States v. Paul, 142 F.3d speaking in English on a cellular phone as he 836, 843 (5th Cir. 1998). In addition to the passed them by. A pat down of Munera re- circumstances of his arrest (his recognition of vealed a pager and a second cellular phone. Hernandez, his lying about his name, his lying Pagers and cell phones have been held by other about his ability to speak English, and his pos- circuits to constitute tools of the drug trade. session of instrumentalities of the drug trade), United States v. Cleveland, 106 F.3d 1056, there is Munera’s subsequent confession, made 1061 (1st Cir. 1997); United States v. Sasson, after he had been read his rights. 62 F.3d 874, 886 (7th Cir. 1995). Under these circumstances, the police had probable cause Additionally, the “fruits” of his purportedly to believe that Munera was involved in the unlawfully acquired statement would have drug conspiracy with Hernandez, and thus been inevitably discovered by the police any- their arrest of Munera at that point was way: The o fficers were already aware of the entirely lawful. landing from which Munera had descended, and they would most likely have searched B. apartment 1714 regardless of Munera’s ges- Regardless of the lawfulness of his arrest, tures (which were misleadingly directed Munera asserts that the “statement” he made toward apartment 1716). See Nix v. Williams, to police at the Sandspoint apartment should 467 U.S. 431, 448 (1983); United States v. have been suppressed. It is undisputed that Lamas, 930 F.2d 1099, 1102 (5th Cir. 1991). Munera was not informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), Secondly, police may dispense with Miran- until well after the search of apartment 1714. da warnings when necessary for their pro- Nevertheless, the police asked him to show tection. New York v. Quarles, 467 U.S. 649, them where his “friends’” apartment was, 655 (1984); Webster, 162 F.3d at 332. The prompting Munera to lead the officers to the dangers that law enforcement officials face second floor landing, and thereafter pointing from drug dealers and the like are well known, with his nose to apartment 1716. and it was important for the officers to identify precisely the apartment in which Munera’s Munera is correct in noting that his gestures
8 cohorts could be found.4 The facts of the cers had strong reason to believe that drugs instant case call for the application of this and drug dealers were located in either apart- “safety exception” to Miranda, and thus it is ment 1714 or 1716. The officers testified that of no consequence that the officers failed to they “fear[ed] for their safety when Rodriguez apprise Munera of his rights. bolted” from the living room, and they feared that “Rodriguez may have been armed or was C. trying to flee.” Additionally, they feared that Rodriguez challenges the legality of the Rodriguez might be attempting to destroy search of apartment 1714 on the ground that evidence. the officers lacked a warrant. See United States v. Richard, 994 F.2d 244, 248 (5th Cir. Moreover, whether exigent circumstances 1993). We find the lack of a warrant exist is a question of fact for the district court, unproblematic in this case, as it fits squarely whose findings we review for clear error. Id. within the well-est ablished “exigent Given that the officers needed to protect circumstances” exception to the warrant against both the destruction of contraband and requirement.5 See Kirkpatrick v. Butler, 870 potential harm to themselves, the court was F.2d 276, 281 (5th Cir. 1989). not clearly erroneous in finding exigency.6
Exigent circumstances justify an exception Exigent circumstances do not, however, to the warrant requirement if officers have enable the police to conduct a full-fledged “cause to believe either that evidence in the search. Instead, they are permitted to conduct house may be destroyed or removed, or that the lives of police officers or other persons may be endangered by persons inside of the 6 Rodriguez asserts that the district court did house.” Kirkpatrick, 870 F.2d at 281 (foot- not make a factual finding of exigency. This note omitted). Each of these exigencies was contention is incorrect, as the district court explic- present. itly noted that “[t]he officers engaged in a proper protective sweep to look for and to locate Rod- Based on their surveillance and the con- riguez-Estupinan, who they believed was still in the fessions of Hernandez and Munera, the offi- apartment and could pose a threat to the officers’ safety.”
4 Rodriguez also asserts that a finding of exi- As mentioned, in this case, Munera originally led police to the wrong apartment number. This gency under these circumstances (that is, following could have had disastrous consequences for the the arrests of Munera and Hernandez) is incorrect officers, should criminal occupants of 1714 have as a matter of law, relying on Maryland v. Buie, decided to ambush the officers as they searched the 494 U.S. 325 (1990). Rodriguez misconstrues wrong apartment. It was precisely to guard against when the exigency attached: It did not attach when such risks that the officers needed to know what the arrests of Munera and Hernandez were made, room Munera’s comrades were in. but rather when officers witnessed Rodriguez flee from the living room. Had Rodriguez not fled, but 5 Although there is evidence that Hurtado may instead remained in plain view, and if the officers have consented to the initial search of apartment had secured apartment 1714, then a warrantless 1714, we decline to resolve this issue on such a arrest (absent consent) might have been inappropri- disputed factual ground. ate. But those are not the facts of this case.
9 only a “protective sweep,” limited to searching Rodriguez, whose suspicious act of bolting those areas where a suspect might be hiding. from view alarmed the officers. In sum, the See Kirkpatrick, 870 F.2d at 282. The record district court did not commit clear error in reflects that this is exactly what they did. reaching its determination that exigent circum- Rodriguez argues next that any exigency stances justified the warrantless search of was created by the officers, and this precludes apartment 1714. them from engaging in a warrantless search on this basis. In support of this, Rodriguez refers D. us to United States v. Richard, 994 F.2d 244, Rodriguez independently challenges the 248 (5th Cir. 1993). The facts of Richard do seizure of a clear plastic bag containing co- parallel, to some extent, those here: Police caine found in the closet of apartment 1714. had announced their presence outside of an He rejects the government’s assertion of the apartment door and thereafter feared what the doctrine of “plain view,” arguing that Thomas, apartment’s occupants might be doing. Id. at who came upon the cocaine, “could not be 246-47, 248. We did not find police-created sure that the white powder residue found was exigency as a matter of law in Richard, but cocaine.” Rodriguez cites United States v. rather we merely affirmed the finding of Buchanan, 70 F.3d 818, 826 n.6 (5th Cir. police-created exigency under the clear-error 1995), in which we noted that “the mere standard of review. Id. at 248-50. presence of white powder residue in a plastic bag, by itself, will [not] always give rise to In the instant case, the court held precisely probable cause.” the opposite, and did so without error in light of the particular facts and circumstances. Un- The white powder was easily in Thomas’s like the situation in Richardson, where “[t]he plain view; the only question is whether he had agents had secured [the room] from the out- probable cause to believe that it constituted side, successfully and covertly,” id. at 249, in cocaine. See id. at 826. As we explained in this case the police were trying to figure out Buchanan, whether such probable cause exists which of two apartments was the one con- depends on the “totality of the circumstances.” taining contraband and coconspirators. Id. This was not a case of the “mere presence of white powder in a plastic bag, by itself,” id., Additionally, we have no evidence regard- but rather of white powder found in an apart- ing how well secured the apartments were or ment already suspected of containing drugs what their means of ingress and egress were. and under suspicious circumstances (namely, Further still, the events of Richardson trans- Rodriguez's flight and Hurtado's deception). pired in the morning, whereas the events of the For these reasons, Thomas had probable cause matter before us transpired in the more treach- to believe that the white powder was indeed erous setting of nighttime. Lastly, in Richard- cocaine. son the police at least knew that the apart- ment’s occupants were not attempting to flee, Secondly, the doctrine of inevitable dis- id.; in the case before us, the police witnessed covery dispenses with Rodriguez’s argument Hernandez’s attempted escape. Thus, if the in that the officers obtained voluntary consent creation of exigency can be attributed to any to search the apartment (from Hurtado) fol- particular person, responsibility would lie with lowing Rodriguez’s arrest. See Nix, 467 U.S.
10 at 448; Lamas, 930 F.2d at 1102. Thus, even to consentSSis irrelevant to this inquiry. See if Thomas did not have probable cause to be- id. lieve that the white powder was cocaine, he validly seized and examined it following his re- F. ceipt of permission to search the apartment. Rodriguez argues that the court erred in See United States v. Kirk, 111 F.3d 390, 392 failing to suppress a statement he made to a (5th Cir. 1997). DEA agent, because “no evidence was presented that defendant waived his Miranda E. warning at the time he was questioned and that Rodriguez denies that the officers received he was not informed of his right to valid consent to search apartment 1714. Be- communicate with consular or diplomatic cause the plain view doctrine allows the intro- officers o f his country as required by Vienna duction into evidence of the cocaine in the Convention treaty and INS regulation.” It is clear plastic bag, the only evidence that could black letter law that a defendant’s waiver of be excluded via this argument is the cocaine his Miranda rights must be knowing, contained in the closet’s gym bag. intelligent, and voluntary. United States v. Collins, 40 F.3d 95, 98 (5th Cir. 1994). This As Rodriguez correctly explains, for con- is a question of fact for the district court that sent to be valid, it must be freely and volun- we review for clear error. Id. at 99. tarily given by someone with authority to con- Government witnesses test ified that sent. Illinois v. Rodriguez, 497 U.S. 177, 181 (1) Rodriguez was read his rights, in Spanish, (1990). Rodriguez concedes that the consent and (2) Rodriguez affirmatively requested to by Hurtado was given freely and voluntarily; make a statement to the DEA and was his dispute is over whether she had authority permitted to do so. From this evidence, the to consent to a search of the apartment. district court could and did properly conclude that Rodriguez’s statements did not run afoul Hurtado identified herself as a resident of of Miranda. apartment 1714. Defendants have introduced no evidence challenging this. So, the officers Rodriguez presses, however, that his came to the objectively reasonable conclusion Miranda warnings were not repeated at the that Hurtado had the authority to consent to a DEA holdover jail cell where his confession search. See United States v. DeLeon-Reyna, was tendered. But because the DEA agents 930 F.2d 396, 399 (5th Cir. 1991) (per did not recommence questioning of Rodriguez curiam) (en banc) (holding that “officers' belief at the jail, a second set of warnings was not that they had consent, in light of all the cir- required; instead, Rodriguez voluntarily cumstances,” comports with Fourth Amend- initiated the telling of his story. See Moore v. ment if “objectively reasonable”). Dugger, 856 F.2d 129, 133 (11th Cir. 1988).
The court did not commit clear error in Rodriguez’s Vienna Convention argument ratifying the officers’ conclusions. The extent is meritless in light of existing precedent. Al- of Hurtado’s knowledge of Rodriguez’s though his rights under the Convention may wrongdoingSSsomething Rodriguez considers have been violated, he has not adequately ex- important in ascertaining Hurtado’s authority plained how this may have prejudiced his
11 defenseSSa critical predicate were we to We did not know the apartment fashion a remedy for him under the Con- doorSSI must correct myself. Officer vention.7 We accordingly reject this argument. Thomas said he saw some, the landing up there, that we wereSSthat’s when we, IV. that was the reason for taking Jorge Munera contends that Fanning perjured Munera-Uribe up to the landing, is for himself on the stand and that the government him to knock on the door or show us knowingly sponsored this perjury. If true, the door that his friend was in, Carlos. such a finding on our part would merit a reversal of Munera’s conviction. Munera When asked whether Munera did indeed show carries the burden of proof on this tall accu- him the door he had come out of, Fanning sation. See United States v. Lochmondy, testified: “No, he didn’t.” 890 F.2d 817, 822 (6th Cir. 1989). At trial, Fanning testified that “to determine To prevail, Munera must demonstrate that what apartment these two individuals [Munera (1) Fanning’s testimony was actually false, id. and Hernandez] had come from . . . [he] asked at 822; and (2) that the government “know- Mr. Munera-Uribe which apartment his friend ingly sponsored” it, United States v. Harrison, was in.” Fanning continued, explaining that 103 F.3d 986, 989 (D.C. Cir. 1997). Incon- Munera pointed to apartment 1716 for them. sistent testimony, by itself, does not meet this burden. See United States v. Bortnovsky, Contrary to Munera’s characterization, 879 F.2d 30, 33 (2d Cir. 1989). Fanning’s suppression hearing and trial tes- timony are not “in direct conflict.” Munera According to Munera, at the suppression blazons the fact that in his suppression hearing hearing Fanning testified that he knew to head testimony, Fanning failed to mention that Mu- for apartment 1714, because “Officer Thomas nera gestured toward the landing for the of- had watched Jorge Munera-Uribe walk from ficersSSindicating the apartment from which he his apartment complex, from the door, the came. But Fanning was never specifically 1714.” When pressed with the question “Is it asked that and was available to Munera’s at- possible that you saw him come from the land- torney for cross-examination. Instead, Fan- ing where there were two apartments 1714 ning was asked whether Munera accurately and 1716?”, Fanning responded: “It is identified apartment 1714 for himSSMunera possible.” He then elaborated, stating: did not (instead motioning with his nose to apartment 1716), and Fanning testified as such. 7 See Faulder v. Johnson, 81 F.3d 515, 520 At trial, Fanning reiterated that he turned to (5th Cir. 1996); United States v. Lombera-Camor- linga, 170 F.3d 1241, 1244 (9th Cir. 1999) (“Up- Munera for help in locating the correct apart- on a showing that the Vienna Convention was ment, and that Munera pointed the officers violated by a failure to inform the alien of his right toward apartment 1716. This hardly consti- to contact his consulate, the defendant in a criminal tutes perjury: Fanning’s testimony at the proceeding has the initial burden of producing deposition (or suppression hearing?) was at evidence showing prejudice from the violation of most incompleteSSit did not, however, con- the Convention.”).
12 tradict anything he later told the court. Rodriguez’s theory of the case: He had ar- gued that the presence of a large force of Secondly, even if Fanning can be said to armed police officers gathered on his balcony have perjured himself, Munera has brought alarmed him and caused him to flee. To char- nothing to our attention purporting to show acterize the image conjured up by Rodriguez’s that the government sanctioned such testi- explanation as a “gestapo” force is not extra- mony, the second vital element of his claim. ordinary. We do not find the word “gestapo” For these reasons, there was no error to be so inflammatory as to destroy the fair- ness of a trial. In fact, the term has taken on a V. generic meaning in modern usage and no According to Rodriguez, the federal prose- longer refers solely to the secret police of Nazi cutor made improper comments at closing that Germany. See WEBSTER’S THIRD NEW INTER- deprived him of a fair trial. Rodriguez bears NATIONAL DICTIONARY 952 (1986). the burden of establishing that these comments did in fact deprive him of a fair trial. United The second comment is also an accurate States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. portrayal of events: Rodriguez indeed fled af- 1994). In determining whether he was de- ter the officers knocked on his door. Although prived of a fair trial, we consider whether the use of the expression “gone on the knock” comments, taken as a whole within the context does not exactly help Rodriguez’s cause, it is of the trial, prejudicially affected substantive well within the prosecutor’s prerogative to use rights. United States v. Rasco, 123 F.3d 222, such expressions in his role as an advocate. 229 (5th Cir. 1997). The offending comments The prosecutor need not avoid honest, truthful were as follows: characterizations of the facts helpful to his argument. 1. “Mr. Ash [Rodriguez’s attorney] would have you think that the Gestapo Lastly, telling the jurors that “the officers had showed up at the door to 1714 at and agents had no reason . . . to lie” does not 8300 Sandspoint, that it was this mas- constitute the impermissible use of a prosecu- sive show of force that caused poor tor’s status to bolster the testimony of a wit- [Rodriguez] to jump from the couch, ness, but only presents a permissible summary run to the back of the apartment, hide of the evidence. Rodriguez suggested that the under a mattress.” police were being untruthful in their testimony; the prosecutor could fairly respond to this sug- 2. “If you recall the testimony, [Rod- gestion by making note of the fact that there riguez] was gone on the knock.” was nothing in the record supporting this accu- sation. See United States v. Vaccaro, 3. “[T]he officers and agents had no 115 F.3d 1211, 1216 (5th Cir. 1997), cert. reason to get on the stand here and lie to denied, 118 S. Ct. 689 (1998). you.” VI. None of this deprived Rodriguez of a fair trial. Section 3B1.2 of the Sentencing Guidelines instructs the court to grant a downward ad- The first comment accurately captured justment for defendants whose roles in a crim-
13 inal offense are “minor.” Rodriguez and Ra- that the court improperly denied him the bene- mos challenge the decision not to grant them fit of this provision. such an adjustment. We review for clear error. United States v. Valencia-Gonzalez, 172 F.3d Valois bears the burden of establishing that 344, 346 (5th Cir. 1999). all five conditions are met. See United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998). A. This is an issue of fact to be determined by the Rodriguez was responsible for “guarding court. United States v. Torres, 114 F.3d 520, 16.52 kilograms of cocaine (worth nearly 527 (5th Cir.), cert. denied, 118 S. Ct. 316 $200,000).” [What is this quoting?] Such a (1997). Accordingly, we review for clear large responsibility does not suggest a minor error. United States v. Wilson, 105 F.3d 219, role. Indeed, under our precedent, a defendant 222 (5th Cir. 1997). whose role is “limited to holding or delivering drugs” is not ordinarily entitled to a minor role Only satisfaction of the fifth condition is adjustment. See United States v. Edwards, 65 before us, with the government apparently F.3d 430, 434 (5th Cir. 1995). Rodriguez has conceding that the other four have been met. furnished us with no precedent suggesting The fifth condition requires that “the defendant that, under the facts of this case, we or any has truthfully provided to the Government all other circuit has held that a minor role information and evidence the defendant has adjustment is in order. concerning the offense or offenses that were part of the same course of conduct or of a B. common scheme or plan.” U.S.S.G. § 5C1.2. Ramos assisted in the delivery of cocaine on August 13 and September 18. On Au- According to the government, Valois had gust 13, he was observed carrying a blue gym (1) failed to admit that he accompanied Russo bag containing cocaine into Hernandez’s car. on the August 13 cocaine pickup; (2) lied Later that day, he came to Fiesta to collect about the delivery of drug proceeds to Ramos money for the drugs he had provided. Again, later that day; and (3) denied being with Russo given Edwards, we cannot say the court when she met Moreno on September 18 to committed clear error by failing to afford Ra- obtain two of the seven kilograms involved in mos minor role status in light of these facts. that day’s transaction. Valois counters by As with Rodriguez, Ramos supplies us with no arguing that he recited all the facts he knew to countervailing caselaw suggesting that a minor the best of his recollection. He adds that none role adjustment would be appropriate under of the government’s examples of untruthful- these circumstances. ness is “specific enough to determine, even by a preponderance of the evidence, that Valois VII. was not being honest . . . .” Under the “safety valve” provision of the Sentencing Guidelines, a court must sentence As a matter of law, Valois argues, he can- defendants below statutory mandatory mini- not be denied relief under § 5C1.2, because mums (and in accord with the lower applicable “the record does not contain specific findings Sentencing Guidelines range) if five conditions of, or support for, the government’s allega- are met. U.S.S.G. § 5C1.2. Valois asserts tions of untruthfulness.” In support of this
14 proposition, he refers us to United States v. nied, 118 S. Ct. 721 (1998). Our standard of Miranda-Santiago, 96 F.3d 517, 527-30 (1st review on this issue is “more deferential than Cir. 1996). that of clear error.” Id.
Miranda-Santiago does not support Va- Although he participated in the same de- lois’s position. There, the government prof- fense as did his codefendants, Moreno argues fered no direct evidence tending to show that that he is entitled to the two-level reduction of the defendant in question was being deceitful. § 3E1.1 because “he did not testify at trial nor Id. at 529. Instead, the government asserted did he deny the allegations of the indictment that the defendant must have known more than during the trial.” Moreno attempts to fit his he was revealing in light of the fact that he litigation strategy into the narrow exception to “shared living quarters with other codefen- § 3E1.1 recognized for those defendants who dants.” Id. Such “mere conjecture” cannot be raise solely legal defenses. See U.S.S.G. the basis for denying the benefit of § 5C1.2. § 3E1.1, comment. Id. The court did not err in holding that More- In Valois’s case, the government did not no has failed to carry his burden of proof on offer up “mere conjecture,” but concrete evi- this issue: There is absolutely no evidence in dence tending to show Valois’s untruthfulness the record indicating acceptance of responsi- (such as statements from Valois’s codefen- bility on the part of Moreno, who had an op- dants). The court held a hearing on the matter portunity to present such evidence pretrial but specifically and came to the conclusionSSafter passed it up, failing to distinguish himself from considering all the evidenceSSthat Valois was his codefendants’ full-fledged defense. See being untruthful. Thus, the court did not en- Thomas, 120 F.3d at 575. So, Moreno cannot gage in “speculation” or “mere conjecture” in avail himself of § 3E1.1. Id. concluding that Valois was undeserving of § 5C1.2. Id. More importantly, the court did IX. not commit clear error in sentencing Valois, Ramos and Rodriguez challenge the calcu- for Valois failed to carry his burden and dem- lations regarding the amount of cocaine for onstrate the applicability of § 5C1.1 in light of which they were individually responsible. the government’s countervailing evidence. These calculations are important, because the base offense level (and thus the length of VIII. imprisonment) for non-violent drug offenders Moreno complains that the court improp- is set in accordance with the quantity of drugs erly denied him a decrease in his sentence for involved. See United States v. Brito, 136 F.3d acceptance of responsibility. Section 3E1.1(a) 397, 415 (5th Cir.), cert. denied, 118 S. Ct. of the Sentencing Guidelines instructs a court 1817 (1998); U.S.S.G. § 2D1.1(c). We re- to decrease a defendant’s offense level by two view for clear error. Brito, 136 F.3d at 415. if “the Defendant clearly demonstrates accep- tance of responsibility for his offense.” More- “For a defendant involved in a drug traf- no bears the burden of establishing acceptance ficking conspiracy, the quantity includes both of responsibility. United States v. Thomas, the drugs with which the defendant was di- 120 F.3d 564, 575 (5th Cir. 1997), cert. de- rectly involved and the drugs that can be
15 attributable to him through the conspiracy.” Rodriguez disputes the attribution to him of Id. five kilograms of cocaine from the Septem- ber 18 transaction. The government intro- The defendant will not necessarily be duced circumstantial evidence linking him to held responsible for the full amount of these drugs: Hernandez testified that he ob- drugs involved in the conspiracy, rather tained the five kilograms from the Sandspoint the defendant will only be held account- apartment, and Rodriguez admitted to guard- able for those amounts of drugs that he ing the cocaine stored there. Putting these knew or reasonably could have known two facts together, the court couldSSand or believed were involved in the conspir- didSSreasonably conclude that Rodriguez acy. In order to calculate this amount, a should have known about this quantity of court may consider the co-conspirator’s drugs. The court did not commit clear error in role in the conspiracy, his relationship to attributing them to Rodriguez for sentencing the other conspirators, and any other in- purposes. formation with “sufficient indicia of reliability.” AFFIRMED.
Id. (citations omitted).
The court felt that it had sufficiently reliable information tying Ramos and Rodriguez to more than fifteen kilograms of cocaine each and based the sentence on that quantity. Our review of the record reveals no error.
Ramos disputes the attribution to him of five kilograms of cocaine from the Septem- ber 18 transaction and one kilogram from the August 13 transaction. With regard to the five kilograms, the government introduced state- 8 ments from Hernandez in which Hernandez (...continued) claims that Ramos asked him for a ride to the sional fashion that the cocaine came from Ramos. gas station so he could deliver the five kilo- Such testimony is not specific enough to contain grams. Hernandez also stated that he helped “sufficient indicia of reliability.” Id. The only Ramos put the five kilograms into a bag and thing in the record to bolster this assertion is the thereafter did indeed drive Ramos to the gas ten-minute evening encounter between Ramos and the Valois brothers. Although the one-kilogram station. The court couldSSand didSSproperly cocaine transaction of earlier that day may very base its determination on this uncontradicted well have been the subject matter of this meeting, evidence.8 the court could not properly come to such a conclu- sion based on this meager evidence alone. Thus, the court should have found Ramos responsible for 8 As to the one kilogram of cocaine from Au- sixteen kilograms of cocaine, not seventeen. This gust 13, the agents seemed to testify in conclu- does not affect the sentence, however, because the (continued...) relevant threshold is fifteen kilograms.