United States v. Garza

REVISED

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 95-21094

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

PEDRO ELIZONDO GARZA; JORGE INOCENCIO;
HOMERO HINOJOSA GARCIA; OZIEL ALANIS,

Defendants-Appellants.

Appeals from the United States District Court
For the Southern District of Texas
July 16, 1997

Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and DOHERTY,1
District Judge.

DeMOSS, Circuit Judge:

A jury convicted the defendants, Jorge Inocencio, Pedro

Elizondo Garza, Homero Hinojosa Garcia, David Tovar2 and Oziel

Alanis, of conspiracy to possess with intent to distribute more

than five kilograms of cocaine in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A) and 846. Tovar and Oziel were convicted on

District Judge of the Western District of Louisiana, sitting
by designation.

Tovar died on August 12, 1996, and his cause has been
dismissed by order of this Court.
other counts of aiding and abetting the possession of cocaine with

intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A) and 18 U.S.C. § 2. Inocencio, Garza, and Garcia were

also convicted of money laundering under 18 U.S.C. §§

1956(a)(1)(A)(i)and 1956(g). The defendants appeal from the

judgments of conviction entered and sentences imposed by the

district court following a jury trial. After reviewing the record,

we find that insufficient evidence exists to support the money

laundering conviction as to Garza and Garcia. As to all other

convictions and sentences, finding no error, we affirm.

BACKGROUND

On January 26, 1995, based on information supplied from a

prior investigation, law enforcement officers set up surveillance

on Garcia and Garza at a Days Inn in Houston, Texas. Houston

Police Officer Jerry Nimmo observed Garcia seated in a red Buick

Regal which was parked on a curb near the entrance to the Days Inn

parking lot. Garcia appeared to be waiting for someone and

conducting counter surveillance. Garza approached the Buick,

entered the driver’s side of the car, and drove down the road.

Garza then stopped the car and Garcia got out, looked around, and

reentered the car. Garza then made a u-turn and drove back to the

Days Inn.

Garza then entered the motel while Garcia waited in the back

seat of the Buick. Thereafter, Garza reappeared carrying a tan

sports bag. Tovar walked toward the Buick with Garza. Garza

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placed the sports bag on the driver’s side floorboard. Officer

Nimmo then observed the three defendants conversing outside their

vehicles. Tovar then turned and walked back to a black Camaro.

Garza and Garcia left in the Buick. Tovar followed in the Camaro.

Garza and Garcia drove to an apartment complex and made two

“heat runs” before entering the complex. Tovar headed toward the

interstate. The Buick parked in front of apartment 2142, which was

later found to be Tovar’s apartment. Garza then drove the Buick to

a “J.D. Sales” store in Pasadena, Texas. He was seen making two

“heat runs” past the store before returning. Garza then drove the

Buick to Mavis Lane in Pasadena where observation of the Buick

ended. A surveillance perimeter was established around the

neighborhood.

Officers saw Garza and Garcia again that afternoon in a blue

Chrysler New Yorker. Garza and Garcia stopped in a Texaco gas

station and used a pay phone at that location. Sometime

thereafter, Inocencio arrived at the Texaco in a black Mercury

Marquis. Inocencio pulled up next to the Chrysler and handed a

green field jacket to Garcia. The two cars then left in opposite

directions.

Around 3:00 p.m., the Chrysler pulled into a Conoco gas

station. Garza used the pay phone and made a “pager type” call and

then left the gas station. Officers stopped the Chrysler at 3:20

p.m. in the 3800 block of Spencer Highway in Pasadena. Speaking in

Spanish, Sergeant Pohlman identified himself and ordered Garza and

Garcia to raise their hands. Garcia kept lowering his hands,

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forcing the officer to reach inside the vehicle and place his hands

across Garcia’s elbows. The officer saw a 9mm pistol between

Garcia’s leg and the arm rest and seized the gun from the car.

Garza and Garcia then exited the vehicle and Officer Bell advised

them in Spanish that they were being investigated and that the

officers wanted to speak with them.

During questioning, Garza told Officer Bell that he was not

acquainted with anyone owning a black Camaro and that he had just

purchased a pickup from J.D. Sales. Garza then read and signed a

consent form to search the Chrysler. Police found a loaded .40

caliber Smith & Wesson pistol inside the green jacket Inocencio had

handed Garcia. A telephone address book was also seized.

Meanwhile, outside the Mavis Lane residence of Inocencio,

Police stopped Inocencio and explained that they were conducting a

narcotics investigation and asked if they could question him inside

the residence. Inocencio invited the officers inside. Inocencio

first orally consented to a search of the premises and then signed

a consent form to search the house. Police discovered 104

kilograms of cocaine in packages with labels of joker cards and a

"red ace of clubs" concealed in luggage in attic space next to an

upstairs bedroom.3 Officers also found approximately $5 million in

cash as well as ledgers and notebooks documenting drug

transactions. The ledgers and notebooks indicated that 609

kilograms of cocaine had been sold for approximately $7,964,000, of

We are aware of the fact that clubs are traditionally black
cards; but the record is clear that red was the color in this case.

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which $6,189,000 had been received. Officers also found scales, a

Smith & Wesson box with the same serial number as the gun found

between Garza and Garcia in the Chrysler, an adding machine with

adding machine tape, and loaded handguns and ammunition.

Around 4:00 p.m., officers stopped Tovar, Oziel, and another

man in a Lincoln Town Car. After much consternation, Tovar

consented to a search of his car and his apartment. In the car,

officers found one kilogram of cocaine labeled with a red ace of

clubs in a potato chip bag under the front passenger-side seat and

$2,285 in cash in the glove box. In Tovar’s apartment, officers

discovered approximately 6 kilogram-sized packages of cocaine

labeled with a red ace of clubs, two stolen loaded handguns, a

lathe used to design silencers, silencers, silencer parts, and a

digital scale. A date book and address book were also seized.

Inocencio, Garcia, Garza, Tovar, and Oziel were charged in

Count One of a four count indictment with conspiracy to possess

cocaine with intent to distribute. Count Two charged Inocencio,

Garcia, and Garza with aiding and abetting persons to knowingly and

intentionally possess with intent to distribute more than 5

kilograms of cocaine. Count Three charged Tovar and Oziel with

aiding and abetting persons to knowingly and intentionally possess

with intent to distribute more than 5 kilograms of cocaine. Count

Four charged Inocencio, Garcia, and Garza with knowingly and

willfully attempting to launder money in violation of 18 U.S.C. §

1956(a)(1)(A)(i) and 1956(g).

A jury found the defendants guilty on all counts in the

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indictment. The district court sentenced Inocencio to 365 months

imprisonment. Garcia received 405 months and Garza was sentenced

to 365 months. The defendants filed timely notices of appeal.

ANALYSIS

1. The Search of Inocencio’s Home

On appeal, Inocencio contends that the district court erred in

denying his motion to suppress the warrantless search of his home.

Inocencio contends that law enforcement officers arrived at his

residence and asked if they could question him. Because Inocencio

does not adequately speak nor understand English, one officer

questioned him in Spanish. The Spanish speaking officer testified

that Inocencio verbally consented to a search of his home. The

officer then asked Inocencio to sign a written consent form which,

in Spanish, explained his right to refuse consent. Inocencio

signed the form.

The form states in pertinent part “Persona, Premisas o

Transporte a ser examinado.” Expert testimony revealed that the

form was incorrectly translated from English to Spanish. The

English version of this caption stated “person, premises or

conveyance to be search.” In the translation to Spanish, the word

“premises” was changed to “premisas” which, in Spanish, means

“logical proposition” or “the premise of the argument.” Testimony

revealed that “premisas” does not refer to premises or relate to a

home or residence. Further, officers only filled out Inocencio’s

name under the heading. They did not fill-out the space for place,

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or conveyance to be searched.

According to Inocencio, this omission suggests that he was

only to be subject to an “examinado.” In support, he contends that

the written form uses the verb “examinar” which means to examine.

Inocencio maintains that he thought this “examination” would be

oral and did not understand that he had consented to a “catear” or

“registrar,” two words which correctly translate to the verb

“search” in English. Inocencio also testified that he did not

understand that his oral consent to search included his home. He

stated that he only agreed to a search of his person and his

automobile. As such, he maintains that the search of his residence

was improper.

We review a motion to suppress based on live testimony at a

suppression hearing for clear error, viewing evidence in the light

most favorable to the prevailing party, in this case, the

government. See United States v. Levine, 80 F.3d 129, 132 (5th

Cir.), cert. denied, 117 S. Ct. 83 (1996); United States v. Piaget,

915 F.2d 138, 139-140 (5th Cir. 1990). The district court based

its decision on the following findings and conclusions:

The fact that the Spanish translation of the
consent form contained an incorrect translation of
the word “premises” does not invalidate the consent
given by Inocencio. Given that Inocencio testified
that he never read the form, and given the
statements made to him by Officer Bell, Inocencio’s
act of signing the document signifies to the Court
that Inocencio intended to memorialize what the
defendant had previously agreed to when he verbally
consented to the search of the Mavis residence.

The district court heard testimony from Inocencio that he had

been living in the United States since 1978. Further, Inocencio

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testified that he never read the consent to search form. The

district court also heard testimony from the officers and Inocencio

about Inocencio’s verbal consent to search of his home.

After reviewing the record, we find no clear error with the

district court’s decision. The fact that the consent form was

incorrectly translated is irrelevant given that Inocencio never

read the form and could not have mistakenly relied on its

translation. As such, this case turns on whether oral consent to

search was given by Inocencio. In making this determination, the

district court was in the best position to weigh the credibility of

the testimony of Officer Bell and Inocencio and ascertain that

Inocencio did understand that he gave oral consent to search his

home. We will not second guess the district court’s factual

findings as to the credibility of witnesses. See United States v.

Botello, 991 F.2d 189, 194 (5th Cir. 1993); United States v.

Coburn, 876 F.2d 372, 374 (5th Cir. 1989). Further, we will not

disturb findings of fact unless we are left with the definite and

firm conviction that a mistake has been made. See Botello, 991

F.2d at 194. Once the officers obtained oral consent to search

Inocencio’s home, the search was valid, notwithstanding the

incorrectly translated consent form.

2. Sufficiency of the Evidence - Drug Convictions

“In reviewing an appeal based on insufficient evidence, the

standard is whether any reasonable trier of fact could have found

that the evidence established the appellant’s guilt beyond a

8
reasonable doubt.” United States v. Jaramillo, 42 F.3d 920, 922-

923 (5th Cir. 1995). We consider evidence in the light most

favorable to the verdict. See id. at 923.

To establish a violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A), the government must prove that the defendants (1)

knowingly (2) possessed narcotics (3) with intent to distribute.

See United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).

“Possession may be either actual or constructive and may be joint

among several people.” Id. Possession may also be proven by

direct or circumstantial evidence. See United States v. Ojebode,

957 F.2d 1218, 1223 (5th Cir. 1992).

A. Garza and Garcia

Garza and Garcia contend that the government failed to

establish that they joined or furthered the purpose of this

conspiracy. They argue that the government presented no evidence

other than their mere presence and association with the narcotics

found in connection with Inocencio and Tovar. We disagree.

Garza and Garcia participated in counter surveillance before

rendezvousing with Tovar at the Days Inn and en route to Tovar’s

apartment and Inocencio’s house. Garza and Garcia met with Tovar,

whose apartment and car contained narcotics. The packages of

cocaine found in Tovar’s car and residence had the same label as

the packages found in Inocencio’s home. Garza and Garcia also met

with Inocencio at a Texaco gas station where Inocencio gave them a

green jacket with a firearm. Inocencio also told officers during

9
questioning that Garza and Garcia were staying at his home.

Garcia’s fingerprints were found on drug ledgers and adding machine

tapes in Inocencio’s home. Garcia’s fingerprints were also found

on one of the boxes containing money found inside Inocencio’s

residence. Garcia carried Inocencio’s pager number. Finally,

officers found two firearms in the car occupied by Garza and

Garcia.

Based on this evidence, the government clearly presented

sufficient evidence to show that Garza and Garcia “`became

associated with, participated in, and in some way acted to further

the possession and distribution of drugs.’” United States v.

Inocencio, 40 F.3d 716, 726 (5th Cir. 1994) (quoting United States

v. Chavez, 947 F.2d 742, 745-46 (5th Cir. 1991)). Consequently, a

reasonable jury could conclude that Garza and Garcia knowingly

possessed cocaine with intent to distribute.

B. Oziel

Oziel also contends that insufficient evidence exists to

support his conviction. Oziel argues that his name on the drug

ledgers found in Inocencio’s residence, and his mere presence in

Tovar’s car, are the principal evidentiary pieces linking him to

this conspiracy and, these facts alone, cannot support a

conviction.

The government presented evidence that a notebook with a

picture of a “Killer Whale” found at Inocencio’s home had a written

entry that Oziel received 25 kilograms of cocaine on the day he was

10
arrested. Officers found cocaine with a label of the red ace of

clubs and $2,285 in cash in the car occupied by Tovar and Oziel.

Identically labeled packages of cocaine were found in Tovar and

Inocencio’s homes. Oziel’s fingerprints were found on a box

containing two of the six kilograms of cocaine inside Tovar’s home.

Further, Oziel was a passenger in Tovar’s car on the same day that

Tovar met with Garcia and Garza. Evidence also showed that Oziel

entered the United States the day before his arrest. This

evidence, taken together could lead a reasonable jury to conclude

that Oziel was in fact involved in this conspiracy. As such, we

hold that sufficient evidence exists to support his conviction.

3. Sufficiency of the Evidence - Money Laundering

Garza and Garcia contend that insufficient evidence exists to

support their convictions under 18 U.S.C. §§ 1956(a)(1)(A)(i) and

1956(g) for money laundering.4 To secure a conviction for

conspiracy to commit money laundering, the government must prove

that the defendants knew of the conspiracy and voluntarily joined

it. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996).

As to money laundering, the government must prove that the

defendants (1) knowingly conducted a financial transaction (2) that

involved the proceeds of an unlawful activity (3) with the intent

to promote or further that unlawful activity. United States v.

Inocencio was also charged and convicted in Count IV of
money laundering. Inocencio did not raise the issue of whether
sufficient evidence exists to support the money laundering
conviction in his brief on appeal. As such, we do not address the
validity of his conviction on this count.

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Thomas, 12 F.3d 1350, 1360 (5th Cir. 1994).

Garza and Garcia maintain that the government has failed to

show any agreement by them to engage in any financial transaction.

Garza and Garcia also argue that, in fact, no evidence exists to

show that a financial transaction occurred. According to Garza and

Garcia, the only evidence identified by the government consists of

storage of currency and cocaine at Inocencio’s Mavis Lane

residence. No proof of wire transfers or other transactions

involving currency was presented.

After reviewing the record, we agree with Garza and Garcia.

The government failed to present evidence of a financial

transaction involving these defendants. A “financial transaction"

pursuant to § 1956 is "a transaction which in any way or degree

affects interstate or foreign commerce (i) involving the movement

of funds by wire or other means or (ii) involving one or more

monetary instruments. . . ." 18 U.S.C. § 1956(c)(4)(A). “By

definition, then, a `financial transaction’ must, at the very

least, be a `transaction,’ i.e., `a purchase, sale, loan, pledge,

gift, transfer, delivery, or other disposition’ or some action

involving a financial institution or its facilities.” United

States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir. 1994) (citing 18

U.S.C. § 1956(c)(3)).

When some “transaction” that does not involve a financial

institution or its facilities is charged, the government must show

that a “disposition” took place. A “disposition” has been defined

by this Court to mean “`a placing elsewhere, a giving over to the

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care or possession of another.’” Id. (quoting WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY, 654 (1961)). We also note that currency does

not become proceeds of drug trafficking until a drug sale has been

completed. See United States v. Gaytan, 74 F.3d 545, 555-56 (5th

Cir.), cert. denied, 117 S. Ct. 77 (1996).

In this case, the government argues that “the collection of

more than $11 million in less than a six week period of time,

Oziel’s presence from Mexico, and the presence of $5 million in

drug proceeds support the inference of a disposition of the drug

proceeds handled by Garcia and Garza and the inference of intent to

commit money laundering . . . .” Notwithstanding this inference-

filled expose!, currency found by officers in connection with a drug

trafficking offense, by itself, is insufficient evidence to support

a money laundering conviction. See Puig-Infante, 19 F.3d at 938;

United States v. Ramirez, 954 F.2d 1035, 1039-40 (5th Cir. 1992).

The government presented evidence that $2 million in proceeds

had been collected and forwarded to Colombian producers and a

stockpile of $5 million in cash was found at Inocencio’s residence.

However, no evidence was presented that Garza or Garcia handled

these proceeds or were, in any way, involved in the “disposition”

of these funds. While the jury may draw reasonable inferences from

the evidence presented, nothing reasonable could be inferred from

this evidence. As such, we reverse Garza’s and Garcia’s

convictions for money laundering and remand their cases to the

district court for resentencing in light of this disposition.

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4. Evidentiary Rulings

Garza and Oziel contend that the district court abused its

discretion by admitting extrinsic evidence of silencers and

silencer-making materials found in Tovar’s apartment in violation

of FED. R. EVID. 404(b). The government contends that this issue

was not properly raised in the trial court and, therefore, should

be reviewed only for plain error. See United States v. Misher, 99

F.3d 664, 670 (5th Cir. 1996).

Even if objections to the admission of this evidence were

properly raised, we find no abuse of discretion with respect to its

admission. The silencers and silencer-making materials were found

contemporaneously with the six kilograms of cocaine found in

Tovar’s apartment. Firearms and silencers are deemed to be parts

of the tools-of-the-trade of drug trafficking and are relevant

intrinsic proof of an ongoing conspiracy. As such, this evidence

tends to show that the defendants were involved in a major drug

trafficking conspiracy complete with a number of firearms and

silencers.

Additionally, the district court properly determined that the

probative value of the evidence was not substantially outweighed by

its potential prejudicial effect. FED. R. EVID. 403. Danger of

prejudice is always present. Consequently, exclusion of extrinsic

evidence based on its prejudicial effect “should occur only

sparingly.” See United States v. Leahy, 82 F.3d 624, 637 (5th Cir.

1996) (quoting United States v. Pace, 10 F.3d 1106, 1115 (5th Cir.

14
1993)). Finding no abuse of discretion, we affirm the decision of

the district court to admit evidence of the silencers and silencer-

parts discovered in Tovar’s apartment.

5. Sentencing Issues

Oziel contends that the district court erred in enhancing his

base offense level by two levels for possession of firearms

pursuant to United States Sentencing Guidelines (U.S.S.G.) §

2D1.1(b)(1). Section 2D1.1(b)(1) provides for a two-level increase

to the base offense level if a dangerous weapon was possessed

during the commission of a drug trafficking offense. Oziel argues

that he did not possess a firearm and that he had no knowledge of

the firearms that were recovered. He further asserts that it was

not foreseeable that his co-defendants would possess firearms,

especially in light of that fact that he arrived in Houston from

Mexico only 48 hours before his arrest.

We review a district court’s decision to apply § 2D1.1(b)(1)

for clear error. See United States v. Rodriguez, 62 F.3d 723, 724

(5th Cir. 1995). Although a conviction on a substantive count

requires proof beyond a reasonable doubt, the district court may

sentence a defendant within the Sentencing Guidelines on any

relevant evidence that “has sufficient indicia of reliability to

support its probable accuracy.” U.S.S.G. § 6A1.3; see also United

States v. Buchanan, 70 F.3d 818, 828 (5th Cir. 1995), cert. denied,

116 S. Ct. 1340 (1996). Further, once the government establishes

that a firearm was present during the offense, the adjustment

15
should be applied “unless it is clearly improbable that the weapon

was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), comment.

(n.3). In this case, there is no question that the firearms were

connected with this offense. Firearms and cocaine were found in

vehicles, in an apartment, and in a house, and all the evidence was

connected to the defendants.

Oziel’s contention that the firearms were not foreseeable also

fails. We have held that a district court “`may ordinarily infer

that a defendant should have foreseen a codefendant’s possession of

a dangerous weapon, such as a firearm, if the government

demonstrates that another participant knowingly possessed a weapon

while he and the defendant committed the offense.’” United States

v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993) (quoting United States

v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990)). It was

readily foreseeable that firearms would be employed as tools of the

drug trafficking trade. As such, we find no error, clear or

otherwise, with the district court’s application of § 2D1.1(b)(1).

Next, Oziel argues that the district court erred in denying

his motion for a downward adjustment for his mitigating role in the

offense under U.S.S.G. § 3B1.2. Oziel relies primarily on his

responsibility for only 25 kilograms of the 1,555.5 kilograms of

cocaine attributable to the conspiracy. He contends his amount of

cocaine represents a mere two percent of the total. However, Oziel

has not demonstrated that he was substantially less culpable than

the other participants in this conspiracy, and, as a result, we

find no clear error. See U.S.S.G. § 3B1.2(b); United States v.

16
Brown, 54 F.3d 234, 241 (5th Cir. 1995).

Finally, Garcia contends that the district court erred in

sentencing him based on the quantity of cocaine memorialized in the

drug ledgers seized from Inocencio’s residence. Garcia maintains

that he was only in Inocencio’s house for two days and that the

government failed to show that he ever bought, sold, traded,

transported or delivered any of the cocaine found in the house.

Further, the district court erred by failing to make specific fact

findings concerning the quantity of cocaine attributable to each

defendant.

Assuming Garcia properly preserved these issues for appeal, we

find no clear error with the district court’s decision to assign

more than 150 kilograms to Garcia. See Rodriguez, 62 F.3d at 724.

The evidence and testimony at trial clearly demonstrated that the

cocaine and money found in Inocencio’s house and in Tovar’s

apartment were the product and proceeds of this extensive drug

trafficking operation. Evidence also showed that Garcia was

present inside Inocencio’s house and that he handled adding machine

tapes and drug ledgers. Garcia’s fingerprints were found on adding

machine tapes, drug ledgers, and on a box containing currency. He

had direct contact with Inocencio and Garza, he received two

firearms from Inocencio, and cocaine residue was found on the

adding machine tapes and ledgers.

“Under the Sentencing Guidelines, a defendant who participates

in a drug conspiracy is accountable for the quantity of drugs[ ]

which is attributable to the conspiracy and reasonably foreseeable

17
to him.” United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.

1994); see also U.S.S.G. § 1B1.3(a)(1)(B). The district court

adopted the presentence report which specifically set out Garcia’s

involvement in this conspiracy. Based on the evidence presented,

the district court did not err in attributing more than 150

kilograms of cocaine to Garcia for sentencing purposes.

CONCLUSION

For the foregoing reasons, we REVERSE the convictions of Garza

and Garcia as to the money laundering count of the indictment and

REMAND for appropriate resentencing. We AFFIRM the remaining

convictions and sentences for Inocencio, Oziel, Garza, and Garcia.

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