UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-21066
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENARO AGUILAR MARIN, also known as Marin
Genaro Aguilar; JESUS ALFONSO CORTES-GRANJA,
also known as Jesus Alfonso Cortes; CESAR VALDEZ
RODRIGUEZ; FABIO GUESO ROMERO, also known as
Fabio Romero,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CR-70-3)
_________________________________________________________________
September 25, 1998
Before POLITZ, Chief Judge, JONES, and DUHÉ, Circuit Judges.
PER CURIAM:*
Appellants Marin, Cortes, Rodriguez, and Romero raise
numerous issues in connection with their convictions, after a jury
trial, for conspiracy and aiding and abetting possession with
intent to distribute more than five kilograms of cocaine. Finding
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
no error in the pretrial, trial, or sentencing proceedings, we
affirm.
In March 1996, narcotics officers investigated suspicious
activities at a warehouse at 8464 Market Street in Houston and two
residences at 3824 Necomen and 10246 Palestine. They conducted
careful surveillance of the appellants or their compatriots. They
were given permission to search at each of the residences. Their
investigation uncovered 369 kilos of cocaine, which had recently
been imported from Mexico.
The issues raised by appellants may be discussed one by
one. First, the evidence was sufficient to support Romero’s,
Cortes’s, and Rodriguez’s convictions. Viewed in the light most
favorable to the convictions, “typically, the same evidence will
support both a conspiracy and an aiding and abetting conviction.”
United States v. Salazar, 958 F.2d 1285, 1292 (5th Cir. 1992)
(internal citation omitted). To summarize just a bit of the
relevant evidence, after apparently participating in a “heat run”
to elude law enforcement, Romero arrived at the Newcomen residence
and backed the blue van into the garage. More than one person
unloaded something from the back of the van and took it inside the
house. Romero admitted he was the resident of the house and signed
a consent to search form. Officers found false identification for
Romero, and they found money wrapped in bundles and a Beretta hand
gun in his bedroom. Three hundred bricks of cocaine were found in
the house. In Cortes’s bedroom the officers found a box containing
101 bricks of the cocaine, a machete, a Colombian passport, and an
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airline ticket for travel coinciding with the illegal activity.
Rodriguez participated in a suspicious car-swap and wound up at the
garage apartment on Palestine, where he motioned the investigating
officers toward a bedroom closet containing a stash of five kilos
of cocaine. Rodriguez’s fingerprints were lifted from the tractor
and trailer, found in the warehouse, that had a concealed
compartment for transporting the narcotics. From this and other
evidence, the jury could infer the defendants’ guilt of the charged
offenses.
Second, both motions to suppress were correctly denied.1
Gonzalez had authority as both tenant and resident of his garage
apartment on Palestine to consent to agents’ searching the bedroom
closet. He gave both verbal and written consent. Marin and
Rodriguez, who were guests at the apartment and shared the bedroom
with Gonzalez, assumed the risk that Gonzalez might permit the
search. United States v. Smith, 930 F.2d 1081, 1085 (5th Cir.
1991). Melendez invited the officers into the Newcomen house, and
Romero, who said it was his house, gave verbal and written
permission to search in Spanish and English. The officers had no
reason to question Melendez’s authority to invite them inside, and
Romero affirmed his consent to their entry by permitting them to
stay. United States v. Thomas, 120 F.3d 564, 572 (5th Cir. 1997).
Nothing casts doubt on the voluntariness of Romero’s consent.
United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997). The
1
In some cases, more than one of the defendants raises the
arguments we address. It is unnecessary to be more specific here
about the proponent of each issue on appeal.
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district court did not err in finding that valid permission to
enter and search both residences was given.
The district court did not abuse its discretion by
altering the composition of the jury panel after it was impanelled
and opening statements were presented. In fact, the district court
made exactly the change in the composition of the jury panel that
the defendants requested. No reversible error and no
constitutional error is identified in this train of events.
Contrary to appellants’ contention, this circuit has held
that the double jeopardy clause is not violated by prosecution for
both a conspiracy and aiding and abetting the underlying
substantive offense. See United States v. Payan, 992 F.2d 1387,
1392 (5th Cir. 1993).
Likewise, the district court’s admission of testimony
from DEA Agent Pior about “heat runs” and the method of
transporting cocaine from Colombia to the United States was not an
abuse of discretion. United States v. Buchanan, 70 F.3d 818, 832
(5th Cir. 1996). Rather than constituting improper drug profile
evidence, Agent Pior’s opinion testimony explained to the jury the
conduct and methods used by Colombians to import and distribute
cocaine, and he was well qualified to do so.
Rodriguez asserts two sentencing issues: the
determination of the amount of cocaine that constituted conduct,
and his alleged lesser role in the offense. Rodriguez contends he
should only have been sentenced for the five kilos found in the
bedroom closet of the garage apartment. The court attributed to
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him the entire 369 kilos found in the course of the warehouse
activities. The court’s finding was not clearly erroneous, because
the court could properly conclude that Rodriguez was responsible
for the entire amount of cocaine transported to Houston. United
States v. Garcia, 86 F.3d 394, 401 (5th Cir. 1996). Rodriguez was
accountable for sentencing purposes for all quantities with which
he was directly involved and all foreseeable quantities within the
scope of the jointly undertaken criminal activity. The same
evidence also dooms Rodriguez’s attempt to claim a role reduction
for minor participation in the offense.
Cortes challenges the district court’s sentence
enhancement based on the possession of a dangerous weapon pursuant
to U.S.S.G. § 2D1.1(b)(1). A knife has been construed to be a
dangerous weapon. United States v. Scott, 91 F.3d 1058, 1063-64
(8th Cir. 1996). Further, the evidence shows that it was not
“clearly improbable that the weapon was connected with the
offense.” United States v. Griffith, 118 F.3d 318, 326 (5th Cir.
1997); see also United States v. McDonald, 121 F.3d 7, 10 (1st Cir.
1997) (placing “clearly improbable” burden on defendant); United
States v. Ortiz-Granados, 12 F.3d 39, 41 (5th Cir. 1994) (rejecting
argument that “clearly improbable” burden should be placed on
government). Indeed, the evidence clearly showed that the machete
was concealed beneath the pillow on the bed in the same bedroom in
which 101 kilos of cocaine were stored in a closet along with
Cortes’s clothes.
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For the foregoing reasons, the judgments of all
appellants and sentences of Rodriguez and Cortes are AFFIRMED.
6