IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-50986
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES ROTHENBACH and ERIC TAYLOR,
Defendants-Appellants.
_______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-97-CR-203-2)
_______________________________________________________
October 1, 1999
Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Charles Rothenbach appeals his conviction and sentencing for one
count of conspiracy to possess with intent to distribute marijuana and one count of
possession of a firearm by a felon. Appellant Eric Taylor appeals his sentencing for
one count of conspiracy to possess with intent to distribute marijuana. We affirm.
Did the district court err in failing to suppress the evidence seized
pursuant to search warrants issued on June 18 and June 19, 1997?
The court does not address the issue of probable cause if the case can be
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
decided on the basis of the good faith exception. U.S. v. Satterwhite, 980 F.2d 317,
320 (5th Cir. 1992). Rothenbach argues that the good faith exception does not
apply because the warrant was issued on the basis of a “bare bones” affidavit. An
affidavit is “bare bones” if it consists of nothing but conclusory statements lacking
in facts or circumstances from which a magistrate can independently determine
probable cause. Satterwhite, 980 F.2d at 321.
The affidavit of Cal Fowler is not a “bare bones” affidavit because it contains
statements of fact from which a magistrate can independently determine probable
cause. The affidavit recounts that the informant stated that he accompanied Taylor
to Rothenbach’s ranch where Taylor purchased a half-pound of marijuana from
Rothenbach. The informant stated that Taylor negotiated with the informant
regarding a future purchase from Rothenbach of up to 600 pounds of marijuana.
These are not conclusory statements. These statements contain specific factual
information from which a magistrate can independently determine probable cause.
Rothenbach further argues that the statements of the informant and Taylor are
hearsay and are unreliable. A probable cause affidavit may rely on hearsay if the
affidavit presents a substantial basis for crediting the hearsay. Satterwhite, 980 F.2d
at 321. The affidavit stated that the informant had assisted law enforcement officers
in prior investigations and prosecutions for drug trafficking. The affidavit also states
that the informant accompanied Taylor to Rothenbach’s premises where Taylor
purchased marijuana, which demonstrates the basis of the informant’s knowledge.
This provides a substantial basis for crediting the statements of the informant.
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Taylor’s statements are statements against penal interest because they
implicate him in a conspiracy to engage in drug trafficking. Statements against
penal interest provide a substantial basis for crediting the statements. In addition,
Taylor’s statements are independently confirmed by the fact he purchased marijuana
at Rothenbach’s ranch. This provides a substantial basis for crediting Taylor’s
statements.
Rothenbach further challenges the validity of the affidavit to support a search
warrant by claiming that it contains false statements. Rothenbach argues that there
are inaccurate statements regarding the future plans of the law enforcement officials
because the actual subsequent transaction varied in some details from the affidavit.
These variances have no relevance to the determination of probable cause and do
not call the credibility of the affidavit overall into question. Rothenbach also argues
that the statement of the informant regarding the size of Rothenbach’s ranch are
inaccurate. The size of the ranch is also irrelevant to the issue of probable cause
and this statement by the informant does not render the affidavit infirm.
Rothenbach points to testimony of law enforcement officials to argue that the
affidavit is false. Detective Fowler testified that he had not read the transcript of a
recorded conversation between the informant and Taylor, but the affidavit does not
purport to be based upon review of the transcript. Therefore this testimony is
irrelevant to the affidavit. Fowler also testified that the informant had not been onto
the premises of Rothenbach’s ranch and that law enforcement officials had not
conducted surveillance on the premises of the ranch. The affidavit does not state
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that the informant or any law enforcement personnel had been on the premises of the
ranch, therefore Fowler’s testimony does not conflict with the affidavit. FBI Agent
Osa testified that the informant did not turn over any marijuana to him after
accompanying Taylor to Rothenbach’s ranch. This also does not conflict with the
affidavit because the affidavit does not state that the marijuana was purchased by
the informant for law enforcement officials. None of the alleged inaccuracies affect
the credibility of the affidavit.
The affidavit contained facts from which a magistrate could determine
probable cause. The statements were sufficiently creditable to support the affidavit.
None of the alleged inaccuracies form any basis to question the affidavit as support
for probable cause. Because the affidavit was not a “bare bones” affidavit, the good
faith exception applies and the court does not reach the question of probable cause
itself.
Whether the evidence was insufficient to support a jury verdict finding
Rothenbach guilty of conspiracy?
The evidence included testimony that two days prior to the arrest of
Rothenbach, the informant accompanied Taylor to Rothenbach’s ranch where
Taylor obtained a small quantity of marijuana from Rothenbach. There was further
testimony that the informant negotiated with Taylor to purchase a two-pound sample
from Rothenbach for the purpose of a later purchase of 300 pounds of marijuana.
There was testimony that Agent Osa gave $1,500.00 to Taylor for the purchase of
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the two-pound sample. There was testimony that shortly after Agent Osa gave
Taylor the money, an airborne officer observed a van fitting the description of the
van driven by Taylor enter Rothenbach’s ranch, observed Rothenbach meet with the
driver, and observed the van depart the ranch shortly thereafter.
Further evidence included testimony that shortly after the van left
Rothenbach’s ranch, Taylor returned to the location of the informant and Agent Osa
handed the informant a bag containing two pounds of marijuana and told the
informant that the transaction for 300 pounds of marijuana could not take place until
the next day because the marijuana would have to be recovered from a hiding place.
There was testimony that law enforcement officials seized $1250.00 from
Rothenbach’s truck and that the money was part of the $1500.00 given to Taylor by
Agent Osa. There was testimony that Rothenbach informed law enforcement
officers of the location of marijuana in the trunk of a car, stated that he did not
believe marijuana should be illegal, and that he was trying to make ends meet.
There was testimony that law enforcement officers searched the premises of
Rothenbach’s ranch and found scales and materials consistent with the packaging of
large amounts of marijuana.
Physical evidence introduced at trial included at least 4 pounds of marijuana,
including that which was delivered by Taylor and that which was seized on
Rothenbach’s premises. Other physical evidence included scales and packing
materials. There was testimony that some of the packaging materials contained
marijuana residue. There was testimony that law enforcement officers seized over
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$11,000.00 in cash from Rothenbach’s house.
Rothenbach testified that he did not provide any marijuana to Taylor, that he
is a farmer and that he does not sell marijuana. Rothenbach argues that there is no
direct evidence of his agreement to a conspiracy to distribute marijuana because the
testimony linking him to the alleged transaction was solely from the informant and
the law enforcement officers, none of whom negotiated directly with Rothenbach.
The elements of the offense of conspiracy are: 1) the existence of an
agreement between two or more persons to possess marijuana with intent to
distribute, 2) knowledge of the agreement, and 3) voluntary participation in it. U.S.
v. Brito, 136 F.3d 397, 409 (5th Cir. 1998), cert. denied 118 S.Ct. 1817 (1998), and
cert. denied 118 S.Ct. 2389 (1998), and cert. denied 119 S.Ct. 159 (1998). Proof of
an overt act in furtherance of the conspiracy is not required. U.S. v. Lechuga, 888
F.2d 1472, 1476 (5th Cir. 1988). The jury may infer these elements from
circumstantial evidence. Id., U.S. v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993),
reh’g en banc denied 15 F.3d 1081 (5th Cir. 1994), cert. denied, 511 U.S. 1134
(1994). What the jury is permitted to infer is governed by a “rule of reason” and the
jury may “use their common sense.” Lechuga 888 F.2d at 1476. Intent to distribute
may be inferred from the presence of distribution paraphernalia or large amounts of
cash. Cardenas, 9 F.3d at 1158.
The jury was entitled to disbelieve Rothenbach’s testimony in its entirety.
The informant’s testimony does not require corroboration. The testimony and
physical evidence were sufficient for the jury to conclude beyond a reasonable
6
doubt that Taylor conspired with Rothenbach to sell 300 pounds of marijuana to the
informant and Agent Osa. The evidence was sufficient to support the verdict that
Rothenbach voluntarily and knowledgeably participated in an agreement with Taylor
to possess marijuana with intent to distribute it.
Whether the evidence was sufficient to support Rothenbach’s conviction
of possession of a firearm by a felon?
The evidence included testimony that Rothenbach told law enforcement
officers that he lived in the residence searched on June 18, 1999 and testimony that
Rothenbach’s mother told law enforcement officers that she lived in another house.
There was testimony that the house searched contained several weapons under a
bed in a bedroom. There was testimony that Rothenbach informed law enforcement
officials that he had a pistol in a safe, then assisted the officers in unlocking a safe
containing a nine millimeter pistol and $5000.00 in cash.
Rothenbach argues that the evidence is insufficient because the title to the
property in question is in his mother’s name and his mother lives in the house that
was searched. Rothenbach argues that he gave up possession of all of his weapons
to his mother many years prior. Rothenbach argues that mere occupancy of a
premises subject to joint occupancy is not sufficient to support a verdict of
possession, citing to U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993), cert. denied 510
U.S. 1198 (1994).
The title to the property is irrelevant to the question of constructive
7
possession of weapons on the premises, because the title does not control the
identity of persons with dominion or control over the premises. The jury was
entitled to believe or disbelieve that Rothenbach’s mother took possession of the
weapons. Even if the jury believed that she took possession of the weapons, this
does not compel the conclusion that Rothenbach did not maintain constructive
possession or regain actual possession of the weapons.
The jury was entitled to disbelieve the testimony regarding the mother’s
occupancy of the house, but even if they credited such testimony, at best this merely
establishes joint dominion or control over the premises. The 5th Circuit has ruled
that in the event of joint occupancy of a premises, in addition to evidence of joint
occupancy, there must be some circumstantial indicium of possession to support a
verdict of possession. Mergerson, 4 F.3d at 349. The evidence includes testimony
that Rothenbach stated that he had a gun in the safe, led officers to the safe, and
assisted them in opening the safe. This evidence is sufficient to establish an
“indicium of possession” of the nine millimeter pistol seized from the safe. The
evidence was sufficient to support the jury determination beyond a reasonable doubt
that Rothenbach possessed a firearm.
Whether the district court erred in applying USSG § 2D1.1 to determine
the applicable drug quantity for sentencing purposes?
Rothenbach and Taylor both argue that the district court erred in pronouncing
sentence based upon the quantity of 300 pounds of marijuana. Appellants agree that
8
the district court’s finding of the quantity is reviewed for clear error. Appellants
argue that Amendment 518 to Application Note 12 of USSG § 2D1.1 should be
applied to reduce the quantity for sentencing to the approximately 2 pounds of
marijuana delivered. Note 12, as amended, provides that the agreed-upon quantity
shall be used unless the sale is complete and the amount delivered more accurately
reflects the scale of the offense. U.S. v. Marmolejos, 140 F.3d 488, 490 (3rd Cir.
1998).
As indicated above, there was testimony that the 2 pounds delivered were a
sample for the purpose of determining quality for the purchase of 300 pounds. In
addition, there was testimony that Agent Osa gave Taylor $1,500.00 even though
the sample only cost $1250.00. The excess over the cost was explained as money
that would be applied to the larger purchase once the sample had been inspected.
There was testimony that Taylor was in possession of some of the money from
Agent Osa at his arrest subsequent to the delivery of the sample.
Appellants argue, based on Marmolejos, that the transaction was completed
and that the amount actually delivered should control the sentencing. In
Marmolejos, the appellant had negotiated to sell 5 kilograms of cocaine, but
delivered only 4.96 kilograms. Marmolejos, 140 F.3d at 489. There was no claim in
that case that the 4.96 kilograms was a precursor to another transaction which had
been separately negotiated. In the case at bar, the testimony supports the district
court’s conclusion that the delivery of 2 pounds did not finalize the negotiated
transaction.
9
Appellants argue alternatively that Note 12 should be applied on the basis
that the defendants established that they did not intend to provide or were not
reasonably capable of providing the agreed upon quantity. Marmolejos, 140 F.3d at
490. Appellants argue that law enforcement officials thoroughly searched
Rothenbach’s premises and recovered less than five pounds of marijuana including
the delivered sample. Appellants further offer testimony that they did not negotiate
to deliver 300 pounds of marijuana, do not fit drug dealer profiles and did not have
the financial resources to facilitate such a large transaction. Under a review for
clear error, this testimony would only establish Appellants’ lack of intent or ability if
the district judge were required to credit this testimony and disregard the testimony
of the government witnesses.
The inability of the law enforcement officers to recover more marijuana does
not compel the conclusion that Appellants were incapable of providing the 300
pounds. There was testimony that Rothenbach had access to 1500 acres of farm
land in which marijuana could have been concealed. The testimony of Appellants
concerning their intent and capabilities does not compel the district judge to
conclude that Appellants did not intend to or were not capable of delivering 300
pounds of marijuana.
Appellants further argue that because the informant was the only person who
directly negotiated with Taylor, the law enforcement officials lacked personal
knowledge of the amount of the negotiations. Appellants argue that the personal
knowledge of the informant is insufficient basis for the testimony regarding the
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negotiations for 300 pounds of marijuana, therefore the district judge should not
have applied that quantity to the determination of sentence. Appellants do not cite
to any legal authority to the effect that the informant’s testimony provides
insufficient basis for the district judge to make this determination. This is merely an
argument as to the weight that should be assigned to the evidence. This court
reviewing for clear error is not at liberty to assess the weight of the evidence to
reverse a finding of fact by the district court. The district court’s determination of
300 pounds was supported by the evidence in the record and is not subject to
reversal for clear error.
Whether the district court erred in applying a 2-level enhancement for
possession of a firearm and in failing to reduce the firearms offense to level six
because Rothenbach possessed the firearms for a lawful sporting purpose or
collection.
Depending upon whether these issues were preserved by being raised before
the district court or not, this Court reviews these matters for plain error or clear
error. Under either standard, the evidence supports the district court’s finding for
sentencing. As indicated above, there was testimony that upon arrest, Rothenbach
stated that he had a loaded weapon in a safe and assisted law enforcement officers
in opening a safe from which they seized a nine millimeter pistol and $5000.00 in
cash. The safe was located in a house with drugs, drug paraphernalia and several
other firearms.
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The testimony is sufficient for the district court to determine that Rothenbach
possessed a firearm for enhancement purposes. In addition, the district court was
not required to find that the possession of a loaded nine millimeter pistol in a safe
full of cash constitutes a collection or a lawful sporting purpose.
Did the district court err in sentencing Rothenbach to 95 months for
count 2 of the indictment?
The sentencing for both counts against Rothenbach are grouped under USSG
§ 3D1.1. Because the court affirms the conviction and sentence for Count 1, the
sentence is proper irrespective of what the correct separate sentence for Count 2
would have been.
AFFIRMED.
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United States v. Rothenbach
Combined Opinion