United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10819
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR MENDOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:03-CR-47-19
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Omar Mendoza appeals his convictions for conspiracy to possess
with intent to distribute 500 grams or more of methamphetamine and
for being a felon in possession of a firearm. Mendoza moved to
suppress the evidence discovered during the search of his
residence. Following a suppression hearing, the district court
denied the motion, finding that the police officers and the judge
issuing the warrant acted in good faith and that the warrant was
supported by probable cause. Mendoza argues that this was error.
*
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that this opinion should not be published and is not precedent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. 03-10819
-2-
In reviewing the denial of a motion to suppress evidence
discovered pursuant to a search warrant, a court first determines
whether the good-faith exception to the exclusionary rule announced
in United States v. Leon, 468 U.S. 897 (1984), applies. United
States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999). The good-
faith exception applies only where the affidavit supporting the
warrant “establish[es] a nexus between the house to be searched and
the evidence sought.” United States v. Broussard, 80 F.3d 1025,
1034 (5th Cir. 1996).
Mendoza raises two arguments to conclude that the good-faith
exception does not apply. He first argues that the affidavit was
so lacking in indicia of probable cause as to render belief in its
existence entirely unreasonable. See Cherna, 184 F.3d at 407-08.
This argument fails. In United States v. Green, 634 F.2d 222, 226
(5th Cir. 1981), this Court stated:
The justification for allowing a search of a person’s
residence when that person is suspected of criminal
activity is the common-sense realization that one tends
to conceal fruits and instrumentalities of a crime in a
place to which easy access may be had and in which
privacy is nevertheless maintained. In normal
situations, few places are more convenient than one’s
residence for use in planning criminal activities and
hiding fruits of a crime.
Here, the affidavit contains specific assertions that (1) Mendoza
was distributing marijuana, (2) the police corroborated this
information through a credible source, and (3) 602 South Pittsburgh
was under the control of Mendoza. Under Green, the affidavit
No. 03-10819
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established the necessary nexus between 602 South Pittsburgh and
the contraband.
Mendoza’s second argument is that the magistrate judge
abandoned his judicial role in issuing the warrant. See Cherna,
184 F.3d at 407-08. Mendoza speculates that the judge did not give
the warrant sufficient consideration because it was presented late
at night. The record refutes this speculation: Officer Redden
testified that the judge questioned him specifically regarding the
source of the information contained in the affidavit. Mendoza has
not shown that Judge Broad abandoned his judicial role. United
States v. Broussard, 80 F.3d 1025, 1035 n.6 (5th Cir. 1996). The
district court thus did not err in concluding that the good-faith
exception applied in this case. See Cherna, 184 F.3d at 407.
Mendoza next asserts that the evidence was insufficient to
allow the jury to conclude that he participated in the drug
conspiracy to possess with intent to distribute more than 500 grams
of methamphetamine. Because Mendoza failed to move for acquittal
on the basis of insufficient evidence of participation in
the conspiracy, this claim is reviewed for plain error only.
See United States v. Herrera, 313 F.3d 882, 884-85 (5th Cir. 2002)
(en banc), cert. denied, 123 S. Ct. 1375 (2003); United States v.
McIntosh, 280 F.3d 479, 483 (5th Cir. 2002).
Mendoza finally contends that he was not part of the larger
conspiracy because he was an independent businessman paying cash
for the narcotics from his suppliers, that he had no stake in their
No. 03-10819
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enterprise, and that they had no stake in his. Although evidence
of a buyer-seller relationship alone is insufficient to support
a conspiracy conviction, evidence indicating that both parties
to the sale knew that the drugs were meant for resale is sufficient
to establish a distribution conspiracy between them. United States
v. Casel, 995 F.2d 1299, 1306 (5th Cir. 1993). Mendoza concedes
that the Government proved an agreement between Denise and Daniel
Contreras and others to distribute large quantities of
methamphetamine. Mendoza also concedes that the Government
presented the testimony of Denise and Daniel Contreras that he
bought between 20 and 40 pounds of methamphetamine from them.
Intent to distribute may be inferred from possession of a large
amount of contraband. United States v. Lopez, 979 F.2d 1024, 1031
(5th Cir. 1992). The evidence presented was sufficient to allow a
jury to find that Mendoza participated in the conspiracy to
distribute methamphetamine.
AFFIRMED.