IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 91-8218
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALBERTO ROJAS-MARTINEZ and
OLAVO MICHEL, JR.,
Defendants-Appellants.
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No. 91-8298
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE CARRILLO-RUIZ, MARTIN CASAS-ACEVEDO,
EFRAIN GONZALEZ-TORRES, ROBERTO HERRERA,
MIGUEL HERRERA, and ALFREDO REYES-MARENTES,
Defendants-Appellants,
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
(July 29, 1992)
Before WISDOM, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
I.
The six defendants in No. 91-82981 and the two defendants in
No. 91-82182 were arrested after they were discovered illegally
crossing the United States-Mexico border. After placing the
defendants in custody, border patrol agents returned to the area
where they had seen the defendants and traced the defendants' path
to bags containing over 300 pounds of marihuana. The defendants in
No. 91-8298 confessed to border patrol agents that they had been
hired by the defendants in No. 91-8218 to transport the marihuana
across the border; the six then repeated their confessions to
special customs agents.
II.
The two groups were tried separately. All eight defendants
were convicted of (1) conspiracy to import more than 100 kilograms
of marihuana, in violation of 21 U.S.C. § 963; (2) importation of
more than 100 kilograms of marihuana, in violation of id. § 952(a);
(3) conspiracy to possess with intent to distribute more than 100
kilograms of marihuana, in violation of id. § 846; and
(4) possession with intent to distribute more than 100 kilograms of
marihuana, in violation of id. § 841(a)(1). Various defendants in
No. 91-8298 appeal the admission of their confessions, the failure
to sever Carrillo, and the constitutionality of sentencing. The
1
Jose Carrillo-Ruiz (Carrillo), Martin Casas-Acevedo (Casas), Efrain
Gonzalez-Torres (Gonzalez), Roberto Herrera (R. Herrera), Miguel Herrera (M.
Herrera), and Alfredo Reyes-Martinez (Reyes).
2
Alberto Rojas-Martinez (Rojas) and Olavo Michel, Jr. (Michel).
2
defendants in No. 91-8218 challenge the sufficiency of the evidence
and the increase in their sentence for their role as organizers.
We affirm.
III. No. 91-8298.
A. Voluntariness of Confessions
The defendants3 attempted to suppress the confessions made on
the night of their arrest, arguing four factors as demonstrating
that the confessions were involuntary and coerced: (1) the
physical conditions of their confinement; (2) the deception and
psychological coercion used by the questioners; (3) the failure to
advise them of their rights; and (4) the delay in presenting them
to a magistrate after detention. The government has the burden of
proving by a preponderance of the evidence that each defendant
voluntarily waived his rights and that the statements he made were
voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).
Voluntariness depends upon the totality of the circumstances
and must be evaluated on a case-by-case basis. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973). Under Connelly, a confession
is voluntary in the absence of official overreaching, in the form
either of direct coercion or subtle forms of psychological
persuasion. United States v. Raymer, 876 F.2d 383, 386-87 (5th
Cir.), cert. denied, 493 U.S. 870 (1989). We treat the district
court's findings of fact as valid unless clearly erroneous but make
3
Casas, Gonzalez, R. Herrera, M. Herrera, and Reyes moved to suppress;
Carrillo did not move to suppress and does not participate in this issue on
appeal.
3
an independent review of the legal conclusion of voluntariness.
Raymer, id. at 386.
Defendants complain that they were wet, cold, and fatigued at
the time of the interrogation. They argue that they were misled by
the sympathetic plain-clothes officer and frightened by the
uniformed officer. These circumstances do not demonstrate official
coercion. The defendants were apprehended after 10:30 p.m. and
arrived at the border patrol station at approximately 11:30 p.m.
When a suspect is apprehended in a criminal act late at night, the
government is not required to wait until morning to perform police
processing and investigation.
Expressions of sympathy by an officer are not coercive. See
Hawkins v. Lynaugh, 844 F.2d 1132, 1139 (5th Cir.) (distinguishing
between permissible expressions of sympathy and impermissible
promises of leniency), cert. denied, 488 U.S. 900 (1988). An
officer does not overreach by conducting an interview in full
uniform, including a service revolver, unless he threatens the
defendant. The district court found that the defendants were not
threatened, and we uphold this finding as not clearly erroneous.
Defendants also allege that the officers implicitly promised
that they could return to Mexico if they confessed. The district
court found that no promises were made, and this conclusion is not
clearly erroneous in light of the evidence. After bringing them
in, the agents had each defendant sign an I-274 form, a voluntary
release for return to Mexico. The agents followed this procedure
for all undocumented aliens.
4
Moreover, at that time, the government had found no drugs, and
it was likely that the defendants would be sent back to Mexico.
The officers made no statements to the defendants that could be
construed as a promise, and the fact that the defendants who had
already been questioned were taken to a location different from
that to which the ones who had not been questioned were taken does
not give rise to an inference that the officers were trying to make
the defendants believe they would be released if they confessed.
Finally, defendants allege that the length of time between
detention and arraignment indicates that their confessions were
involuntary. Because defendants first confessed within six hours
of the arrest, the delay in arraignment does not render the
confessions automatically invalid. See 18 U.S.C. § 3501(c). "Once
a defendant has been tried and convicted, delay in bringing him
before a magistrate is not reason to set aside the conviction
unless the defendant can show that he was prejudiced by the delay."
United States v. Bustamante-Saenz, 894 F.2d 114, 120 (5th Cir.
1990). Since the delay in this case occurred after the
confessions, it could not have affected the voluntariness thereof.
The overall circumstances of the interrogations were not
coercive. The defendants were held in a cell, and later in a
heated vehicle, together. The agents testified that the defendants
would have been allowed cigarettes or water during the
5
interrogation.4 Defendants were advised of their Miranda5 rights
in Spanish and voluntarily waived them.6 Each interrogation lasted
less than thirty-five minutes, and each defendant confessed within
that time. The fact that the agents ceased to question the
defendants in No. 91-8218 after they invoked their Miranda rights
supports the court's finding that there was no coercion.
Defendants' challenge to admission of the second set of
confessions depends upon a finding that the first set was
involuntary. Since we conclude that the original confessions were
voluntary, we also affirm the admission of the second set of
confessions.
B. Severance.
Defendants appeal the court's denial of their motion to sever
4
The agents asked one defendant whether he was cold and offered him a
cigarette and gave water to another who requested it.
5
Miranda v. Arizona, 384 U.S. 436 (1966).
6
Although defendants assert that they were not advised of their rights,
the district court found that they were advised, understood their rights, and
voluntarily waived them:
In the instant case, each of the five Movants
signed two separate acknowledgements that he had been
informed of his constitutional rights and that he
waived them and agreed to speak with the agents.
Furthermore, the Court finds from the evidence that
the statements made by each man were voluntary, and
that they were not induced by improper promises or
threats. Although one of the Movants, Miguel Herrera,
took the witness stand at the hearing on his motion to
suppress and testified to the contrary, it is the
Court's task to evaluate the testimony and to judge
their credibility. After hearing all the evidence,
the Court has found the facts adversely to the
Movants.
These findings are not clearly erroneous.
6
their trial from Carrillo's.7 Codefendants are entitled to
severance when they demonstrate defenses that are antagonistic.
United States v. Hernandez, 842 F.2d 82, 86 (5th Cir. 1988).
Defenses are antagonistic if they are mutually exclusive or
irreconcilable, that is, if the core of one defendant's defense is
contradicted by that of a codefendant. United States v. Rocha, 916
F.2d 219, 231 (5th Cir. 1990), cert. denied, 111 S. Ct. 2057
(1991). We review the denial of a motion to sever for abuse of
discretion. Id. at 227.
Carrillo's defense did not contradict that of the other
defendants. All the defendants argued that the evidence against
them was insufficient to convince the jury beyond a reasonable
doubt. During closing argument, Carrillo's lawyer argued that the
government had not proved beyond a reasonable doubt that Carrillo
had committed the crimes charged. He then argued, in the
alternative, that if the jury found that Carrillo had transported
the marihuana, he should be held responsible only for the amount he
carried individually. Carrillo did not testify, and the jury was
not instructed on lesser included offenses.
A statement that Carrillo was not guilty and, if guilty at
all, not guilty of the crime as charged, does not exclude the other
defendants' claims that they were innocent. The court did not
abuse its discretion.
7
Casas, Gonzalez, R. Herrera, and M. Herrera moved for severance;
Reyes and Carrillo did not move to sever and do not participate in this issue
on appeal.
7
C. Sentencing.
Carrillo received the minimum mandatory sentence under 21
U.S.C. § 841(1)(B)(vii).8 He argues that he has been denied his
constitutional guarantees of due process and equal protection by
the court's inability to depart downward from his minimum mandatory
sentence. We find no constitutional violation.
Carrillo argues that while Congress's stated goal is to punish
major traffickers more severely than minor ones, the interaction of
the sentencing guidelines and mandatory minimums produces the
opposite result. The Anti-Drug Abuse Act of 1986 requires a
minimum sentence of five years without parole for any conviction
involving 100 kilograms or more of marihuana. Carrillo points out
that the only basis for departure below the mandatory minimum is
substantial assistance to the government. See 18 U.S.C. § 3553(e).
Since couriers like Carrillo do not have access to information, he
argues that this system of departures provides kingpins, but not
couriers, with a means of avoiding the mandatory minimums.
Carrillo's due process and equal protection claims are without
merit.
[A] person who has been . . . convicted is eligible for,
and the court may impose, whatever punishment is
authorized by statute for his offense, so long as that
penalty is not cruel and unusual, and so long as the
penalty is not based on an arbitrary distinction that
would violate the Due Process Clause of the Fifth
Amendment. In this context, an argument based on equal
protection essentially duplicates an argument based on
due process.
8
Like his codefendants, Carrillo was sentenced to 60 months'
imprisonment, four years' supervised release, and a special assessment of
$200. Only Carrillo challenges his sentence on appeal.
8
Chapman v. United States, 111 S. Ct. 1919, 1927 (1991) (citations
omitted); see also Nebbia v. New York, 291 U.S. 502, 537 (1934)
(due process not violated where statute bears a "reasonable
relation to a proper legislative purpose" and is "neither arbitrary
nor discriminatory").
The statutory scheme of mandatory minimum sentences obviously
does not discriminate on the basis of a suspect classification.
Imposition of mandatory minimum sentences for offenses involving
large quantities of illegal drugs bears a rational relationship to
the legitimate purpose of enforcing federal drug laws and is not
arbitrary.9
Two circuits have rejected the contention that section 3553(e)
denies equal protection to minor participants in drug offenses.10
We agree that section 3553(e) is rationally related to the
legitimate purpose of obtaining valuable information from drug
criminals. It does not discriminate against a suspect class, nor
is it arbitrary. Congress has created mandatory minimum sentences
and downward departures to achieve different goals, and the means
it has chosen bear a rational relationship to those goals. We
therefore affirm Carrillo's sentence.
9
See Chapman, 111 S. Ct. 1927-28; United States v. Klein, 860 F.2d
1489, 1500-01 (9th Cir. 1988); United States v. Holmes, 838 F.2d 1175, 1177-
78 (11th Cir.), cert. denied, 486 U.S. 1058 (1988).
10
See United States v. Musser, 856 F.2d 1484, 1486-87 (11th Cir. 1988),
cert. denied, 489 U.S. 1022 (1989); United States v. Broxton, 926 F.2d 1180,
1183-84 (D.C. Cir. 1991) (per curiam).
9
IV. No. 91-8218.
A. Sufficiency of the Evidence.
Michel and Rojas challenge the sufficiency of the evidence.
We review a claim of insufficiency to determine whether a rational
trier of fact could have found each of the substantial elements
beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60,
80 (1942). We view all facts and credibility choices in the light
most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307,
319 (1979); United States v. Bell, 678 F.2d 547, 549 (5th Cir.
Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356
(1983).11 Although the evidence against the defendants is
circumstantial, a rational jury could have found them guilty beyond
a reasonable doubt.
Defendants were found guilty of possession of marihuana with
intent to distribute, importation of marihuana, and conspiracy to
commit these two offenses. Possession with intent to distribute
requires proof that the defendant had knowing possession of
marihuana with the intent to distribute it. E.g., United States v.
Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir. 1989). Importation
additionally requires proof that the defendants played a role in
bringing the marihuana from a foreign country. United States v.
Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988).
11
Defendants argue that Bell is not binding precedent because it was
decided by Unit B of the Fifth Circuit, en banc. Consistently, however, we
have treated Unit B cases as precedential. See, e.g., United States v. Shaid,
937 F.2d 228, 230-31 (5th Cir. 1991) (en banc) (citing United States v.
Adamson, 700 F.2d 953 (5th Cir. Unit B) (en banc), cert. denied, 464 U.S. 833
(1983)), cert. denied, 112 S. Ct. 978 (1992)); United States v. Hall, 845
F.2d 1281, 1283 (5th Cir.) (citing Bell), cert. denied, 488 U.S. 860 (1988).
We now squarely hold that all Unit B cases are precedent in the Fifth Circuit.
10
In the instant case, after a sensor indicated an illegal
border crossing, border patrol agents began a search. A group of
eight or ten people was spotted, and they appeared to be carrying
something. Several pieces of evidence indicated that this was the
only group of people crossing the border near this location on that
night.12 Shortly after the agents saw the group, they began to run.
The agents pursued the defendants, who were apprehended. The
defendants had red marks on their upper bodies, as if they had been
carrying something.
After observing the sneaker treads of defendants' shoes, the
agents searched the field in which the defendants were apprehended.
Tracing the sneaker prints, the agents discovered over 300 pounds
of marihuana in eleven bags, some of which had straps. An
additional bundle of matching shoulder straps was found the next
day. The agents also traced the tracks to the place where the
group originally was spotted. From this evidence, a rational jury
could have concluded that defendants knowingly possessed the
marihuana and carried it across the border. Defendants' arguments
to the contrary all contest the credibility or weight of the
evidence, which we construe in the light most favorable to the
verdict.
Rojas specifically contends that the evidence was insufficient
for the jury to conclude that he realized he was carrying
12
Agent Holland testified that there was only one group of people in
the vicinity. There was very little foot traffic in this area, and
investigation revealed that there was only one set of sneaker tracks in the
area. The agents' tracks could be distinguished because they wore boots.
Since the area was muddy, footprints were easily observed.
11
marihuana. A reasonable jury could have concluded that a man
traveling on foot from Mexico, on a rainy night, carrying heavy
bags containing a uniquely odorous substance, traveling with other
persons also carrying smelly luggage, who abandoned his bag near
the bags of the other travelers and then attempted to evade border
patrol agents, knew that he was carrying marihuana.
The defendants also argue that there was insufficient evidence
to convict them of conspiracy. The government must prove the
existence of a conspiracy and that the defendants knowingly and
voluntarily joined it. E.g., United States v. Garcia, 917 F.2d
1370, 1376 (5th Cir. 1990). The government need not prove the
existence of a formal agreement but must prove beyond a reasonable
doubt that "two or more persons in some way or manner, positively
or tacitly, came to a mutual understanding to try to accomplish a
common and unlawful plan." United States v. Williams-Hendricks,
805 F.2d 496, 502 (5th Cir. 1986) (citation omitted). The elements
of conspiracy may be proved by circumstantial evidence alone.
United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.
1988).
A conspiratorial agreement may be inferred from concert of
action, id., which the evidence in this case demonstrates. The
agents found only one group of tracks, and the eight people fled at
the same time and were apprehended in close proximity to each
other. The jury could conclude they were traveling together. From
the evidence relating to the footprints and strap marks, the jury
also could conclude that all crossed the border carrying marihuana.
12
The bags containing marihuana were found close together, indicating
that the eight men disposed of the bags together. A reasonable
jury could have concluded from these facts that the defendants
conspired to possess and import the marihuana.
B. Sentencing Enhancement.
At sentencing the district court decided that Rojas and Michel
should be punished for their leadership role in the conspiracy and
assigned a two-level upward adjustment under U.S.S.G. § 3B1.1(c).
The court based its finding of a leadership role13 on the
confessions of the defendants in No. 91-8298. These confessions
were inadmissible in the trial of Rojas and Michel under Bruton v.
United States, 391 U.S. 123 (1968). The defendants argue that the
confessions similarly were inadmissible at the sentencing hearing
or, alternatively, that they were not reliable evidence.
Evidence that is inadmissible at trial may be considered in a
sentencing hearing. United States v. Singleton, 946 F.2d 23 (5th
Cir. 1991), cert. denied, 112 S. Ct. 1231 (1992). A court may rely
upon uncorroborated hearsay at sentencing, Rodriguez, 897 F.2d at
1328, but the court in this case did not need to rely upon a single
piece of uncorroborated hearsay. The confessions of the six
defendants in No. 91-9298 corroborated each other. Additionally,
Rojas and Michel rested separately from the other group of
13
Defendants complain that the court did not make specific fact-
findings in support of its conclusion that defendants acted as "managers and
organizers . . . [and] supervisors." A court is not required to make
particularized findings under U.S.S.G. § 3B1.1, where the defendant has not
supplied specific rebuttal evidence. United States v. Rodriguez, 897 F.2d
1324, 1327-28 (5th Cir.), cert. denied, 111 S. Ct. 158 (1990).
13
defendants in the holding cell, dressed differently from the other
group, and responded differently to police questioning. The
court's reliance upon the confessions was not an abuse of
discretion, and its finding that Rojas and Michel were organizers
was not clearly erroneous in light of all the evidence presented at
the two trials.
AFFIRMED.
14