UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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Nos. 91-2341 and 91-2821
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UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
JOSE LUIS VASQUEZ-RODRIGUEZ
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
(November 19, 1992)
Before JONES and WIENER, Circuit Judges, and LITTLE, District
Judge.*
LITTLE, District Judge:
Relying on a double jeopardy defense, Jose Luis Vasquez-
Rodriguez asks this court to reverse his conviction for conspiracy
to possess, with intent to distribute, more than five kilograms of
cocaine. Finding the appellant's challenge baseless, we affirm the
conviction.
*
Judge F. A. Little, Jr., U. S. District Judge, Western District of
Louisiana, sitting by designation.
BACKGROUND
Vasquez was charged, tried and convicted of (1) possession
with intent to distribute heroin and (2) conspiracy to possess
heroin with intent to distribute. The heroin based counts were
tried in federal court in the Southern District of Texas in January
1991.
In April of the same year, Vasquez was tried and convicted in
federal court in the Southern District of Texas of conspiracy to
possess cocaine with intent to distribute. Vasquez claims that he
was involved in only one conspiracy and that agreement had as its
centerpiece distribution of cocaine and heroin. Thus, the
conviction at the second trial should be nullified by application
of the constitutional protection against double jeopardy.
We review the experiences of defendant Vasquez beginning with
his acquaintance with Candelario Leon in the summer of 1990. The
introduction of Leon to Vasquez occurred in Reynosa, Mexico. Leon,
a former drug dealer, was a confidential informant for, but not an
employee of, the United States Drug Enforcement Administration.
Vasquez, a Mexican national without U. S. credentials of any
sort, offered to sell or acquire any drugs that Leon desired. In
fact, Vasquez hounded Leon to buy heroin from him. After each
communication with Vasquez, Leon would report to his contact, Tony
Santos, an agent with the Drug Enforcement Administration.
Leon told Vasquez that he had a buyer for heroin. Rodney
Alverez, a DEA agent posing as a dealer in heroin, met Vasquez in
2
a lot between two restaurants on South Tenth Street in McAllen,
Texas. The date of the meeting was 16 November 1990. Accompanying
the defendant was Jose Zamarripa. The predicate for the meeting
was the offer by Vasquez to Leon in Reynosa on the 15th that he had
a quantity of heroin for sale. The appellant recounted the fact
that there were 15 ounces of heroin for sale. Earlier in the day,
while in Mexico, Zamarripa and the defendant had told Leon that
they would sell a small sample, which they possessed, to Leon's
contact. At 1:30 p.m. on the 16th, Leon and agent Rodney Alverez,
met with Zamarripa in a parking lot on South Tenth Street in
McAllen, Texas. Zamarripa agreed to sell 15 ounces of heroin to
Alverez for $4,500 per ounce. Alverez contemplated the situation
and agreed to buy a sample of the heroin for $200. Marked bills
were given to Zamarripa. Alverez promised to communicate further
with Zamarripa later in the day.
After Alverez departed with the sample, Leon and Zamarripa
scoured the neighborhood to find the defendant. Vasquez had not
attended the afternoon meeting, but was located, traveling on foot,
in the area. Zamarripa told Vasquez that he gave, not sold, the
sample to Alverez. With that news, Vasquez became miffed at
Zamarripa and told him that the heroin was theirs. The sale should
have been for $200 and the consideration should have been divided
equally between Vasquez and Zamarripa.
Later the same day, Vasquez, Zamarripa, agents Alverez and
Jose Aguilar and Leon met in the McAllen parking lot. The purpose
3
of the meeting was to perfect a purchase of a greater quantity of
heroin. While Vasquez acted as a lookout, Zamarripa and agents
Aguilar and Alvarez conferred in a parked automobile. Zamarripa
presented the large quantity of heroin for the two agents to
inspect. Agent Aguilar signaled for support, agents appeared, and
Zamarripa and Vasquez were arrested. The heroin experience
resulted in a guilty verdict in January of 1991.
The April trial had as its hub a cocaine transaction. As we
previously reported, Leon met defendant Vasquez in Reynosa, Mexico.
Leon advised Santos that Vasquez had expressed an interest in
selling heroin and buying cocaine. After describing Tony Santos as
a Colombian cocaine dealer, Leon arranged a meeting between Santos
and Vasquez on 17 October 1990. The meeting was held in leased
office space in Unit C of the Professional Plaza, 4311 North Tenth
Street in McAllen, Texas.
When defendant arrived, he was accompanied by Ramiro Tijerina.
Tijerina described clients from Houston who desired to purchase
significant quantities of cocaine. Vasquez served as a mediator.
If the principals foundered over a point, Vasquez negotiated their
differences by suggesting alternative procedures so that the
bartering would continue, not terminate. Tijerina offered to
purchase 1,000 kilograms of cocaine. Agent Santos stated that he
could not deliver that quantity of cocaine but that his source of
supply could accommodate such an order. Vasquez's compensation for
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services was discussed, but no agreement was reached in that
regard.
The following day another meeting was held at the same place.
Present were Ramiro Tijerina, his son Ramiro, Jr., Santos, and
Vasquez. Tijerina pushed Santos for a 150 kilogram purchase but
Santos declined. Santos claimed that his source had made a big
sale leaving no inventory to satisfy the demands of others.
Tijerina was deflated and advised Santos that when his source had
been replenished to contact him through Vasquez.
A third meeting was held on 25 October 1990 at Unit C of the
Professional Plaza. Tijerina, Jr. appeared as did Vasquez, Leon,
and Santos. Unlike the last meeting, this time it was the
purchasers who refused Santos' cocaine. Feigning displeasure,
Santos departed, followed by Vasquez. Vasquez kept assuring Santos
that Tijerina was big time and that Santos would have other
opportunities to sell them cocaine.
Another meeting was scheduled for 26 October. Here again, the
site was Unit C of the Professional Plaza. Both Tijerinas
appeared, as did Vasquez, Joel Cavazos (a potential purchaser from
Houston, Texas), Leon, and Santos. Prior to the meeting, Vasquez
had mentioned privately to Santos that he needed money and that if
the planned drug sale did not materialize Vasquez would find other
purchasers for Santos' cocaine.
At the plenary meeting, Vasquez suggested that Santos sell a
cocaine sample to Tijerina. The quality of the Santos stuff could
5
be determined as a harbinger of quality to follow in larger
deliveries. Santos surrendered a sample to Tijerina and quoted a
$2,000 per kilogram price, delivered in Houston, Texas. Tijerina
indicated a desire to purchase 1,000 kilograms and promised a
definite response after chemical analysis of the sample. Vasquez
was arrested on 16 November and Tijerina met a similar fate on 26
November. The jury found Vasquez guilty of conspiracy to possess
with intent to distribute less than 5 kilograms of cocaine.
ANALYSIS
We review de novo the district court's denial of a motion to
dismiss the cocaine indictment (the April trial) on the ground of
double jeopardy. United States v. Atkins, 834 F.2d 426 (5th Cir.
1987) overruled on other grounds, 933 F.2d 325 (5th Cir. 1991);
United States v. Deshaw, 91-3131 Fifth Cir. 1992 at 339. The fifth
amendment protects one against multiple prosecutions for the same
offense. United States v. Felix, 112 S. Ct. 1377, 1382 (1992); see
also United States v. Levy, 803 F.2d 1390, 1393 (5th Cir. 1986)
(quoting Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct.
221, 223, 2 L. Ed. 2d 199 (1957)). Vasquez has been charged with
conspiracy to possess heroin and conspiracy to possess cocaine.
It is implicit in the record that the district court felt that
the defendant carried his burden of establishing a prima facie
claim of double jeopardy. United States v. Levy, 803 F.2d at 1393.
It is explicit in the district court's ruling that the government
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demonstrated by a preponderance of the evidence that the cocaine
indictment charged a crime separate and apart from that for which
Vasquez was previously placed in jeopardy. When analyzing multiple
conspiracy counts not bound in the same indictment we are guided,
if not directed, by Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932). Blockburger instructs us to
dismiss the cocaine indictment unless the government can prove by
a preponderance of the evidence that the two conspiracies are
factually distinct, i.e. the cocaine conspiracy indictment charges
a crime separate from the heroin conspiracy indictment. In the
Fifth Circuit, five factors are considered when determining the
number of agreements. These factors, as established in United
States v. Marable, 578 F.2d 151 (5th Cir. 1978) are: (1) time; (2)
persons acting as co-conspirators; (3) the statutory offenses
charged in the indictments; (4) the overt acts charged by the
government or any other description of the offense charged that
indicates the nature and scope of the activity that the government
sought to punish in each case; and (5) places where the events
alleged as part of the conspiracy took place. The acts as
described in the indictment will be examined as well as the acts
admitted into evidence at the trials or hearings. United States v.
Deshaw at 347; United States v. Levy, 803 F.2d at 1395. The
following graphic display compels us to conclude that there are two
conspiracies.
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Heroin Transaction Cocaine Transaction
Time 16 November 1990 17 October 1990
18 October 1990
25 October 1990
26 October 1990
Persons acting Jose Luis Vasquez- Jose Luis Vasquez-
as co- Rodriquez Rodriquez
conspirators Jose Zamarripa Ramiro Tijerina
Jose Aguilar, DEA Ramiro Tijerina, Jr.
Agent Joel Cavazos
Rodney Alverez, DEA Tony Santos, DEA
Agent Agent
Candelario Leon, Candelario Leon,
Confidential Confidential
Informant Informant
Statutory 21 U.S.C. § 846 21 U.S.C. § 846
Offenses 21 U.S.C. § 841(a)(1) 21 U.S.C. § 841(a)(1)
and (b)(1)(B) and (b)(1)(B)
Overt Acts Offer to sell large Offer to purchase a
quantity of heroin, large quantity of
possession of a large cocaine
quantity of heroin
Places Where Parking lot, South Office on 4311 North
Acts Occurred Tenth Street, Tenth Street,
McAllen, Texas McAllen, Texas
The government has clearly proved the existence of two separate
conspiracies. The time period of each event is clearly different.
The persons acting as co-conspirators are not the same. In the
heroin transaction, the defendant conspired with Jose Zamarripa to
possess and sell a proscribed substance. Weeks before, the
defendant conspired with Tijerina, Tijerina, Jr., and Cavazos to
purchase cocaine. It is true that the same statutes are used by
the government in both conspiracies, but the statutes are not
invoked to regulate identical conduct. To the contrary, the
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statutes are applied to two events, neither of which is involved
with the other. The times are not the same, the parties are not
the same, and the objects of the conspiracies are not the same.1
Nothing links the two transactions other than the defendant. There
is no evidence that the conspirators in one transaction knew the
conspirators in the other transaction. In one case an illegal sale
was planned and in the other, the parties considered an illegal
purchase. Both conspiracies were conducted in McAllen, Texas, but
one was confined to a parking lot on South Tenth Street and the
other to an office on North Tenth Street. Comparing the facts in
the record against the five Marable factors, we are persuaded that
the government has proved the existence of two separate
conspiracies.
1
This clearly is not a case of a single agreement to sell two different
drugs. If it were, Vasquez might have a valid defense of double jeopardy. In
United States v. Winship, 724 F.2d 1116 (5th Cir. 1984), this court deduced:
The double jeopardy prohibition would not allow separate public
drunkenness convictions for a man who drank enough of two whiskies
to be drunk on either liquor. Public drunkenness laws do not
inquire whether the violators consumed Old Crow or Chivas Regal.
Similarly, whether the government may bring separate Section 846
charges does not hinge on whether separate controlled substances
were involved. In this case, analysis of the Marable factors
provides objective indications of a single agreement. Furthermore,
the conspiracy was clearly not departmentalized or compartmentalized
in the minds of the conspirators. One conspirator's testimony
emphasized the close links between efforts to sell the two drugs.
Jack Goudeau could not recall whether he was buying marijuana or
methamphetamine when he first met appellant Winship (citation
omitted). We see no logic or reason to dichotomize the conspiracy
here. This criminal blend came from a single agreement to sell two
drugs. We cannot allow the government to distill separate offenses
from that agreement by prosecuting for each kind of drug. Counts I
and II constituted a single offense. Appellants' right not to be
twice placed in jeopardy for the same offense was violated.
Id. at 1127.
9
We AFFIRM the district court's denial of the defendant's
motion to dismiss on the grounds of double jeopardy.
10