UNITED STATES COURT OF APPEALS
for the Fifth Circuit
________________________________________
No. 92-4580
________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANDY RESTREPO and
GUSTAVO BEDOYA NARANJO,
Defendants-Appellants.
____________________________________________________
Appeals from the United States District Court
for the Eastern District of Texas
____________________________________________________
(June 17, 1993)
Before JOLLY and DAVIS, Circuit Judges, BRAMLETTE1, District Judge.
BRAMLETTE, District Judge:
Defendants-appellants Andy Restrepo and Gustavo Bedoya Naranjo
appeal their convictions, following a joint jury trial, on charges
that they conspired to possess more than five kilograms of cocaine
with the intent to distribute it, in violation of 21 U.S.C. § 846,
and on individual charges of possession of more than five kilograms
of cocaine with the intent to distribute it, and actual
distribution of more than five kilograms of cocaine, all in
violation of 21 U.S.C. § 841.
Defendant Andy Restrepo (Restrepo) was found guilty of the
conspiracy charge (count 1), one individual count of possession
1
District Judge of the Southern District of Mississippi,
sitting by designation.
with intent to distribute and actual distribution (count 5), and
one individual count of possession with intent to distribute (count
6). Defendant Gustavo Bedoya Naranjo (Naranjo) was found guilty of
the conspiracy charge (count 1), four individual counts of
possession with intent to distribute and actual distribution
(counts 2-5), and one individual count of possession with intent to
distribute (count 6).2 Finding no reversible error as to any of
the issues raised on appeal, we affirm both defendants'
convictions.
I.
FACTS
The conspiracy with which the defendants were charged was
alleged to have taken place from approximately 1981 until 1991
(count 1). The individual counts in the indictment were alleged to
have taken place in the spring of 1987 (count 2), March of 1989
(count 3), June of 1990 (count 4), June of 1991 (count 5), and
November of 1991 (count 6).
At trial, the government's evidence showed the following:
A. The Beginnings of the Conspiracy
J.C. Lanier and John Thomas Johnson, co-traffickers in
marijuana, were introduced to the defendant Naranjo in east Texas
sometime in the early 1980's. Lanier met Naranjo first, for the
2
The defendants were also charged with a count of criminal
forfeiture (count 7) pursuant to 21 U.S.C. § 853. The forfeiture
count was severed by the district court and tried separately.
Neither defendant contested the forfeiture order entered by the
district court.
2
purpose of purchasing cocaine from him. Lanier then introduced
Johnson to Naranjo, and Johnson also began purchasing cocaine from
Naranjo.
In approximately 1983 or 1984, Naranjo introduced Johnson to
his brother, German Naranjo, a resident of Miami, Florida. Johnson
and German Naranjo then went to Dallas to obtain cocaine which had
been shipped there at the direction of German Naranjo. Johnson and
Lanier then attempted to sell the cocaine. The defendant Naranjo
did not participate in this transaction, but there was testimony
that he had knowledge of it.
Johnson testified that in 1984 Naranjo introduced him to
someone named "Ney," who had come to east Texas from Miami with a
kilogram of cocaine. Johnson stated that he and Naranjo tried to
sell the entire kilogram. They sold part of it and returned the
unsold balance to Ney.
In 1985, Johnson stopped trafficking in cocaine and limited
his illicit drug activity to marijuana. That year, Johnson and
Naranjo established a corporation for the purpose of importing
lumber from a mill owned by Naranjo's father in Columbia. The
first shipment of lumber arrived in 1986, before the partners
rented a warehouse. The shipment was stored in a shed adjacent to
Johnson's residence until it was sold.
B. Count 2
Johnson and Naranjo then rented a warehouse in Longview,
Texas. A second shipment of lumber arrived, in a large container,
transported to the warehouse by truck from Houston. Johnson
3
testified that he was not present when the container arrived, but
that he was told by Naranjo that the container had a false wall,
and that 700 to 800 kilograms of cocaine had been secreted in boxes
between the false wall and the actual side of the container of
lumber. Johnson testified that two weeks later, Naranjo gave him
$100,000 in cash for being part of the smuggling operation, and
that Naranjo told him he had received an equal amount of money.
Two or three months later, another container of lumber arrived
from abroad and was stored at the warehouse. According to Johnson,
a crew from Miami, supervised by an individual named "Henry,"
arrived at the warehouse to remove the false wall. They pulled off
the front wall of the container, revealing a compartment containing
a number of boxes. Members of the work crew and Naranjo told
Johnson that the boxes contained 700-800 kilograms of cocaine. The
boxes were transferred to a truck by the crew and driven away.
Johnson testified that he again received $100,000, and that Naranjo
told him that he and Henry had been paid an equal amount of money.
After another two or three months, another container arrived
at the warehouse. The same work crew returned, opened the false
compartment, and transferred the boxes from the compartment to
their truck. Naranjo told Johnson again that the boxes contained
700-800 kilograms of cocaine. He paid Johnson $50,000, keeping an
equal amount of money for himself. Naranjo and Johnson
subsequently closed their lumber import business.
C. Count 3
Johnson testified that he met a man named "Roberto" during his
4
lumber import venture with Naranjo, and that in 1988 he and Naranjo
obtained cocaine from Roberto in Houston and sold it on
consignment. Later in 1988, at Roberto's home, Naranjo revealed
plans to fly cocaine to east Texas from Tampico, Mexico. A crew
was assembled to off-load the cocaine. One of the crewmen was
William Brooks, one of Johnson's former marijuana customers.
In preparation for the venture Brooks purchased a motorhome
with funds furnished by Johnson. In early 1989 the airplane landed
on a farm-to-market road and stopped at a wheat field. The off-
loading crew removed the plastic sacks containing cocaine from the
plane and transferred them to a pickup truck, which was driven to
a nearby ranch. The next day the cocaine, weighing 789 kilograms,
was transferred to Brooks' motorhome. Brooks was to deliver the
cocaine to Houston, but his motorhome developed engine trouble
outside of Dallas. Johnson rented a truck to transport the sacks
of cocaine the remainder of the journey to Houston. Naranjo, who
had travelled to Dallas separately, followed Johnson to Houston in
his own vehicle.
Johnson and Naranjo arrived in Houston late at night and
registered at a motel. The next morning, they distributed some of
the cocaine to individuals whom, according to Johnson, Naranjo had
previously contacted to accept part of the shipment. Approximately
200 kilograms of the cocaine were transferred from the rental truck
to Naranjo's vehicle. The remainder of the cocaine was driven by
Johnson in the truck to another location, where he met individuals
who drove the truck away. When the truck was returned, it was
5
empty. The next night Johnson, Naranjo, Brooks and another man
were paid approximately $150,000.
D. Count 4
In the spring of 1990, Naranjo left for Columbia. He returned
to Longview, Texas, with a plan to smuggle cocaine from Guatemala
to Longview in metal containers hidden in the air brake tanks of
trucks. Johnson testified that Naranjo shared this plan with him,
and told him that they needed local people to obtain a warehouse
and to replace the cocaine-laden air brake tanks with new tanks.
Johnson recruited Brooks and Lanier to participate in this scheme.
With funds furnished by Johnson, Brooks rented a warehouse in
Longview and purchased tools needed to dismantle the air brake
tanks.
The first two trucks arrived at a motel in Longview in mid-
1990. The drivers notified Naranjo of their arrival, and Naranjo
contacted Johnson, Brooks, Lanier and Guillermo Naranjo (another
brother). Two of the men drove the trucks from the motel to the
warehouse. Lanier removed the air brake tanks and installed
replacements. Brooks, Johnson and Guillermo Naranjo assisted him.
Brooks then took the tanks to his land in Marion County, Texas,
where he and Lanier cut the tanks apart. Inside the tanks were
large metal boxes which contained metal foil sealed pouches.
Johnson testified that cocaine was contained in the packages. The
packages of cocaine were stored in inoperative deep freezers buried
in the ground.
Every four to six weeks, additional trucks arrived and the
6
process was repeated. When 300-500 kilograms of cocaine were
accumulated, the containers would be removed from the deep freezers
and driven to a roadside park where a tractor-trailer was parked.
The tractor-trailer would contain a legitimate cargo destined for
New York, and would be driven by a man known as "Henrietta."
According to Johnson and Brooks, the defendant Naranjo would drive
Henrietta around the area while Johnson, Brooks and Lanier
transferred the cocaine into his tractor-trailer. This procedure
was repeated on several occasions.
Johnson testified that Naranjo handed him two suitcases full
of money that had been delivered to Naranjo by Henrietta. Naranjo
asked Johnson to keep the suitcases until people from Guatemala
came for them, and told him that they contained about $1,000,000.
Johnson took the suitcases home, opened them, and saw the bundles
of cash held together by rubber bands. He took photographs of the
money. Two days later, Naranjo retrieved them and said that he
would give the money to someone named "Chino'" who was from
Guatemala.
Approximately 20 truck shipments arrived in Longview during
the spring, summer and fall of 1990. All were successfully
dismantled, and the cocaine was transferred to Henrietta without
incident. Johnson testified that he and Naranjo were paid $1,700
to $2,500 per truck for their supervisory roles. Lanier stated
that he was paid about $1,500 per truck. The operation was
discontinued when Johnson, Brooks and Lanier were told that law
enforcement authorities had discovered a cache of cocaine hidden in
7
one of the trucks.
E. Count 5
Johnson testified that in the spring of 1991 Naranjo took him
to Guatemala on a fishing trip. While there, they met Chino and an
individual named "Carlos" who discussed with them a plan to smuggle
cocaine in metal boxes inside the fuel tanks of Chevrolet Silverado
diesel pickup trucks. Each truck had two fuel tanks and each tank
was capable of concealing 25 kilograms of cocaine. Once again, the
plan called for the trucks to be driven from Guatemala through
Mexico and into the United States.
Upon their return to Longview, Naranjo told Johnson that they
would be assisted by the defendant Restrepo. Naranjo indicated
that Restrepo was coming to Texas to operate an auto body shop as
a front for the smuggling operation.
When Restrepo arrived, his activities were financed by Naranjo
and Johnson. They gave Restrepo $2,000 to $4,000 per month. In
the spring of 1991 Restrepo leased a warehouse on Seven Pines Cut-
off Road, made a down payment on a house, and purchased a pickup
truck. Restrepo was introduced to Brooks and Lanier.
In June of 1991 two diesel pickup trucks arrived in Longview.
The trucks were taken to the Seven Pines Cut-off Road warehouse.
Lanier and Restrepo removed the fuel tanks from the trucks and
installed replacements that Restrepo and Johnson had purchased
earlier. Lanier transported the old diesel fuel tanks to Brooks'
Marion County property. There the tanks were cut open, and the
cocaine containers removed and stored as before. Brooks delivered
8
the dismantled tanks to Restrepo's house. Restrepo had planned to
weld the tanks together so that they could be re-used, but that
plan was abandoned.
Two weeks later two more trucks arrived in Longview, and the
process of removing cocaine from the fuel tanks and storing it on
Brooks' property was repeated. After work on the second shipment
of cocaine had finished, a van arrived from Houston, and the
cocaine from all of the fuel tanks was placed in the van for
delivery to Houston. Later, Johnson and Naranjo were paid $4,000
to $6,000 each for the shipments.
Thereafter, Johnson invited Lanier to his house to help count
money. When Lanier arrived he observed approximately ten trash
bags full of wet and mildewing currency. Using a clothes dryer,
Johnson dried the bills. Lanier, Restrepo, Brooks and Johnson
participated in counting the money. They were unable to complete
the task that day. The counting resumed the next day at Naranjo's
house. Lanier estimated that they counted more than $300,000 in
cash.
No further trucks arrived. Naranjo told Johnson that they had
ceased employing that particular smuggling technique because
someone was stealing their trucks in Houston.
According to Johnson, in the summer of 1991 Naranjo informed
him that a clandestine safe would be installed in Johnson's house
and two such safes would be built into Restrepo's house. Johnson's
safe was intended to store cash. Restrepo's two safes were to
store cocaine; if Restrepo were detected, he could surrender the
9
contents of the smaller of the two safes and thereby protect the
cocaine in the larger safe from being found. Johnson gave Brooks
cash to rent a van for the man who came to Longview to install the
safes. Brooks delivered the van to Restrepo, who was with the safe
installer at the time.
F. Count 6
In August of 1991 Naranjo's associates shipped a cargo of
concrete fence posts from Venezuela to Miami. Cocaine was
concealed in some of the posts. Customs officers in Miami
discovered some of the cocaine but allowed the shipment to pass
through customs under constant surveillance, in an effort to detect
the intended recipients. In September, October and November of
1991 the cargo of fence posts was divided and stored by the then
unknown custodians in three separate locations in Miami.
In October of 1991 some of the concrete fence posts that
contained no cocaine were shipped to Longview. They were stored at
the Seven Pines Cut-off Road warehouse that had previously been
leased by Restrepo. Naranjo told Johnson that the posts were to be
sold; later, Johnson learned that the first load of concrete posts
was a "dummy" load, designed to help determine if anyone was
watching the shipment. Naranjo told Johnson that the posts were
part of a large shipment that concealed about 10,000 kilograms of
cocaine. Naranjo and Johnson arranged for some of the posts to be
delivered to Houston, in order to determine if the shipment was
under surveillance. No surveillance was detected.
Some of the posts were transported by Brooks to his Marion
10
County property. The purpose of that move was to determine whether
Brooks was being followed. After completing the transfer, Brooks
reported to Johnson that he had made the dry run without incident.
In fact, all of these movements had been observed by law
enforcement officers maintaining around-the-clock surveillance. On
November 16, 1991, a truckload of concrete posts containing cocaine
left Miami for Longview. Unbeknownst to the conspirators, the
driver of the truck who made the delivery was an undercover
officer, substituting for the original driver who was an innocent
party.
On November 17, Naranjo informed Johnson that a load of
concrete posts was on its was to Longview and that about 1,000
kilograms of cocaine had been packed into the concrete. Naranjo
asked Johnson to direct Lanier to help unload the truck when it
arrived at the Seven Pines Cut-Off Road warehouse. Johnson
conveyed the message to Lanier, and told him that he would be paid
$25 or $30 per kilogram of cocaine.
On November 18, Lanier met Restrepo at the warehouse. They
discussed the expected shipment and the fact that these concrete
posts were filled with cocaine. When the truckload arrived, Lanier
signed the shipping order acknowledging receipt of the cargo.
Using a forklift that Restrepo had rented, the two men unloaded the
fence posts.
Brooks and Lanier loaded two bundles of the newly arrived
shipment of fence posts onto a truck trailer for transfer to
Brooks' Marion County property. Restrepo helped in the loading.
11
Brooks then drove the truckload to the property. En route, Brooks
passed a car which, unknown to Brooks, was driven by a DEA agent.
When Brooks arrived at his property, he saw a surveillance plane
aloft, but surmised that the plane was part of a fire watch.
Lanier purchased sledge hammers, chisels, a splitting maul,
and related equipment at a hardware store, then drove to Marion
County to meet Brooks. First they drove around the area to see if
they were being watched. Satisfied that they were not under
surveillance, they returned to where the concrete posts had been
placed and met Johnson who had been sent there by Naranjo.
The task of removing the containers of cocaine from the
concrete posts was arduous. Each post contained three one-kilogram
packages and six half-kilogram packages. By nightfall, they had
completed one bundle of nine posts and had extracted 54 kilograms
of cocaine. One small package had ruptured, and the cocaine that
had fallen out of the package was placed in a small bag that
Johnson kept. He tasted and smelled the powder and verified that
it was cocaine.
After the three men had finished working, law enforcement
agents entered the property and arrested them. The cocaine that
had been extracted from the fence posts and the bag in Johnson's
possession were seized.
After his arrest, Johnson agreed to cooperate. He took the
officers to his home and produced a photograph album containing
photographs of his trip to Guatemala and a picture of the suitcases
full of money that he had held for Naranjo. Johnson also showed
12
the officers the secret safe that had been constructed in his home.
Johnson, Brooks and Lanier ultimately pled guilty to the charges
brought against them and testified against the appellants.
G. Searches and Seizures
Brooks consented to a search of his Marion County property,
where agents seized the cocaine and concrete posts. Johnson agreed
to make telephone calls to Naranjo and Restrepo for DEA agent
Phillip Rust, tapes of which were later played for the jury. On
November 19, warrants were obtained to search Naranjo's home,
Restrepo's home, and the Seven Pines Cut-off Road warehouse.
At Naranjo's home the officers found more than $97,000 in a
safe, Guatemalan currency, valuable artifacts, valuable coins, an
envelope addressed to Johnson containing a list of products and
investments in Guatemala, a note pad with the name of the Seven
Pines Cut-off Road warehouse written on it, a receipt reflecting
that a cashier's check in the amount of $1,000 had been sent to
Restrepo, and a daily diary. The diary contained Restrepo's name
on the page for the date of August 19, 1991, and an entry appeared
on the page for August 21 which read "Get with Henrietta, need hub
for tire and seal." The diary also contained other references to
Lanier and Restrepo, with a Miami telephone number beside
Restrepo's name.
At Restrepo's premises officers found a loaded firearm under
a mattress in his bedroom, a pager, address books with entries for
Lanier and Naranjo, documents reflecting receipt of the first cargo
(four loads) of cement posts at the Seven Pines Cut-off Road
13
warehouse, a bill of lading reflecting delivery to the warehouse of
the second load of concrete posts, a receipt for rental of a
forklift, airline ticket receipts showing that he and Naranjo's
father had flown to Fort Lauderdale, Florida, in late August 1990
and that the tickets were purchased with cash, and 8 or 10 fuel
tanks including one with the top cut off.
At the warehouse officers found new and used fuel tanks, a
welding machine, tools, and an earnings statement for Restrepo's
employment in 1988. The second load of concrete posts, found
outdoors on the warehouse premises, was destroyed so that the
cocaine concealed in the posts could be removed.
In Miami the concrete posts still stored in warehouses were
also seized. The total amount of cocaine found at the various
locations was as follows: 77.36 kilograms, 89% pure, at the Marion
County property; 998 kilograms, 92% pure, at the warehouse; 67.26
grams, 82% pure, in the bag seized from Johnson; 446 kilograms, 90%
pure, at one of the three storage areas in Miami; 8,001 kilograms,
92% pure, at the second site; and 2,722 kilograms, 92% pure, at the
third.
H. Post-arrest Statements
On November 19, 1991, Naranjo was arrested and taken to the
United States District Courthouse in Tyler, Texas, for his
arraignment before a magistrate judge. After being read his rights
by the magistrate judge, he indicated to DEA special agent Jackie
Grier that he would like to talk with him. Naranjo, Grier and
Assistant U.S. Attorney Lou Guirola then met in the U.S. Marshal's
14
office. Mr. Guirola advised Naranjo of his rights again, and
Naranjo indicated that he understood his rights and wished to talk.
He admitted knowledge of and participation in the smuggling
operation in which cocaine was concealed in concrete fence posts,
and he disclosed certain details of the operation.
On November 20, 1991, U.S. Customs agent Edward Kacerosky,
along with Mr. Guirola and DEA agent David Wilkerson, spoke with
Naranjo at the Smith County Sheriff's office. Kacerosky also
reminded Naranjo of his rights. Naranjo indicated that he
understood his rights and that he wished to speak with Kacerosky.
He disclosed essentially the same information which he had
disclosed to Agent Grier.
In addition, Naranjo made certain statements of cooperation
which were excluded by the district judge at trial. The transcript
of the suppression hearing at which the defendant challenged the
admissibility of both his statements of confession and of
cooperation remains under seal, and, for obvious reasons, the
statements of cooperation will not be disclosed.
II.
PROCEDURAL HISTORY
Both defendants pled not guilty and trial began on February
24, 1992. Prior to trial, Naranjo filed a motion to suppress all
statements of confession and of cooperation as being coerced. The
district court denied the motion as to statements of confession,
but granted the motion as to statements of cooperation.
Also prior to trial, Restrepo moved to sever his case from
15
that of Naranjo. Restrepo advised the court that he was aware of
a post-arrest confession of Naranjo, and feared that he would be
implicated without the opportunity to confront and cross-examine
Naranjo. The district court denied his motion. Restrepo moved,
prior to trial, to suppress evidence obtained from the search of
his house on the grounds that the search warrant was unsupported by
probable cause, and was so broad as to constitute a general search
in violation of the Fourth Amendment. This motion was also denied.
The case against both defendants proceeded to trial. After
all parties rested, Naranjo moved for judgment of acquittal on
counts 2-5. The district judge carried the motion. On March 3,
1992, the case was submitted to the jury. Naranjo was found guilty
of counts 1-6, and Restrepo was found guilty of counts 1, 5 and 6.
The district court accepted the jury's verdict, which in effect
denied Naranjo's motion for judgment of acquittal.
III.
THE ISSUES ON APPEAL
A. Naranjo
The defendant Naranjo claims that the district court erred in
denying his motion for judgment of acquittal because there was
insufficient evidence to support a finding that the substances
alleged in counts 2-5 were cocaine. In the alternative, Naranjo
claims that the use of circumstantial evidence to establish the
identity of a substance as cocaine, when the substance itself is
unavailable, constitutes a violation of his right under the Sixth
Amendment to confront the witnesses against him.
16
Naranjo also claims that the district court erred in denying
his motion to suppress his oral confession because the confession
was involuntary and obtained through the use of coercion.
B. Restrepo
The defendant Restrepo claims that the district court erred in
denying his motion to sever, because his inability to confront and
cross-examine his co-defendant concerning Naranjo's post-arrest
confession deprived him of a fair trial. Restrepo asserts that
when Naranjo's confession was introduced against Naranjo at trial,
it also implicated Restrepo, thereby depriving him of a fair trial.
Restrepo also claims that the district court erred in denying
his motion to suppress evidence obtained in the search of his
house, because the search violated his rights under the Fourth
Amendment.
IV.
DISCUSSION
A. The Sufficiency of the Evidence
Naranjo argues that there was insufficient evidence to support
a finding that the substance alleged in counts 2-5 was actually
cocaine; accordingly, Naranjo argues that it was error for the
district court to deny his motion for acquittal on these four
charges. We review the district court's denial of a motion for
judgment of acquittal de novo. United States v. Leed, 981 F.2d
202, 205 (5th Cir. 1993). "The well established standard in this
circuit for reviewing a conviction allegedly based on insufficient
17
evidence is whether a reasonable jury could find that the evidence
establishes the guilt of the defendant beyond a reasonable doubt."
United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert.
denied, __U.S.__, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992). The
evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of
guilt. United States v. Fuller, 974 F.2d 1474, 1477 (5th Cir.
1992).
Direct and circumstantial evidence adduced at trial, as well
as all inferences reasonably drawn from it, is viewed in the light
most favorable to the verdict. Sanchez, 961 F.2d at 1173. The
jury is the final arbiter of the weight of the evidence, and of the
credibility of witnesses. United States v. Barksdale-Contreras,
972 F.2d 111, 114 (5th Cir. 1992), cert. denied, __U.S.__, 113
S.Ct. 1060, 122 L.Ed.2d 366 (1993), cert. denied, __U.S.__, 113
S.Ct. 1614, 123 L.Ed.2d 174 (1993).
Finally, the uncorroborated testimony of an accomplice or co-
conspirator can be sufficient to support the verdict. United
States v. Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992); United
States v. Singer, 970 F.2d 1414, 1419 (5th Cir. 1992); United
States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991); United States
v. Brown, 887 F.2d 537, 542 (5th Cir. 1989); United States v.
Eakes, 783 F.2d 499, 504-506 (5th Cir.), cert. denied, 477 U.S.
906, 106 S.Ct. 3277, 91 L.Ed.2d 567 (1986). With these principals
in mind, we address Naranjo's claim.
The government sought to prove in counts 2-5 that Naranjo was
18
instrumental in the delivery of quantities of cocaine to places in
eastern Texas and points beyond. However, because these movements
were never detected by law enforcement officers, the substances
themselves were never seen by any officers, much less tested. As
a consequence, the government had to rely on circumstantial
evidence, particularly the testimony of Johnson, Brooks and Lanier,
to prove that the substance was cocaine.
Naranjo recognizes the cases from this circuit holding that
uncorroborated testimony of a co-conspirator can be sufficient
evidence, but he argues that his case can be distinguished because
none of his alleged co-conspirators testified that they were
experienced in identifying cocaine, nor did they testify that they
had tested it. In some instances, they did not even testify that
they had seen the substance itself. Naranjo's argument goes to the
quantum of the circumstantial proof. However, while the
government's evidence may have been lacking in some respects, it
made up for the deficiency in others. Neither Eakes nor any other
decision cited by Naranjo enunciate a minimum standard of
circumstantial evidence or demand that the proof include any
particular factor as a sine qua non. The government's
responsibility was simply to prove that enough circumstances
existed to allow a reasonable jury to conclude beyond a reasonable
doubt that the substance was cocaine.
In this case, the circumstantial evidence included the
packaging, the clandestine manner in which the substances were
handled, the witnesses' admitted familiarity with cocaine, the
19
uncontested statements by Johnson, Brooks and Lanier that they were
handling cocaine, the substantial amounts of money paid to them for
their roles in ensuring that the packages were transported without
detection, the references to kilograms, the kilogram sizes of the
packages, the similarity of the appearance of the packages, the
deliveries of hundreds of thousands of dollars in cash, and the
multiplicity of the ventures. All of these circumstances, examined
together and in context, provided sufficient reason for the jury to
conclude that the government had proved beyond a reasonable doubt
that Naranjo had trafficked in cocaine, as was alleged in counts 2-
5.
In the alternative, Naranjo argues that Eakes and its progeny,
to the extent that they do not require the government to produce
the substance a defendant is accused of possessing or distributing,
are unconstitutional. Naranjo claims that Eakes violates his Sixth
Amendment right to confront the witnesses against him.
As this Court has stated in United States v. Herndon, 536 F.2d
1027, 1029 (5th Cir. 1976), the Sixth Amendment right of
confrontation deals with witnesses and not physical evidence. See
also United States v. Sherrod, 964 F.2d 1501, 1507 n. 18 (5th
Cir.), cert. denied, __U.S.__, 113 S.Ct. 832, 121 L.Ed.2d 701
(1992), cert. dismissed, __U.S.__, 113 S.Ct. 834, 122 L.Ed.2d 111
(1992), cert. denied, __U.S.__, 113 S.Ct. 1367, 122 L.Ed.2d 745
(1993), cert. denied, __U.S.__, 113 S.Ct. 1422, 122 L.Ed.2d 791
(1993); United States v. Gordon, 580 F.2d 827, 837 (5th Cir), cert.
denied, 439 U.S. 1051, 99 S.Ct. 860, 58 L.Ed.2d 711 (1978), cert.
20
denied, 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1979). Here,
the witnesses upon whom the government relied to establish the
nature of the controlled substance testified at trial and were
available for cross-examination.
Moreover, "[t]he Confrontation Clause guarantees only 'an
opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the
defense might wish." Kentucky v. Stincer, 482 U.S. 730, 739, 107
S.Ct. 2658, 96 L.Ed.2d 631 (1987), quoting Delaware v. Fensterer,
474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985); United States
v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).
Here, Naranjo had ample opportunity to cross-examine the witnesses
who testified as to the nature of the controlled substance.
B. The Oral Confessions
Naranjo argues that the district court erred in denying his
motion to suppress his oral confessions because they were
involuntary and obtained through the use of coercion. A confession
is voluntary if, "under the 'totality of the circumstances,' the
statement is the product of the accused's 'free and rational
choice.'" United States v. Doucette, 979 F.2d 1042, 1045 (5th Cir.
1992), quoting United States v. Rogers, 906 F.2d 189, 190 (5th Cir.
1990). On appeal, this Court must give credence to the credibility
choices and findings of fact of the district court unless they are
clearly erroneous. Id. The ultimate issue of voluntariness,
however, is a legal question, subject to de novo review. Id. The
government has the burden of proving by a preponderance of the
21
evidence that the defendant voluntarily waived his rights and that
the statements he made were voluntary. United States v. Rojas-
Martinez, 968 F.2d 415, 417 (5th Cir.), cert. denied, __U.S.__, 113
S.Ct. 828, 121 L.Ed.2d 698 (1992), cert. denied, __U.S.__, 113
S.Ct. 995, 122 L.Ed.2d 146 (1993). A confession is voluntary in
the absence of official overreaching, in the form of either direct
coercion or subtle psychological persuasion. Id. at 418.
Courts consider a number of factors in determining whether a
confession is the product of a free will. All of the circumstances
are to be considered, including the following, but the presence or
absence of any of these five factors need not be conclusive:
(1) the time elapsing between arrest and arraignment of
the defendant making the confession, if it was made after
arrest and before arraignment,
(2) whether such defendant knew the nature of the offense
with which he was charged or of which he was suspected at
the time of making the confession,
(3) whether or not such defendant was advised or knew
that he was not required to make any statement and that
any such statement could be used against him,
(4) whether or not such defendant had been advised prior
to questioning of his right to the assistance of counsel,
and
(5) whether or not such defendant was without the
assistance of counsel when questioned and when giving
such confession.
22
18 U.S.C. § 3501(b). Official overreaching, with regard to the
voluntariness of the waiver of rights and to the voluntariness of
the confession itself, can take forms other than physical coercion.
Psychological coercion can be a form of official misconduct.
Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93
L.Ed.2d 473 (1986). Promises or inducements can taint the
voluntariness of a confession. United States v. McClure, 786 F.2d
1286, 1289 (5th Cir. 1986).
Prior to trial, Naranjo filed a motion to suppress all
statements of confession and statements of cooperation as being
coerced. The motion was heard on Friday, February 21, 1992, and
the transcript of the hearing remains under seal pursuant to an
Order of the district court. At the conclusion of the hearing, the
district judge took the matter under advisement. On February 24,
1992, immediately prior to trial, the Court ruled on Naranjo's
motion:
First of all, the government (sic) denies in part and
grants in part Defendant Naranjo's motion, particularly
as follows. The fact that a Defendant may have post
arrest cooperated with the government for some period of
time is suppressed. The fact that a Defendant may have
participated in telephone calls that may have been
recorded or the contents of those calls is suppressed.
If the government has any statements from agents or
others involved that may be offered, those will be
submitted for examination by the Court to determine
23
whether portions should be redacted.
Counsel for the government and both Defendants shall
not communicate the fact of cooperation or the Court's
ruling in this respect to anyone, including other
Defendants.
. . .
The Court is not suppressing and the motion is denied
in this respect, any statements made by Defendant Naranjo
in the nature of confessions. Now, I appreciate the fact
that there may be reasonable dispute about what amounts
to confession or whether a statement might be one of
cooperation, implicate other people or potentially other
people. Anything that comes close to falling in that
category before the government would offer it, approach
the bench for the Court to rule on it.
At the trial, statements of confession were admitted through
two of the government's witnesses: Jackie Grier, a DEA special
agent, and Edward John Kacerosky, a U.S. Customs agent. The agents
spoke to Naranjo on two separate occasions. Both agents testified
that Naranjo was read his rights, that he indicated he understood
them, and that he indicated he wished to talk to them. Naranjo
admitted to both agents that he had knowledge of and participated
in the venture that brought 1,080 kilograms of cocaine to Texas,
and that the first shipment of concrete fence posts was a dry run.
He also told agent Kacerosky that the ultimate destination of the
cocaine was New York.
24
Agent Grier testified that Naranjo indicated to him that he
knew of the existence of an additional 12,000 kilograms of cocaine
in the vicinity of Miami, Florida. Grier testified that Naranjo
told him that people in Florida had detected drug enforcement
surveillance there and that they intended to transport the entire
12,000 kilograms to east Texas if all went well with the first
shipment.
Agent Kacerosky also testified that Naranjo told him of the
presence of approximately 10,000 kilograms of cocaine in Miami.
Naranjo told Kacerosky that he had made three trips to Miami from
east Texas for the purpose of obtaining expense monies for the
operation, ranging from $30,000 to $50,000 per trip. Agent
Kacerosky stated that Naranjo told him the purpose of the expense
monies was to rent a warehouse to set up a "caleta," and to hire a
person to mind the "caleta."3
A defendant is entitled to a fair hearing and reliable
determination of the voluntariness of a confession prior to its use
at trial. Jackson v. Denno, 378 U.S. 368, 378, 84 S.Ct. 1774,
1781, 12 L.Ed.2d 908 (1964). At this hearing, "both the underlying
factual issues and the voluntariness of [the] confession [must be]
actually and reliably determined." Id., 378 U.S. at 380, 84 S.Ct.
3
At this point, counsel for Restrepo objected on the
grounds that the reference to a "caleta" implicated his client,
creating a Bruton error, and moved for a mistrial. On the next
day of trial, the district judge instructed the jury to disregard
Agent Kacerosky's testimony regarding expense monies, the
warehouse, the "caleta," and a person to mind the "caleta." Our
discussion regarding Restrepo's objection follows. For
discussion purposes as to Naranjo, we will disregard this
particular jury instruction.
25
at 1783. "Although the judge need not make formal findings of fact
or write an opinion, his conclusion that the confession is
voluntary must appear from the record with unmistakable clarity."
Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d
593 (1967).
We have reviewed the sealed transcript of the February 21,
1992, suppression hearing and find that although the judge did not
make his ruling until the following Monday, at the conclusion of
the hearing on Friday he made a specific finding that the
confessions were made after adequate warnings and were voluntary.
In addition, we find ample evidence to support the district judge's
ruling. Implicit in his ruling is the factual finding that the
government's witnesses were more credible than Naranjo. The
government's witnesses admitted that certain promises were made to
Naranjo, but that they were made toward the end of his period of
cooperation, and that the confessions were made at the beginning of
his period of cooperation.
Naranjo submits, however, that his confessions were
"intertwined" with his decision to cooperate. He argues that by
suppressing the statements of cooperation, the district court
impliedly ruled that any statements made during the period of
cooperation should be suppressed. Thus, he contends, if the
confessions were made during the period of cooperation, the
district court erred in denying Naranjo's motion as to his
confessions.
Our reading of the suppression hearing transcript does not
26
support Naranjo's contention. At the beginning of the hearing, the
judge stated that he was concerned with the alleged promises made
to Naranjo by the government. This issue was fully developed
during the hearing, both by counsel and by the judge who also
questioned the witnesses. Although no explicit finding was made
concerning the sequence of events, it is clear from the record as
a whole that the district judge found that the promises or
inducements were not made until after Naranjo's confessions.
We find that the district judge's decision to credit the
testimony of the government's witnesses over that of Naranjo was
not clearly erroneous. We therefore agree with the ruling of the
district court that the government carried its burden of showing
that, under the totality of the circumstances, Naranjo's
confessions were voluntary. The district court did not err in
denying Naranjo's motion to suppress.
C. Restrepo's Objection to the Testimony of Agent Kacerosky
Prior to trial, Restrepo filed a motion to sever his trial
from the trial of his co-defendant, Naranjo, which motion was
denied. During the trial, Agent Kacerosky testified that Naranjo
had told him about trips to Miami to pick up expense monies for
"this operation," which monies were to be used to rent a warehouse
as a "caleta," or hiding place, and to hire someone to mind the
caleta. At this point, Restrepo's counsel objected. Outside the
presence of the jury, Restrepo moved for a mistrial, but the
district judge denied the motion. On the day following Agent
Kacerosky's testimony, the judge read aloud the testimony to which
27
Restrepo's counsel had objected and instructed the jury: "You will
completely disregard the questions and the answers and not consider
[the testimony] for any purposes and not take it into consideration
at all in your deliberations."
Restrepo argues that the damage done by Agent Kacerosky's
testimony was irreparable, and is sufficient to entitle him to a
new trial. The government argues that the instruction cured any
problem that might have been created, that Naranjo's statement, as
related by Kacerosky, never directly implicated Restrepo, and that,
in any event, the statement could not have been a crucial factor in
the jury's consideration of the case against Restrepo.
Rule 14, Fed.R.Crim.P., provides in part:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in
an indictment or information or by such joinder for trial
together, the court may order an election or separate
trials of counts, grant a severance of defendants or
provide whatever other relief justice requires.
The decision of whether a severance of defendants is warranted lies
within the district court's discretion, and "we do not disturb that
decision unless we find abuse of that discretion." United States
v. Lopez, 979 F.2d 1024, 1035 (5th Cir. 1992). To demonstrate that
the district court abused its discretion, an appellant "must show
that he received an unfair trial, which 'exposed [him] to
compelling prejudice against which the district court was unable to
afford protection.'" Id., quoting United States v. Kane, 887 F.2d
28
568, 571 (5th Cir. 1989), cert. denied, 493 U.S. 1090, 110 S.Ct.
1159, 107 L.Ed.2d 1062 (1990).
A defendant's Sixth Amendment right to confrontation is
violated when (1) several co-defendants are tried jointly, (2) one
defendant's extrajudicial statement is used to implicate another
defendant in the crime, and (3) the confessor does not take the
stand and is thus not subject to cross-examination. Bruton v.
United States, 391 U.S. 123, 127, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968), cert. denied, 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428
(1970). Under these circumstances, "[s]everrance of the trials is
proper, but only in cases where a defendant's statement directly
incriminates his or her co-defendants without reference to other,
admissible evidence." United States v. Beaumont, 972 F.2d 91, 95
(5th Cir. 1992) (emphasis added). Bruton is not violated unless
the co-defendant's statement directly alludes to the appellant,
even if the evidence "makes it apparent that the defendant was
implicated by some indirect references." Id., quoting United
States v. Espinoza-Seanez, 862 F.2d 526, 534 (5th Cir. 1988).
Bruton issues are also reviewed under the abuse of discretion
standard. Beaumont, 972 F.2d at 95.
Restrepo argues that this was precisely the kind of problem he
sought to avoid by his motion to sever. When the Bruton problem
arose, Restrepo moved for a mistrial, but his motion was denied.
He now contends that the district judge should be reversed and he
should be granted a new trial. The government points out that
Naranjo never directly mentioned Restrepo; therefore, the statement
29
cannot be said to fall within the proscription of Bruton.
The Supreme Court has recently limited the application of Rule
14 in Zafiro v. United States, __U.S.__, 113 S.Ct. 933, 122 L.Ed.2d
317 (1993). The Court, reviewing a severance request based on
mutually antagonistic defenses, concluded that when defendants have
been joined under Rule 8, Fed.R.Crim.P., the district court should
grant a severance only if there is a "serious risk that a joint
trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence." Zafiro, 113 S.Ct. at 938. The Court
stated that such a risk might occur when evidence is introduced
that is probative of a defendant's guilt but is technically
admissible only against the co-defendant. Id. The Court then
concluded, however, that in such a case "less drastic measures,
such as a limiting instruction," will often suffice to prevent the
risk of prejudice. Id.
Restrepo claims that the district court should have severed
his trial from the trial of Naranjo because of testimony that was
admissible against Naranjo but not against Restrepo. However,
since both Restrepo and Naranjo were convicted of essentially the
same conspiracy, "severance is not required merely because the
Government introduced evidence admissible only against" a co-
defendant. Restrepo's argument also fails under Bruton. With
Bruton claims, "we have held it to be critical to determine whether
the out-of-court statement 'clearly implicates the co-defendant.'"
Foy v. Donnelly, 959 F.2d 1307, 1312 (5th Cir. 1992), quoting
30
Espinoza-Seanez, 862 F.2d at 534. Bruton is not violated unless
Naranjo's statement directly alludes to Restrepo, which it clearly
does not. Pointing to references in the statement that Naranjo
sought to obtain a "caleta" and someone to mind it, Restrepo
evidently contends that Bruton is implicated since the other
evidence adduced at trial made Restrepo's connection apparent,
thereby indirectly connecting him to Naranjo's post-trial
confession. However, the rule in this circuit is that an indirect
reference to a co-defendant is not enough to bring a statement
within the proscription of Bruton.
Furthermore, the district court gave a limiting instruction
that the specific portion of the statement was to be totally
disregarded. In any event, even without the limiting instruction,
we find that Naranjo's statement could not have been a crucial
factor in the jury's consideration of the case against Restrepo.
The jury heard clear and abundant evidence implicating Restrepo in
the conspiracy count and counts 5 and 6. The evidence came not
only from co-conspirators Johnson, Brooks and Lanier, but also from
agents who watched Restrepo's movements and discovered the hidden
safes in his house, and from local citizens such as one witness who
testified that the Seven Pines Cut-off Road warehouse was rented by
Restrepo purportedly for an auto repair shop that never
materialized, and another who rented a forklift to Restrepo so that
he could lift concrete posts onto the truck that took them to
Brooks' property. Thus, even if there were a Bruton error, we find
it would be harmless beyond a reasonable doubt.
31
D. The Search of Restrepo's House
On November 18, 1991, a search warrant was issued by a federal
magistrate judge for the search of Restrepo's house. Restrepo
argues that the search warrant was unsupported by probable cause.
Restrepo also argues that the warrant was so broad as to constitute
a general search in violation of the Fourth Amendment. He contends
that the evidence seized pursuant to the search should have been
suppressed as "fruit of the poisonous tree."
The government acknowledges that the affidavit supporting the
search warrant did not describe any drug activity occurring at
Restrepo's house. The government argues, however, that the
affidavit contained enough information derived from the affiant's
experience and from his and other agents' observations to allow the
magistrate judge to conclude that evidence of illegal drug activity
could be found at the house. In addition, the government offers
other bases to sustain the district court's ruling that the
evidence should not be suppressed: (1) Restrepo's motion was not
timely made; (2) the affidavit met the test of probable cause; and
(3) the warrant met the good faith exception to the exclusionary
rule. The government also argues that the admission into evidence
of the seized items, if error, was harmless beyond a reasonable
doubt.
"We engage in a two-step review of a district court's denial
of a motion to suppress evidence obtained pursuant to a warrant:
(1) whether the good-faith exception to the exclusionary rule
applies; and (2) whether probable cause supported the warrant."
32
United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).
If we decide that the good-faith exception applies, we need not
reach the probable cause issue. Id.
Restrepo's argument is basically the same this court addressed
in United States v. Pigrum, 922 F.2d 249 (5th Cir.), cert. denied,
___U.S.___, 111 S.Ct. 2064, 114 L.Ed.2d 468 (1991). In Pigrum, the
appellant argued that the district court erred in denying his
motion to suppress evidence seized in the search of his house
because there was no probable cause for the issuance of the
warrant. The appellant also argued that the warrant "was based on
an affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable," thereby
precluding a good faith exception under United States v. Leon, 468
U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). This court first
addressed the latter argument, noting that under Leon's good faith
exception to the exclusionary rule, evidence will be admitted if it
is obtained by officers acting in objectively reasonable reliance
on a search warrant issued by a magistrate judge; furthermore,
"[t]his is so even if the affidavit on which the warrant was based
is insufficient to establish probable cause." Pigrum, 922 F.2d at
252. The first issue that must be addressed, therefore, is whether
the officers reasonably relied on the magistrate judge's
determination in light of the information set forth in the
affidavit. Id. We review de novo the reasonableness of an
officer's reliance upon a warrant issued by a magistrate judge.
Satterwhite, 980 F.2d at 321.
33
In Pigrum, we concluded that "when a warrant application is
supported by more than a 'bare bones affidavit' containing wholly
conclusionary statements, it is appropriate for officers to rely on
the warrant's validity." Pigrum, 922 F.2d at 252. A "bare bones"
affidavit lacks the facts and circumstances from which a magistrate
judge can independently determine probable cause. Satterwhite, 980
F.2d at 321.
The affidavit supporting the warrant for the search of
Restrepo's house was provided by DEA special agent Jackie Grier.
It began with a lengthy statement that in his more than 11 years of
experience, he had observed that drug traffickers maintain records
relating to drug activity at a place such as a home, for ready
access; and that contraband, drug proceeds and other indicia of
drug trafficking such as coded telephone numbers, photographs and
firearms are secreted in safe places such as homes.
The affidavit also contained information Agent Grier learned
during the course of his investigation leading to Restrepo's
arrest. He described the shipments of concrete fence posts
containing cocaine from Venezuela to Miami, the fact that the
intended named recipient company's offices were staffed by
temporary workers and did no business, and the delivery of four
truckloads of concrete fenceposts to the Seven Pines Cut-off Road
warehouse. He also described Restrepo's association with the
warehouse as its lessee, Restrepo's purchase of the home in White
Oak, Texas, in June or July of 1991, after he had leased the
warehouse, and Restrepo's observed presence at the warehouse. The
34
affidavit noted the absence of any legitimate business activity or
even telephone service at the warehouse, Restrepo's avowed lack of
familiarity with a forklift when he took delivery of a truckload of
concrete posts, and the presence of equipment in the warehouse that
was consistent with a drug smuggling technique involving the use of
hidden compartments in vehicles. Agent Grier described Restrepo's
refusal to sign his full name legibly on the bills of lading, the
delivery of more fence posts to the warehouse in November of 1991,
the surveillance of the movement of those fence posts to Marion
County, the arrests of Brooks, Johnson and Lanier, and the
discovery of 297 pounds of cocaine at the Marion County location.
Regarding Restrepo's residence, the affidavit offered the
following information:
1. Restrepo obtained utilities for the residence in June
or July of 1991; the house was owned by "Cleo Harrell
Bales";
2. The house was secluded with its only means of egress
and ingress essentially being a dead-end road;
3. The Ford truck registered to Restrepo was observed
traveling to this residence on October 24, 1991;
4. No other individuals had been observed there since
periodic surveillance began;
5. The telephone number was in the name of Restrepo;
telephone calls were made to Miami, Ft. Lauderdale,
Columbia, California, and Houston; a call was made to a
company near Tyler, Texas, that sold digital scales;
35
Columbia is a known source country for cocaine; South
Florida is designated a "High Intensity Drug Area"; Miami
is the location from which the fence posts originated.
The affidavit also provided other information about Restrepo.
He was observed by an agent at the post office when he was
attempting to renew his post office box. He refused to reveal to
the postal clerk the address either of his business or of his
residence, and he left without renewing the post office box. The
affiant stated that this behavior is consistent with the actions of
drug traffickers who do not wish to be identified or associated
with given locations or names during the course of unlawful
activities. The affidavit also contained facts pertaining to the
probable cause of cocaine being present at the warehouse and of the
occurrence of drug trafficking at the warehouse.
This affidavit is more than a mere "bare bones" affidavit. It
furnished sufficient information to allow the conclusion that a
fair probability existed that seizable evidence would be found in
Restrepo's house. The officers' reliance on the magistrate judge's
determination of probable cause was objectively reasonable, and the
good faith exception to Leon's exclusionary rule applies.
Since the officers acted in good faith in relying on the
warrant, we need not address the issue of probable cause for the
warrant. However, probable cause "does not require proof beyond a
reasonable doubt; 'only the probability, and not a prima facie
showing, of criminal activity is the standard of probable cause.'"
United States v. Brown, 941 F.2d 1300, 1302 (5th Cir.), cert.
36
denied, ___U.S.___, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991), quoting
Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969). A magistrate judge's determination is entitled
to great deference; furthermore, a magistrate "need only have a
substantial basis for concluding that a search would uncover
evidence of wrongdoing." Id.
In the affidavit on which the search warrant was based,
Restrepo's criminal activity was demonstrated. He was the person
the undercover agents contacted when they arrived in Texas with the
cocaine, and he was the one who actually unloaded the posts
containing the cocaine. On the day the posts arrived in Texas,
October 24, 1991, Restrepo's truck was observed at the warehouse as
well as at his residence. Restrepo's mailing address was a post
office box, and he refused to give the post office the location
of either his business or his residence. It thus appears to us
that the magistrate judge had a substantial basis on which to
conclude that a search of Restrepo's residence would uncover
wrongdoing. The affidavit meets the test of probable cause.
V.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
37