UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-8625
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR GARCIA, ABRAHAM CHAVEZ,
ELMA CEPEDA DE JOHNSON and
JULIAN RODRIGUEZ-RUCOBO,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the
Western District of Texas
______________________________________________
(July 19, 1994)
Before GARWOOD and EMILIO M. GARZA, Circuit Judges and HEAD,*
District Judge.
GARWOOD, Circuit Judge:
Defendants-appellants Salvador Garcia (Garcia), Abraham Chavez
(Chavez), Elma Cepeda de Johnson (Cepeda),1 and Julian Rodriguez-
Rucobo (Rucobo) were convicted in the same proceeding of various
drug offenses related to the importation and distribution of
marihuana. In this consolidated appeal, Chavez contends that the
*
District Judge of the Southern District of Texas, sitting by
designation.
1
Garcia and Cepeda are husband and wife.
district court (1) erred by denying his motion to suppress; (2)
improperly allowed two grams of marihuana to be admitted in
evidence; and (3) abused its discretion by rejecting his requested
lesser included offense instruction. Further, appellants assert
that the district court erred by failing to grant a judgment of
acquittal under the entirety of count one of the indictment rather
than simply a portion thereof. We affirm.
Facts and Proceedings Below
Appellants were convicted on September 29, 1992, for their
participation in a large scale drug conspiracy.2 The conspiracy
involved the importation of marihuana across the United States-
Mexico border for distribution in Denver, Colorado. The conspiracy
was discovered as a result of a series of arrests, from June of
1990 to December of 1991, of individuals attempting to drive across
the United States-Mexico border or through immigration checkpoints
with marihuana hidden in their vehicles.3 Information obtained
from some of the individuals arrested and evidence discovered from
searches of some of the vehicles linked these arrests and the
importation of the marihuana to the Cepeda family.4
2
The indictment charged sixteen individuals with various
related drug offenses as members of the conspiracy. Of those
sixteen, eight are fugitives, four are appellants in the instant
appeal, three had all charges dismissed, and one was acquitted.
3
As a result of these checkpoint and border stops, 12
individuals were arrested (including Garcia on June 28, 1990, and
Rucobo on December 4, 1991) and approximately 935 grams of
marihuana were seized.
4
The government indicted several members of the Cepeda family
as part of the conspiracy. Co-defendants charged with
conspiracy, who are members of the Cepeda family include Garcia
and Cepeda, Cepeda's brothers Eduardo, Ramon, Nolberto, Sergio,
2
On January 3, 1992, a federal grand jury in the El Paso
Division of the Western District of Texas returned a four-count
indictment against appellants and twelve other individuals. Under
count one of the indictment, all defendants were charged with
conspiring to possess marihuana with the intent to distribute and
using a minor to conceal the crime in violation of 21 U.S.C. §§
841(a)(1), 846, and 861(a)(2). Under count two, Garcia, Chavez,
and Rucobo were charged with conspiring to import marihuana in
violation of 21 U.S.C. §§ 952(a), 960(a), and 963. Under count
three, Cepeda and Rucobo were charged with importing marihuana into
the United States from Mexico in violation of 21 U.S.C. § 952(a).
Under count four, Cepeda and Rucobo were charged with possession of
marihuana with the intent to distribute in violation of 21 U.S.C.
§ 841(a)(1).
On January 9, 1992, a search warrant was issued authorizing
federal agents to search Chavez's home at 3841 Shoshone Street in
Denver. The search warrant was issued based on the affidavit of
Customs Agent Stephen Simer (Simer). Simer, an agent in the Denver
office, stated that in February of 1991 he became involved in a
joint investigation with the El Paso office concerning the illegal
importation and distribution of marihuana. Simer declared that the
investigation revealed that Chavez had conspired to import in
excess of three hundred pounds of marihuana from Mexico and
distribute it from his Denver residence. Simer testified that the
Rodolfo, and Cepeda's sister, Andrea. Sergio was acquitted,
however. Eduardo, Ramon, Nolberto, Rodolfo, and Andrea are
fugitives.
3
investigation disclosed that between May 1989 and December 1991
Chavez received approximately five loads of marihuana, each load
weighing between thirty and sixty pounds. In addition, Simer
stated that the investigation of Chavez was based on information
provided by confidential informants, an analysis of long distance
telephone records, and surveillance. Simer also stated that Chavez
and several others had been indicted by a federal grand jury in El
Paso on January 3, 1992, for their involvement in the
importation/distribution organization, and a warrant for Chavez's
arrest had been issued.5
On January 10, 1992, the search warrant was executed at
Chavez's residence in Denver, Colorado. The warrant authorized a
search for several items associated with drug trafficking including
telephone records, ledgers, tally sheets, currency, narcotics, and
distribution and packaging materials. During the search, customs
agents found cigarette rolling papers, $21,557 in cash, and 2 grams
of marihuana in the master bedroom. The agents also seized
Chavez's truck and a map to Garcia's and Cepeda's El Paso home.
Appellants' jury trial began on September 22, 1992. At the
end of the government's case, they moved for a judgment of
acquittal as to count one. The district court granted the motion
only as to paragraph (b) of that conspiracy count which relates to
using a minor to conceal a crime.
5
The affidavit further explained that the government
established the residence as Chavez's by (1) reviewing telephone
service records issued in his name; (2) verifying that vehicles
parked in front of the house were registered to Chavez; and (3)
noting that surveillance of the residence revealed a man matching
Chavez's physical description entering and leaving the residence.
4
During trial, the primary evidence presented against Chavez
consisted of the testimony of Tomas Vasquez (Vasquez). Vasquez
testified that he delivered three loads of marihuana from
Chihuahua, Mexico, to Chavez's Denver home in the spring of 1991.
Vasquez stated that, in Chavez's presence, he and Garcia unloaded
the marihuana and took it into Chavez's home. Vasquez further
testified that he overheard Chavez negotiating over the price of
the loads and witnessed him giving Garcia money. In addition to
Vasquez's testimony, the government introduced in evidence: (1)
telephone records showing over 30 telephone calls between Chavez's
house in Denver and Garcia's and Cepeda's house in El Paso and (2)
the $21,557 in cash and the 2 grams of marihuana seized during the
search of Chavez's home.
Testifying in his own defense, Chavez admitted to knowing
Garcia and Cepeda. He stated that he and his wife were good
friends with the couple and they often stayed in his home. Chavez
admitted that he owned the two grams of marihuana found in his
bedroom, but stated that it was for his own personal use. Chavez
testified that he had purchased the two grams of marihuana from a
third party at a Denver housing project. Chavez denied all of the
accusations of Vasquez, and maintained that he never bought or sold
large quantities of marihuana.
On September 29, 1992, the jury returned its verdict. Garcia
was found guilty of conspiring to possess marihuana with intent to
distribute and conspiring to import marihuana (counts one and two).
Chavez was convicted of conspiring to possess marihuana with intent
to distribute (count one), but acquitted of conspiring to import
5
marihuana (count two). Cepeda was convicted of conspiring to
possess with intent to distribute (count one), but acquitted of
importing marihuana into the United States (count three) and of
possession of marihuana with intent to distribute (count four).
Rucobo was found guilty of all four counts of the indictment.
On appeal, Chavez argues that the district court erred by
denying his motion to suppress the evidence seized from his home.
In addition, Chavez contends that the district court erred in
denying his motion in limine to exclude the two grams of marihuana
found in his bedroom, which he maintains were inadmissible and
unduly prejudicial extrinsic evidence. Chavez also asserts that
the district court erred by denying his request for a lesser
included offense instruction for conspiracy to possess. Lastly,
appellants argue that the district court erred by granting only a
partial acquittal on count one.
Discussion
I. Motion to Suppress
Chavez argues that the district court erred in refusing to
suppress evidence seized from his home. This Court engages in a
two-step review of a district court's denial of a motion to
suppress evidence obtained pursuant to a search warrant. United
States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992); United
States v. Webster, 960 F.2d 1301, 1307 (5th Cir.), cert. denied,
113 S.Ct. 355 (1992). Generally, the first step is to determine
whether the good faith exception to the exclusionary rule applies.
Satterwhite, 980 F.2d at 320. The second step is to determine
whether probable cause supported the warrant. Id. If the good
6
faith exception applies, this Court need not reach the probable
cause issue. Webster, 960 F.2d at 1307.
A. Good Faith Exception
The good faith exception applies unless one of four exceptions
is applicable.6 Chavez argues that the third exception to the good
faith doctrine applies in the instant case, i.e., the affidavit is
so lacking in any indicia of probable cause as to render an
official's belief in its existence entirely unreasonable. This
Court reviews the reasonableness of an officer's reliance de novo.
United States v. McKnight, 953 F.2d 898, 905 (5th Cir.), cert.
denied, 112 S.Ct. 2975 (1992).
B. Reasonableness of Officer's Reliance
Facts recited in Simer's affidavit which support the officer's
belief that probable cause existed include: (1) Chavez was
indicted on January 3, 1992, for his involvement in a conspiracy
involving the importation and distribution of marihuana; (2) there
was a warrant for Chavez's arrest; and (3) Chavez had been
implicated in the conspiracy by information received from
confidential informants, as well as police surveillance, and an
6
Those exceptions are:
"(1) If the issuing magistrate/judge was misled by
information in an affidavit that the affiant knew was
false or would have known except for reckless disregard
of the truth; (2) where the issuing magistrate/judge
wholly abandoned his or her judicial role; (3) where
the warrant is based on an affidavit so lacking in
indicia of probable cause as to render official belief
in its existence entirely unreasonable; and (4) where
the warrant is so facially deficient in failing to
particularize the place to be searched or the things to
be seized that executing officers cannot reasonably
presume it to be valid." Id. at 1307 n.4.
7
analysis of phone records. The affidavit also states that the
investigation revealed the marihuana was being distributed from
Chavez's home. A weakness with the affidavit, however, is that
Simer does not expressly state what information was received from
the confidential informants and his basis for reliance on such
informants.
It is not enough for the supporting affidavit of a search
warrant to state that a defendant is under indictment and that
there was a warrant for his arrest. See United States v. Freeman,
685 F.2d 942, 949 (5th Cir. 1982) (noting "the fact that there is
probable cause to believe that a person has committed a crime does
not automatically give the police probable cause to search his
house for evidence of that crime"). The affidavit must tend to
show some nexus between the house to be searched and the evidence
sought. Id. That nexus, however, "may be established either
through direct observation or through normal inferences as to where
the articles sought would be located." Id.
Chavez's indictment by a grand jury establishes that there was
probable cause to believe that Chavez was involved in drug
trafficking. Construing the affidavit in a "common sense and
realistic manner," see Freeman, 685 F.2d at 948 (quoting United
States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977)), it was
reasonable and logical for officers to believe that evidence of
drug trafficking, such as ledgers and telephone records, would be
found in Chavez's home. Moreover, reading the affidavit as a whole
in a common sense manner indicates that the informant reported he
had assisted in delivery of marihuana to Chavez's Denver residence.
8
We conclude that it was not entirely unreasonable for officers to
believe that probable cause existed and that the warrant was valid.
II. Extrinsic Evidence
Chavez contends that the district court erred in admitting in
evidence the two grams of marihuana found in his bedroom. Chavez
asserts that the evidence was extrinsic and its admission violated
Federal Rule of Evidence 404(b).7
Chavez's contention is without merit. "An act is not
extrinsic, and Rule 404(b) is not implicated, where the evidence of
that act and the evidence of the crime charged are inextricably
intertwined." United States v. Torres, 685 F.2d 921, 924 (5th Cir.
1982). The presence of marihuana in Chavez's home is relevant to
the issue of his alleged involvement in a conspiracy to distribute
marihuana from his home. A jury could reasonably infer that the
marihuana in Chavez's bedroom was part of larger loads of marihuana
brought to his house for distribution. The evidence admitted was
not extrinsic to the offenses charged, thus consideration of its
admissibility pursuant to Rule 404(b) is unnecessary. United
States v. Lamp, 779 F.2d 1088, 1095 (5th Cir.), cert. denied, 106
S.Ct. 2225 (1986).
III. Lesser Included Offense Instruction
Under Rule 31(c) of the Federal Rules of Criminal Procedure a
defendant is entitled to a jury instruction on a lesser included
offense if: (1) the elements of the lesser offense are a subset of
7
Rule 404(b) states in part: "Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith."
9
the elements of the charged offense and (2) the evidence at trial
permits a jury to rationally find the defendant guilty of the
lesser offense, yet acquit him of the greater. United States v.
Deisch, 20 F.3d 139, 142 (5th Cir. 1994).
Chavez argues that the district court should have granted his
request for a lesser included instruction on conspiracy to possess
because conspiracy to possess is a lesser included offense and his
testimony that he purchased the two grams of marihuana for his
personal use from a third party would support a jury's finding him
guilty of the lesser offense.
A. Statutory Elements Test
It is undisputed that under the statutory elements test,
conspiracy to possess is a subset of the elements of conspiracy to
possess with intent to distribute. See United States v. White, 972
F.2d 590, 596 (5th Cir. 1992), cert. denied, 113 S.Ct. 1651 (1993).
However, the statutory elements test is only a test of exclusion.
A defendant is not automatically entitled to a lesser included
instruction simply because the lesser offense satisfies the
statutory elements test. The defendant must also establish there
is evidence which rationally supports convicting the defendant of
the lesser offense while acquitting him of the greater offense.
B. Evidence at Trial
Chavez asserts that a jury could rationally find him guilty of
conspiracy to possess based on his testimony that he purchased the
two grams of marihuana from a third party.
The lesser offense Chavez testifies he committed does not in
any way relate to the offense charged in the indictment. Chavez
10
was indicted for conspiring, in the Western District of Texas, with
the co-defendants to possess and distribute marihuana. Yet,
Chavez's testimony concerns a different offense committed on a
different occasion. The offense Chavez admits to committing was
confined to the Denver, Colorado, area and did not involve any of
his co-defendants or alleged co-conspirators. Chavez's purchase of
marihuana from a Denver housing project is a separate and distinct
crime. A defendant is not entitled to a lesser included offense
instruction simply because he admits to committing a lesser offense
at a different time with other persons.8 See United States v.
Seni, 662 F.2d 277, 285 (4th Cir. 1981), cert. denied, 102 S.Ct.
1453 (1982) (finding defendants were not entitled to lesser
included offense instruction because the lesser offense alleged was
a separate offense). To convict Chavez of the conduct described in
his testimony would be to convict him of an offense with which he
was not charged and for which he had no notice that he was being
tried.
Further, the evidence at trial does not show Chavez to be
guilty of conspiracy to possess in respect to his claimed
acquisition of the two grams of marihuana at a Denver housing
project. To prove a conspiracy to possess, the government would
have to prove that Chavez agreed in that instance with one or more
persons to knowingly possess the two grams of marihuana. "The buy-
8
Similarly, if a defendant charged with assaulting a named
victim with a knife testifies that he never assaulted the named
victim at all, but did assault someone else at another time and
place without a knife, he would not on the basis of such
testimony be entitled to a lesser included offense instruction on
simple assault.
11
sell transaction is simply not probative of an agreement to join
together to accomplish a criminal objective beyond that already
being accomplished by the transaction." United States v. Townsend,
924 F.2d 1385, 1394 (7th Cir. 1991). "'In such circumstances, the
buyer's purpose is to buy; the seller's purpose is to sell. There
is no joint objective.'" Id. (citation omitted). Chavez's
testimony indicates his guilt of simple possession, but not of
conspiracy to possess, with respect to his claimed acquisition of
the two grams at a Denver housing project.
Thus, Chavez was not entitled to an instruction on conspiracy
to possess as a lesser included offense.
IV. Partial Acquittal on Count One
Appellants argue that the district court erred by granting
only a partial judgment of acquittal on count one. They assert
that count one charged only a conspiracy to violate 21 U.S.C. §
861(a)(2), which proscribes use of a minor to avoid detection or
apprehension of an offense. Appellants contend that the district
court's grant of an acquittal on the portion of count one relating
to the minor (paragraph (b)) removed an essential element of the
only offense charged in that count. We disagree.
The indictment alleged:
"COUNT ONE
(21 U.S.C. §§ 846, 841(a)(1), 861 (a)(2)
That commencing on or about May 1, 1989, and
continuing thereafter, up to and including on or about
December 4, 1991, in the Western District of Texas and
elsewhere, Defendants [naming them] willfully and
knowingly conspired, combined, confederated, and agreed
together, and with each other, and with others known and
unknown to the Grand Jury, to commit offenses against the
United States, to wit:
12
(a) to possess a quantity of marihuana, a Schedule
I Controlled Substance, with intent to distribute same,
contrary to Title 21, United States Code, section
841(a)(1);
(b) and each of the above defendants being a person
of at least eighteen years of age at the time of the
commission of this charged conspiracy did use, induce,
and coerce a person under eighteen years of age to assist
in avoiding detection for their unlawful activities,
including importation and the possession with intent to
distribute marihuana, a Schedule I Controlled Substance
[21 U.S.C. §§ 841(a)(1) and 952(a)].
All in violation of Title 21, United States Code,
Section 846."
An indictment may charge in one count a single conspiracy to
violate more than one substantive criminal statute. United States
v. Duvall, 846 F.2d 966, 975 n.8. (5th Cir. 1988). Count one of
the indictment clearly charged the defendants with a single
conspiracy in violation of 21 U.S.C. § 846. Paragraphs (a) and (b)
of the indictment represent the two illegal objects of the
conspiracy, namely, using a minor to conceal a crime in violation
of 21 U.S.C. § 861(a)(2) and possessing marihuana with the intent
to distribute in violation of 21 U.S.C. § 841(a)(1). We reject the
contention that only one object offense, the violation of section
861(a), was charged in count one. That count's initial paragraph
alleges conspiracy; there follow the two object offenses, set out
in subparagraphs (a) and (b) respectively; finally, in a separate
paragraph, the conspiracy statute is referenced. The district
court in withdrawing consideration of violations of section
861(a)(2) from the jury, withdrew consideration of only one of the
two illegal objects of the conspiracy. Count one, as it remained,
still charged an offense.
13
"'When a conspiracy to violate two statutes is alleged, the
jury may find the defendant guilty if they believe beyond a
reasonable doubt that he or she conspired to violate either one of
the statutes.'" United States v. Lyons, 703 F.2d 815, 821 (5th
Cir. 1983) (citations omitted). The district court's grant of
acquittal on one of the alleged underlying substantive offense
objectives of the conspiracy did not preclude the jury from
convicting the appellants for conspiring to commit the other
alleged object offense. Having determined to grant an acquittal as
to paragraph (b) of count one, the district court was not obliged
to dismiss or grant an acquittal as to the balance of count one.
Conclusion
Appellants' appeal presents no reversible error, and their
convictions and sentences are
AFFIRMED.
14