Summary
holding that the text of Application Note 11 "leaves no doubt that the probation revocation and the new criminal conviction are to be treated as separate offenses."
Summary of this case from Latham v. United StatesOpinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted April 12, 1991.
Appeal from the United States District Court for the Tucson District of Arizona, Nos. CR-88-0301-01-ACM, CR-88-0301-02-ACM, CR-88-0301-03-ACM, CR-88-0301-04-ACM, CR-88-0301-05-ACM and CR-88-0301-06-ACM; Alfredo C. Marquez, District Judge, Presiding.
D.Ariz.
AFFIRMED.
Before PREGERSON, NOONAN and DAVID R. THOMPSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
These consolidated appeals involve six defendants who were charged with (1) possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II), and (2) conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii). Defendants Cervantes, Jayme, and Arvizu were convicted only of the conspiracy count and were sentenced to fifteen years imprisonment. Defendants Ojeda and Maldonado were convicted of both counts and were sentenced to consecutive fifteen year terms of imprisonment. Defendant Contreras was also convicted of both counts and sentenced to consecutive twenty years terms of imprisonment. The defendants raise a number of issues on appeal. We affirm all the convictions.
I. The Government's Aerial Surveillance of the Tillery Property With Gyroscopic Binoculars Was Not a "Search" Under the Fourth Amendment.
Government surveillance becomes a "search" under the Fourth Amendment only if the surveillance intrudes upon a "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J. concurring).
In Dow Chemical v. United States, 476 U.S. 227 (1986), the Court held that the government had not conducted a "search" under the Fourth Amendment when it took pictures of a facility with a "precision aerial mapping camera" at various altitudes. 476 U.S. at 229. The Court noted, however, that "highly sophisticated surveillance equipment not generally available to the public,such as satellite technology, might be constitutionally proscribed absent a warrant." Id. (emphasis added).
We believe that aerial surveillance with gyroscopic binoculars of ordinary fourteen power does not constitute a search under the Fourth Amendment. According to the pilot's testimony, the gyroscopic binoculars "simply minimized vibrations to allow the individual using the binoculars to stay focused in one spot." Gyroscopic binoculars are not more intrusive than precision aerial mapping cameras sanctioned in Dow Chemical and do not pose any more of a constitutional problem. See United States v. Allen, 675 F.2d 1373, 1381-82 (9th Cir.1980) (observation using ordinary binoculars does not constitute a Fourth Amendment "search"), cert. denied, 454 U.S. 833 (1981).
II. Probable Cause Exists to Arrest Arvizu, Cervantes, Jayme, and Contreras.
Probable cause to arrest exists when the facts and circumstances known to the officers are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert denied, 476 U.S. 1185 (1986).
The officers had probable cause to arrest Arvizu, Cervantes, Jayme, and Contreras. First, the officers knew that a person named Rodriguez, who was linked to two large drug seizures, had registered numerous vehicles with a trucking firm and had informed the trucking firm that he was sending someone to pick up a trip ticket. The officers then saw two persons enter and leave the trucking firm and proceed to a local motel. The officers confirmed with the trucking firm that these were the men sent by Rodriquez to pick up the trip ticket. The officers then observed a Ford Bronco pull up to the motel and escort Maldonado and Ojeda, one at a time, to the Bronco.
An agent conducting aerial surveillance saw the Bronco drive in an evasive manner before arriving at the Tillery property. The agent-pilot circled the property and saw five persons get out of the Bronco and go under an awning of a carport. The pilot saw people either loading or unloading two white vehicles under the awning. The officers on the ground were told that the pilot saw the vehicles being loaded.
Two white vehicles were then seen leaving the Tillery property. The officers stopped the vehicles. Arvizu, Cervantes, and Jayme were in the vehicles. At this point, there was probable cause to arrest Arvizu, Cervantes, and Jayme given their connection with Rodriguez and the suspicious activity at the Tillery property. The agents also had probable cause to arrest Contreras who came from the Tillery property in a pickup truck to the spot at which Arvizu, Cervantes, and Jayme were arrested.
III. Contreras' Consent to Have His Tillery Property Searched was Valid Because He Freely and Voluntarily Signed the Consent Form.
Several factors are considered in determining whether a person's consent to search is voluntarily: (1) whether the defendant was in custody; (2) whether officers had their guns drawn at the time consent was given; (3) whetherMiranda warnings had been given; (4) whether the defendant was told that he was free not to consent; and (5) whether the defendant was told that the police would attempt to obtain a search warrant if he refused to consent. United States v. Castillo, 844 F.2d 1379, 1388 (9th Cir.1988). Not all these factors need be established for a consent to be considered voluntary. Id. We review the district court's factual determination of voluntary consent for clear error. Id. at 1387.
The district court's finding that Contreras consented to the search of the Tillery Property was not clearly erroneous. Though Contreras was in custody, there were no guns drawn on him at the time he signed the consent form. The district court found that Contreras read the consent form, understood his rights, was told that he had the right to refuse, and freely and voluntarily consented to the search.
Contreras also argues that the consent he gave to have his Tillery Property searched was invalid because his consent was tainted by an illegal arrest. Because we held that Contreras' arrest was supported by probable cause, Contreras' argument fails.
IV. The District Court Did Not Err in Admitting into Evidence the Marijuana, the $16,000 Cash, and the Notebooks Seized From the Storage Shed.
Contreras argues that the marijuana, cash, and notebooks "had nothing to do with the 1,299 pounds of cocaine for which [he] was on trial" and were erroneously admitted into evidence under Federal Rules of Evidence 403 and 404(b).
Fed.R.Evid. 404(b) states:
We review the distinct court's evidentiary rulings for abuse of discretion and reverse only if the error more likely than not affected the verdict. United States v. Emmert, 829 F.2d 805, 808 (9th Cir.1987).
Given that 1,299 pounds of cocaine were seized on Contreras' property, we are hard pressed to conclude that the admission into evidence of 71 pounds of marijuana, $16,000 cash, and the notebooks purportedly recording small-scale drug transactions more likely than not affected the verdict. Thus, even if the court erred in admitting the evidence, the error would not require reversal.
Contreras also argues that the district court erred in instructing the jury to consider the marijuana evidence only in connection with him and not in connection with the other defendants. He argues these instruction "unduly focused attention on [Contreras] generally and painted him as a bad person. We find that these instructions were not so unfairly prejudicial as to constitute an abuse of discretion.
V. There Was Sufficient Evidence to Convict Cervantes and Jayme of the Conspiracy Charge.
To sustain a conviction for conspiracy to possess with intent to distribute narcotics, the government must demonstrate a slight connection to the existence of a conspiracy and one or more acts in furtherance of the conspiracy. United States v. Penagos, 823 F.2d 346 (9th Cir.1987).
The evidence found on the two white vehicles in which Cervantes and Jayme were seized was sufficient to prove a connection to the conspiracy to distribute cocaine. Both cars were specially rigged with "spring spacers" to prevent the cars from showing that they carried a heavy load. A United States Custom's textile analyst and a Custom's chemist linked fibers found in the trunk of the two vehicles to wrapping material used to bundle the cocaine found at the Tillery Property. Cervantez and Jayme were seized in the two white vehicles which was seen leaving the Tillery property. The evidence is sufficient for a jury to find that Jayme and Cervantes were part of a conspiracy to possess cocaine with intent to distribute.
The convictions of all defendants are affirmed.
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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.