Unpublished Disposition, 935 F.2d 277 (9th Cir. 1990)

No. 89-30209.

United States Court of Appeals, Ninth Circuit.

Before HUG and D.W. NELSON, Circuit Judges, and CARROLL,^*  District Judge.

MEMORANDUM^** 

Miguel Adolph Valdez-Pacheco ("Valdez") appeals his conviction on several drug trafficking counts. We affirm the conviction except as to the conspiracy count which we remand for entry of an order staying the judgment and imposition of sentence.

Valdez contends the evidence was insufficient to convict him on count I for engaging in a continuing criminal enterprise, pursuant to 21 U.S.C. § 848 (1988). Valdez only challenges the sufficiency of one element of the offense, arguing he did not occupy "a position of organizer, a supervisory position, or any other position of management" over "five or more other persons." Id. Sec. 848(c) (2) (A).

Viewing the evidence in the light most favorable to the Government, Jackson v. Virginia, 443 U.S. 307, 319 (1979), we conclude there was sufficient evidence to permit the jury to reasonably infer Valdez occupied an organizational, supervisory or managerial position over at least five individuals within the meaning of section 848(c) (2) (A). The evidence established that Valdez directed Richard Edgerton to bring one pound of cocaine to Bellingham, Washington, with instructions to wait to be contacted by Edgerton's brother-in-law, Rene Valenzuela. Intercepted telephone calls revealed a conversation where Valdez told Corpus Londres to bring "papers" to the house. Drug Enforcement Agency Special Agent Patrick O'Connor and Rene Valenzuela both testified that "papers" was a code word referring to drug money. Other taped conversations between Londres and Valdez which were played for the jury utilized similar disguised terminology where arrangements were made for the pick up or drop off of "papers," "garbage" (meaning narcotics), or "one" (referring to one kilogram of cocaine). The evidence indicated that Rose Arehart maintained a message center for Valdez at 6220 NE 66th Avenue. Intercepted telephone conversations indicated Valdez and others would call Arehart concerning the drop off of "papers" and the purchase of narcotics. Officer Miller and informant Susan Keller both testified that Valdez was the source of the supply for the drug distribution scheme at 205 N. Lombard for Linda Lujan, Joseph Valdez, and Susan Jones.¹  Keller also included Robert Steven Lujan and Dale Rhodes within this distribution network at 205 N. Lombard. Keller also stated that Susan Jones told her Valdez was one of the largest heroin dealers on the west coast.

II. Sufficiency of the Evidence: Counts III and IV

Valdez also challenges the sufficiency of the evidence for counts III and IV for possession with intent to distribute heroin and cocaine on October 30, 1985, pursuant to 21 U.S.C. § 841(a) (1) (1988). Specifically, he argues there was insufficient proof that he exercised dominion and control over these substances.

Viewing the evidence in the light most favorable to the Government, the jury could have rationally found "a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised a dominion and control over the substance." United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986). Constructive possession may be established by circumstantial evidence. United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988). Here, Valdez' constructive possession of the bags containing heroin and cocaine was established through several facts considered in conjunction. First, the bags were found at the points where Valdez swerved his truck. The bags were also dry, in stark contrast to the damp surroundings. Further, these items were retrieved after Valdez failed to comply with Officer Rothwell's instruction to pull over.

Valdez does not challenge any aspect of the trial court's handling of the competency determination on and after March 13th. Valdez solely argues that the court committed reversible error by failing to hold sua sponte a statutory hearing to determine his mental competency during the first three days of trial. See 18 U.S.C. § 4241 (1988); see also Pate v. Robinson, 383 U.S. 375 (1966) (due process evidentiary hearing). Review of a failure to provide a competency hearing is comprehensive: "The question to be asked by the reviewing court is whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial." De Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976), cert. denied, 429 U.S. 1075 (1977).

Our review of the record shows there was no "reasonable cause" for the trial court to have believed that Valdez might have been mentally incompetent to stand trial prior to Valdez' outburst on the third day of trial. See 18 U.S.C. § 4241(a) (reasonable cause standard). Prior to that incident, Valdez' counsel did not raise the competency issue with the court. See, e.g., United States v. Rodriguez, 799 F.2d 649, 655 (11th Cir. 1986); United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986), cert. denied, 479 U.S. 1036 (1987). Upon the first instance of reasonable cause to believe Valdez may not have been mentally competent, the trial court acted sua sponte and swiftly in accordance with section 4241 and due process. The trial was continued by the court pending resolution of this issue. Further, the medical examination of Valdez stated that he had no prior history of psychiatric problems.

Valdez also argues his trial counsel's failure to move for a competency hearing or for a mistrial before the third day of trial violated his Sixth Amendment right to effective assistance of counsel.

We decline to consider this claim on direct appeal. Without addressing the merits, we note the factual issues involved would best be presented in a habeas corpus proceeding, pursuant to 28 U.S.C. § 2255 (1988), where an adequate record may be developed. See, e.g., United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989), amended, 902 F.2d 18 (9th Cir. 1990), cert. denied, --- U.S. ---- (1990), WL 82746 (Oct. 1, 1990); United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987). Illustratively, we note Valdez' claim is based in significant part on notes he gave to counsel during the trial and telephone calls he made to counsel outside of trial. These communications allegedly should have raised sufficient doubt to prompt Valdez' defense counsel to move for a competency hearing. Because these matters are not clearly and adequately presented in the record, we decline to consider this issue at this juncture.

Valdez argues the trial court abused its discretion in limiting the closing argument of his defense counsel, denying Valdez the Sixth Amendment guarantee to effective assistance of counsel at this basic stage of the trial. See United States v. Patterson, 678 F.2d 774, 781 (9th Cir.) (standard of review), cert. denied, 459 U.S. 911 (1982). Under the circumstances, we find the trial court did not abuse its discretion in limiting the closing argument. The more than seventy minutes allotted was reasonable. Herring v. New York, 422 U.S. 853, 862-63 (1975). Counsel had notice that the argument would be limited and was given two extensions of time. See, e.g., Patterson, 678 F.2d at 781.

Valdez was convicted in count I of involvement in a continuing criminal enterprise, pursuant to 21 U.S.C. § 848, and in count II of conspiracy to possess cocaine for distribution, pursuant to 21 U.S.C. § 846. He was sentenced to 360 months on count I and 240 months on count II, with the sentences to run concurrently.

On appeal, Valdez argues he impermissibly received cumulative punishments instead of one punishment for the same prohibited conduct under sections 846 and 848. We agree. Jeffers v. United States, 432 U.S. 137, 154-58 (1977) (plurality opinion by J. Blackmun). Accordingly, to avoid the double punishment, we remand for entry of an order staying the judgment and sentence on the conspiracy count alone in accord with United States v. Palafox, 764 F.2d 558, 564 (9th Cir. 1985) (en banc).

Valdez challenges the district court's denial of his motion to suppress wiretap evidence. He argues telephone conversations were "unlawfully intercepted" because the original application lacked probable cause. See 18 U.S.C. §§ 2518(3) (a), (b), (d) & (10) (a) (i) (1988).

Under the totality of the circumstances, we conclude there was a substantial basis for the district court's probable cause determination for the original wiretap order. United States v. Brown, 761 F.2d 1272, 1275-76 (9th Cir. 1985); United States v. Camp, 723 F.2d 741, 745 (9th Cir. 1984) (applying Illinois v. Gates, 462 U.S. 213, 230 (1983)). DEA Special Agent O'Connor submitted a forty-page affidavit in support of the application. Valdez had previously been convicted for possession with intent to distribute heroin and had two prior narcotics-related arrests. A confidential informant described Valdez as a major distributor of heroin and cocaine. Another confidential informant said Valdez' family members were selling cocaine and heroin in Portland supplied by Valdez. Valdez told an informant his general habit was to bring 15-20 kilograms of heroin and cocaine from Arizona to Oregon each time he went to Oregon. Valdez allegedly referred to Rose Arehart as his wife and was known to reside at her residence at 6220 NE 66th Avenue when he was in Oregon. A different confidential informant alleged that Arehart accepted cash for Valdez' narcotics distributions at the targeted address. Another confidential informant saw Valdez remove three kilogram containers of cocaine from a garbage can on the side of the residence. This informant later dropped off $25,000 in cash for a Floyd Lomax at the residence. When Arehart answered the door, she said although Valdez was away, people always left money for Valdez with her. Informants indicated that the telephone at 6220 NE 66th Avenue was used by Valdez and others to discuss narcotics transactions. Pen register analysis indicated frequent telephone calls between the targeted phone and members of the alleged drug distribution organization.

Valdez contends the wiretap affidavits contained material misrepresentations and omissions concerning the necessity for the wiretap. See 18 U.S.C. §§ 2518(1) (c), 3(c); United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986). On appeal, Valdez challenges the district court's decision not to hold a hearing to consider his contentions concerning the affidavits pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

The application of Franks to a wiretap order is reviewed de novo. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir. 1985). Factual findings under Franks concerning materiality are reviewed for clear error. Id. The ultimate question whether misstatements or omissions are material under Franks is reviewed de novo. Id. Determinations that a wiretap was necessary are reviewed for an abuse of discretion. Brown, 761 F.2d at 1275.

Valdez presents three arguments contending material misstatements and omissions were made. First, Valdez argues the wiretap orders were not necessary because a search warrant could have been utilized. While a wiretap should not ordinarily be the starting point of an investigation, we have noted "law enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap." Brone, 792 F.2d at 1506. Here, a search warrant would have been of limited utility in light of other specified investigative methods which were tried or considered. Significantly, a search warrant for 6220 NE 66th Avenue would not likely have revealed the source of the narcotics, the hierarchy of the organization or the scope of the drug operation extending at least to Arizona and Oregon, as described in the affidavits. See, e.g., United States v. Carneiro, 861 F.2d 1171, 1178 (9th Cir. 1988) ("The fact that the DEA could have taken different or some additional steps in its investigation does not demonstrate that the district court abused its discretion in upholding the wiretap order.").

Second, according to Valdez the affidavit falsely stated that the use of informants had been exhausted and was no longer effective. Valdez contends the affiant should have informed the court of the availability of an individual who was allegedly willing to aid in apprehending Valdez. This argument was based on an affidavit submitted by a DEA agent in support of a search warrant in United States v. Beltran, CR Nos. 86-68, 107. However, the district court held a hearing at which two special agents with the U.S. Customs Service testified that this individual was unable to fully cooperate.

Finally, for the first wiretap extension, Valdez argues the affiant also falsely or recklessly misrepresented that 39.9% of intercepted telephone calls during the first wiretap period related to criminal activity. Valdez has not shown that the incorrect interception figure was material in causing the wiretap order to issue. See, e.g., Ippolito, 774 F.2d at 1485. Along with the affidavit containing the incorrect calculation, Judge Redden also had the weekly reports of the first interception period. Critically, Valdez has not shown the affidavit purged of the erroneous number but supplemented by the omission would be insufficient to support a finding of probable cause. United States v. Stanert, 762 F.2d 775, 782 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985). The weekly figures showed at least 15% of the calls concerned criminal activities. Finally, specific conversations pertaining to narcotics indicated the use of the telephone at 6220 NE 66th Avenue for criminal activity.

Valdez' conviction is affirmed except that we remand for an order staying both the judgment and sentence on the conspiracy count under Palafox.

AFFIRMED and REMANDED IN PART.