United States of America, Plaintiff-appellee, v. Gary Steven Kaupp, Defendant-appellant.united States of America, Plaintiff-appellee, v. Donald Michael Bodin, Defendant-appellant.united States of America, Plaintiff-appellee, v. Pedro Lopez Jauregui, Defendant-appellant, 945 F.2d 409 (9th Cir. 1991)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 945 F.2d 409 (9th Cir. 1991) Argued and Submitted Sept. 11, 1991. Decided Oct. 2, 1991

Before GOODWIN, SCHROEDER and NOONAN, Circuit Judges.


Appellants Gary Kaupp, Donald Bodin and Pedro Lopez Jauregui each pleaded guilty to one count of conspiracy to distribute cocaine, in violation of 18 U.S.C. § 841(a) (1). Kaupp appeals the district court's denial of his motion to suppress evidence, claiming there was no probable cause to support the issuance of a search warrant for his residence and vehicles. Bodin challenges the district court's denial of his motion to suppress, claiming there was no probable cause to support the issuance of a search warrant for his residence. He also contends that the district court erred in declining to grant a downward departure from the applicable guideline range based on his employment history and drug rehabilitation. Jauregui appeals the district court's denial of his motion for a judicial recommendation against deportation pursuant to 8 U.S.C. § 1251(b) (2). In addition, he claims that the district court erred in finding him to be a minor rather than a minimal participant for sentencing purposes.

The warrants authorizing the challenged searches were supported by a 101-page affidavit by Officer Miller describing the reports of three confidential informants, each of whom stated that Eduardo Gisbert ran a cocaine distribution organization in Salem. Two of these informants also stated that Gisbert used a business front to facilitate the drug trafficking operation and launder the proceeds. Miller's own investigation corroborated these tips: Miller determined that Gisbert's business had no discernible legitimate function and observed no business activity at the premises. Additional information from the informants described the ongoing operation of the cocaine ring, including frequent trips to purchase cocaine, the transporting of cocaine to Oregon, and the distribution of cocaine by Gisbert and his associates. Miller's affidavit provided ample evidence of the conspiracy's existence.

Miller's affidavit also contained sufficient reliable information to connect Kaupp to the Gisbert conspiracy. One of the informants, designated "CRI # 2," provided detailed information regarding Kaupp's participation in the conspiracy. CRI # 2 met the defendant (known only as "Gary") at Gisbert's residence, in the company of other conspirators and in possession of what Kaupp stated was cocaine. Kaupp frequently visited Gisbert's residence during the time the conspiracy was active. Kaupp told CRI # 2 that he registered his vehicle in a friend's name because police had seized Kaupp's vehicles when he was previously arrested; the friend was Jose Romero-Rubio, also a participant in the conspiracy. Phone records showed calls from Gisbert to Kaupp's residence and from Kaupp's residence to the homes of Gisbert and Bodin, and to Bodin's pager. CRI # 2 observed Kaupp leave Gisbert's residence with a kilo-sized package.

The above information was sufficient to create probable cause to believe that Kaupp was a participant in the Gisbert cocaine distribution ring. See, e.g., United States v. Ayers, 924 F.2d 1468, 1478-79 (probable cause established by reliable informant's statement that he observed defendant participate in sale of cocaine and defendant had previously been arrested for drug possession), amended Nos. 89-10306, 89-10321 (9th Cir. filed April 3, 1991); United States v. Hoyos, 892 F.2d 1387 (probable cause to arrest established by countersurveillance driving, calls to pager, and defendant's presence at meeting in parking lot with drug traffickers), amended No. 87-5060 (9th Cir. filed March 6, 1989), cert. denied, 111 S. Ct. 80 (1990); United States v. Angulo-Lopez, 791 F.2d 1394, 1398-99 (9th Cir. 1986) (probable cause established by information provided by reliable informants and surveillance of defendant exchanging objects at shopping center).

The information contained in the warrant was not stale. The affidavit described two years of cocaine trafficking and demonstrated that Kaupp had continued connections to the conspiracy. Telephone records included in the affidavit indicated that Kaupp was in contact with the leader of the conspiracy two weeks before service of the warrant.

Bodin argues on appeal that there was insufficient probable cause to search his residence. As described above, and as Bodin concedes, there was ample information in the affidavit to show that a cocaine distribution ring existed and that Gisbert was its leader. There was also ample information, from CRI # 2 and from Miller's own observations and investigation, connecting Bodin to the conspiracy and to Gisbert. Bodin obtained a pager based on his employment at Gisbert's business; information indicated that the business was a sham used to launder the proceeds of the drug distribution ring. Bodin kept the pager after the business phone had been disconnected and no activity at the premises was observed. Bodin installed hidden compartments in Gisbert's vehicles, and those compartments were used by other conspirators to transport cocaine. CRI # 2 overheard conversations and behavior which indicated that Bodin was participating in cocaine distribution. CRI # 2 also saw Gisbert and Bodin consult papers hidden in a secret compartment, which CRI # 2 believed were records of drug transactions. CRI # 2 observed a meeting between Bodin and Gisbert where Bodin paid Gisbert money; Gisbert later told CRI # 2 they would be leaving on a cocaine-buying trip.

The above information, in conjunction with Miller's own investigation and Miller's experience as a narcotics officer, provided a substantial basis for the magistrate's conclusion that probable cause existed to believe that Bodin was part of the cocaine ring and that, therefore, evidence would be found at his residence. See Ayers, 924 F.2d at 1478-79; Angulo-Lopez, 791 F.2d at 1398-99.

Bodin also argues that Gisbert's two sales of cocaine to Bodin, one in early September and one in early November, were insufficient to provide probable cause to believe that evidence would be found at Bodin's residence when the warrant was executed in mid-November. However, in light of the totality of the circumstances, there was ample information in the affidavit to confirm that Bodin was an ongoing participant in the conspiracy, and that, therefore, evidence or contraband would be stored at his home. "Direct evidence that contraband or evidence is at a particular location is not essential to establish probable cause to search the location." Angulo-Lopez, 791 F.2d at 1399; United States v. Foster, 711 F.2d 871, 879 (9th Cir. 1983), cert. denied, 456 U.S. 1103 (1984).

Finally, Bodin argues that the district court erred in failing to depart downward from the sentencing guidelines based on two factors--his employment history and his voluntary drug rehabilitation. This court has squarely held that a defendant's post-arrest drug rehabilitation efforts are not a basis for a downward departure from the applicable guideline range. United States v. Martin, 938 F.2d 162 (9th Cir. 1991).

Nor did the district court err in declining to depart downward based on Bodin's employment history. Section 5H1.5 of the Sentencing Guidelines states: "Employment record is not ordinarily relevant in determining whether a sentence should be outside the guidelines or where within the guidelines a sentence should fall." Our decisions recognize that good employment history alone does not justify a departure. Contrast U.S. v. Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990) (defendant's employment history combined with unusual circumstances of offense provided grounds for departure); U.S. v. Big Crow, 898 F.2d 1326 (8th Cir. 1990) (employment history relevant where defendant was raised on reservation with 72% unemployment rate and employment reflected "consistent efforts to lead a decent life in a difficult environment"). The court did not err in Bodin's sentencing.

Jauregui appeals the district court's denial of his motion for a judicial recommendation against deportation (JRAD) pursuant to 8 U.S.C. § 1251(b) (2). Under Jauregui's theory the district court had authority to issue a JRAD because his conviction for conspiracy qualified as an "aggravated felony" under subsection (a) (4). See United States v. Probert, 737 F. Supp. 1010 (E.D. Mich. 1989) (alien convicted of aggravated felony of importation of cocaine may move for JRAD), aff'd, 902 F.2d 35 (6th Cir. 1990). The district court did not err in concluding that it lacked authority to issue a JRAD on Jauregui's behalf. As a result of the Immigration Act of 1990, sentencing judges are now clearly divested of any prior authority to issue JRAD to aliens convicted of drug related and aggravated felonies. See United States v. Murphey, 931 F.2d 606 (9th Cir. 1991).

Jauregui argues that the ex post facto clause of the federal Constitution prohibits Congress from imposing the "punishment" of deportation by removing the availability of JRADs retroactively. This argument must fail in light of the Supreme Court's determination that the ex post facto clause does not apply to deportation proceedings. Galvan v. Press, 347 U.S. 522, 531 (1952) ("whatever might have been said at an earlier date for applying the ex post facto clause, it has been the unbroken rule of this Court that it has no application to deportation").

Finally, Jauregui alleges that the district court erred in finding that he was a minor rather than a minimal participant. The circumstances of Jauregui's case, however, support the district court's finding that he was a minor rather than minimal participant. Jauregui stipulated in his plea agreement that he was a minor participant in the conspiracy.1  Other evidence--including Jauregui's own admissions--indicates that for approximately two years Jauregui purchased cocaine on a monthly basis from Gisbert, that he sold this cocaine to others, and that he traveled to California in October of 1989 to purchase cocaine for Gisbert. The district court did not err in finding that Jauregui was a minor, rather than a minimal participant in the conspiracy.



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


The plea agreement which Jauregui signed states: "The government and defendants ... also agree to the following for the purposes of sentencing: ... 2. That these defendants were minor participants relative to defendant Eduardo Gisbert in the conspiracy, justifying a minor role adjustment (-2) in their offense levels."