UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 91-8477 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDREW MENDOZA-BURCIAGA, JUAN ALBERTO-GONZALEZ, VINCENTE SALINAS-RODRIGUEZ, and ARTURO CAMPOS-ZAMORA,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas _________________________________________________________________

(December 29, 1992)

Before DAVIS, JONES, Circuit Judges and PARKER,1 District Judge.

EDITH H. JONES, Circuit Judge:

Appellants Mendoza-Burciaga, Alberto-Gonzalez and

Salinas-Rodriquez and Campos-Zamora were all convicted of (1)

conspiracy to possess with intent to distribute more than five

kilograms of cocaine in violation of

(a)(1) and 846

and (2) possession with intent to distribute more than five

kilograms of cocaine in violation of § 841(a)(1). Mendoza-Burciaga

and Alberto-Gonzalez were additionally convicted of unlawfully

carrying firearms during and in relation to a federal drug

1 Chief Judge of the Eastern District of Texas, sitting by designation. trafficking felony in violation of

(c). The

defendants were assessed sentences ranging from 262 to 420 months

imprisonment.

Among a variety of challenges to their conviction,

appellants raise two thought-provoking arguments. First, they

contend that the DEA agents' warrantless search of a residence did

not fall within the "protective sweep" exception to the Fourth

Amendment's warrant requirement. Additionally, they complain that

the district court incorrectly excluded the defendants and their

counsel from the in camera hearing to take testimony of

confidential informants. While both of these arguments raise

constitutional issues, we have decided that the district court did

not err in rejecting appellants' assertions. We find no merit in

the appellants' other arguments concerning the sufficiency of

evidence, juror challenges, jury instructions and sentencing

guidelines. We therefore affirm the convictions.

BACKGROUND

In December 1990, members of a combined state and federal

drug task force received information from confidential informants

that a trailer at 25 Gaila Lane in Del Rio, Texas had received a

large shipment of narcotics and that the trailer was to be used as

the distribution point. The task force began surveillance of the

trailer.

On December 18, an empty truck arrived at the trailer and

pulled into a covered garage. Forty-five minutes later it left

with boxes in its bed. Air and ground surveillance followed the

2 truck en route to Normandy, Texas. Mendoza-Burciaga drove the

truck and Alberto-Gonzalez was the passenger. The truck arrived at

the home of Salinas-Rodriguez near Normandy, and backed up on the

driveway next to the house.

The agents observed four people entering and exiting the

house from the back of the truck, but from their vantage point, the

agents could not see whether the people were carrying anything. At

this point undercover agent Bowles drove by the house in an

unmarked car. Agent Bowles testified that Alberto-Gonzalez, a

convicted felon, recognized him. The four people then began acting

nervously. Alberto-Gonzalez and Mendoza-Burciaga left the house in

the truck.

The agents stopped the truck based on their belief,

fortified by the truck's evasive maneuvers, that the suspects were

aware of the presence of law enforcement personnel and were

attempting to flee. A rifle was visible in the cab of the truck.

Alberto-Gonzalez and Mendoza-Burciaga were arrested. A search of

the truck turned up two more firearms in a bag. The agents

notified the other members of the task force still watching the

home that they found weapons in the truck.

Agents swiftly converged on the Normandy home. Campos-

Zamora was captured while attempting to flee. Salinas-Rodriguez

was also apprehended. The agents next conducted a "protective

sweep" of the house to determine whether there were any weapons or

persons there, to prevent the destruction of evidence, and to

secure the premises. Inside, they saw, in plain view, 300 kilogram

3 size packages, which were later determined to contain cocaine.

State officers assigned to the task force then obtained a search

warrant for the residence from a justice of the peace in Eagle

Pass. That search produced documents belonging to Campos-Zamora.

Upon another warranted search of the Del Rio trailer, 239 kilograms

of cocaine were found.

DISCUSSION

Confrontation of the Informants

Permeating the entire appeal is the appellants' inability

to confront for cross-examination the confidential informants who

provided the information that laid the groundwork for probable

cause in the original warrants.

The Supreme Court has permitted the government to avoid,

under certain circumstances, disclosure of confidential informants'

identity since its decision in Roviaro v. United States,

,

,

(1957). In applying

Roviaro, this court has developed a three-part balancing test,

under which the trial court must consider (1) the level of the

informant's involvement in the alleged criminal activity, (2) the

helpfulness of disclosure to the asserted defense and (3) the

government's interest in non-disclosure. United States v. Singh,

(5th Cir. 1991); United States v. Diaz,

(5th Cir. 1981), cert. denied,

,

,

(1982); United States v. Vizcarra-Porras,

(5th Cir. 1989), cert. denied,

,

, 109 L.2d 520 (1990). This court applies the

4 clearly erroneous standard to findings of fact and the abuse of

discretion standard to the conclusions reached by the trial court.

Vizcarra-Porras,

.

In an in camera hearing, the district court reviewed the

evidence of the government and determined that protecting the

identity of the confidential informant was proper in light of

Roviaro. The evidence and findings are in a sealed record, which

this court has carefully reviewed. To permit the defendants'

inquiries to be answered, the court tape-recorded questions posed

by their counsel before the in camera hearing and then had the

government agents furnish their answers during the in camera

hearing. The court itself questioned government counsel and the

agents vigorously. The informant tip was found to have related

only to the presence of cocaine in the Gaila Lane Trailer.

Consequently, the informant's information had nothing to do with

what the government learned from and after it initiated air and

ground surveillance, nor did it involve the events at the Normandy

residence. Under factual situations analogous to this, other

circuits upheld the exclusion of both the defendant and his

attorney. U.S. v. Johns,

(9th Cir. 1991)

(citation omitted). We are therefore satisfied that Judge Garza

neither made clearly erroneous findings of fact nor abused his

discretion in reaching his conclusions.

Although this court has suggested allowing counsel for

the defendant at in-camera hearings along with the issuance of a

gag order as a second best way to ensure the defendants

5 confrontation rights, Singh,

, the use of this

procedure is still within the judge's discretion subject to the

same standard of arbitrariness. In this case, although Judge Garza

banned the defendants' attorneys from the hearing, we find that the

judge did an adequate job of protecting the rights of the

defendants as regards possible defenses. See Johns,

(discussing this procedure). This being so, we uphold the

nondisclosure of the identity of the informants.

Suppression of the Evidence.

Search of the Truck.

Only Mendoza-Burciaga, the driver, has standing to

challenge the search. Alberto-Gonzalez, the passenger in the

truck, has no standing to challenge the search. United States v.

Harrison,

(5th Cir. 1990) (citations omitted).

The agents were justified in stopping Mendoza-Burciaga's

truck because they were operating under exigent circumstances.

They had reason to fear that Mendoza-Burciaga and Alberto-Gonzalez

were fleeing. United States v. Johnson

(5th

Cir. 1988). They had information from a reliable informant that

two men had picked up and delivered narcotics. Their surveillance

of the suspects corroborated the tip. The officers knew that

Alberto-Gonzalez had been previously convicted of possession of

eighteen tons of marijuana. They had observed the truck make a u-

turn as if to determine whether it was being followed. Further,

the officers were correct in searching and seizing the other

weapons in the truck. Officers may legally search for weapons if

6 they believe that the safety of themselves or others is in danger.

Michigan v. Long,

,

,

(1983).

Search of the Normandy House.

Only Salinas-Rodriguez has standing to challenge the

search of his house in Normandy. Campos-Zamora is incorrect in the

assertion that he also has standing to challenge the search.

Fourth Amendment rights are personal and may not be vicariously

asserted. Alderman v. United State,

,

,

(1969). Campos-Zamora neither owned the

Normandy home nor claims that he had a reasonable expectation of

privacy there. Campos-Zamora had no possessory interest in the

Normandy house which he neither owned nor occupied, and no

expectation of privacy is created simply by presence. United

States v. Whitley,

(5th Cir. 1982).

As to the constitutionality of the actual search, the

Supreme Court recently addressed the standards for warrantless

searches in exigent circumstances in Maryland v. Buie,

,

,

(1990). In Buie the court

held

that as an incident to the arrest officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in any closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rationale inferences from these facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the

7 arrest scene. Buie, 325 U.S. at 334,

.

The standard of review for the findings of these facts is clearly

erroneous. United States v. Vasquez,

(5th Cir.

1992).

The circumstances that justify warrantless searches

include those in which officers reasonably fear for their safety,

where firearms are present, or where there is risk of a criminal

suspect's escaping or fear of destruction of evidence. Johnson,

(5th Cir. 1988); United States v. Caraza,

(11th Cir. 1988); United States v. Gardner,

(5th Cir. 1977); United States v. Kolodziej,

(5th Cir. 1983). The fact that the warrantless search occurred

immediately after the arrest of the suspects supports the finding

of exigent circumstances. Caraza,

.

The district court found that the officers did not know

whether other suspects were in the house. They did know that the

suspects driving the truck were armed. If others were in the house

and armed, the officers would be in great danger. They also

reasonably believed that the suspects were aware of the

surveillance and were attempting to flee. Campos-Zamora attempted

to run when one of the officers approached him. That the suspects

were aware of the officers' presence also supports a finding that

the task force agents reasonably feared evidence might be destroyed

inside the house. Finally, the officers took only minimally

necessary steps to secure the house: they made an immediate and

quick visual search and looked no further until they obtained a

8 warrant. Under these facts, the district court was not clearly

erroneous in finding exigent circumstances.

Where officers are lawfully present in a house during a

security sweep they may seize evidence in plain view, Coolidge v.

New Hampshire,

,

,

(1971); Caraza,

. There has been no

claim that the 300 kilos of cocaine, stacked high in a room whose

doors were open, was not in plain view. The officers were

justified in seizing the evidence without a warrant.

Because the security sweep was justified by the exigent

circumstances under Buie, and the warrantless seizure of the

cocaine was legal, we need not address the further contentions of

Salinas-Rodriguez that the subsequent search warrant was defective

and the task force agency did not rely on it in good faith.

Sufficiency of the Evidence

Campos-Zamora challenges the sufficiency of the evidence

upon which his convictions of conspiracy to possess and possession

of cocaine were based. In reviewing the sufficiency of evidence to

support a conviction this court asks whether a rational trier of

fact could find that the evidence established guilt beyond a

reasonable doubt. United States v. Carrasco,

(5th

Cir. 1987).

The testimony at trial supports the conviction on

conspiracy and possession counts. Campos-Zamora was present on the

scene where several million dollars in cocaine was stacked in plain

view. The evidence supported an inference that the cocaine was

9 brought there in the truck. The evidence supported the further

inference that Campos-Zamora was among the four men who helped

unload the cocaine from the truck when it arrived at the Normandy

house. There was evidence that Campos-Zamora had personal

documents in the house, which supported the inference that once

inside the house he could hardly avoid seeing cocaine. Campos-

Zamora's attempt to escape was also a legitimate ground to infer

guilt. United States v. Alonzo,

(5th Cir.

1978). This evidence was sufficient to convict Campos-Zamora of

the offenses charged.

Denial of Juror Challenge

On voir dire, one of the potential jurors identified

herself as an employee at the detention center where the defendants

were held. Under questioning by the district court, the woman

indicated she knew nothing about the trial, could be fair, and

could take instructions. Mendoza-Burciaga's challenge for cause

was denied. Mendoza-Burciaga subsequently used a peremptory strike

to remove the woman, and he appeals the denial of his challenge for

cause.

Mendoza-Burciaga makes no claim that he was prejudiced by

having to use the peremptory challenge to strike the detention

center employee rather than someone else. The judge's

determination as to actual bias by jurors is reviewed for manifest

abuse of discretion. Irvin v. Dowd,

,

,

(1961); United States v. Costner,

(5th Cir. 1981); United States v. Horton,

181, 186 (5th Cir. 1981). Here, where the judge took pains to

screen the witness, there was no such abuse. Moreover, there was

no harm to the defendants as the woman never served.

Additional Peremptory Challenges

The district court granted the defense two additional

peremptory challenges and also granted the prosecution two

additional peremptory challenges. Mendoza-Burciaga complains that

the court did not follow Federal Rule of Criminal Procedure 24(b)

and that the court's action upset the ratio of defense to

prosecution preemptory challenges. Mendoza-Burciaga points to no

case authority establishing that this was an error, much less

reversible error. Rule 24(b) does not mandate a ratio of

peremptory challenges. Indeed, Mendoza-Burciaga makes no claim

that he was prejudiced by the ruling or that the jury was

unrepresentative of the community or biased in any way.

Error in Jury Instructions

The trial court instructed the jury that it could find

Mendoza-Burciaga guilty of carrying a firearm during and in

relation to a drug trafficking offense,

(c), if it

found:

1. That [he] was a member of the conspiracy alleged in Count 1 of the indictment; and

2. That the other conspirators committed the offenses in Counts 2 and 3 [weapons violation] in furtherance of or as a foreseeable consequence of that conspiracy.

Mendoza argues that this instruction would permit him to be

convicted of the weapons offense based on a co-conspirator's mere

11 possession of cocaine. The argument is groundless. The

instructions explicitly permits the jury to convict only if another

co-conspirator both possessed cocaine and was guilty of the weapons

offense.

Further, the instruction is firmly rooted in the

Pinkerton doctrine, Pinkerton v. United States,

,

,

(1946). This court held in United States

v. Raborn,

(5th Cir. 1989), that Pinkerton

permitted a defendant to be convicted under section 924(c) based on

a co-conspirator's possession of a weapon during a drug trafficking

crime even if the defendant was unaware of the conspiratory

possession. Thus, Mendoza-Burciaga was liable for acts of his co-

defendants.

Calculation of Mendoza-Burciaga's Sentence

The Sentencing Guidelines provide that a sentencing court

must consider a defendant's involvement with quantities of

narcotics not charged in the indictment when such conduct was "part

of the same course of conduct or common scheme or plan as the

offense of conviction." U.S.S.G. § 1(b)(1).3(a)(2). A district

court must make findings that the relevant conduct included

narcotics not charged in the indictment. United States v.

Register,

(5th Cir. 1991). In this case, the

trial court considered the 239 kilos found in the Del Rio trailer

in setting Mendoza-Burciaga's base offense level. Mendoza-Burciaga

asserts that the trial court failed to make the requisite factual

finding to support that inclusion, namely, that the 239 kilos left

12 behind in the trailer were part of the same course of conduct as

the 300 kilos Mendoza-Burciaga picked up and then delivered to the

Normandy address.

Judge Garza indicated at a sentencing hearing that

"because the 300 [kilograms of cocaine taken from the Del Rio

trailer by Mendoza-Burciaga] was part of the 529 [kilograms of

cocaine originally in the Del Rio trailer] that that is sufficient

under 1(b)1.3. . ." On review of the sentencing transcript, it

appears that the trial court implicitly found that the evidence was

sufficient to satisfy the "same course of conduct requirement"

because all of the drugs were originally stored at the Gaila Lane

address. Mendoza-Burciaga simply misread the record to assert

otherwise.

For the foregoing reasons, the judgments of conviction

are AFFIRMED.

13