UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 91-9539

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE RODRIGUEZ, ARISTIDES

NAPOLES, and MARLENE GUERRA,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

(June 14, 1993)

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges

DeMOSS, Circuit Judge:

I. 

On January 25, 1991, agents of the New Orleans Police

Department, Jefferson Parish Sheriff's Office and the Federal

Bureau of Investigation were involved in an investigation of a

suspected drug dealer, Estrella Del Sol. The agents observed Del

Sol drive a gray Blazer into the parking lot of the New Orleans

Motor Lodge (now known as the Howard Johnson Motel) in the 4200

block of Old Gentilly Road in New Orleans and park near a black and

white Blazer belonging to Aristides Napoles. 
2

Earlier that day, the motel clerk, Norman Kunsky, noticed Del

Sol outside the hotel. Kunsky had also observed Aristides Napoles

and Marlene Guerra drive a black and white Blazer into the hotel

parking lot. He noted that a yellow Cadillac, driven by a man,

followed the black and white Blazer into the parking lot. Kunsky

could not identify the driver of the yellow Cadillac. Kunsky

testified at trial that Marlene Guerra entered the motel and

registered for one room for herself and Napoles, and one for the

other man. After Guerra had registered and left the motel lobby,

Kunsky observed that the black and white Blazer and the Cadillac

were moved to another location in the parking lot near the hotel

rooms. 

 Later, while surveilling the motel parking lot area, police

agents observed Napoles use keys to open the yellow Cadillac which

bore a Florida license plate. Napoles and a man later identified

as Jose Rodriguez got in the car, but did not leave. Napoles sat

on the passenger side of the car and Rodriguez sat in the driver's

seat. After a few minutes, Napoles and Rodriguez left the

Cadillac. The Cadillac was later determined to be owned by

Napoles's sister, Miriam Napoles. 

Shortly thereafter, Napoles, Guerra, and Rodriguez left the

motel in the black and white Blazer. The agents followed the three

to a storage facility where Guerra was observed placing a brown

paper bag in a locker. The agents stopped the defendants at the

facility. Guerra, the lessee of the storage locker, gave the

agents consent to search the locker. Agents searched the locker
3

and found a brown paper bag containing a triple-beam scale with a

trace of white powder, which later tested positive for cocaine, as

well as plastic bags and aluminum foil. 

Guerra denied that she owned the yellow Cadillac or had any

knowledge, or that the other defendants had any knowledge of it.

Napoles and Rodriguez also denied to the agents any knowledge of

the yellow Cadillac. 

Meanwhile, back at the motel, a drug-detection dog alerted to

the passenger side of the yellow Cadillac; and after obtaining a

search warrant for the car, the agents retrieved a kilogram of

cocaine, valued at approximately $28,000-$32,000, wrapped in

aluminum foil, stashed behind the firewall. 

The defendants were arrested and were taken to jail on

that same day. 

A jury convicted Rodriguez, Napoles, and Guerra of

conspiracy to possess with intent to distribute and possession with

intent to distribute one kilogram of cocaine. The court sentenced

Napoles to serve concurrent terms of 106 months of imprisonment on

each count, to pay a $15,000 fine, and to be placed under

supervised release for concurrent five-year terms; Guerra to serve

concurrent terms of sixty months on each count, to pay a $10,000

fine, and to be placed under supervised release for concurrent

terms of five years and Rodriguez to serve concurrent terms of

sixty-six months on each count and to be placed under supervised

release for concurrent four-year terms. On appeal the defendants

raised four grounds for relief as follows: 
4

1. Rodriguez's right to counsel was violated.

2. The evidence was not sufficient to support any of the

defendants' convictions.

3. The voir dire violated Napoles' and Guerra's due process

rights.

4. The court erred in finding that Rodriguez was not entitled

to an adjustment from the Guidelines sentencing range because he

was a minor participant.

Because we REVERSE the trial court's conviction of Rodriguez,

we do not reach the issues as to Rodriguez's complaints in Ground

two and four. We AFFIRM the trial court's actions as to all other

grounds involving defendants Napoles and Guerra. 

II. 

WHETHER RODRIGUEZ'S RIGHT TO COUNSEL WAS VIOLATED.

Rodriguez contends that the in-custody statement taken from

him on February 1, 1991 was taken in violation of his Sixth

Amendment right to counsel and is therefore clear error. 

Rodriguez had been in custody of the State since January 25,

1991, charged with possession with the intent to distribute the

cocaine in question in the State of Louisiana and had appeared in

court and been appointed counsel. On February 1, 1991, FBI Agent

John Cataldi went to the jail where Rodriguez, Guerra and Napoles

were being held in custody and took statements from each of the

defendants. Rodriguez complains that Agent Cataldi made no effort

to contact his appointed counsel. Rodriguez argues that because he

was in custody, had been arraigned and appointed counsel on the

same identical charges in the State courts and did not initiate the

contact with the Agent that led to the statement, the Agent's
 

1 The district court ruled that all statements made by

Guerra and Napoles were admissible. However, neither defendant

contests this ruling on appeal.

5

contact with him was police initiated and therefore there was no

valid waiver of his Sixth Amendment right. Michigan v. Jackson,

475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986). The right

to counsel under these circumstances, he claims, raises compliance

with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966). 

On September 18, 1991, the court held a hearing to determine

whether to suppress the February 1, 1991 statements made by

Rodriguez, Guerra and Napoles and a statement which was taken from

Rodriguez on the day he was arrested, January 25, 1991. At the

hearing, Rodriguez's attorney objected to the hearsay nature of

Cataldi's testimony concerning the conversation he had with Shaw

that resulted in the February 1 contact with the defendants. The

judge instructed Cataldi to limit his testimony only to

conversations he had had with the parties in the case. The

February 1 statement made by Rodriguez was never introduced at the

suppression hearing and therefore no ruling was made as to its

admissibility by the court and the January 25 statement, although

ruled admissible, was never introduced at trial.1 

Prior to trial, the prosecutor and Rodriguez's counsel

stipulated that if Cataldi were called to testify, he would testify

that in the February 1 interview, Rodriguez gave him a statement

admitting that (i) Rodriguez drove from Miami to New Orleans in a

small yellow vehicle different from the one narcotics agents
 

28 U.S.C. 3501. Admissibility of confessions

(a) In any criminal prosecution brought by the United

States . . ., a confession as defined in subsection (e) hereof,

shall be admissible in evidence if it is voluntarily given. 

Before such confession is received in evidence, the trial judge

shall, out of the presence of the jury, determine any issue as to

voluntariness. If the trial judge determines that the confession

was voluntarily made it shall be admitted in evidence and the

trial judge shall permit the jury to hear relevant evidence on

the issue of voluntariness and shall instruct the jury to give

such weight to the confession as the jury feels it deserves under

all the circumstances.

(b) The trial judge in determining the issue of

voluntariness shall take into consideration all the circumstances

surrounding the giving of the confession, including (1) the time

elapsing between arrest and arraignment of the defendant making

6

searched; (ii) Rodriguez met Napoles and Guerra at a gas station

off interstate highway I-10 somewhere between Miami and New

Orleans; (iii) Rodriguez followed Guerra and Napoles who were in a

black and white Blazer to the New Orleans Motor Lodge; and (iv)

Guerra rented two rooms for them and, after a while, Rodriguez,

Guerra and Napoles took a ride in the gray Blazer, when they were

stopped by the police.

Rodriguez's attorney stated at trial that although she had

agreed to this stipulation, she wanted the record to reflect it was

simply a stipulation as to what Cataldi would testify. She made it

clear that the stipulation "was in no way to negatively impact on

any previous motions."

At the trial on September 23, 1991, the government attempted

to introduce the February 1 statement by Rodriguez to Cataldi

whereupon Rodriguez's attorney asked the judge to hold a hearing

out of the presence of the jury to determine whether the statement

was voluntarily given pursuant to Title 18 U.S.C. § 3501.2 
the confession, it was made after arrest and before arraignment,

(2) whether such defendant knew the nature of the offense with

which he was charged or of which he was suspected at the time of

making the confession, (3) whether or not such defendant was

advised or knew that he was not required to make any statement

and that nay such statement could be used against him, (4)

whether or not such defendant had been advised prior to

questioning of his right to the assistance of counsel; and (5)

whether or not such defendant was without assistance of counsel

when questioned and when giving such confession. 

The presence or absence of any of the above-mentioned

factors to be taken into consideration by the judge need not be

conclusive on the issue of voluntariness of the confession.

(e) As used in this section, the term "confession" means

any confession of guilt of any criminal offense or any selfincriminating statement made or given orally or in writing.

7

 At that hearing, the government put Agent Cataldi on the

stand; and Cataldi testified that he had received a call from Gary

Shaw, a co-defendant of Rodriguez, Guerra and Napoles and that Shaw

indicated to Cataldi that "they" all wanted to speak to him. He

testified that Shaw made no mention of anyone in particular.

Cataldi testified that he interviewed the defendants each

individually and asked them if they wanted to speak to him.

Cataldi said that he told each defendant: "I understand you want to

speak with me" and "you can have your attorney here if you wish."

However, Cataldi testified that he did not ask Rodriguez whether he

had any contact with Shaw. Cataldi also testified that he knew

Rodriguez was represented by counsel and was in custody.

After confirming that Rodriguez wished to speak with him,

Cataldi testified that he had Officer Lejarsa advise Rodriguez of

his rights through the use of a Spanish "advice of right" form.

After Rodriguez indicated that he understood his rights, and was
 

3Although the record reflects that Counsel cited 18 U.S.C.

3500, "Demands for Production of Statements and Reports of

Witnesses" in her argument that the predicate be laid, it is

evident from the context in which the statute was cited and the

fact that Counsel later called for a § 3501 hearing at the

appropriate time during the trial, that the statute she meant to

cite was 18 U.S.C. 3501, "Admissibility of Confession."

8

willing to speak to the officers, he signed the waiver of rights

form and Cataldi then conducted the interview. 

Rodriguez's counsel objected to the February 1 statement at

this § 3501 hearing because (i) the statement was an in-custody

statement, (ii) the agent knew that Rodriguez was represented by

counsel, (iii) there was no evidence that Rodriguez had called

Cataldi and asked him to come, and (iv) Cataldi's call had come

from another defendant [Shaw] who was not housed with Rodriguez.

The judge overruled this objection and allowed the statement.

When trial commenced, the government read the stipulation to

the jury regarding the February 1 interview of Rodriguez by

Cataldi.

The government first claims that this issue should be

dismissed because Rodriguez's attorney waived the 6th Amendment

claims because she stated on the record prior to trial that she had

no objection to the government going into the February 1 statement

as long as the government laid the predicate pursuant to 18 U.S.C.

35003 that "Rodriguez was advised to his right at the appropriate

time."

A review of the record does not support the government's

contentions. Rodriguez's attorney objected to the February 1

statement throughout the court proceedings and argued at the §3501
9

hearing that the government had failed to lay the proper predicate

because Cataldi's contact with Rodriguez was not legal. 

The government next contends that should this Court find that

Rodriguez's attorney did not waive the 6th Amendment claims, this

issue is nevertheless without merit because it was Rodriguez who

initiated the contact with Cataldi and therefore Michigan v.

Jackson, 475 U.S. 625 is not applicable in this case. The Supreme

Court in that case held that "if police initiate interrogation

after a defendant's assertion, at an arraignment or similar

proceeding of his right to counsel, any waiver of the defendant's

right to counsel for that police-initiated interrogation is

invalid." 475 U.S. at 636. The government claims that Rodriguez

initiated the contact with Cataldi when he asked Shaw to call

Cataldi and invite Cataldi to come to the jail and speak with

Rodriguez.

The government also claims that in Edwards v. Arizona, 451

U.S. 477 (1981) the court recognized that a defendant may validly

waive his right to counsel through initiating further contact with

the officers and that that is what Rodriguez did here.

The rule in the Fifth Circuit is that a knowing and

intelligent waiver cannot be found once the Fifth Amendment right

to counsel has been clearly invoked unless the accused initiates

the renewed contact. See, United States v. Massey, 550 F.2d 300

(5th Cir. 1977); United States v. Priest, 409 F.2d 491 (5th Cir.

1969). 
10

Waivers of counsel must not only be voluntary, but must also

constitute a knowing and intelligent relinquishment or abandonment

of a known right or privilege, a matter which depends in each case

"upon the particular facts and circumstances surrounding that case,

including the background, experience and conduct of the accused."

Edwards v. Arizona, 451 U.S. at 1884 and 482. 

After initially being advised of his Miranda rights, the

accused may himself validly waive his rights and respond to

interrogation. See North Carolina v. Butler, 441 U. S. 369, 99 S.

Ct., 1755, 60 L. Ed.2d 286 (1979). However, additional safeguards

are necessary when the accused has been appointed counsel. A valid

waiver of the right to have counsel present during interrogation

cannot be established by showing only that the accused responded to

police-initiated interrogation after being again advised of his

rights. Edwards v. Arizona, 451 U.S. at 478. 

Had Rodriguez initiated the meeting on February 1, the police

could have lawfully listened to his voluntary statements and used

them against him at the trial. But this is not what the facts of

this case show. First, Agent Cataldi went to the jail on February

1, not because Rodriguez called him and said he wanted to speak to

him, but because he received a telephone call from Shaw, a codefendant who said "they" wanted to speak to him. Shaw never told

Cataldi who the individuals were who wanted to speak to him. Shaw

could have been referring to any one or more of the defendants.

Further, even if Shaw had specifically named Rodriguez as one

of the defendants who wished to speak to Cataldi, the evidence in
11

the record of Cataldi's telephone conversation with Shaw should not

have been allowed in as testimony because it was hearsay. In

response to Rodriguez's Counsel's objection to Cataldi's testimony

because of the hearsay nature of the conversation, the judge

instructed Cataldi to limit his testimony to only conversations he

had had with parties in the case. Shaw was not a party in the

case. Without the hearsay testimony, there would have been no

evidence as to why Agent Cataldi went to the jail in the first

place. 

There is no testimony that Rodriguez requested Shaw to call

Cataldi. Here, we find the interrogation of Rodriguez was at the

instance of the authorities, and his statement, made without having

had access to his previously appointed counsel, did not amount to

a valid waiver and hence was inadmissible. Edwards v. Arizona, 451

U.S. 477. 

Accordingly, the trial court's judgment of conviction against

Rodriguez is reversed and remanded for a new trial, as to

Rodriguez. 

III.

WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT

NAPOLES' AND GUERRA'S CONVICTION.

Napoles and Guerra argue that the evidence was insufficient to

convict them. In deciding the sufficiency of the evidence, the

court determines whether, viewing the evidence and the inferences

that may be drawn from it in the light most favorable to the

verdict, a rational jury could have found the essential elements of

the offense beyond a reasonable doubt. Glasser v. United States,
12

315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v.

Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied,

U.S. , 112 S. Ct. 2952, 119 L. Ed. 2d 575 (1992).

Count I of the indictment charged that the defendants

knowingly and intentionally conspired with each other to possess

with intent to distribute approximately one kilogram of cocaine.

Count 2 charged that the defendants knowingly and

intentionally possessed with intent to distribute approximately one

kilogram of cocaine.

 To establish that the defendants were guilty of a drug

conspiracy, the government had to prove that they had an agreement

with intent to distribute, that each had knowledge of the

agreement, and that they voluntarily participated in the

conspiracy. United States v. Sanchez, 961 F.2d 1169 (5th Cir.

1992), cert. denied, U.S. , 113 S. Ct. 330, 121 L. Ed. 2d 248

(1992). An agreement may be inferred from concert of action,

participation from a "collocation of circumstances" and knowledge

from "surrounding circumstances." United States v. EspinozaSeanez, 862 F.2d 526, 537 (5th Cir. 1988). "Mere presence at the

scene and close association with those involved are insufficient

factors alone; nevertheless, they are relevant factors for the

jury." Sanchez, 961 F.2d at 1174. To prove conspiracy, the

government must prove at least the same degree of criminal intent

necessary for the underlying substantive offense. United States v.

Osgood, 794 F.2d 1087, 1094 (5th Cir. 1986), cert. denied, 479 U.S.

994, 107 S. Ct. 596 (1986). To prove possession of a controlled
13

substance with intent to distribute, the government must prove

beyond a reasonable doubt the defendant's possession of the illegal

substance, knowledge, and intent to distribute. United States v.

Freeze, 707 F.2d 132, 135 (5th Cir. 1983). The necessary knowledge

and intent can be proved by circumstantial evidence. United States

v. Mitchell, 876 F.2d 1178, 1181 (5th Cir. 1989). This Court

has held that knowledge of the presence of a controlled substance

may be inferred from the exercise of control over a vehicle in

which the illegal substance is concealed. United States v. DiazCarreon, 915 F.2d 951, 954 (5th Cir. 1990). If a hidden

compartment is involved, however, this Court requires "additional

evidence indicating knowledge--circumstances evidencing a

consciousness of guilt . . .," such as conflicting statements and

an implausible account of events. See United States v. MorenoHinojosa, 804 F.2d 845, 847 (5th Cir. 1986). 

Napoles and Guerra challenge the sufficiency of the evidence

to convict them of the charges by pointing to the absence of a

knowing agreement. They argue that there was no evidence that

they brought the cocaine to New Orleans; that they traveled in the

car in which the cocaine was transported; that they ever touched or

saw the bags of cocaine found in the car; that they had any money

with which to buy the cocaine, or any substantial money which would

have come from the sale of such a great amount of cocaine or that

they ever looked inside the bag that Guerra carried to the storage

unit. 
14

Napoles and Guerra claim that the fact that they were

cooperative with the police is proof that they did not know that

the drugs were present. They allowed the police to search the

locker and the yellow Cadillac and neither owned the Cadillac.

They point out that there is no definite tie between the cocaine

found in Guerra's locker and the cocaine found in the Cadillac.

The evidence in this case is sufficient to prove all of the

elements mentioned above and therefore supports an inference of

agreement, knowledge and voluntary participation by these

defendants to convict them of conspiracy. The evidence includes a

kilogram of cocaine worth over $32,000 concealed in a car driven

from Miami to New Orleans; the defendants' access and personal

connection to the car in which the drug was concealed; traces of

cocaine on a scale found in a paper bag like the one defendant

Guerra placed in the locker which she controlled; and the

defendants' presence at the motel at the same time as one suspected

of trafficking cocaine into New Orleans. 

Possession of "a larger quantity of cocaine than an ordinary

user would possess for personal consumption supports the finding

that defendants intended to distribute the drug. United States v.

Pineda-Ortuno, 952 F.2d 98, 102 (5th Cir. 1992), cert. denied, 

 U.S. , 112 S. Ct. 1990, 118 L. Ed. 2d 587 (1992).

Moreover, the defendants clearly exhibited the characteristics

of a "consciousness of guilt" because these defendants gave

conflicting statements as to their knowledge of the yellow

Cadillac. Diaz-Carreon, 915 F.2d at 955. When initially
15

questioned in the storage facility, these defendants denied any

knowledge of the car. Guerra later admitted she knew the car was

registered to Napoles' sister. Napoles' denial of knowledge of a

vehicle owned by his sister that he was observed unlocking and

entering is an inconsistent statement. 

Further, "[t]his Court has acknowledged that a 'less-thancredible explanation' for a defendant's actions is 'part of the

overall circumstantial evidence from which possession and knowledge

may be inferred.'" Diaz-Carreon, 915 F.2d at 955. Neither Guerra

nor Napoles offer a credible explanation as to where and how they

met Rodriguez or why Guerra rented a room at the motel for

Rodriguez, a total stranger. It also seems incredible that Napoles

and Guerra would trust a total stranger to drive their car. This

Court has recognized that an "implausible account of the events

provides persuasive circumstantial evidence of the defendant's

consciousness of guilt." Diaz-Carreon, 915 F.2d at 955. 

Therefore, we hold that a rational trier of fact could

determine that Napoles and Guerra had the requisite knowledge to

find them guilty beyond a reasonable doubt of possession with

intent to distribute.

IV.

WHETHER THE VOIR DIRE VIOLATED NAPOLES'

AND GUERRA'S DUE PROCESS RIGHTS.

Napoles and Guerra assert they were denied due process and the

guarantee of an impartial jury as a result of the trial court's

refusal to question potential jurors concerning the defendant's
16

Fifth Amendment privilege not to testify. Neither Napoles nor

Guerra testified at trial.

In United States v. Ledee, 549 F.2d 990, 992 (5th Cir. 1977),

cert denied, 434 U.S. 902, 98 S. Ct. 297, 54 L. Ed. 2d 188 (1977)

this Court held that absent an abuse of the discretion, it would

defer to the judgment of the district court as to the conduct and

scope of voir dire. Such an abuse of discretion will be found when

there is insufficient questioning to produce some basis for defense

counsel to exercise a reasonably knowledgeable right of challenge.

United States v. Sababu, 891 F.2d 1308, 1325 (7th Cir. 1989). 

Defendants concede that the district court questioned the

jurors as to their ability to be impartial and to follow the law as

instructed at the end of the trial and instructed the jurors prior

to their deliberations as to the Fifth Amendment privilege. 

Defendants also concede (i) that the controlling law in this

Circuit is that a trial court is not obligated to inquire as to

whether the prospective jurors would accept any particular

proposition of law; and (ii) that "the overall voir dire questions,

coupled with instruction given by the trial court at the close of

the case, adequately protected defendants . . . right to be tried

by a fair and impartial jury." United States v. Miller, 758 F.2d

570 at 573 (11th Cir. 1985), cert denied, 474 U.S. 994, 106 S. Ct.

406, 88 L. Ed. 2d 357 (1985). 

Nevertheless, defendants urge this Court to overturn its prior

decision in Ledee and hold that inquiry into the jurors' views of

specific provisions of law, such as the right not to testify, is
17

required during voir dire when requested by the defense as a matter

of law. In support of their position the defendants cite a recent

Supreme Court death-penalty case, Morgan v. Illinois, 112 S. Ct.

2222, 119 L. Ed. 2d 492 (1992).

In Morgan, the defendant was convicted and the death penalty

was imposed. On appeal the defendant challenged his sentence on

the grounds that the voir dire was constitutionally inadequate

because the trial court refused the defense counsel's request that

the court ask jurors that if they found the defendant guilty, would

they automatically vote to impose the death penalty no matter what

the facts were? Id. at 2226.

The court recognized that voir dire is conducted under the

supervision of the trial court and "a great deal must, of

necessity, be left to its sound discretion." Id. 

The court concluded that the trial court's discretion in the

conduct of voir dire and the restriction upon inquiries at the

request of counsel were "subject to the essential demands of

fairness." 

The court found that the "general fairness" and "follow the

law" questions asked by the trial judge were not sufficient to

guarantee the defendant the right to the intelligent use of his

challenges for cause and peremptory challenges. 

However, the court restricted its decision to reversing only

the defendant's death sentence and noted that its decision "had no

bearing on the validity of petitioner's conviction." Id. at 2235

n. 11. 
c:br:opin:91-9539p.jm3

18

Moreover, there is no language in the opinion that indicates

that the court was intending to overrule the Fifth Circuits's

decision as to the discretion allowed trial courts in non-capitol

cases. The Morgan decision does not require this Court to

reexamine its earlier precedents in non-capital cases.

V. 

CONCLUSION

We REVERSE Rodriguez's conviction and REMAND the cause to the

trial court for a new trial. We AFFIRM the judgment of conviction

and the sentences as to Napoles and Guerra.