* District Judge of the Southern District of Texas, sitting by

designation.

1 Garcia and Cepeda are husband and wife. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-8625

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR GARCIA, ABRAHAM CHAVEZ,

ELMA CEPEDA DE JOHNSON and

JULIAN RODRIGUEZ-RUCOBO,

Defendants-Appellants.

______________________________________________

Appeals from the United States District Court for the

Western District of Texas

______________________________________________

(July 19, 1994)

Befo re GARWOOD and EMILIO M. GARZA, Circuit Judges and HEAD, *

District Judge.

GARWOOD, Circuit Judge:

Defendants-appellants Salvador Garcia (Garcia), Abraham Chavez

(Ch avez), Elma Cepeda de Johnson (Cepeda), 1 and Julian RodriguezRucobo (Rucobo) w ere convicted in the same proceeding of various

drug offenses related to the importation and distribu tion of

marihuana. In this consolidated appeal, Chavez contends that the2 The indictment charged sixteen individuals with various

related drug offenses as members of the conspiracy. Of those

sixteen, eight are fugitives, four are appellants in the instant

appeal, three had all charges dismissed, and one was acquitted.

3 As a result of these checkpoint and border stops, 12

individuals were arrested (including Garcia on June 28, 1990, and

Rucobo on December 4, 1991) and approximately 935 grams of

marihuana were seized.

4 The government indicted several members of the Cepeda family

as part of the conspiracy. Co-defendants charged with

conspiracy, who are members of the Cepeda family include Garcia

and Cepeda, Cepeda's brothers Eduardo, Ramon, Nolberto, Sergio,

2 district court (1) erred by denying his motion to suppress; (2)

improperly allowed two grams of marihuana to be admitted in

evidence; and (3) abused its discretion by rejecting his requested

lesser included offense instruction. Further, appellants assert

that the district court e rred by failing to grant a judgment of

acquittal under the entirety of count one of the indictment rather

than simply a portion thereof. We affirm.

Facts and Proceedings Below

Appellants were convicted on September 29 , 1992, for their

participation in a large scale drug conspiracy. 2 The conspiracy

involved the importation of marihuana across the United St atesMexico border for distribution in Denver, Colorado. The conspiracy

was discovered as a result of a series of arrests, from June of

1990 to December of 1991, of individuals attempting to drive across

the United States-Mexico border or through immigration checkpoints

with marihuana hidden in their vehicles. 3 Information obtained

from some of the individuals arrested and evidence discovered from

searches of some of the vehicles linked these arrests and the

importation of the marihuana to the Cepeda family. 4Rodolfo, and Cepeda's sister, Andrea. Sergio was acquitted,

however. Eduardo, Ramon, Nolberto, Rodolfo, and Andrea are

fugitives.

3 On January 3, 1992, a federa l grand jury in the El Paso

Division of the Western District of Texa s returned a four-count

indictment against appellants and twelve other individuals. Under

count one of the i ndictment, all defendants were charged with

conspiring to possess marihuana with the intent to distribute and

using a minor to conceal the crime in violation of 21 U.S.C. §§

841(a)(1), 846, a nd 861(a)(2). Under count two, Garcia, Chavez,

and Rucobo were charged with conspiring to import marihuana in

violation of 21 U.S.C. §§ 952(a), 960(a), and 9 63. Under count

three, Cepeda and Rucobo were charged with importing marihuana into

the United States from Mexico in violation of 21 U.S.C. § 952(a).

Under count four, Cepeda and Rucobo were charged with possession of

marihuana with the intent to distribute in violation of 21 U.S.C.

§ 841(a)(1).

On January 9, 1992, a searc h warrant was issued authorizing

federal agents to search Chavez's home at 3841 Shoshone Street in

Denver. The search warrant was issued based on the affidavit of

Customs Agent Stephen Simer (Simer). Simer, an agent in the Denver

office, stated that in February of 1991 he became involved in a

joint investigation with the El Paso office concerning the illegal

importation and distribution of marihuana. Simer declared that the

investigation revealed that Chavez had conspired to import in

excess of three hundred pounds of marihuana from Mexico and

distribute it from his Denver residence. Simer testified that the5 The affidavit further explained that the government

established the residence as Chavez's by (1) reviewing telephone

service records issued in his name; (2) verifying that vehicles

parked in front of the house were registered to Chavez; and (3)

noting that surveillance of the residence revealed a man matching

Chavez's physical description entering and leaving the residence.

4 inv estigation disclosed that between May 1989 and December 1991

Chavez received approximately five loads of marihuana, each load

weighing between thirty and sixty pounds . In addition, Simer

stated that the investigation of Chav ez was based on information

provided by confidential informants, an analysis of long distance

telephone records, and surveillance. Simer also stated that Chavez

and several others had been indicted by a federal grand jury in El

Paso on January 3, 1992, for their involvement in the

importation/distribution organization, and a warrant for Chavez's

arrest had been issued. 5

On January 10, 1992, the search warran t was executed at

Chavez's residence in Denver, Colorado. The warrant authorized a

search for several items associated with drug trafficking including

telephone records, ledgers, tally sheets, currency, narcotics, and

distribution and packaging materials. During the search, customs

agents found cigarette rolling papers, $21,557 in cash, and 2 grams

of marihuana in the master bedroom. The agents also seized

Chavez's truck and a map to G arcia's and Cepeda's El Paso home.

Appellants' jury trial began on September 22, 1992. At the

end of the government's case, they moved for a judgment of

acquittal as to count one. The district court granted the motion

only as to paragraph (b) of that conspiracy count which relates to

using a minor to conceal a crime.5

During trial, the primary evidence presente d against Chavez

consisted of the testimony of Tomas Vasq uez (Vasquez). Vasquez

testified that he delivered three loads of marihuana from

Chihuahua, Mexico, to Chavez's Denver home in the spring of 1991.

Vasquez stated that, in Chavez's presence, he and Garcia unloaded

the marihuana and took it into Chavez's home. Vasquez further

testified that he overheard Chavez negotiating over the price of

the loads and witnessed him giving Garcia money. In addition to

Vasquez's testimony, the government introduced in evidence: (1)

telephone records showing over 30 telephone calls between Chavez's

house in Denver and Garcia's and Cepeda's house in El Paso and (2)

the $21,557 in cash and the 2 grams of marihuana seized during the

search of Chavez's home.

Testifying in his own defense, Chavez admitted to kn owing

Garcia and Cepeda. He stated that he and his wife were good

friends with the couple and they often stayed in his home. Chavez

a dmitted that he owned the two grams of marihuana found in his

bedroom, but stated that it was for his own personal use. Chavez

testified that he had purchased the two grams of marihuana from a

third party at a Denver housing project. Chavez denied all of the

accusations of Vasquez, and maintained that he never bought or sold

large quantities of marihuana.

On September 29, 1992, the jury returned its verdict. Garcia

was found guilty of conspiring to possess marihuana with intent to

distribute and conspiring to import marihuana (counts one and two).

Chavez was convicted of conspiring to possess marihuana with intent

to distribute (count one), but ac quitted of conspiring to import6

marihuana (count two). Cepeda was convicted of conspiring to

possess with intent to distribute (count one), but acquitted of

importing mari huana into the United States (count three) and of

possession of marihuana with intent to distribute ( count four).

Rucobo was found guilty of all four counts of the indictment.

On appeal, Chavez argues that the district court erred by

denying his motion to suppress the evidence seized from his home.

In addition, Chavez contends that the district court erred in

denying his motion in limine to exclude the two grams of marihuana

found in his bedroom, which he maintains were inadmissible and

unduly prejudicial extrinsic evid ence. Chavez also asserts that

the district court erred by denying his request for a lesser

included offense instruction for conspira cy to possess. Lastly,

appellants argue that the district court erred by granting only a

partial acquittal on count one.

Discussion

I. Motion to Suppress

Chavez argues that the district court erred in refusing to

s uppress evidence seized from his home. This Court engages in a

two-step review of a district court's denial of a motion to

suppress evidence obtained pursuant to a search warrant. U nited

States v. Satterwhite

, 980 F.2d 317, 320 (5th Cir. 1992); United

States v. Webster

, 960 F.2d 1301, 1307 (5th Cir.), cert. denied,

113 S.Ct. 355 (1992). Generally, the first step is to determine

whether the good faith exception to the exclusionary rule applies.

Satterwhite

, 980 F.2d at 320. The second step is to determine

whether probable cau se supported the warrant. I d

. If the good6 Those exceptions are:

"(1) If the issuing magistrate/judge was misled by

information in an affidavit that the affiant knew was

false or would have known except for reckless disregard

of the truth; (2) where the issuing magistrate/judge

wholly abandoned his or her judicial role; (3) where

the warrant is based on an affidavit so lacking in

indicia of probable cause as to render official belief

in its existence entirely unreasonable; and (4) where

the warrant is so facially deficient in failing to

particularize the place to be searched or the things to

be seized that executing officers cannot reasonably

presume it to be valid." Id. at 1307 n.4.

7 fai th exception applies, this Court need not reach the probable

cause issue. Webster , 960 F.2d at 1307.

A. Good Faith Exception

The good faith exception applies unless one of four exceptions

is applicable. 6 Chavez argues that the third exception to the good

faith doctrine applies in the instant case, i.e

., the affidavit is

so lacking in any indicia of probable cause as to ren der an

official's belief in its existence entirely unreasonable. This

Court reviews the reasonableness of an officer's reliance de novo

.

United States v. McKnight

, 953 F.2d 898, 905 (5th Cir.), cert.

denied, 112 S.Ct. 2975 (1992).

B. Reasonableness of Officer's Reliance

Facts recited in Simer's affidavit which support the officer's

belief that probable cause existed include: (1) Chavez was

indicted on January 3, 1992, for his involvement in a conspiracy

involving the importation and distribution of marihuana; (2) there

was a warrant for Chavez's arrest; and (3) Chavez had been

implicated in the conspiracy by information received from

confidential informants, as well as pol ice surveillance, and an8

analysis of phone records. The affidavit also states that the

investigation revealed the marihuana was being distributed from

Chavez's home. A weakness with the affidavit, however, is that

Simer does not expressly state what information was received from

the confidential informants and his basis for reliance on such

informants.

It is not enough for the supporting affidavit of a search

warrant to state that a defendant is under indictment and that

there was a warrant for his arrest. S ee United States v. Freeman

,

685 F.2d 942, 949 (5th Cir. 1982) (noting "the fact that there is

probable cause to believe that a person has committed a crime does

not automatically give the police probable cause to search his

house for evidence of that crime"). The affidavit must tend to

show some nexus between the house to be searched and the evidence

sought. I d

. That nexus, however, "may be established either

through direct observation or through normal inferences as to where

the articles sought would be located." Id

.

Chavez's indictment by a grand jury establishes that there was

p robable cause to believe that Chavez was involved in d rug

trafficking. Construing the affidavit in a "common sense and

realistic manner," see Freeman

, 685 F.2d at 948 (q uoting U nited

States v. Maestas

, 546 F .2d 1177, 1180 (5th Cir. 1977)), it was

reasonable and logical for officers to believe that evidence of

drug trafficking, such as ledgers and telephone records, would be

found in Chavez's home. Moreover, reading the affidavit as a whole

in a common sense manner indicates that the informant reported he

had assisted in delivery of marihuana to Chavez's Denver residence.7 Rule 404(b) states in part: "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."

9 We conclude that it was not entirely unreasonable for officers to

believe that probable cause existed and that the warrant was valid.

II. Extrinsic Evidence

Chavez contends that the district court erred in admitting in

evidence the two grams of marihuana found in his bedroom. Chavez

asserts that the evidence was extrinsic and its admission violated

Federal Rule of Evidence 404(b). 7

Chavez's contention is without merit. "An act is not

extrinsic, and Rule 404(b) is not implicated, where the evidence of

that act and the evidence of the crime charged are inextricably

intertwined." U

nited States v. Torres

, 685 F.2d 921, 924 (5th Cir.

1982). The presence of marihuana in Chavez's home is relevant to

the issue of his alleged involvement in a conspiracy to distribute

marihuana fro m his home. A jury could reasonably infer that the

marihuana in Chavez's bedroom was part of larger loads of marihuana

brought to his house for distribution. The evidence admitted was

not extrinsic to the offenses charged, thus consideration of its

admissibility pursuant to Rule 404(b) is unnecessary. U nited

States v. Lamp , 779 F.2d 1088, 1095 (5th Cir.), cert. denied, 106

S.Ct. 2225 (1986).

III. Lesser Included Offense Instruction

Under Rule 31(c) of the Federal Rules of Criminal Procedure a

defendant is entitled to a jury instruction on a lesser included

offense if: (1) the elements of the lesser offense are a subset of10

the elements of the charged offense and (2) the evidence at trial

permits a jury to rationally find the defendant guilty of the

l esser offense, yet acquit him of the greater. U nited States v.

Deisch , 20 F.3d 139, 142 (5th Cir. 1994).

Chavez argues that the district court should have granted his

request for a lesser included instruction on conspiracy to possess

because conspiracy to possess is a lesser included offense and his

testimony that he purchased the two grams of marihuana for his

personal use from a third party would support a jury's finding him

guilty of the lesser offense.

A. Statutory Elements Test

It is undisputed that under the statutory elements test,

conspiracy to possess is a subset of the elements of conspiracy to

possess with intent to distribute. S ee United States v. White

, 972

F.2d 590, 596 (5th Cir. 1992), cert. denied, 113 S.Ct. 1651 (1993).

However, the statutory elements test is only a test of exclusion.

A defendant is not automatically entitled to a lesser included

instruction simply because the l esser offense satisfies the

statutory elements test. The defendant must also establish there

is evidence which rationally supports convicting the defendant of

the lesser offense while acquitting him of the greater offense.

B. Evidence at Trial

Chavez asserts that a jury could rationally find him guilty of

conspiracy to possess based on his testimony that he purchased the

two grams of marihuana from a third party.

The lesser offense Chavez testifies he committed does not in

any way relate to the offense cha rged in the indictment. Chavez8 Similarly, if a defendant charged with assaulting a named

victim with a knife testifies that he never assaulted the named

victim at all, but did assault someone else at another time and

place without a knife, he would not on the basis of such

testimony be entitled to a lesser included offense instruction on

simple assault.

11 was indicted for conspiring, in the Western District of Texas, with

the co-defend ants to possess and distribute marihuana. Yet,

Chavez's testimony concerns a different offense committed on a

different occasion. The offense Chavez admits to committing was

confined to the Denver, Colorado, area and did not involve any of

his co-defendants or alleged co-conspirators. Chavez's purchase of

marihuana from a Denver housing project is a separate and distinct

crime. A defendant is not entitled to a lesser included offense

instruction simply because he admits to committing a lesser offense

at a different time with other persons. 8 S ee United States v.

Seni

, 662 F.2d 277, 285 (4th Cir. 1981), c ert. denied, 102 S.Ct.

1453 (1982) (finding d efendants were not entitled to lesser

included offense instruction because the lesser offense alleged was

a separate offense). To convict Chavez of the conduct described in

his testimony would be to convict him of an offense with which he

was not charged and f or which he had no notice that he was being

tried.

Further, the evidence at trial does not show Chavez to be

guilty of conspiracy to possess in resp ect to his claimed

acquisition of the two grams of marihuana at a Denver housing

project. To prove a conspiracy to possess, the government would

have to prove that Chavez agreed in that instance with one or more

persons to knowingly possess the two grams of marihuana. "The buy-12

sell transaction is simply not probative of an agreement to join

together to accomplish a criminal object ive beyond that already

being accomplished by the transaction." U nited States v. Townsend

,

924 F.2d 1385, 1394 (7th Cir. 1991). "'In such circumstances, the

buyer's purpose is to buy; the seller's purpose is to sell. There

is no joint objective.'" I d

. (citation omitted). Chavez's

testimony indicates his guilt of simple possession, but not of

conspiracy to possess, with respect to his claimed acquisition of

the two grams at a Denver housing project.

Thus, Chavez was not entitled to an instruction on conspiracy

to possess as a lesser included offense.

IV. Partial Acquittal on Count One

Appellants argue that the district court erred by granting

only a partial judgment of acquittal on cou nt one. They assert

that count one ch arged only a conspiracy to violate 21 U.S.C. §

861(a)(2), which proscribes use of a minor to avoid detection or

apprehension of an offense. Appellants contend that the district

court's grant of an acquittal on the portion of count one relating

to the minor (paragraph (b)) removed an essential element of the

only offense charged in that count. We disagree.

The indictment alleged:

" COUNT ONE

(21 U.S.C. §§ 846, 841(a)(1), 861 (a)(2)

That commencing on or a bout May 1, 1989, and

conti nuing thereafter, up to and including on or about

D ecember 4, 1991, in the Western District of Texas and

elsewhere, Defendants [naming them] willfully and

knowingly conspired, combined, confederated, and agreed

together, and with each other, and with others known and

unknown to the Grand Jury, to commit offenses against the

United States, to wit:13 (a) to possess a quantity of marihuana, a Schedule

I Controlled Substance, with intent to distribute same,

c ontrary to Title 21, United States Code, section

841(a)(1);

(b) and each of the above defendants being a person

of at least eighteen years of age at the ti me of the

c ommission of this charged conspiracy did use, induce

, and coerce a person under eighteen years of age to assist

in avoiding detection for their unlawful activities,

including importation and the possession with intent to

distribute marihuana, a Schedule I Controlled Substance

[21 U.S.C. §§ 841(a)(1) and 952(a)].

All in vio lation of Title 21, United States Code,

Section 846."

An indictment may charge in one count a single conspiracy to

violate more than one substantive criminal statute. U nited States

v. Du vall , 846 F.2d 966, 975 n.8. (5th Cir. 1988). Count one of

the indictment clearly charged the defendants with a single

conspiracy in violation of 21 U.S.C. § 846. Paragraphs (a) and (b)

of the indictment represent the t wo illegal objects of the

conspiracy, namely, using a minor to conceal a crime in violation

of 21 U.S.C. § 861(a)(2) and possessing marihuana with the intent

to distribute in violation of 21 U.S.C. § 841(a)(1). We reject the

contention that only one object offense, the violation of section

861(a), was charged in count one. That count's initial paragraph

alleges conspiracy; there follow the two object offenses, set out

in subparagraphs (a) and (b) respectively; finally, in a separate

paragraph, the conspiracy statute is refere nced. The district

court in withdrawing consideration of viol ations of section

861(a)(2) from the jury, withdrew consideration of only one of the

two illegal objects of the conspiracy. Count one, as it remained,

still charged an offense.14

"'When a conspiracy to violate two statutes is alleged, the

jury may find the defendant guilty if they believe beyond a

reasonable doubt that he or she conspired to violate either one of

the statutes.'" U nited States v. Lyons

, 703 F.2d 8 15, 821 (5th

Cir. 1983) (citations omitted). The district court's grant of

acquittal on one of the alleged underlying substantive offense

objectives of the conspiracy did not preclude the jury from

convicting th e appellants for conspiring to commit the other

alleged object offense. Having determined to grant an acquittal as

to paragraph (b) of count one, the district court was not obliged

to dismiss or grant an acquittal as to the balance of count one.

Conclusion

Appellants' appeal presents no reve rsible error, and their

convictions and sentences are

AFFIRMED.