                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2009

USA v. Galindez
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3696




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Recommended Citation
"USA v. Galindez" (2009). 2009 Decisions. Paper 1469.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1469


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                                                     NOT PRECEDENTIAL


             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 07-3696




                 UNITED STATES OF AMERICA

                                 v.

                     HERMINIO GALINDEZ,
                                   Appellant




           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                  (D.C. Crim. No. 06-cr-00667-2)
               District Judge: Hon. Harvey Bartle, III




             Submitted Under Third Circuit LAR 34.1(a)
                          April 24, 2009

Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges

                       (Filed: April 28, 2009)




                             OPINION
SLOVITER, Circuit Judge.

       Herminio Galindez appeals the District Court’s denial of his motion to suppress

and its purported denial of his motion for acquittal. He also challenges the

reasonableness of his sentence. We will affirm the District Court in all respects.

                                             I.

       In a separate opinion filed today, we address the appeal of Galindez’ co-

defendant, Jose Del Valle and detail the events preceding the vehicle stop that Galindez

and Del Valle contend violated their Fourth Amendment rights. United States v. Del

Valle, No. 07-3695, slip op. at 2-5 (3d Cir. April 28, 2009). Rather than repeat that

recitation of the facts here, we incorporate them by reference herein and recount only

those facts unique to Galindez’ appeal.

       After the stop of the red pickup truck, which Del Valle was driving at the time and

in which Galindez was crouching above the back seat with an open duffle bag containing

cocaine, DEA agents recovered approximately 24 kilograms of cocaine and $22,000 in

cash, and took Galindez into custody. The following day, a magistrate judge issued an

arrest warrant for Galindez and, at a subsequent preliminary hearing, Galindez stipulated

to the existence of probable cause for his arrest. The District Court denied Galindez’

motion to suppress the physical evidence and the statements resulting from the stop of the




                                             2
red pickup,1 and a jury convicted him of conspiracy to possess, with the intent to

distribute, five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and 846; possession, with the intent to distribute, five kilograms or more of

cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A); and aiding and abetting the

possession of five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A) and 18 U.S.C. § 2. Galindez was sentenced to 262 months incarceration.

                                             II.

       Galindez argues that the District Court erred in denying his motion to suppress

because the vehicle stop did not comport with the Fourth Amendment.2 Galindez’ co-

defendant, Del Valle, appealed the District Court’s denial of his motion to suppress the

same evidence on the same ground. In our opinion in Del Valle’s appeal, we concluded

that the stop was supported by reasonable suspicion. Del Valle, No. 07-3695, slip op. at

5-7. For the same reasons, we conclude that the District Court properly denied Galindez’

motion.

      In addition to the arguments we addressed in Del Valle, Galindez contends that the

stop was unconstitutional under Alabama v. White, 496 U.S. 325 (1990), because the



                   1
                    Galindez has standing to challenge the constitutionality of
            the vehicle stop even though he had no possessory interest in the
            vehicle. See Brendlin v. California, 127 S. Ct. 2400, 2402-03
            (2007); United States v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006).
                   2
                     The District Court had jurisdiction under 18 U.S.C. §
            3231 and we have jurisdiction under 28 U.S.C. § 1291.

                                             3
initial DEA surveillance was based on an anonymous tip that the Palisades Park house was

a drug house. This argument fails because the stop of the red pickup was not based solely

on an uncorroborated anonymous tip. As discussed in Del Valle, the totality of the

circumstances provided sufficient facts to support the agents’ reasonable suspicion for the

vehicle stop. Slip op. at 7.

       Galindez also argues that his arrest warrant was issued in the absence of probable

cause. Galindez’ challenge to the arrest warrant also fails because the evidence he sought

to suppress resulted from the vehicle stop, which occurred a day before the arrest warrant

was issued. Even if the warrant had been defective, any such defect would not have led to

the suppression of evidence discovered prior to its issuance.

       Galindez also argues that the District Court erred in denying his motion under

Federal Rule of Criminal Procedure 29 for an acquittal based on insufficiency of the

evidence. We see no evidence in the record that Galindez made such a motion. As a

result, we review Galindez’ challenge to the sufficiency of the evidence for plain error.

United States v. Mornan, 413 F.3d 372, 381 (3d Cir. 2005). Reversal is appropriate under

plain error review only where 1) there is an error, 2) that is plain, 3) that affects substantial

rights, and 4) that “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” United States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir. 2001). As such,

establishing insufficiency of the evidence “places a ‘very heavy burden’ on the appellant.”

Mornan, 413 F.3d at 382 (quoting United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir.



                                                4
1995)).

       Galindez cannot overcome this burden. He contends that the evidence produced at

trial was insufficient to establish that he had constructive possession of the cocaine. He is

wrong. The jury heard evidence that Galindez carried the duffle bag containing drugs

from the black SUV to the red pickup and that when the vehicle was stopped, Galindez

was found in the back cabin of the pickup with the open duffle bag of cocaine packages.

The jury also heard testimony that Galindez, after waiving his Miranda rights, said, “You

got me with 24 kilos, what else is there to say?” App. at 379. There was sufficient

evidence upon which “a reasonable jury believing the government’s evidence could find

beyond a reasonable doubt that the government proved all the elements of the offenses.”

Mornan, 413 F.3d at 382 (quotation omitted).

       Galindez also argues that the evidence was insufficient to establish that he

conspired to possess more than five kilograms of cocaine. This argument is likewise

without merit. In light of the evidence provided at trial, “a reasonable jury . . . could find

beyond a reasonable doubt” that Galindez knowingly participated in trafficking that

quantity of cocaine in combination with Del Valle and others.3 Id. (quotation omitted).




                     3
                       Because we conclude that the District Court’s denial of
              Galindez’ motion to suppress was proper, we need not address
              Galindez’ argument that his sentence was unreasonable because his
              only basis for that contention was that his conviction was based on
              evidence that should have been suppressed.

                                               5
                                           III.

       For the above-stated reasons, we will affirm the judgment and sentence of the

District Court.




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