argued submitted san francisco california: February 3, 1993.
Appeal from the United States District Court for the Northern District of California. D.C. No. CR-91-00530-02-RH. Robert H. Schnacke, Senior District Judge, Presiding.
Before: Jerome Farris, Cecil F. Poole, Charles Wiggins, Circuit Judges. Opinion by Judge Wiggins.
Adalberto Rubio-Topete was convicted of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and possession of heroin with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Rubio-Topete challenges the district court's decision to exclude the testimony of Gabriel Soto and a defense investigator. He also contends that a two-level upward adjustment in his offense level for obstruction of Justice based on his trial testimony violates the Constitution and is not supported by sufficient factual findings. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Rubio-Topete's conviction, vacate his sentence, and remand for resentencing.
Gabriel Soto informed the San Mateo County Narcotics Task Force that a drug deal would occur on August 17, 1992. Soto told officers that Alfredo Becerra would arrive at a Redwood City parking lot in a red car and that Becerra would be accompanied by a yellow Chrysler Cordoba that would be the "load" car. Early on the morning of August 17th, officers began surveillance of the parking lot.
As anticipated, a red car accompanied by a yellow Chrysler Cordoba entered the lot that morning. The driver of the red car was believed to be Alfredo Becerra, and the driver of the Cordoba was Rubio-Topete. Officers observed that Rubio-Topete was wearing a baseball cap and a hip length olive-green army jacket. Becerra and Rubio-Topete met and spoke with two other individuals, later identified as codefendant Martin Alvarez and an individual known only as "El Chamaco." After a brief Discussion with the driver of the red car, Martin Alvarez exited his vehicle and got in the passenger side of the Cordoba. El Chamaco remained in the white Nissan in which he had arrived. After a few minutes, the cars left the parking lot. The white Nissan and the Cordoba headed in the same direction, while the red car left in another direction.
Officers followed the Nissan and the Cordoba from both the ground and the air. The cars proceeded south on highway 101, eventually arriving at a San Jose house at about 9:45 a.m. Soto had told police that a San Jose house was the stash house for Mr. Becerra's drug operation.
After arriving at the San Jose house, police continued surveillance from a van and also from the air. From their vantage point on the ground, officers could not see all of the house (their view of the corner of the house where the garage was located was obstructed), but they could see most of the house, the driveway, and the surrounding area. Officers maintained watch throughout the day and testified that Rubio-Topete never left the house until after 7:00 p.m.
According to the testimony, at about 7:00 p.m. Alvarez came out of the house and moved the yellow Cordoba, which had been parked on the street all day, into the driveway. Alvarez then went back into the garage. Officers testified that a few minutes later Rubio-Topete came out of the garage and got into the back seat of the car for about five minutes. He then got out and went back into the garage area. A few minutes later, both Alvarez and Rubio-Topete came out of the garage area and got into the back seat of the Cordoba for a few minutes. Both returned to the garage area for less than a minute, and when they came back out Alvarez was carrying a box. Both men approached the passenger side of the car, and Rubio-Topete got into the car. Alvarez stood close to the Cordoba next to the opened passenger door and held the box up next to the door. After about five minutes, Alvarez discarded the empty box, Rubio-Topete got out of the car, and both of them returned to the garage area.
A few minutes later both men got into the car and drove away. Rubio-Topete drove, heading north on highway 101. He returned to the same parking lot in Redwood City where surveillance had begun, and officers stopped the car and ordered both men out. Two police narcotics dogs sniff-searched the vehicle and alerted to the rear edge of the exterior passenger door.
An officer got into the car and removed the paneling from the right rear sidewall, using a Phillips screwdriver that he found on the rear floor of the car. Inside the metal structure of the rear sidewall, officers discovered twelve plastic bags containing about 15 pounds of heroin. Police then searched Rubio-Topete and discovered a box containing a small digital scale commonly used to weigh narcotics and a piece of paper with a column of numbers corresponding exactly to the number of bags and the number of ounces of heroin in each bag.
Rubio-Topete's only defense at trial was his contention that he did not know that the car he was driving contained heroin. He testified that he borrowed the Cordoba from Becerra to look for a transmission for a '69 Ford pick-up. He said he did not want to use his own car because it had a smaller trunk and because he did not want to soil the carpet in his trunk. He claims that he took Alvarez to San Jose because Alvarez said he needed a ride to a party there. He ...