20 F.3d 600 (5th Cir. 1994), 93-7065, United States v. Casilla

• Docket Number: 93-7065.
• Date: 26 April 1994
• Citation: 20 F.3d 600
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben CASILLA, Martha Torres, and Luis Donald Quintero, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 600

20 F.3d 600 (5th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ruben CASILLA, Martha Torres, and Luis Donald Quintero,

Defendants-Appellants.

No. 93-7065.

United States Court of Appeals, Fifth Circuit

April 26, 1994

Page 601

[Copyrighted Material Omitted]

Page 602

Marjory C. Batsell, Rodriguez, Colvin & Chaney, Brownsville, TX (Court-appointed), for Casilla.

Mary Lou Ryan Ray, Ransome & Ray, Brownsville, TX (Court-appointed), for Torres.

Dola Young, Asst. Federal Public Defender, Roland Dahlin, II, Federal Public Defender, Jeffrey L. Wilde, Asst. Federal Public Defender, Houston, TX, for Quintero.

D.R. Millard, III, Paula Offenhauser, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for U.S.

Appeals from the United States District Court for the Southern District of Texas.

Before KING and WIENER, Circuit Judges, and ROSENTHAL, ^[*] District Judge.

ROSENTHAL, District Judge:

Appellants Ruben Casilla, Luis Donald Quintero, and Martha Torres were convicted for possession of cocaine with intent to distribute, importation of cocaine into the United States from Mexico, and for conspiracy to commit the underlying offenses. Appellants each contend that the evidence was insufficient to support the guilty verdicts. We AFFIRM.

1. The Legal Standards of Review

In reviewing the sufficiency of the evidence, this court must determine whether any reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1346, 122 L.Ed.2d 728 (1993). Reasonable inferences are construed in accordance with the jury's verdict. Id. at 161. The jury is solely responsible for determining the weight and credibility of the evidence; this court will not substitute its own determination of credibility for that of the jury. Id. The scope of appellate review is the same for both direct and circumstantial evidence. United States v. Lorence, 706 F.2d 512, 518 (5th Cir.1983).

Page 603

The first and third counts of the four-count indictment alleged a conspiracy to import cocaine and a conspiracy to possess cocaine with the intent to distribute. ¹ To prove a conspiracy, the government must prove that: (1) an agreement existed between two or more persons to violate the law; (2) the defendant had knowledge of the agreement; and (3) the defendant voluntarily participated in the conspiracy. United States v. Pennington, 20 F.3d 593, 597 (5th Cir.1994); United States v. Sacerio, 952 F.2d 860, 863 (5th Cir.1992); United States v. Chavez, 947 F.2d 742, 744-45 (5th Cir.1991).

Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence. United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.1993). An agreement may be inferred from a "concert of action." Id.; United States v. Natel, 812 F.2d 937, 940 (5th Cir.1987). Once the government has produced evidence of a conspiracy, only "slight" evidence is needed to connect an individual to that conspiracy. United States v. Duncan, 919 F.2d 981, 991 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1992). Knowledge of a conspiracy and voluntary participation in a conspiracy may be inferred from a "collection of circumstances." Cardenas, 9 F.3d at 1157. Evasive and erratic behavior may be evidence of guilty knowledge. Id.; United States v. Richardson, 848 F.2d 509, 513 (5th Cir.1988). Presence and association with other members of a conspiracy, along with other evidence, may be relied upon to find a conspiracy. Cardenas, 9 F.3d at 1157.

Count two of the indictment alleged importation of cocaine. To prove importation, the government must prove that: (1) the defendant played a role in bringing a quantity of a controlled substance into the United States from outside the United States; (2) the defendant knew the substance was a controlled substance; and (3) the defendant knew the substance would enter the United States. Cardenas, 9 F.3d at 1158; United States v. Ojebode, 957 F.2d 1218, 1227 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1291, 122 L.Ed.2d 683 (1993).

Count four alleged possession of cocaine with the intent to distribute. "The essential elements of possession with intent to distribute narcotics consist of: (1) possession; (2) knowledge; and (3) an intent to distribute the drugs." Chavez, 947 F.2d at 745; see also Pennington, 20 F.3d at 597; United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.1989). Possession may be actual or constructive. Cardenas, 9 F.3d at 1158. Constructive possession is "the knowing exercise of, or the knowing power or right to exercise dominion and control over the proscribed substance." Molinar-Apodaca, 889 F.2d at 1423; see also United States v. Rosas-Fuentes, 970 F.2d 1379, 1382 (5th Cir.1992). Intent to distribute may be inferred from the value and quantity of the substance possessed. United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir.1989).

As to the second and fourth counts, aiding and abetting is an alternative charge in every indictment. United States v. Neal, 951 F.2d 630, 633 (5th Cir.1992). To prove aiding and abetting in a criminal venture, the prosecution must prove that the defendant: (1) associated with the criminal enterprise; (2) participated in the venture; and (3) sought by action to make the venture succeed. See United States v. Mergerson, 4 F.3d 337, 342 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994); United States v. Stone, 960 F.2d 426, 433 (5th Cir.1992). The evidence supporting a conspiracy conviction typically supports an aiding and abetting conviction. Mergerson, 4 F.3d at 342; United States v. Chavez, 947 F.2d 742, 746 (5th Cir.1991).

Page 604

Each appellant contends that the evidence was insufficient to show knowledge of the cocaine.

2. The Evidence Presented

On August 11, 1992, at approximately 5:00 a.m., a van crossed the International Bridge to enter the United States in Brownsville, Texas. Casilla was driving; Torres sat in the passenger seat; and Quintero was in the rear. The van was referred to a secondary inspection station, where United States Customs Service Officer James Lette was on duty.

Officer Lette testified at trial that the slip referring the van to the secondary inspection station reflected that Casilla had stated that he was from Dallas and had gone to Matamoros for a few drinks. When Officer Lette asked Casilla where he was from, Casilla started to say "Louisiana," then caught himself and said "Dallas." Casilla told Officer Lette that he had not been to the interior of Mexico.

Because of Casilla's hesitant and inconsistent answers, Officer Lette asked Casilla to remove the baggage and food products from the van for further inspection. When Officer Lette asked Casilla for his driver's license, Casilla produced a Massachusetts license. When Officer Lette checked the interior of the van to ensure that everything had been removed for inspection, he discovered a Guatemalan coin and several beverage containers, including one with a label from the interior of Mexico. Officer Lette also found several bags of coffee in the rear of the van. While in the van, Officer Lette noticed that the floorboard behind the front seats was raised to an unusual height.

Lette testified that a number of documents were also found in the van. They included Quintero's passport, bearing a stamp from the Consul General for the Republic of Ecuador in New York dated July 14, 1992, and a stamp from the Consul General for the Republic of Guatemala in New York dated July 16, 1992; Torres's passport, with a stamp from the Consul General for the Republic of Guatemala in New York, dated July 15, 1992; Casilla's passport, with a stamp from the Consul General for the Republic of Guatemala in New York dated July 14, 1992; a Special Power granting Casilla authority to take the van to Central America, dated July 21, 1992; a document giving Quintero authority to take the van through Mexico for thirty days; and a temporary import permit for the van from the Mexican government.

Officer Lette continued his inspection with United States Custom Inspector Neal Ramsey, who also testified at trial. When Inspector Ramsey approached the scene, he noticed that the appellants appeared anxious; were talking among themselves; were not watching the search; and, unlike most individuals, displayed no anger or impatience while the van was being dismantled.

Lette and Ramsey agreed that they needed to "vent" the area where the floor of the van was raised. After attempting to punch a hole in the floor, Lette and Ramsey drilled a hole in the floor. Lette observed that Torres had a "frightened look" on her face during the drilling. The drilling revealed a hidden compartment containing 63.1 kilograms of cocaine bricks, wrapped in plastic and packed in coffee grounds. The appellants were then arrested.

United States Customs Service Special Agent Ramona Bauer interviewed the appellants and testified at trial in the government's case-in-chief. Agent Bauer introduced herself to each appellant, informed each appellant that cocaine had been found in the van, and administered Miranda warnings to each appellant.

Agent Bauer testified that Casilla waived his Miranda rights and stated that he had borrowed the van from a friend in Dallas. When asked the name of the Dallas friend, Casilla refused to answer and requested a lawyer. Agent Bauer then terminated the interview.

Torres also waived her Miranda rights. In response to Bauer's questions, Torres said that she and Casilla were friends and that she was going to "baptize Mr. Quintero's baby girl in New York." Torres also said that the appellants were going to California and Texas. They had driven the van from New York to Dallas, where Torres stayed in an apartment with...