U.S. v. Barrera, 76-1451

• Citation: 547 F.2d 1250
• Decision Date: 03 March 1977
• Docket Number: No. 76-1451,76-1451
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonardo Cerda BARRERA, a/k/a Porky and Faustino Copado Leyva, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1250

547 F.2d 1250

UNITED STATES of America, Plaintiff-Appellee, v. Leonardo Cerda BARRERA, a/k/a Porky and Faustino Copado

Leyva, Defendants-Appellants.

No. 76-1451.

United States Court of Appeals, Fifth Circuit.

March 3, 1977.

Alan Brown, San Antonio, Tex., for defendants-appellants.

John E. Clark, U. S. Atty., W. Ray Jahn, Le Roy Morgan Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before COLEMAN, AINSWORTH and INGRAHAM, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellants Leonardo "Porky" Barrera and Faustino Leyva, along with codefendants Juan Gamez, Francisco Bueno, and Victor Lesa, were indicted for conspiring to possess and possession with intent to distribute, approximately 875 grams of heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1), respectively. ¹ A jury returned a verdict of guilty against Barrera and Leyva on both counts and they were sentenced to 15 years' imprisonment and a special parole term of 20 years on each count, the sentences to run consecutively. ² Barrera and Leyva appeal, raising several issues, most importantly that the evidence was insufficient to warrant conviction. We agree with appellants that the evidence was insufficient to support the convictions and therefore reverse without reaching the additional issues raised.

The Government presented testimony regarding negotiations which resulted in the purchase of one ounce of heroin on June 27, 1975 and the seizure of two additional caches of heroin, weighing approximately 18 ounces and 101/2 ounces, respectively, on July 18, 1975. The following incidents led to the Government's seizure of the contraband on the two days in question.

Incidents preceding the June 27 transaction.

On April 18, 1975, Mary Leyva, the common-law wife of appellant Leyva, rented property known as the Macdona Pool Hall in Macdona, Texas, from the brother-in-law of appellant Barrera. A pay telephone with the number 622-9232 was installed there. The application for a post office box rented by Leyva shortly thereafter shows the same telephone number.

On May 29, 1975, Mike Slaughter, a mechanic, rented property at 16141/2 South Presa Street in San Antonio, Texas, which was used as a garage and repair shop. On the following day the Leyvas purchased a 1970 Ford station wagon from a used car dealer in San Antonio for $300 cash and a 1970 Oldsmobile Cutlass in trade. The Cutlass, however, was registered in the name of Mike Slaughter, and it was necessary for the Leyvas to get Slaughter from his garage to execute the title-transfer instruments on the Cutlass. At the request of the Leyvas the newly purchased Ford station wagon was then registered in the name of one Ruben Estrella. The Leyvas gave their post office box number as Estrella's address.

Incidents relative to the June 27 purchase of heroin.

On June 24, 1975, Russell F. Reina, San Antonio police officer, working as an undercover agent with the Federal Drug Enforcement Administration, met codefendant Gamez at a San Antonio restaurant and talked about the purchase of a pound of heroin. Gamez agreed to arrange for a one-ounce sample. Agent Reina and Gamez proceeded to a service station-cafe at Von Ormy, Texas, where Reina was to remain while Gamez obtained the sample from his source. Gamez, followed by government surveillance agents, drove to Macdona, Texas, and parked his vehicle behind the Macdona Pool Hall. Officer Seay, one of the surveillance agents, observed an unidentified man, whose physical characteristics fit those of Leyva, walk toward the Gamez vehicle. Gamez then returned to the cafe at Von Ormy and told Reina that his source, "Porky," wanted advance payment before he would deliver. Agent Reina refused to hand over the money whereupon Gamez agreed to take Reina closer to his source. They both then rode to Macdona in the government vehicle where Reina parked a short distance from the pool hall. Reina gave Gamez $100 in cash and remained in the vehicle while Gamez walked down the street in the direction of the pool hall and disappeared from sight. He returned approximately 20 minutes later but without the heroin sample. Gamez' explanation to Reina for the breakdown in negotiations was that "Porky" was upset that Reina was "so close to the house." Gamez assured Reina, however, that he would attempt to locate another source for the purchase.

Thereafter, on June 26, 1975, Gamez informed Agent Reina that "he wasn't going to do it with the people in Macdona; that he had gone to another person who was a good friend of his who had a source or supply for heroin and he was going to introduce (Reina) to him." Gamez introduced Reina to codefendant Bueno.

The next day, June 27, 1975, Bueno and Gamez rode with Agent Reina to an ice house in Losoya, Texas, where they met Abelardo F. Flores. After a brief conversation the four men drove to a ranch site southeast of Losoya. Gamez and Flores jumped a gate, walked to a building on the site, and returned 15 minutes later. Gamez handed Reina a one-ounce package of heroin in return for $900 cash. Gamez in turn gave the money to Flores.

Incidents relative to the July 18 confiscation.

On July 17, 1975, Bueno told Agent Reina to meet him at his home in San Antonio. Reina complied, accompanied by Special Agent Albert Castro. The three men then rode to the intersection of Interstate 35 and Somerset Road in San Antonio. After instructing the officers to return for him in 15 minutes, Bueno walked down Somerset Road and disappeared into a field. The officers observed a red 1950 Ford pickup truck in the field. The pickup truck (which was later determined to be registered in the name of appellant Leyva) left the field and proceeded north on Somerset Road. Agents Reina and Castro returned within the prescribed 15 minutes where they observed codefendants Bueno and Gamez walking toward them up Somerset Road. Gamez told Reina that "the man had gone to the ranch to get the heroin" and would return in an hour. The four men left in the government vehicle and returned approximately an hour later. The red pickup truck was again seen driving toward them. Gamez remarked that it was "the connection" returning from the ranch. On instructions from Gamez, the officers stopped their vehicle whereupon the truck pulled in directly behind them. Appellant Barrera was identified by Reina and two government surveillance agents as the driver of the truck. Gamez and Bueno walked over to the truck and talked with Barrera within sight of, but out of hearing of, the officers. Bueno returned to the government vehicle and told Reina that "the man" ³ saw a suspicious-looking blue vehicle in the vicinity and did not want to deliver the heroin at that time. Bueno instructed Reina to telephone him the next morning. (It was later determined that one of the surveillance agents was in the area in a blue car.)

The following day, July 18, 1975, Reina telephoned Bueno at his apartment. Bueno remarked that "the man" had already been there and that the deal was on. The red pickup truck was twice seen by surveillance officers driving past Bueno's apartment. There was no testimony that it stopped there. Agents Reina and Castro went to Bueno's apartment as prearranged where Bueno directed them to drive him to the garage on South Presa Street in San Antonio. This was the garage which had been rented by Mike Slaughter on May 29, 1975. Gamez was in the garage upon their arrival. Also in the garage was the 1970 Ford station wagon previously purchased by appellant Leyva and his common-law wife in the name of Ruben Estrella. Gamez extracted 18 ounces of heroin from a secret compartment of the station wagon, and Bueno and Gamez were arrested. The vehicle was later searched and an additional 298.7 grams of heroin was found concealed therein. A matchbook was found on Gamez on which was written the telephone number of the Macdona Pool Hall and the word "Porky."

On August 8, 1975, appellant Barrera was again seen by Reina in the red Ford pickup truck in the vicinity of Macdona. While questioning Barrera, Reina observed a tattoo on Barrera's arm of the word "Porky." ⁴

At the conclusion of the Government's case, and following denials by the trial court for judgments of acquittal, codefendants Bueno and Gamez, having previously entered a plea of guilty to possession, testified in their own behalf relative to the conspiracy count. Mary Garcia Leyva testified for appellant Leyva.

Bueno and Gamez said that the sole source of the heroin was Abelardo Flores. They denied that they ever discussed any kind of narcotic transaction with appellants Leyva and Barrera or solicited the help of either of them in obtaining it.

Mary Garcia Leyva testified that she had been living with appellant Leyva as his common-law wife since February 14, 1974. She paid the rent on the Macdona pool hall property. Appellant Barrera operated the bar with appellant Leyva's assistance. The witness also testified in regard to several negotiations which she had had with Mike Slaughter for the sale, purchase and trade of used cars. See footnote 5, infra.

In a criminal case the Government must prove every element of the offense beyond a reasonable doubt. In this respect, circumstantial evidence is intrinsically no different from direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), and the same test for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial. United States v. Gomez-Rojas, 5 Cir., 1975, 507 F.2d 1213, 1221; United States v. Moore, 5 Cir., 1974, 505 F.2d 620, 623; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825. Therefore, in testing the sufficiency of the evidence in this circumstantial evidence case it was the duty of the trial judge, before sending the case to the jury, to determine whether a reasonably minded jury...