548 F.2d 542 (5th Cir. 1977), 76-1689, United States v. Alvarez

Docket Nº:76-1689.
Citation:548 F.2d 542
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Margarito Juan ALVAREZ, Defendant-Appellant.
Case Date:March 10, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 542

548 F.2d 542 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Margarito Juan ALVAREZ, Defendant-Appellant.

No. 76-1689.

United States Court of Appeals, Fifth Circuit

March 10, 1977

Richard H. Garcia, Ramon Garcia, Edinburg, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Charles E. Lewis, James R. Gough, Asst. U.

Page 543

S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before GEWIN, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

Margarito Juan Alvarez was convicted of conspiracy to possess, and possession of, marijuana with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a)(1) (1970) and 18 U.S.C. § 2 (1970). On appeal, he asserts that his convictions are not supported by sufficient proper evidence.

On the night of September 25, 1975, two customs patrol officers conducting a surveillance of the Rio Grande River near Rio Grande City, Texas, observed two men pulling a boat loaded with sacks across the river. When the boat landed on the Texas side, five more men emerged from the bank, and the unloading operation began. One of the officers threw a ground illumination flare and ran and seized one Israel Villareal; as the men scattered, the second officer chased a short, stocky man up the bank, past a parked white Chevrolet van where the stocky man dropped two sacks and toward a group of houses, the closest of which was owned by Alvarez' father. The stocky man won the race, and the officer, having lost sight of him, returned to the van and found sacks of marijuana inside it and scattered along the path from the van to the river bank. Villareal, the Chevrolet van and approximately 1,600 pounds of marijuana were taken to the Customs Patrol Office in Rio Grande City.

Interrogation of Villareal in Spanish and English at the Customs Patrol Office by two Drug Enforcement Administration agents resulted in a statement given by him which became the subject of considerable controversy at trial. According to the agents, Villareal identified Margarito Alvarez as the owner of the white van and, further, as the stocky man who fled from the bank toward the houses. According to Villareal, on the other hand, he told the agents only that the van belonged to Margarito Alvarez (as he knew from servicing it at a truck stop where he worked) and did not say that Margarito was present at the riverbank. 1 Two days later an arrest warrant was served on Alvarez at his home. 2

At trial, the prosecution called Villareal to testify and, when he persisted in denying having placed Margarito at the river, called the interrogating agents to impeach Villareal by testifying as to his statement at the Customs Patrol Office. 3 The jury was instructed to consider the agents' testimony only in evaluating Villareal's credibility and not as evidence of Alvarez' guilt. With that instruction in mind, we will consider the remainder of the evidence against Alvarez in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), to determine whether

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either of his convictions can be sustained. 4 We note first that the existence of a conspiracy has certainly been established that the presence of...

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