556 F.2d 1265 (5th Cir. 1977), 76-2611, United States v. Trevino

Docket Nº:76-2611.
Citation:556 F.2d 1265
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ubaldo TREVINO and Ramiro Gonzalez, Defendants-Appellants.
Case Date:August 03, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1265

556 F.2d 1265 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ubaldo TREVINO and Ramiro Gonzalez, Defendants-Appellants.

No. 76-2611.

United States Court of Appeals, Fifth Circuit

August 3, 1977

Rehearing and Rehearing En Banc Denied Oct. 11, 1977.

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Brendan J. Hall, Jr., Abel Toscano, Jr., Harlingen, Tex., for gonzalez.

Frank Maloney, Kenneth E. Houp, Jr., Austin, Tex., for Trevino.

Edward B. McDonough, Jr., U.S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Robert Berg, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before GODBOLD, SIMPSON and GEE, Circuit Judges.

GEE, Circuit Judge:

Ubaldo Trevino and Ramiro Gonzalez were tried before a jury for conspiracy to possess and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1970), and 18 U.S.C. § 2 (1970). Each was convicted on both counts and sentenced to serve two consecutive five-year terms, with two-year special parole terms, and fined $7,500 on each count. On this appeal they complain of the sufficiency of the evidence to support their convictions, denial of access to the presentence report of the government's chief witness, and deletion of parts of that witness' grand jury testimony in making the transcript available to them. Finding no errors requiring reversal, we affirm.

I. Sufficiency of the Evidence

Prosecution of appellants was made possible by the decision to "sing" of one Amador Leos Gonzales (Leos), a Mexican national who was arrested on the night of October 9, 1974, while driving a 2 1/2 ton stakebed truck loaded with 2,156 pounds of marijuana in sacks. Leos invoked his constitutional rights and declined to implicate anyone until some time after his conviction of possession of marijuana. 1 Then he began to tell his story, first to Drug Enforcement Administration (DEA) agents and then to the federal grand jury which indicted appellants. At trial Leos, speaking through an interpreter, told of being in McAllen, Texas, on October 9 on a one-day shopping tour from his home in Reynosa when three men 2 approached him with a request to guide them around Reynosa. Agreeing, Leos got into a car with the men and was driven instead to a car lot in McAllen. The three men entered a small building on the lot and

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were joined inside by appellants, who drove up together in a cream-colored Cadillac; Leos waited outside. After a short time six men emerged from the building; appellants and a gray-haired man drove away in the Cadillac, followed by Leos and his three accosters in their car. The procession next stopped at Madero, a village near Mission, Texas, where appellant Gonzalez owned some property. Here Leos first saw the truck which he was ultimately to drive. Further discussion took place in English which, of course, Leos could not understand and then both Gonzalez and Trevino approached Leos and asked him if he could drive a truck. Since Leos had never driven a truck, Gonzalez sketched the gearshift pattern in the sand for him. Gonzalez, in Trevino's presence, offered Leos $500 to drive the truck; Trevino said something about "joining them" or "going in with them." Leos and the three men who had originally approached him got back in their car and drove away; the gray-haired man drove the truck, and appellants Trevino and Gonzalez left in the Cadillac in another direction. The next stopping point was a rural location near the river; Trevino and Gonzalez were absent and the truck was now loaded, and Leos was told for the first time that his load was marijuana. He drove away in the truck alone and had navigated only a short distance toward his destination (a highway underpass a few miles away) when he was stopped and arrested by DEA agents alerted to his approach by electronic sensors. 3

  1. Conspiracy

    As this court has stated, the minimum elements of a conspiracy are an agreement by two or more persons to work together for an illegal purpose and the commission of some overt act in furtherance of that purpose by one conspirator. United States v. Warner, 441 F.2d 821, 830 (5th Cir. 1971). Since illicit agreements usually are made in secret, proof of the mutual purpose normally rests upon "inferences drawn from relevant and competent circumstantial evidence . . .." Id. Here, we have direct evidence Leos' testimony of two covert meetings of six men followed by a third rendezvous at which four of the men turned over to him, an acquaintance of about four hours, a late-model truck laden with a ton of marijuana. The jury was certainly permitted to infer the existence of a conspiracy from these underlying facts.

    With the conspiracy thus established, the question for the jury would become the participation vel non of appellants. Given the guilty verdict, our starting point is the requirement of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), that we consider the evidence in the light most favorable to the government. Further, the cases are legion that only slight evidence is required on appellate review to connect an individual with a proven conspiracy. See, e. g., United States v. Nicholson, 525 F.2d 1233, 1237 (5th Cir. 1976). In a recent review of this "slight evidence" rule we explicated its scope slightly, noting it is properly applicable only when the defendants are "clearly connected to the conspiring group or are found acting in such a manner as unmistakably to forward its purposes. In such instances . . . slight additional evidence suffices to base an inference that one who had been shown beyond reasonable doubt to be a participant was as well a knowing participant." United States v. Alvarez, 548 F.2d 542, 544 (5th Cir. 1977) (emphasis in original). Here, direct testimony by Leos established appellants' "presence" with other conspirators; his description of their involvement in two meetings immediately before the turnover of the load was sufficient to show that appellants were "clearly connected to the conspiring group . . .." Id. This hurdle cleared, we move forward and find considerably more than the "slight evidence" required to show that Trevino and Gonzalez were active, knowing participants in the conspiracy.

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    Much can be inferred, for example, from the covert nature of the two meetings at which appellants were present, and their proximity in time to the third and final meeting at which four of the men (sans Trevino and Gonzalez) entrusted a ton of marijuana to Leos, but appellants indicated much more by their entreaties to Leos. Both Trevino and Gonzalez asked Leos if he could drive the truck, and Gonzalez showed him the gearshift pattern. While this query is not necessarily inconsistent with an innocent transaction, Gonzalez' offer of $500 for what was to be a trip of a few miles provided a strong manifestation of his knowledge that unlawful activity was afoot. Trevino was standing by when this offer was made and immediately asked Leos to "join" or "go in with" the group. The jury was also entitled to consider the testimony of DEA Agent Rodriguez that drug traffickers near the border commonly minimize the danger to themselves by employing "mules," poor people who need money and can be recruited for $500 or $600 for a single haul of contraband north from the border. The inference is compelling indeed that Trevino and Gonzalez knew the nature of the activity in which their cohorts were engaged and affirmatively sought to bring it to fruition. Perhaps the jury could have found that, as Gonzalez suggested in oral argument, Trevino and Gonzalez simply arranged a sale or lease of the truck contingent on finding a driver, but certainly they were not required to so find. 4 The evidence supports the conspiracy convictions.

  2. Possession

    Trevino and Gonzalez were charged in this count under 21 U.S.C. § 841(a)(1) (1976), making illegal any possession of a controlled substance with intent to distribute, and 18 U.S.C. § 2 (1970), providing that "whoever . . . aids, abets, counsels, commands, induces or procures" the commission of a federal crime is punishable as a principal for the violation itself. To aid or abet another in the commission of a crime within the meaning of the statute requires that the defendant "in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed." Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919, 925 (1949); Moore v. United States, 356 F.2d 39, 43 (5th Cir. 1966). Much of the same evidence which establishes appellants' participation in the conspiracy also supports a finding that they aided and abetted Leos in the possession for which he was convicted. At a time when Leos still apparently thought he was to serve as a guide in Reynosa, Trevino and Gonzalez were the first to mention the truck and ask if he could drive it; Gonzalez, with Trevino's tacit assent, offered money that a poor man might find it hard to refuse and demonstrated the gearshift pattern; Trevino entreated Leos to come aboard. None of this would be sufficient to support an aiding and abetting conviction were we to find that appellants did not know the purpose for which the truck was being used, but we have already noted the considerable indications that appellants were aware of the illicit purpose.

    The evidence is sufficient to support the convictions on the possession count. 5

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    II. Denial of Access to Leos' Presentence Report

    A great deal of the trial defense was devoted to attacking the credibility of Leos, without whose testimony the prosecution would not have had a case. Before trial, in an effort to gain material for impeachment, both appellants unsuccessfully moved for discovery of...

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