U.S. v. Delgado

Decision Date19 January 2011
Docket NumberNo. 07–41041.,07–41041.
Citation631 F.3d 685
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Maria Aide DELGADO, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

James Lee Turner, Asst. U.S. Atty. (argued), Houston, TX, for U.S.Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks and Margaret Christina Ling (argued), Asst. Fed. Pub. Defenders, Houston, TX, for DefendantAppellant.Appeal from the United States District Court for the Southern District of Texas.Before WIENER, DENNIS, and CLEMENT, Circuit Judges.DENNIS, Circuit Judge:

DefendantAppellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense, 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371. She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed. For the reasons assigned herein, we vacate her convictions and sentences, dismiss the conspiracy charge of the indictment because the government failed to introduce sufficient evidence to convict her of conspiracy, and remand the case to the district court for further proceedings on the possession with intent to distribute charge.

The evidence presented by the prosecution was not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado was guilty of conspiracy. Delgado's unconsummated “agreement” with a produce broker's agent to commingle marijuana with produce in a motor freight shipment was not an actual agreement as required for the crime of conspiracy: the broker's agent was an undercover government informer, who only pretended to agree to the scheme with Delgado pursuant to ICE officers' plan to incriminate Delgado and seize contraband marijuana. The evidence was also not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado agreed with the unknown person who supplied the marijuana, the unknown prospective recipient, or any other person, to commit a crime that amounted to more than a buyer-seller relationship. The district court did not inform the jury that neither an agreement with a government informer who intends to frustrate the conspiracy, nor a simple buyer-seller relationship, is legally sufficient to amount to a conspiracy. Because there was no evidence that Delgado entered into an agreement with anyone other than the informer to engage in anything beyond a simple buyer-seller transaction, the conspiracy charge must be dismissed due to insufficient evidence.

In addition, Delgado's trial was rendered fundamentally unfair by the cumulative effects of several errors. Two members of the prosecution team engaged in trial misconduct that was unfairly prejudicial to Delgado. The prosecutor, in his closing argument, told the jury that Delgado (who did not take the witness stand) had lied when she told the investigating government agents that she was unaware that marijuana had been hidden in the sleeping compartment of the truck. In addition, a law enforcement officer witness made an uncalled-for comment during his testimony to the effect that Delgado's trucking company had been involved in a prior, uncharged, drug-related crime. Furthermore, the district court improperly instructed the jury that it could find Delgado guilty of possession if it found that she had been deliberately ignorant as to whether the marijuana was located inside a truck on her premises; that instruction was erroneous because the government failed to lay the required predicate for it by introducing evidence of circumstances indicating that Delgado was subjectively aware of a high probability that the marijuana was in the truck and consciously avoided discovering it. And the record on appeal does not contain a complete transcript of the proceedings at trial, thereby limiting the ability of Delgado's new appellate counsel to present an effective appeal. These errors, in the context of this case, were cumulatively sufficient to render the proceedings fundamentally unfair. Delgado is therefore entitled to a new trial as to the remaining charge against her.

I. FACTS

The government's case against Delgado was based essentially on the testimony of a paid informer as to Delgado's agreement, which was never consummated, to pay the informer to help her ship marijuana concealed in a legitimate load of broccoli; and the testimony of law enforcement officers concerning their discovery of a large quantity of marijuana in a locked tractor-trailer parked at her house. Delgado did not testify at trial. The government failed to present any witness who could testify to having seen her possess marijuana or enter the truck. Nor did any prosecution witness, other than the paid informer, testify to having heard Delgado confess or admit to knowingly possessing the marijuana.

On September 11, 2006, federal customs officers, acting on the informer's tip and Delgado's consent to search her rural residence near Weslaco, Texas, found 230 kilograms of marijuana secreted in the locked sleeper cab of a semi-trailer truck parked inside her fence. Delgado denied knowing that the drugs were inside the vehicle and told the officers that the truck driver who had parked and locked the rig there must have left the marijuana inside. Delgado was, insofar as the evidence disclosed, the sole owner-operator of TJ Trucking, which hired drivers to operate its semi-trailer that transported Mexican produce between Laredo, Texas and points throughout the United States. She did not drive or accompany the truck on long hauls, but operated the business largely by phone from an office in her home.

The informer, Bartolome Vasquez, was a Mexican legal resident employed by a Laredo, Texas produce broker and shipper. Vasquez testified that he had known and done business with Delgado for almost four years, during which time he assembled shipments of Mexican produce to be hauled by TJ Trucking. He dealt regularly with Delgado by phone and in person and estimated that they spoke approximately four times per month to arrange shipments. He regarded her as a legitimate trucking business operator until, on September 8, 2006, she abruptly offered to pay him $10,000 if he would commingle bundles of marijuana in a TJ Trucking delivery of Mexican broccoli to North Carolina. Vasquez said that he refused her offer and immediately reported the incident to Immigration and Customs Enforcement (ICE) officers in Laredo. He knew they might reward such information, because he had informed on customs violators on two prior occasions for $300 and $1,000 respectively. He testified that he received a $7,500 tax-free reward prior to trial for his information and efforts to incriminate Delgado. Somehow—his testimony did not explain exactly how—he withdrew his initial refusal of Delgado's offer and agreed to begin making arrangements for the concealed drug shipment. At the same time, he secretly worked with ICE officers to tape her phone conversations with him about the arrangements. They were able to record only some of the conversations, which were in Spanish and appeared to be only a discussion of arrangements for a regular produce shipment. However, Vasquez testified that the conversations were in code and were really about the proposed marijuana-laced produce shipment. He related that he and the ICE officers planned to have Delgado send the truck containing the marijuana to rendezvous with him on September 11, 2006 at a government-controlled warehouse in Laredo. He said the officers planned to make arrests and seize the drugs then and there. However, he testified, on September 11, 2006, she called and told him the shipment was cancelled because the North Carolina recipient had been arrested. Vasquez testified that he immediately informed the ICE officers of what had happened; told them that the rig with the marijuana was parked at her house; and told them that she had said she would try to return the marijuana that night.

There are some discrepancies or oddities in the record that tend to detract from the reliability of Vasquez's testimony. Although he was over 50 years old, had lived in the United States most of his life, and had taken three years of college-level English, he required the assistance of an interpreter in his testimony. Although the government's opening statement described Delgado's alleged promise to pay Vasquez $10,000 as being conditioned upon the marijuana-laced produce shipment clearing inspection and “get[ting] it past law enforcement,” Vasquez's testimony relates no such conditions. Further, Vasquez testified that Delgado said she planned to try to return the marijuana, but did not say how, where, or to whom; nor did he otherwise indicate that she would be successful in that attempt.

On September 11, 2006, a dozen or so ICE officers from Laredo and McAllen converged on Delgado's house near Weslaco at about 2 p.m. They could see the truck described by Vasquez parked inside the locked fence. Delgado initially did not respond to the officers for about 30 minutes; she then opened her door and, after being informed that the officers were checking out a marijuana tip, agreed to allow them into her property for a search. She voluntarily opened her closet and safe, where the officers found three handguns and a shotgun. They also seized her cell phone, computer, and business papers and records. But she claimed she did not have a key to the truck; she said that only the driver had the key and she did not have his phone number. An officer with a drug-sniffing dog arrived, and Delgado allowed the dog to traverse her property inside and out and around the semi-trailer rig. The dog did not alert on anything. Some of the officers terminated their search as fruitless at this point, but others persisted. After unsuccessfully trying to open the rig's cab with keys from Delgado's office, an officer obtained her permission to do anything he could, without breaking...

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14 cases
  • United States v. Delgado
    • United States
    • U.S. Court of Appeals — Fifth Circuit
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    ...conspiracy charge, and remanded the case for further proceedings on the possession with intent to distribute charge. United States v. Delgado, 631 F.3d 685 (5th Cir. 2011). The panel opinion was vacated by our decision to rehear the case en banc. United States v. Delgado, 646 F.3d 222 (5th ......
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    ...conspiracy charge, and remanded the case for further proceedings on the possession with intent to distribute charge. United States v. Delgado, 631 F.3d 685 (5th Cir.2011). The panel opinion was vacated by our decision to rehear the case en banc. United States v. Delgado, 646 F.3d 222 (5th C......
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