U.S. v. Pozos

• Citation: 697 F.2d 1238
• Decision Date: 01 February 1983
• Docket Number: No. 82-1294,82-1294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy POZOS and Noble Lee Simpson, Defendants-Appellants. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1238

697 F.2d 1238

UNITED STATES of America, Plaintiff-Appellee, v. Roy POZOS and Noble Lee Simpson, Defendants-Appellants.

No. 82-1294

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Feb. 1, 1983.

Don W. King, Jr., San Antonio, Tex., for Roy Pozos.

Goldstein, Goldstein & Hilley, Gerald H. Goldstein, Robert B. Hirschhorn, San Antonio, Tex., for Noble Lee Simpson.

Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

In the appeal that is now the almost inevitable sequel to conviction of a criminal offense, the defendants assert that the evidence was insufficient to convict either of them and contend that the court should have granted one defendant a change of venue and should have suppressed certain evidence. Finding no merit in the defendants' contentions, we affirm.

I.

Defendants Roy Pozos and Noble Simpson were indicted on charges of conspiracy to possess and distribute methaqualone in violation of 21 U.S.C. Sec. 846 (1976), and complicity in possessing the same drug with intent to distribute. 21 U.S.C. Sec. 841(a)(1) (1976); 18 U.S.C. Sec. 2 (1976). Simpson alone was indicted for carrying a firearm during the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(2) (1976). In a bench trial, each was convicted on all counts.

Construed most favorably to the prosecution, as the evidence must be in view of the verdict, the record reflects support for the following version of events. Pozos first met Gonzales, an undercover DEA agent, on September 21, 1981, at a San Antonio restaurant. They discussed the possible sale to Gonzales of a large quantity of quaaludes. Pozos assured the agent that he could supply the pills. Gonzales indicated that he wanted to sample the merchandise before purchasing a large amount. Pozos replied that the transaction would take place in Austin because his associates were from that area.

Later that day, Pozos telephoned Gonzales and told him that the sample was ready. The two men met at a restaurant in Austin; they later went to a lounge. There Pozos introduced Gonzales to Burnett. The three men discussed the packaging of the pills and the organization in Austin. Pozos told Gonzales that he was a distributor of quaaludes in Austin and that, although he rarely divided packages, he would furnish a sample of five or six pills. Burnett left to place a phone call. On his return, he told Gonzales to expect the sample that afternoon. Pozos departed, stating that he was going to Houston.

Agent Gonzales and Burnett went to Burnett's apartment. Burnett placed another phone call. Simpson arrived shortly thereafter. Burnett advised Simpson that Gonzales was interested in purchasing large quantities of quaaludes. Gonzales stated that he wanted a sample. Simpson went into the bathroom and returned, stating that there was "something strange in the bathroom." Gonzales had visited the bathroom earlier and had not then seen any pills there. When he returned to the bathroom with Burnett, however, they found a bag of pills on top of the commode tank. Simpson indicated that the bag contained one hundred quaaludes. Gonzales replied that he was satisfied and would purchase everything Simpson had available.

Simpson told Gonzales that he would deliver approximately 150,000 pills packaged in five boxes of thirty thousand each. Gonzales was to communicate with Burnett when he was ready for the purchase. Late that night, Gonzales telephoned Burnett, stated that his buyers were satisfied with the sample, and said he wanted to purchase 150,000 pills.

The following day, Gonzales and two undercover police officers arrived in Austin, checked into a hotel, and telephoned Burnett. Gonzales and Burnett met at a restaurant adjacent to the hotel. Gonzales told Burnett that his purchasers were at the hotel. Burnett arranged to have Simpson deliver 30,000 pills that night and an additional 120,000 the following morning.

Simpson met the two agents and the officer in the hotel parking lot. He said that there were too many people around. Simpson, therefore, drove away, motioning for Gonzales to follow. Gonzales followed to a Holiday Inn parking lot. Gonzales told Simpson that he wanted to see the drugs. Simpson opened the trunk of his automobile to show Gonzales a box of 30,000 quaaludes. Gonzales opened the box to be certain that the pills were inside. They were. Simpson was then arrested. The officers, searching Simpson pursuant to his arrest, found that he was carrying a loaded pistol.

II.

Pozos challenges the sufficiency of the evidence to sustain his conviction on each of the three counts. Simpson challenges only the sufficiency of the evidence supporting his convictions for possessing, with intent to distribute, the quaaludes found in the bathroom and possessing a firearm during the commission of a felony.

Our standard of review for sufficiency of the evidence after a bench trial is "whether the evidence is sufficient to justify the trial judge, as trier of facts, in concluding beyond a reasonable doubt that the defendant was guilty." United States v. Niver, 689 F.2d 520, 529 (5th Cir.1982); Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971); United States v. Hull, 437 F.2d 1, 3 (5th Cir.1971); see generally 2 C. Wright, Federal Practice and Procedure Sec. 374 (1982). "Our task is not to reweigh the evidence or to determine the credibility of the witnesses, and we must affirm the verdict if it is supported by substantial evidence." Niver, 689 F.2d at 529.

A. Conspiracy

To prove a conspiracy, the government need only demonstrate that an agreement to commit a crime existed, and the defendant knew of, intended to join, and participated in the conspiracy. See United States v. Nanez, 694 F.2d 405 (5th Cir.1982); United States v. Vergara, 687 F.2d 57, 60 (5th Cir.1982); United States v. Glasgow, 658 F.2d 1036, 1040 (5th Cir.1981). The government demonstrated through Agent Gonzales' testimony that Pozos met with the agent and agreed to supply him with a large number of quaaludes. Pozos introduced Gonzales to Burnett who, together with Simpson, in fact supplied the quaaludes. Pozos discussed the terms and cost of the sale with Gonzales. He indicated that he received a commission on the sale of each quaalude. The evidence of Pozos' involvement in this drug conspiracy was clearly sufficient to warrant his conviction under 21 U.S.C. Sec. 846. ¹

B. Possession With Intent To Distribute--September 21

Both Simpson and Pozos were convicted of aiding each other in the possession, with intent to distribute, of the quaaludes "found" in Burnett's bathroom on September 21. Each challenges the sufficiency of the evidence to sustain his conviction on this count.

The crime of aiding and abetting the possession of a drug with intent to distribute requires proof of two elements: "(1) aiding and abetting the possession and (2) aiding and abetting the intent to distribute." United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir.1982). A defendant aids and abets the commission of a crime when he "willfully associate[s] himself with the criminal venture and willfully participate[s] in it as he would in something he wished to bring about." Fischel, 686 F.2d at 1087; United States v. Phillips, 664 F.2d 971, 1010 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Ballard, 663 F.2d 534, 542 (5th Cir.1981), modified on other grounds, 680 F.2d 352 (5th Cir.1982). It must be proved that the defendant aided and abetted each element of the underlying substantive offense. United States v. Longoria, 569 F.2d 422, 425 (5th Cir.1978); United States v. Jackson, 526 F.2d 1236 (5th Cir.1976).

There was ample evidence to sustain Simpson's conviction. Indeed, the natural inference from the testimony is that Simpson placed the quaaludes in question on the commode in the bathroom so that Agent Gonzales could discover them. This is sufficient evidence to sustain the district court's conclusion that Simpson possessed the quaaludes and intended to distribute them. ²

There is more question about the sufficiency of the evidence to sustain Pozos' conviction on this count. Although his initial negotiation of the quaalude transaction with Agent Gonzales provides sufficient evidence of an intent to distribute, this is only one of the elements. The government was also required to prove that he aided in the possession of the drugs. And evidence that Pozos helped to arrange the sale, without more, would not suffice on the possession element. Jackson, 526 F.2d at 1237.

Nevertheless, we find sufficient record evidence to sustain a finding that Pozos aided in the possession of the quaaludes. He discussed the terms of the sale with Agent Gonzales. He stated that samples of the drug could be supplied. From this, the district court could have found that Pozos shared control, with Simpson and Burnett, over the disposition of the quaaludes. This is sufficient to constitute aiding possession under section 841(a)(1). Fischel, 686 F.2d at 1089. Whether Pozos was present when the actual distribution was made is irrelevant. He is charged with complicity in Simpson's possession of the quaaludes. The question is not whether he actually possessed the pills; it is whether he helped Simpson possess them. Id.

C. Possession With Intent To Distribute--September 22

Pozos contests his conviction for complicity in the possession, with intent to distribute, of the quaaludes found in Simpson's trunk on September 22. The argument is without merit. Simpson clearly possessed the drugs and intended to distribute them to Agent Gonzales. That Pozos aided in this unlawful possession was established by testimony that he arranged the original meeting...