U.S. v. Peñaloza-Duarte, 05-30881.

• Decision Date: 20 December 2006
• Docket Number: No. 05-30881.,05-30881.
• Citation: 473 F.3d 575
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel PEÑALOZA-DUARTE, also known as Miguel Peñaloza-Duarte, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 575

473 F.3d 575

UNITED STATES of America, Plaintiff-Appellee, v. Manuel PEÑALOZA-DUARTE, also known as Miguel Peñaloza-Duarte, Defendant-Appellant.

No. 05-30881.

United States Court of Appeals, Fifth Circuit.

December 20, 2006.

Mark A. Miller, Stephen A. Higginson, Asst. U.S. Atty., Sivashree Sundaram (argued), New Orleans, LA, for U.S.

Catherine I. Chavarri (argued), Maria I. O'Bryne Stephenson, Stephenson, Matthews, Chavarri & Lambert, New Orleans, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, HIGGINBOTHAM and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Manuel Peñaloza-Duarte ("Peñaloza") was convicted by a jury of aiding and abetting the possession of methamphetamine with the intent to distribute. On appeal, he argues that the evidence is insufficient to convict him beyond a reasonable doubt because it fails to show that he had any criminal intent to advance the crime. Indeed, he contends, the evidence showed hardly more than that he was a passenger in the vehicle with the knowledge that contraband was present. Furthermore, he argues, evidence of criminal intent is especially lacking when considered in the light that he had no criminal record and that he was a confidential informant for local California police. We agree and hold that there is insufficient evidence to support the verdict. We therefore REVERSE and VACATE Peñaloza's conviction and RENDER a judgment of acquittal.

I

On Tuesday, August 24, 2004, Louisiana State Police (LSP) Trooper Ryan Midkiff stopped a white Crown Victoria with California license plates for failing to signal a lane change. The driver was later identified as Jesus Bermudez-Pineda ("Bermudez"). Peñaloza was seated in the passenger seat of the vehicle. Bermudez told Midkiff that the passenger was his cousin. When asked where he was going, Peñaloza said that he and his brother (Bermudez) were going to Florida to visit family.

Bermudez gave Midkiff consent to search the car. During the search, Midkiff discovered seven tape-wrapped packages containing methamphetamine hidden under the glove compartment. At trial it was stipulated that the methamphetamine weighed 876.8 grams with a purity level of 92 percent and that one kilogram of methamphetamine was worth approximately $40,000. No clothes, luggage, or weapons were in the vehicle.

Peñaloza and Bermudez were placed under arrest, read their Miranda¹ rights, placed in the backseat of the same car, and transported to the police substation. At the substation, after being placed in a different interview room from Bermudez, Peñaloza first told an LSP Trooper that he was working for the police. Peñaloza showed Trooper Thomas Noto, who specializes in Narcotics Trafficking, the business cards of Detective Mario Garcia of the Costa Mesa (California) Police Department and of Drug Enforcement Administration (DEA) Task Force Officer Dana Potts. He indicated in English² that he was working for Detective Garcia.

Peñaloza told Noto that while en route to Orlando, Florida, Bermudez told him that there were drugs in the car. Peñaloza stated that Garcia did not know about the drugs, but that he had planned to call Garcia at the next opportunity. Noto then contacted the local DEA office and was told that they knew nothing about the situation; Noto, however, did not call either Garcia or Potts. He later acknowledged that the two business cards Peñaloza provided proved to be legitimate.

While Peñaloza was still at the substation, DEA Special Agent David Drasutis arrived to assist in the investigation. He took custody of the suspects' personal effects, including their pay stubs, which showed that Peñaloza and Bermudez worked for the same employer. Drasutis then interviewed Peñaloza, who stated that he worked for the DEA in California and that Garcia was his control officer.³ Peñaloza told Drasutis that he intended to contact Garcia to inform him about the drugs and repeatedly asked to be permitted to contact Garcia, but was not allowed to do so.

Drasutis contacted Garcia and confirmed that Peñaloza was a documented confidential informant ("CI") for the Costa Mesa Police. Drasutis, who had confiscated Peñaloza's cell phone, reviewed the call list and determined that Peñaloza had recently placed a call to Garcia.

At some point, Senior Special Agent Robert Donald Reidell, who was with the United States Department of Homeland Security, Immigration and Customs Enforcement, arrived at the substation and then transported Peñaloza from the substation to the jail in Amite, Louisiana. During the trip, Peñaloza told Reidell that he had worked on and off for a police officer in Costa Mesa, California named Mario.⁴ Reidell reminded him of his Miranda rights. Peñaloza then told Reidell that he knew the drugs had been placed in the car in Santa Ana, California, that he knew the people who placed the drugs in the car, and that the drugs were destined for Orlando. He stated that he did not know who was to receive the methamphetamine, but that Bermudez did. He told Reidell that he believed that the drugs came across the border in San Ysidro, California, in trucks.

II

In due course Peñaloza was indicted, pleaded not guilty and went to trial. His defense was that he was a CI, that he had no intent to violate the drug laws at any time and that the government had failed to prove that he possessed the methamphetamine with the intent to distribute.

At trial, Detective Garcia confirmed that Peñaloza was a CI and had been so for two years. Garcia testified that he used CIs to gather information and evidence of narcotics traffickers and to make controlled buys and deliveries of narcotics. Garcia said that before a purchase or delivery was contemplated, the control officer always spoke with his CI.

Garcia stated that he had instructed Peñaloza that during the course of any undercover operation, he (Peñaloza) should give him any information "right away," be truthful, and remain in constant contact. Garcia and Peñaloza had exchanged cellular telephone numbers. Garcia and Peñaloza also discussed procedures to be employed when a controlled purchase was contemplated. Peñaloza was instructed that such purchases were always done in conjunction with police supervision and that he was not to conduct such purchases by himself. Garcia testified that Peñaloza understood these procedures and that he had made at least five purchases prior to August 2004. Garcia testified that although he and Peñaloza conducted undercover purchases in other states, such purchases were done "only by phone." Garcia also stated that he "never sent [Peñaloza] out of state to make purchases."

Garcia testified that he spoke with Peñaloza on the night of Saturday, August 21. At that time, Peñaloza told Garcia that there were "some people coming up from Mexico and that he was providing them with a ride up north." Peñaloza stated that "once up north they were going to meet a guy" and discuss business. Peñaloza told Garcia that he would drive back after the meeting and tell Garcia what had occurred. Garcia asked Peñaloza if the meeting involved any drugs or money. Peñaloza told Garcia "no" and that it was a meeting only. Garcia instructed Peñaloza to call him when he returned. Garcia did not speak with Peñaloza again. However, phone records showed that Peñaloza called Garcia at 3:15 p.m. on Sunday, August 22. Garcia did not answer and Peñaloza did not leave a voice message.

Garcia further testified that Peñaloza never mentioned transporting methamphetamine to Florida with Bermudez. Nor did Garcia authorize Peñaloza to become involved in such a transaction. Garcia stated that Peñaloza "came highly recommended from the detective who had handled him before" and that Peñaloza had proven himself to be dependable and reliable. Garcia's testimony was that Peñaloza had provided approximately a hundred tips and leads regarding drug trafficking and that Peñaloza knew "a lot of people in Southern California." Typically, when Peñaloza came to Garcia with a lead that someone was "in on a drug trade," Garcia would tell Peñaloza "to get in good" with that person, "[t]ake a ride with that person, go out to eat with that person, do whatever it [took] to glean the information." Garcia told the jury that although Peñaloza was not a DEA informant at the time of his arrest, he (Garcia) had contacted DEA Agent Potts and filled out various forms early in 2004 in order to start the process of having Peñaloza confirmed as an official DEA informant.

Peñaloza was sentenced to 121 months in prison. He then filed this timely appeal.

III

Peñaloza challenges the sufficiency of the evidence to uphold his conviction. The sufficiency of the evidence is reviewed to determine whether any rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because Peñaloza properly preserved this issue by moving for a judgment of acquittal at the close of the Government's case and at the close of all evidence, this issue is reviewed de novo. See United States v. Izydore, 167 F.3d 213, 219 (5th Cir.1999). In evaluating the sufficiency of the evidence, we view all evidence and all reasonable inferences drawn from it in the light most favorable to the Government. United States v. Gourley, 168 F.3d 165, 168-69 (5th Cir.1999). Review of the sufficiency does not include review of the weight of the evidence or of the credibility of the witnesses. United States v. Garcia, 995 F.2d 556, 561 (5th Cir.1993).

As we have noted, Peñaloza's conviction was for aiding and abetting the possession of methamphetamine with the intent to distribute. To convict a defendant for possession of methamphetamine with intent to distribute, the Government must prove that the defendant (1) knowingly (2) possessed methamphetamine (3) with the intent to...