U.S. v. Pruneda-Gonzalez

Decision Date29 January 1992
Docket NumberA,No. 90-2700,PRUNEDA-GONZALE,90-2700
Citation953 F.2d 190
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Salatillejandro Tamayo-Ramos, Heraclio Pena-Hernandez, and Ignacio Hernandez-Beltran, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Roland E. Dahlin, II, Federal Public Defender, Juan E. Gavito, Jose Gonzalez-Falla, Asst. Federal Public Defenders, Houston, Tex., for Gonzalez.

Jose Luis Pena, Harlingen, Tex., for Beltran-Hernandez & Ramos.

Alfredo Padilla, Brownsville, Tex., for Hernandez-Beltran & Pena-Hernandez.

Paula C. Offenhauser, James L. Turner, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S.

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

Before POLITZ, Chief Judge, SMITH, Circuit Judge, and FITZWATER, * District Judge.

FITZWATER, District Judge:

Four defendants appeal their convictions for conspiracy to possess with intent to distribute marihuana and possession with intent to distribute marihuana. Each defendant challenges the sufficiency of the evidence, and three defendants contend they established the defense of entrapment as a matter of law and proved government witnesses were improperly compensated on a contingent basis. We find no merit in any of these arguments and affirm.

I

We recount the evidence in the light most favorable to the verdict, affording the government the benefit of all reasonable inferences and credibility choices. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988).

On the morning of February 12, 1990 Gilberto Sauceda Salazar ("Salazar") approached defendant Ignacio Hernandez-Beltran ("Hernandez") to ask for a loan so that he could pay his light bill. Hernandez loaned Salazar $100 and asked him if he knew of anyone who could "help him move" approximately one hundred pounds of marihuana from Texas to Florida. Salazar told Hernandez he would attempt to find someone to do the job. Around 9:00 a.m. 1 Salazar approached Joe Perez ("Perez"), who agreed to transport the marihuana. That afternoon, Salazar telephoned Hernandez to inform him of this fact. Hernandez then told Salazar there were 300 pounds of marihuana to be transported.

Unknown to Salazar or Hernandez, Perez was a confidential informant for the Drug Enforcement Administration ("DEA"). Perez informed the DEA of the arrangement and, in turn, it established surveillance of the various participants.

At 2:17 p.m. Hernandez and an unidentified man drove in a Mercury Cougar to Salazar's house. Salazar left the two men at his home and drove to Perez's house to update Perez. When Salazar returned home, Hernandez and the other man departed.

At approximately 3:30 p.m. Salazar drove to his sister's house to obtain boxes to be used to transport the marihuana. When he returned, he telephoned Hernandez to inform him he had the boxes.

At approximately 3:50 p.m. a brown and beige van arrived at Salazar's house. According to the testimony of DEA Agent T.K. Solis ("Solis"), which we accept as favorable to the verdict, defendant Hernandez drove the van and defendants Salatil Pruneda-Gonzalez ("Pruneda") and Heraclio Pena-Hernandez ("Pena") accompanied Hernandez. 2 The three met with Salazar in his driveway for a few minutes. Pruneda and Pena then loaded empty cardboard boxes into the van as Hernandez and Salazar conversed. After loading was completed, Hernandez, Pruneda, and Pena took the van to Hernandez's house, where it remained until that evening.

At approximately 7:02 p.m. the van departed from Hernandez's residence, arriving at Salazar's house at 7:16 p.m. According to the testimony of DEA Agent Larry Councilman ("Councilman"), which we accept as favorable to the verdict, defendants Alejandro Tamayo-Ramos ("Tamayo") and Pruneda were in the van. 3 Salazar testified the two occupants of the van both told him the vehicle was loaded with 500 pounds of marihuana. Salazar then called Perez, informed him the van was ready, drove the van to Perez's house, and walked back to his house. Thereafter, Hernandez and Pena arrived in a Mercury Cougar, carrying a bag containing money with which to pay Perez. 4 Both brought the money to Salazar, but Hernandez had the money in his hands. Hernandez told Salazar the bag contained $16,000, representing one-half payment in advance.

Defendants Hernandez, Pruneda, Pena, and Tamayo then left Salazar's house riding together in the Mercury Cougar. Shortly thereafter, Salazar went to Perez's house, where the van was parked, and gave the money to Perez. The four defendants headed northbound toward San Benito, Texas. Perez, driving the marihuana-laden van, took a similar route. Salazar followed Perez. DEA agents stopped all three vehicles shortly thereafter. The van that had been observed throughout the day, and that was then being driven by Perez, was found to contain seven boxes filled with a total of 593 pounds of marihuana.

II

Defendants first seek reversal on the ground that the evidence is insufficient to sustain their convictions.

In deciding the sufficiency of the evidence, we determine whether, viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt. United States v. Chavez, 947 F.2d 742, 744 (5th Cir.1991) (citing Glasser, 315 U.S. at 80, 62 S.Ct. at 469; United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). It is not necessary that the evidence exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt. Id.

At the close of the evidence, only defendant Pruneda moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). 5 Because defendants Hernandez, Pena, and Tamayo failed to move for acquittal, we review the sufficiency of the evidence against them only to determine whether affirmance of their convictions would result in a "manifest miscarriage of justice." See United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.1989); United States v. Hall, 845 F.2d 1281, 1283 (5th Cir.), cert. denied, 488 U.S. 860, 109 S.Ct. 155, 102 L.Ed.2d 126 (1988). This occurs only if the record is "devoid of evidence pointing to guilt." Robles-Pantoja, 887 F.2d at 1254 (quoting United States v. Ivory, 468 F.2d 613, 614 (5th Cir.1972)). We review Pruneda's argument under the Glasser v. United States standard.

A

We have little difficulty concluding the record is sufficient to sustain the convictions of Tamayo, Pena, and Hernandez. In order to prove the offense of conspiracy to possess with intent to distribute marihuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), the government was required to prove beyond a reasonable doubt (1) the existence of an agreement between two or more persons to possess marihuana with the intent to distribute it, and (2) the defendant's knowledge of, (3) intention to join, and (4) voluntary participation in the conspiracy. See United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989) (cocaine conspiracy case). The government need not establish the agreement by direct evidence; the jury may infer such an agreement from circumstances. United States v. Singh, 922 F.2d 1169, 1173 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2066, 114 L.Ed.2d 471 (1991). In order to prove the offense of possession with intent to distribute marihuana, in violation of 21 U.S.C. § 841(a)(1), the government was required to prove beyond a reasonable doubt the (1) knowing (2) possession of marihuana (3) with intent to distribute it. United States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir.1986). A jury may infer a defendant's intent to distribute marihuana from the possession of a large amount. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986).

The trial record is not devoid of evidence pointing to the guilt of Tamayo, Pena, and Hernandez. Viewed favorably to the jury's verdict, the evidence shows Hernandez asked Salazar on February 12, 1990 if he knew of anyone who could "help him move" marihuana from Texas to Florida. Salazar arranged for Perez to do the job and so informed Hernandez. Later that day, Hernandez went to Salazar's house, departed, and returned in a van. Two men loaded the van with empty boxes from Salazar's pickup truck while Hernandez and Salazar conferred. The van then returned to Hernandez's house, where it remained for several hours. At approximately 7:02 p.m. two codefendants drove the van to Salazar's house and told Salazar the van was loaded with 500 pounds of marihuana. Hernandez arrived a short time later and delivered to Salazar a paper bag containing money that Perez was to be paid for transporting the marihuana to Florida. Hernandez and three codefendants then departed from Salazar's house and appeared to be driving in the same direction as was Perez. The van was found to be filled with 593 pounds of marihuana.

We think the evidence is adequate to establish Hernandez was guilty of the offenses of conspiracy and possession with intent to distribute. The record certainly is not devoid of evidence pointing to guilt.

We similarly conclude the evidence against defendant Tamayo is sufficient to sustain his convictions. Accompanied either by Pruneda or Pena, 6 Tamayo drove the van to Salazar's house and told Salazar the van contained 500 pounds of marihuana. Tamayo thereafter departed from Salazar's house together with the other three defendants, apparently driving in the same direction as Perez and the marihuana-laden van. The trial record is not devoid of evidence pointing to Tamayo's guilt for...

To continue reading

Request your trial
60 cases
  • United States v. Owens
    • United States
    • U.S. District Court — Northern District of Mississippi
    • 6 Octubre 2016
    ...the evidence establishes guilt beyond a reasonable doubt.' " Id. (quoting Valdez, 453 F.3d at 256) (quoting United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992)). The question is thus whether the jury's verdict was reasonable—not whether it was correct. Id. (citing Moreno-Go......
  • U.S. v. Branch
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 2 Agosto 1996
    ...by other evidence in the record and there was no need to instruct the jury regarding it. Id.; see also United States v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th Cir.) (holding evidence of entrapment was insufficient to shift burden of persuasion to government), cert. denied, 504 U.S. 978, 1......
  • U.S. v. Thomas
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 25 Enero 1994
    ...the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992). The evidence presented at trial, see United ......
  • U.S. v. Pofahl
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 6 Mayo 1993
    ...verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." 7 United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992). "It is not necessary that the evidence exclude......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT