U.S. v. Aguirre Aguirre

• Decision Date: 23 September 1983
• Docket Number: No. 82-1547,82-1547
• Citation: 716 F.2d 293
• Parties: 14 Fed. R. Evid. Serv. 385 UNITED STATES of America, Plaintiff-Appellee, v. Jesus AGUIRRE AGUIRRE and Joe Salvador Cervantes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 293

716 F.2d 293

14 Fed. R. Evid. Serv. 385

UNITED STATES of America, Plaintiff-Appellee, v. Jesus AGUIRRE AGUIRRE and Joe Salvador Cervantes Defendants-Appellants.

No. 82-1547.

United States Court of Appeals Fifth Circuit.

Sept. 23, 1983.

Alan Brown, San Antonio, Tex., for Aguirre.

Warren Weir, San Antonio, Tex., for Cervantes.

Edward C. Prado, U.S. Atty., Sidney Powell, John Murphy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before RUBIN, TATE, and JOLLY, Circuit Judges.

TATE, Circuit Judge:

The defendants Jesus Aguirre Aguirre and Joe Salvador Cervantes were convicted of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1), 846. Cervantes was also convicted of three counts of possession of heroin with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and Aguirre was convicted of aiding and abetting Cervantes on one count of possession of heroin with intent to distribute, 18 U.S.C. Sec. 2. On appeal, the defendants question, inter alia, the sufficiency of the evidence, the use of "other offense" testimony in establishing the James predicate for evidentiary use of statements of a coconspirator, and the refusal of the government to reveal the location of a confidential informant allegedly needed by a defendant to establish an entrapment defense. We find that the defendants' contentions are without merit, and we affirm.

The Facts

The defendants' convictions arise from a series of drug transactions with Drug Enforcement Administration (DEA) agent Art Rodriguez. Initial contact between the defendants and Rodriguez was arranged by a government informant known as "Neto". On June 7, 1982, Neto was given an ounce of heroin by the defendant Cervantes to deliver to Rodriguez. In a telephone conversation with Cervantes that same day, Rodriguez agreed to purchase the heroin, giving Neto the money for delivery to Cervantes.

A meeting between Cervantes and Rodriguez took place the following day, June 8, 1982, at which Neto was present. (Neto was not involved in any negotiation between Rodriguez and the defendant Joe Cervantes following that meeting.) Rodriguez purchased four ounces of heroin, paying for two ounces in cash, and agreeing to pay for the rest as soon as the heroin could be resold. At that meeting Cervantes indicated that he and "Compadre" were importing large quantities of heroin into the United States from Mexico. Cervantes inquired as to whether Rodriguez knew of anyone who would be interested in purchasing large quantities of heroin, indicating that he and Compadre were expecting a large shipment within a week. Rodriguez responded that he would be in contact with Cervantes with regard to purchasing heroin from that shipment.

On June 14, 1982, Rodriguez, unable to reach Joe Cervantes, paid George Cervantes, Joe's stepson, for the amount owed on the remaining two ounces of heroin. George Cervantes indicated that he was aware of the transaction, and offered Rodriguez an additional four or five ounces of heroin, which Rodriguez refused. George also indicated to Rodriguez that "they" had quantities of cocaine to distribute.

Agent Rodriguez met with the defendant Joe Cervantes again on June 18, 1982. At that time, Cervantes indicated that he had gone to Mexico to see Compadre, and that they had prepared the heroin for shipment. Cervantes was waiting for Compadre to arrive in San Antonio to "cut" the heroin. Rodriguez inquired as to the purchase price for a kilogram of heroin, but Cervantes would not quote a price until Compadre arrived. Cervantes did offer Rodriguez four or five ounces of heroin he had available for immediate purchase, and Rodriguez purchased two ounces. Cervantes also inquired about Rodriguez's interest in dealing in other drugs. At that meeting Cervantes referred to his drug dealings in Chicago, and noted that he and Compadre had been arrested in Chicago on charges unrelated to their drug dealings.

On June 22, 1982, in a telephone conversation with Rodriguez, Cervantes stated that he would be travelling to the Mexican border the following day to pick up Compadre. In telephone conversations on June 23, 1982, Cervantes indicated that he had picked up Compadre and that "they" had "cut" a sample of the heroin shipment for Rodriguez. A meeting was arranged for the following morning at which time Rodriguez was to pick up the sample and deliver four bottles of lactose to Cervantes.

The meeting took place as planned on the morning of June 24, 1982. The codefendant Aguirre travelled to the meeting with Cervantes, but remained in the vehicle and did not take part in the negotiations between Cervantes and Rodriguez. In response to Rodriguez's question as to whether the man he had seen in the truck was "Compadre", Cervantes identified Aguirre as Compadre. Cervantes indicated that, following the meeting, he and Compadre were going to "cut" the remainder of the heroin shipment.

A second meeting was scheduled for that evening for delivery of the kilogram of heroin. At the meeting, it was disclosed that Compadre was staying at Joe Cervantes' house. Joe Cervantes arrived without the heroin, but indicated that his stepson George would be bringing the heroin to the meeting shortly. Upon George's arrival, Joe and George Cervantes were arrested. DEA agents proceeded to Joe Cervantes' house, where Aguirre was arrested and more heroin was seized.

On July 6, 1982, a federal grand jury returned a four count indictment against George Cervantes, Jesus Aguirre Aguirre, and Joe Salvador Cervantes. The three defendants were charged in count one with conspiracy to possess heroin with intent to distribute beginning on or before June 8, 1982 and continuing until on or about June 24, 1982. In three additional counts in the indictment, Joe Cervantes was charged with possession of heroin with intent to distribute on June 8, 18, and 24. George Cervantes and Jesus Aguirre Aguirre were charged with aiding and abetting Joe Cervantes' possession with intent to distribute on June 24.

George Cervantes pleaded guilty, but Joe Cervantes and Jesus Aguirre Aguirre exercised their right to trial by jury and were found guilty on all counts. The defendants Joe Salvador Cervantes and Jesus Aguirre Aguirre appeal their convictions.

I. Aguirre's Contentions

A. Sufficiency of the Evidence

Aguirre contends that (A) there was insufficient evidence to sustain the jury verdict of guilty on either the conspiracy charge or the aiding and abetting charge, and (B) the trial court erred in using evidence of prior similar acts to support its James finding that a conspiracy was shown independent of out-of-court declarations by coconspirators.

Aguirre challenges the sufficiency of the evidence to sustain his convictions for conspiracy to possess heroin with intent to distribute and for aiding and abetting Joe Cervantes' possession of heroin with intent to distribute on June 24, 1982. The appropriate standard of review for such a contention is whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.) (en banc), cert. granted on another issue, --- U.S. ----, 103 S.Ct. 444, 74 L.Ed.2d 600 (1982). Further, this court must view the evidence and all reasonable inferences which may be drawn therefrom, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1972); United States v. Lorence, 706 F.2d 512, 518 (5th Cir.1983).

1. Conspiracy

In conspiracy cases, a finding of guilt must be predicated upon proof beyond a reasonable doubt that a conspiracy to accomplish an unlawful purpose existed, the defendant had knowledge of the unlawful conspiracy, and the defendant voluntarily agreed to join the conspiracy. United States v. Montemayor, 703 F.2d 109, 115 (5th Cir.1983); United States v. Jackson, 700 F.2d 181, 185 (5th Cir.1983). In a drug conspiracy case, however, under the provisions of the drug conspiracy statute, proof of an overt act in furtherance of the conspiracy is not necessary. United States v. Kupper, 693 F.2d 1129, 1134 (5th Cir.1982). Moreover, proof of the defendant's knowledge of all the details of the drug conspiracy is not required, as long as knowledge of the essential details is established, and the defendant need neither have been present at the inception of the conspiracy, nor have played a major role therein. United States v. Montemayor, supra, 703 F.2d at 115; United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981).

A conspiracy may be proved by direct as well as circumstantial evidence. United States v. Kupper, supra, 693 F.2d at 1134. Although mere presence at the scene of the crime or close association with a coconspirator will not support the inference of a conspiracy, United States v. Davis, 666 F.2d 195, 201 (5th Cir.1982), a conspiracy may be inferred from a concert of action, United States v. Dean, 666 F.2d 174, 178 (5th Cir.1982), or "a development and a collocation of circumstances." Glasser v. United States, supra, 315 U.S. at 80, 62 U.S. at 469 (quoting from United States v. Manton, 107 F.2d 834, 839 (2nd Cir.1938), cert. denied, 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012 (1939)). Moreover, evidence concerning criminal acts prior to the period charged in the indictment may be admissible as bearing on the existence and purpose of the conspiracy charged. United States v. Bates, 600 F.2d 505, 509 (5th Cir.1979).

Viewing the evidence and all reasonable inferences which may be drawn therefrom in the light most favorable to the government, we find that the evidence presented at trial was sufficient for a reasonable trier of fact to find beyond a reasonable doubt that Aguirre conspired with Cervantes to possess...