U.S. v. Alarcon, ALARCON-LOPEZ

• Decision Date: 01 August 2001
• Docket Number: ALARCON-LOPEZ,No. 00-50071,ALARCON-PINO,D,00-50071
• Citation: 261 F.3d 416
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LLAMA EDMIDIA ALARCON; SERGIO; and RUBENefendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 416

261 F.3d 416 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LLAMA EDMIDIA ALARCON; SERGIO ALARCON-LOPEZ; and RUBEN ALARCON-PINON, Defendants-Appellants.

No. 00-50071

UNITED STATES COURT OF APPEALS For the Fifth Circuit

Aug. 1, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Joseph H. Gay, Jr., Asst. U.S. Atty., Mark Randolph Stelmach, Asst. U.S. Atty. (argued), San Antonio, TX for Plaintiff-Appellee.

Mike Barclay, Mary Ellen Mimi Smith (argued), Law Offices of Mike Barclay, Alpine, TX, for Llama Edmidia Alarcon.

Judy Fulmer Madewell (argued), San Antonio, TX, for Sergio Alarcon-Lopez.

Carolyn Day Thurmond (argued), Midland, TX, for Ruben Alrcon-Pinon.

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

Before REYNALDO G. GARZA, HIGGINBOTHAM, and SMITH, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Llama Edimia Alarcon ("Llama"), Sergio Alarcon-Lopez ("Sergio"), and Ruben Alarcon-Pinon ("Ruben") (collectively "Appellants") appeal their convictions for using a minor to avoid detection of or apprehension for an offense. The Appellants also appeal the two-level offense level increase pursuant to the United State Sentencing Guidelines for using a minor to commit a crime. For the reasons stated below, we Reverse Sergio's conviction for using a minor to avoid detection of or apprehension for an offense, Vacate his sentence and Remand for re-sentencing, and we Affirm Ruben's and Llama's convictions for using a minor to avoid detection of or apprehension for an offense and the two-level offense level increase. Ruben, further, appeals the admission into evidence of his prior arrest, the trial court's deliberate ignorance jury instruction, and his convictions for possession of marijuana and conspiracy to posses with intent to distribute marijuana. For the reasons stated below, we Affirm the admission into evidence of his prior arrest, the trial court's deliberate ignorance jury instruction, and Ruben's convictions.

1. Factual and Procedural Background.

On August 19, 1999, the government charged the Appellants each with a count of conspiring to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 ("count one"); a count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841 (a)(1) ("count two"); and a count of using a minor to avoid detection of or apprehension for an offense in violation of 21 U.S.C. § 861 (a)(2) ("count three"). The Appellants pled not guilty to all three counts, and the trial court set the case for a jury trial.

At trial, the government presented evidence that Sergio was driving north on Highway 118 near Alpine, Texas in a blue Dodge pickup truck ("pickup") with Llama and her two minor children, that United States Border Patrol Agents stopped the pickup and discovered marijuana inside a hidden compartment under the pickup's bed, and expert testimony that drug smugglers use minors to try to avoid detection by appearing to be a family. The government, further, presented evidence that Ruben, Llama's father, was driving behind Sergio and Llama in a rented car alone, owned the pickup, and, over objection, that Ruben was previously arrested for transporting approximately 131 pounds of marijuana concealed in a borrowed truck's hidden compartment. The arresting agent also testified that when he asked Llama why her children were not riding with their grandfather, she told him that "there was not enough room in Ruben's rental car." The agent, further, testified that Llama did not have an explanation why her children were not riding with their grandfather when confronted with the fact that Ruben's rental car did not have any luggage or passengers.

Ruben and Llama presented a defense; Sergio did not. Ruben's case-in-chief consisted of his own testimony and Esteban Garcia's, one of Ruben's friends. Through an interpreter, Ruben testified that he had sold the pickup to Jose Gutierrez Gonzales, but was now borrowing it, that he did not have knowledge of the marijuana found in the hidden compartment, and that Llama's children were traveling with her because the rented car did not have a stereo. Mr. Garcia testified that Ruben had earlier sold the pickup. After Mr. Garcia testified, Ruben rested.

Llama then presented a defense. Her case-in-chief consisted of her own testimony and Marco Alarcon's ("Marco"), one of her minor children that was in the pickup. Through an interpreter, Llama testified that she did not have knowledge of the marijuana and that her children were traveling with her, rather than with their grandfather, Ruben, because the children wanted to listen to music and the rental car did not have a stereo that could play cassettes. Marco then testified that he rode in the pickup because his battery operated CD player, which easily could have been transported to the rental car, was in the pickup. Following Marco's testimony, Llama rested.

After deliberation, the jury found the Appellants guilty on all three counts. The trial court sentenced Llama and Sergio each to three concurrent 78-month terms of imprisonment, which included a two-offense level increase pursuant to U.S. SENTENCING GUIDELINES MANUAL § 3B1.4 for using a minor to commit a crime. The trial court sentenced Ruben to three concurrent 84-month terms of imprisonment, which included a two-offense level increase pursuant to U.S. SENTENCING GUIDELINES MANUAL § 3B1.4 for using a minor to commit a crime. The trial court, further, sentenced each Appellant to concurrent supervised release terms of five years for count one, five years for count two, and eight years for count three.

2. Discussion.

The Appellants contend that there was insufficient evidence to convict them for use of a minor to avoid detection of or apprehension for an offense in violation of 21 U.S.C. § 861 (a)(2). We agree as to Sergio. Thus, we reverse his conviction for count three and vacate the corresponding sentence. We disagree as to Ruben and Llama. Thus, we affirm their convictions for count three. The Appellants contend that the trial court erred by increasing their offense level by two levels based on their convictions for count three pursuant to U.S. SENTENCING GUIDELINES MANUAL § 3B1.4. We agree as to Sergio. Thus, we vacate his sentences and remand for re-sentencing. We disagree as to Ruben and Llama. Thus, we affirm their sentences. Ruben contends that the trial court committed reversible error when it admitted his prior arrest into evidence, that the trial court committed reversible error when it gave its deliberate ignorance jury instruction, and that there was insufficient evidence to prove he had knowledge that there was marijuana in the pickup or to prove that he participated in a conspiracy. We disagree. Thus, we affirm Ruben's convictions for counts one and two.

2.1 There was insufficient evidence to convict Sergio of using a minor to avoid detection of or apprehension for an offense, but sufficient evidence to convict Ruben and Llama.

The Appellants contend that there was insufficient evidence to convict them of using a minor to avoid detection of or apprehension for an offense in violation of 21 U.S.C. § 861 (a)(2). At the close of the government's case-in-chief, the Appellants each moved for acquittal. The trial court denied their motions. Thereafter, Llama and Ruben each presented a defense; Sergio did not.

At the close of all the evidence, the Appellants all renewed their motions for acquittal.¹ Thus, we review the sufficiency of the evidence de novo. United States v. Brown, 186 F.3d 661, 664 (5th Cir. 1999); United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999). If a defendant moves for acquittal at the end of the government's case-in-chief, but does not present evidence on her behalf during her case-in-chief, as Sergio did , we consider only the evidence presented during the government's case-in-chief, no matter whether a co-defendant testifies or not. United States v. Belt, 574 F.3d 1234, 1236 (5th Cir. 1978). If a defendant moves for acquittal at the end of the government's case-in-chief and presents evidence on her behalf during her case-in-chief, as Ruben and Llama did, we consider the entire record. Id. In both situations, we view the particular evidence in the light most favorable to the verdict, including all reasonable inferences and credibility choices. United States v. Gonzales, 617 F.2d 104, 106 (5th Cir. 1980).

Under the de novo standard of review, "we determine whether . . . a rational jury could have found the essential elements of the offense[]beyond a reasonable doubt." United States v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995). We are concerned only with "whether the jury made a rational decision, not [with] whether its verdict was correct on the issue of guilt or innocence." Id. We must reverse the conviction, under the de novo standard, if "the evidence is such that a reasonably minded jury must have a reasonable doubt as to the existence of any element of the crime," Gonzales, 617 F.2d at 106, or "the evidence . . . gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence." Brown, 186 F.3d at 664; Dean, 59 F.3d at 1484. Alternatively stated, this Court will only uphold a verdict if there is substantial evidence from which a rational trier of fact would have to find all the essential elements of the offense beyond a reasonable doubt. Id.

21 U.S.C. § 861 (a)(2) makes it a crime to "knowingly and intentionally-employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to assist in avoiding detection [of] or apprehension for any offense. . . ." 21 U.S.C. § 861 (a)(2) (1999). During its case-in-chief, the government presented evidence that Llama's minor children were with her and Sergio in the pickup when United States Border Patrol Agents discovered the marijuana, expert testimony that drug smugglers use minors...