U.S. v. Anchondo-Sandoval, ANCHONDO-SANDOVA

• Decision Date: 22 August 1990
• Docket Number: ANCHONDO-SANDOVA,D,No. 89-1553,89-1553
• Citation: 910 F.2d 1234
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albertoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1234

910 F.2d 1234

UNITED STATES of America, Plaintiff-Appellee, v. Alberto ANCHONDO-SANDOVAL, Defendant-Appellant.

No. 89-1553.

United States Court of Appeals Fifth Circuit.

Aug. 22, 1990.

Rehearing Denied Sept. 19, 1990.

Christine W. Kelso, Robert J. Perez, Asst. Federal Public Defenders, Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for defendant-appellant.

Richard L. Durbin, Jr., Le Roy Morgan Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before REAVLEY, DUHE, and WIENER, Circuit Judges.

DUHE, Circuit Judge.

Alberto Anchondo-Sandoval appeals his convictions for importation of marijuana and possession of marijuana with intent to distribute in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 841(a)(1). He claims the evidence is insufficient for conviction and that prosecutorial misconduct prevented a fair trial. We affirm.

Anchondo-Sandoval crossed the border from Mexico into the United States at the Ysleta Port of Entry east of El Paso, Texas. At the primary inspection point he presented to United States Custom Inspector Fernando Rangel an immigration document and asserted that he had been in Mexico visiting relatives. He had no driver's license and no money on his person. He told Inspector Rangel that he had been in Mexico visiting relatives and was travelling to Phoenix, Arizona where he intended to find employment as a field worker.

Though Anchondo-Sandoval did not appear nervous or intoxicated, the inspector directed him to the secondary inspection station because Anchondo-Sandoval was unable to produce a driver's license and because his vehicle, a 1978 Thunderbird bearing expired Arizona plates, "met a good profile" for closer scrutiny because it was in poor condition and thus could readily be junked.

At the secondary sight Inspector Rangel illuminated the vehicle's interior with a flashlight and noted that the rear quarter panel on the passenger side appeared to be loose. The officer pried the panel slightly open and saw what he believed to be packages concealed in the compartment formed by the quarter panel. Customs Inspector Pete Reyes inspected the panel and concurred with Inspector Rangel's conclusion. The Customs officers ultimately recovered 13 one-pound bags of marijuana which had been secreted in the vehicle. However, there had been no odor of marijuana in the automobile.

Anchondo-Sandoval, who was standing outside the vehicle during the inspection, expressed surprise when informed that marijuana had been found in the car. He advised the officers that he did not own the vehicle and had driven it across the border at the request of a friend. The officers testified that at this juncture Anchondo-Sandoval said nothing about helping the friend and his wife enter the United States unlawfully nor did he offer to help locate them at the planned rendezvous spot.

DEA Agent Steven Robertson arrived at the inspection station and interviewed Anchondo-Sandoval about two hours after the seizure of the marijuana. Anchondo-Sandoval again denied that he knew of the presence of the marijuana in the automobile. He then explained that he was a construction worker from Albuquerque, New Mexico where he lived with his cousin and his cousin's wife. They had given him money and clothes to enable him to travel to Juarez, Mexico by bus. While in Juarez he encountered Elias Molinar and his wife; Elias was the brother of Louis Rene Molinar, a good friend of Anchondo-Sandoval. Elias told Anchondo-Sandoval that he and his wife were in Mexico visiting relatives though they were not legally allowed to leave the United States because of their immigration amnesty status. Thus Elias agreed to drive Anchondo-Sandoval back to Albuquerque if Anchondo-Sandoval would drive Elias' automobile back across the border. Elias and his wife planned to sneak across the Rio Grande and meet Anchondo-Sandoval a short distance from the checkpoint.

At this point in the interview Anchondo-Sandoval offered to assist Agent Robertson make a controlled delivery of the vehicle to Elias. Robertson declined the offer due to the two hour delay and to the visibility of the checkpoint from the surrounding area. He believed that even if Elias and his wife had been waiting for Anchondo-Sandoval at the appointed spot, they would have observed the search and fled.

A subsequent search of the vehicle yielded a New Mexico license plate registered to an individual with an Albuquerque address; Robertson was unable to locate a current address for that person. This New Mexico license plate expired in December 1988, one month after the seizure. The Arizona tag displayed on the vehicle at the time of Anchondo-Sandoval's arrest was registered to Louis Rene Molinar, Elias Molinar's brother. This Arizona tag had expired in July 1988, three months before the events upon which this prosecution was based. Louis Rene Molinar later informed agent Robertson that he had owned the Thunderbird but had sold it to someone, he could not remember who, in Mexico.

The government charged Anchondo-Sandoval with importation of marijuana and possession of marijuana with intent to distribute. Following a trial by jury, the district judge declared a mistrial because the jury was unable to reach a verdict. A different judge presided over Anchondo-Sandoval's second trial, following which the jury returned a verdict of guilty on both counts. The trial court sentenced Anchondo-Sandoval to 13 months' imprisonment on each count to run concurrently and three years of supervised release; the court also imposed a special assessment of $100.

Sufficiency of the Evidence

In reviewing the sufficiency of the evidence, the court views the evidence in a light most favorable to the government and with all reasonable inferences and credibility choices made in support of the jury's verdict. The standard of review inquires whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Kim, 884 F.2d 189, 192 (5th Cir.1990); 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).

Conviction for possession with intent to distribute requires proof of (1) knowing (2) possession (3) with intent to distribute. United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir.1989). To sustain an additional importation count the government must show that the defendant played a role in bringing the marijuana into the United States from a foreign country. Id. The knowledge requirement is the only element about which there is any serious dispute.

Possession of or control over a vehicle does not, standing alone, suffice to prove guilty knowledge. United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir.1989); United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.1988). Thus where the case involves "hidden compartments within a vehicle, reliance should not be placed solely on control of the vehicle" and there should be corroboration such as "circumstances evidencing a consciousness of guilt on the part of the defendant." Olivier-Becerril, 861 F.2d at 427. Although this court has expressed an unwillingness "to rely solely on control of the vehicle" to affirm a finding of knowledge, the court will sustain a jury's determination if other circumstances demonstrate consciousness of guilt. United States v. Richardson, 848 F.2d 509, 512-13 (5th Cir.1988). See Martinez-Mercado, 888 F.2d at 1491. In sum, knowing possession can be inferred from the defendant's control over the vehicle in which the illicit substance is contained if there exists other circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge. Martinez-Mercado, 888 F.2d at 1491; Olivier-Becerril, 861 F.2d at 426-27.

The government concedes that the record contains no direct evidence of Anchondo-Sandoval's knowledge and that the sufficiency issue is "close." Nevertheless, Anchondo-Sandoval made several contradictory statements during his interviews with the Customs and DEA agents which justify a "consciousness of guilt" finding.

When Anchondo-Sandoval first entered the checkpoint he stated that he had been in Mexico visiting relatives or friends, was returning to Phoenix, Arizona, and intended to find employment there as a field worker. He later asserted that he was in Juarez, Mexico to live cheaply while looking for work in El Paso, Texas and that he intended to return to Albuquerque, New Mexico. Furthermore, he later stated that he intended to look for construction work, not field work. It is also curious that Anchondo-Sandoval chose an isolated point of entry 15 miles east of Juarez and El Paso because his intent was to travel westward upon arriving in the United States.

We note Anchondo-Sandoval's contradictory explanations of his motivations for travelling and his intended destinations, his explanation that persons he met by chance in a large city lent him the vehicle in which the marijuana was concealed, and other explanations of events that the jurors could have considered to be inconsistent with common practice. Such inconsistencies in Anchondo-Sandoval's story coupled with possession of the vehicle allow for an inference of his guilty knowledge. Martinez-Mercado, 888 F.2d at 1491; Richardson, 848 F.2d at 513. The evidence is not insufficient as a matter...