U.S. v. Broussard

Citation80 F.3d 1025
Decision Date04 April 1996
Docket NumberNo. 94-20685,94-20685
Parties44 Fed. R. Evid. Serv. 270 UNITED STATES of America, Plaintiff-Appellee, v. Ursula Bernadette BROUSSARD; Raphael A. Castro, a/k/a Johny Castillo Rivera; a/k/a Johny Castillo Rivera In Custody; Ruth Castro; Romel William Torres; Claude Merritt, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Ralph R. Martinez (Court-appointed), Martinez, Martinez & Martinez, Houston, TX, for Raphael Castro.

Erik R. Sunde (Court-appointed), Houston, TX, for Torres.

Joel D. Mallory, Jr. (Court-appointed), Houston, TX, for Ruth Castro.

Mike DeGeurin (Court-appointed), Houston, TX, for Merritt.

Lisa Simotas, U.S. Dept. of Justice, Washington, DC, Paula C. Offenhauser, James L. Powers, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for appellee.

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

Before JOLLY, JONES and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Ursula Broussard ("Broussard"), Ruth Castro, Raphael Castro, Claude Merritt ("Merritt"), and Romel Torres ("Torres") appeal from their convictions on various charges stemming from their participation in a drug-trafficking organization. Merritt also appeals from the sentence imposed for his drug conviction. We affirm.

BACKGROUND

The convictions arise out of the Drug Enforcement Agency's ("DEA") investigation of a drug-trafficking organization operating out of Houston, Texas. The DEA believed that Torres was the organization's kingpin. Torres's drug-trafficking associates included Ruth Castro, his common-law wife, Raphael Castro, her brother, Merritt, Broussard, Pearl Hughes, Harold Garcia, and Henry Carvoijol. 1 The organization was transporting large quantities of cocaine to New York and Chicago in several cars equipped with hidden compartments. An associate of Torres would transport the cocaine and would then return to Houston with money stashed in the hidden compartment.

After placing several members of the organization under surveillance and searching some members' homes, the defendants were indicted on various counts. A jury convicted Broussard, Ruth Castro, Raphael Castro, and Merritt of conspiring to possess cocaine with intent to distribute; Raphael Castro, Merritt, and Torres of possessing cocaine with the intent to distribute; and Torres of engaging in a continuing criminal enterprise, using a communications facility in the course of a controlled substance offense, conspiracy to launder money, eight counts of money laundering, and eight counts of evading a currency reporting requirement.

In this appeal, the various appellants attack the sufficiency of the evidence, various orders on motions to suppress, denials of requests for severance, and a sentence enhancement based on the possession of firearms.

DISCUSSION
I. Sufficiency of the Evidence

Broussard and Ruth Castro contend that the evidence was insufficient to support their convictions for conspiracy to possess cocaine with the intent to distribute. In reviewing sufficiency, this Court views the evidence and all inferences to be drawn from it in the light most favorable to the jury verdict to determine whether a reasonable jury could find that the evidence establishes guilt beyond a reasonable doubt. United States v. Sanchez-Sotelo, 8 F.3d 202, 208 (5th Cir.1993), cert. denied, --- U.S. ----, 114 To establish a drug conspiracy under 21 U.S.C. § 846, the government must prove: (1) the existence of an agreement between two or more persons to violate federal narcotics laws; (2) that the defendant knew of the agreement; and (3) that the defendant voluntarily participated in the agreement. United States v. Gallo, 927 F.2d 815, 820 (5th Cir.1991). The elements may be proved by circumstantial evidence and "[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation ... be sufficient to constitute conclusive proof." United States v. Roberts, 913 F.2d 211, 218 (5th Cir.1990), cert. denied, 500 U.S. 955, 111 S.Ct. 2264, 114 L.Ed.2d 716 (1991) (quoting United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989)).

S.Ct. 1410, 128 L.Ed.2d 82 (1994). "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence." United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995).

A. Broussard

Broussard contends that the evidence is insufficient to prove her knowledge of and voluntary participation in the drug ring. She argues that the Government's entire case was based on the fact that she is the sister of Pearl Hughes, a co-indictee who entered a plea pretrial, and lived with several alleged members of the drug ring. Broussard correctly asserts that a conviction cannot be based solely on the existence of familial relationships or upon the defendant's mere knowing presence. See United States v. Williams-Hendricks, 805 F.2d 496, 503 (5th Cir.1986). Inferences drawn from familial relationships or mere knowing presence, however, may be combined with other circumstantial evidence to support a conspiracy conviction. Id.

The Government relies on several pieces of evidence to support Broussard's conviction. The Government argues that Broussard's various conversations with Torres indicate her voluntary participation because she knew to contact Torres when a problem arose and she understood the need to be discreet when contacting him. The record reveals that Hughes was arrested in Louisiana while on a drug-transporting trip. Shortly thereafter Broussard contacted Torres and stated, "I think we got a problem." On July 12, 1993, Broussard called Torres from a friend's home to tell him that Hughes's bail had been set at $500,000. When Torres discovered where Broussard was calling from, he became concerned that she had not used a pay phone. Broussard assured him that the phone was "safe," but Torres remained unconvinced, informing Broussard, "Listen, if people around anything, you know if people just around, while we talk that's not the way--you can always find a payphone."

Evidence was also presented that on at least one occasion Broussard reserved hotel rooms for Hughes to stay in on a drug run. Broussard admitted during questioning by DEA agents that she participated in two trips and that she had received a share of the fee plus expenses for each trip. Although Broussard contends that Hughes testified that Broussard was unaware that the vehicles contained secret compartments to carry drugs, the Government asserts that the jury could infer that Broussard knew at the time she willingly participated in the trips that their purpose was to transport illicit drugs. 2 Broussard also knew that Torres paid Hughes to transport $60,000 from Houston to Miami.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the conviction should be upheld. See Sanchez-Sotelo, 8 F.3d at 208. A reasonable jury could infer from the evidence that

Broussard knew of and voluntarily participated in the drug-trafficking conspiracy.

B. Ruth Castro

Castro argues that the evidence is insufficient to support her conviction for drug conspiracy. 3 The Government principally relied on two recorded phone conversations in prosecuting Castro. On July 8, 1993, two days before Hughes was arrested in a gold Lincoln Continental carrying fifty-four bags of cocaine in Louisiana, Castro paged her brother, Raphael Castro, and put in a call-back code of "54." She then called her sister, Luce, and informed her using code words that she had placed a number in Raphael Castro's beeper. Ruth Castro then stated, "Mark him, so he can come and take the yellow ... car," 4 and also requested that Luce tell Raphael that Ruth needed a favor from him.

Soon after Hughes was arrested on July 10, 1993, Torres and Ruth Castro engaged in a coded conversation:

Torres: I got a call, my aunt like ... I don't know yet what's happening.

. . . . .

Castro: Is she ill?

Torres: It's not known exactly yet, what it is....

Bob Boudreau, a DEA agent, testified that based upon his experience and his involvement in the investigation, Torres's reference to an "aunt" informed Castro that one of Torres's associates was in trouble, and Castro's response inquiring whether the aunt was ill was intended to specifically question whether Hughes had been arrested.

Castro argues that these conversations do not prove that she either knew of or voluntarily participated in the conspiracy. She asserts that the Government presented no evidence that she was alone during her conversation with Luce concerning the "yellow car." Thus, she claims the Government could not discount the strong probability that she was merely passing along messages without being aware of their content. In United States v. Ortiz, 942 F.2d 903 (5th Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992), the defendant similarly argued that she relayed messages without understanding their content. This Court rejected her argument, noting that her explanations "blithely overlook the fact that we are bound at this juncture to 'resolve all inferences and credibility assessments in favor of the jury verdict.' " Id. at 908 (quoting United States v. Singh, 922 F.2d 1169, 1173 (5th Cir.), cert. denied, 500 U.S. 938, 111 S.Ct. 2066, 114 L.Ed.2d 471 (1991)). Castro's arguments reflect the same misapprehension of our role in reviewing the evidence. Castro apparently made this self-serving argument to the jury; the jury rejected it.

In addition to the phone conversations, Castro associated with various members of the conspiracy, was a frequent passenger in many of the cars used for drug transport, often was present at sites,...

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