U.S. v. Caballero

• Decision Date: 03 August 1983
• Docket Number: No. 82-2027,82-2027
• Citation: 712 F.2d 126
• Parties: 13 Fed. R. Evid. Serv. 1500 UNITED STATES of America, Plaintiff-Appellee, v. Conrado CABALLERO, Juan H. Rodriguez, Daniel Gonzalez and Juan Caceres, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 126

712 F.2d 126

13 Fed. R. Evid. Serv. 1500

UNITED STATES of America, Plaintiff-Appellee, v. Conrado CABALLERO, Juan H. Rodriguez, Daniel Gonzalez and Juan Caceres, Defendants-Appellants.

No. 82-2027.

United States Court of Appeals Fifth Circuit.

Aug. 3, 1983.

Windi Akins, Houston, Tex. (Court-appointed), for Caceres.

H. Frank Rubio, Miami, Fla., for Caballero.

Stephen H. Rosen, Paul Morris, Miami, Fla., for Rodriguez & Gonzalez.

James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GARZA, RANDALL and GARWOOD, Circuit Judges.

GARZA, Circuit Judge:

Defendants assert in this appeal that their convictions must be reversed (1) because the evidence is insufficient to support their convictions; (2) because the inflammatory remarks of the Assistant United States Attorney in the closing argument require a mistrial; and (3) because the court erred in admitting certain co-conspiratorial statements without the benefit of a James hearing. After thoroughly reviewing the record, we affirm the convictions of all four defendants for the reasons specified below.

FACTS

The charges against defendants arose from a Drug Enforcement Administration (DEA) investigation into the suspected narcotics operations of David Punch. That investigation was conducted primarily by one DEA agent, Paul Herring, who posed as an individual involved in the business of importing and storing marihuana. Herring was assisted in his investigation by a number of DEA agents, including Agent Arturo Ramirez, who entered the investigation in late February and was present during the negotiations of the specific transaction for which defendants were indicted.

Agent Herring was introduced to Punch by a DEA informer in October of 1980. Over the course of the next few months, the two had numerous discussions about narcotics operations. For much of the fall, they negotiated the purchase by Herring of ten tons of marihuana. Government seizure in December of the vessel carrying the marihuana eliminated the possibility of that sale. In February, Agent Herring accompanied Punch to Florida for a meeting with his contacts in the smuggling business. This led to renewed negotiations about the importation of a large amount of marihuana. In discussions, Herring had let it be known that he was interested in not only the importation and storage facets of the smuggling operation but also the direct sale aspect of the venture. He told Punch that he had contacts in Denver who could sell the marihuana. Punch again responded to this expressed interest on March 4, 1981, when he mentioned to the agents that he knew someone interested in selling 15,000 pounds of marihuana. The agents expressed interest and generally discussed the idea with Punch for two weeks. These discussions solidified on March 19 when the agents met with Punch at his Galveston home. At that meeting, the agents met Ezell Minton who told them that he had 15,000 pounds of marihuana stored in a warehouse located between Galveston and Houston. The agents told Minton that they were interested in purchasing the drugs but that before they could agree about a price they needed to inspect the marihuana. Minton did produce a two-pound sample, and the agents made an offer to purchase the marihuana, conditioned upon their ability to inspect the product.

The next day, the same parties held another meeting for the purpose of discussing specifics of the sale. Ezell Minton left for a short while during the meeting and returned with defendant Juan Caceres. Later, the agents again insisted on inspecting the marihuana; Caceres explained that this would have to be done in Houston. The five left Punch's home and proceeded to the Candlelight Lounge. Caceres arrived twenty-five minutes after the rest of the group. The ensuing discussion included talk about who would bear the loss in case of government interference with the smuggling operation. Minton and Caceres agreed to bear one-half of the loss, and Herring agreed to absorb the other half.

When Caceres informed the group that his associates had arrived, Herring suggested that Ramirez go to inspect the marihuana. This was consistent with Ramirez' role as one of Herring's assistants. All parties agreed that Ramirez should go with two other persons. Ramirez then left the lounge with Caceres, who introduced him to defendants Daniel Gonzalez and Conrado Caballero and told the agent that the two had a financial interest in the marihuana. Gonzalez questioned Ramirez about his ability to purchase such a large amount of marihuana; Caceres immediately assured Gonzalez and Caballero that the two had sufficient funds.

After this brief exchange, Gonzalez told Caballero to go get the men who were to accompany Ramirez to the warehouse. Ramirez interjected that he could only fit one other person in his small car. Caballero returned from the lounge with defendant Juan Rodriguez. The inspection tour was now set to begin, and Caballero reminded Gonzalez that Rodriguez needed the keys. Gonzalez fished the keys from his pocket and handed them to Caballero who, in turn, handed them to Rodriguez. Caballero also gave Rodriguez a brown paper bag.

Rodriguez and Ramirez proceeded to the warehouse which was located about 10-12 miles from the lounge. They went to the office where Ramirez was introduced to Larry Smith. Smith agreed that they could see the marihuana. Inside the warehouse was a yellow van container which Rodriguez unlocked to reveal between 10,000-15,000 pounds of marihuana. Ramirez examined the marihuana briefly and then the two returned to the Candlelight Lounge. They found Gonzalez and Caballero waiting for them outside the lounge. Caballero asked if the marihuana was satisfactory. Gonzalez said that he had spoken with someone at the warehouse who had assured him that it would remain open until Ramirez finished loading the marihuana. Ramirez stepped inside the lounge for a moment and indicated to Herring that he had seen the marihuana. Herring made the necessary phone call, and defendants were arrested shortly thereafter.

SUFFICIENCY OF THE EVIDENCE

Defendants contend that the government presented insufficient evidence to support their convictions for possession with intent to distribute marihuana in violation of 21 U.S.C. § 841(a)(1). Since the involvement of these four defendants was revealed on the very day they were arrested, they attempt to downplay the roles which they played. They point out that mere presence or association with those who do control the drug is insufficient to support a conviction for possession of marihuana. United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir.1974); United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir.1973). We certainly do not take issue with this principle but simply proceed to examine the evidence in order to determine the extent of defendants' involvement in the charged criminal activity.

The standard of review in a criminal case where the issue of sufficiency is presented is whether a reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. United States v. Thompson, 700 F.2d 944 (5th Cir.1983). In applying that standard, we must consider the evidence and all reasonable inferences therefrom in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The government asserts that the evidence of constructive possession presented in the court below is sufficient to sustain the convictions. Possession may be constructive as well as actual and may be joint among several defendants. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1983). Constructive possession may be proved by "ownership, dominion or control over the contraband itself, or dominion or control over the premises or vehicle in which the contraband was concealed." United States v. Salinas-Salinas, 555 F.2d 470, 473 (5th Cir.1977). In United States v. Martinez, 588 F.2d 495 (5th Cir.1979), this Court noted that "[i]n essence, constructive possession is the ability to reduce an object to actual possession." 588 F.2d at 498.

There is ample evidence of constructive possession to support each defendant's conviction. Defendant Gonzalez had the keys to the vanload of marihuana when Agent Ramirez met him. ¹ This clearly gave him dominion and control over the marihuana. His participation in discussions about the marihuana shows his knowledge about the whereabouts of the drugs. Defendant Juan Rodriguez took this ability to have dominion and control over the marihuana one step further when he used the keys to open the van containing the controlled substance. He obviously did have actual possession of the marihuana.

Defendant Caballero, who reminded Gonzalez to give the keys to Rodriguez, only held the keys briefly as he passed them between the two defendants. His comment about the keys indicates, however, both knowledge of and an ability to obtain dominion and control over the substance. In addition, defendant Caceres introduced both Gonzalez and Caballero to Agent Ramirez as individuals who had a financial interest in the transaction. ² Viewing these two remarks in the light most favorable to the prosecution, we must conclude that the jury possessed sufficient evidence to find that Caballero constructively possessed the marihuana.

Defendant Caceres is the only one of the four defendants whom the agents did not see in possession of the keys. The evidence adduced at trial about his role, however, leads to only one possible conclusion: Caceres was properly convicted of possession of marihuana. At the March 20 meeting where he met Agents Herring and Ramirez, Caceres immediately asked for a clarification of the financial terms of the marihuana sale. ³ When Agent Herring expressed his concern about the quality of the marihuana, Caceres assured him that...