U.S. v. Cardenas Alvarado

• Decision Date: 11 December 1986
• Docket Number: No. 86-1273,86-1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin CARDENAS ALVARADO, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 566

806 F.2d 566

UNITED STATES of America, Plaintiff-Appellee, v. Martin CARDENAS ALVARADO, Defendant-Appellant.

No. 86-1273

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 11, 1986.

William R. Maynard, Asst. Fed. Pub. Defender, El Paso, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., Joe Galenski, El Paso, Tex., Sidney Powell, Asst U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Appellant Martin Cardenas Alvarado (Cardenas) was convicted on various drug related charges. On appeal, Cardenas claims that there was insufficient evidence to support his convictions and that the prosecutor violated his Fifth Amendment privilege against self-incrimination by commenting on his silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Finding no merit to these contentions, we affirm.

I.

On Thursday, January 9, 1986, at approximately 8:30 p.m., two United States Border Patrol agents, Ed Barrett and Fred Bauman, were on surveillance on the Mexico border approximately five and one-half miles east of the Ysleta port-of-entry near El Paso, Texas. They parked their marked van on the crossover of an irrigation ditch six to eight hundred yards from the Rio Grande boundary with Mexico. They knew that the particular area was commonly used by undocumented Mexican field workers to cross illegally into the United States to work, usually in groups of two to four people.

The agents noticed unusual movement along a drainage canal, and using binoculars they could see a string of people carrying bundles approaching them. The people were walking single file, evenly spaced, but close together. As the people walked closer to the van, they suddenly disappeared from the agents' view.

The agents immediately turned on the van's headlights and drove along the drainage ditch to cut them off before they could run back across the border. Upon arriving at the south end of the ditch, approximately 300 yards away, Cardenas ran in front of the van. The agents captured him but were unable to catch two other people they saw running back into Mexico. The agents found tracks from Mexico into the United States that looked like other people had crossed the canal. They also noticed tracks corresponding to Cardenas' attempted flight and those of the group that escaped. The agents questioned Cardenas as to his nationality and papers. They asked Cardenas if he or anyone in his group was armed, and he said no. They put Cardenas in the Border Patrol van and continued along the ditch to the area where they had seen the others disappear.

Back at the north end of the ditch, Barrett and Bauman found nine other people lying in the drainage ditch, and interspersed among them were bundles of marijuana--four packages to the bundle--rigged to be carried on a person's back. The agents told them not to move and asked if they or anyone else in the area had weapons. They answered in the negative. The agents then moved each person out of the ditch and searched him. When the situation seemed under control, the agents radioed for assistance and read each person his Miranda rights.

Border Patrolmen Lopez and Andrew arrived about twenty minutes later. All who were apprehended were loaded into the two vehicles. The agents began gathering the bundles of marijuana that had been dropped along the drainage ditch. They found 119 packages weighing approximately 25 pounds each for a total of 3200 pounds of marijuana. The marijuana had a value of $1.6 million. The packages were bundled and tied with rope to be carried over the shoulders so that one person could carry four packages containing a total of 100 pounds of marijuana. Each of the rope halters was unique. A white dust or powder from the packages of marijuana covered the clothes of those taken into custody, including Cardenas.

Later that night, after being given additional Miranda warnings at the nearby Ysleta Border Patrol station, Barrett asked Cardenas where he was taking the marijuana, whose it was, and how much he had been paid. After Cardenas responded that he did not know, agent Segarra of the Drug Enforcement Administration (DEA) asked what happened, to which Cardenas responded, "Well, I really don't know." When asked about their possession of the marijuana, the others also said that they knew nothing; they did not know who owned the marijuana or where they were to take it. One indicated that he had been paid eight dollars to bring the load across the border.

Each of the persons apprehended, including Cardenas, lived in the same town in Mexico; several were related. Each admitted entering the United States illegally on many previous occasions, and each had been arrested several times by the Border Patrol and returned to Mexico. A federal grand jury returned a four count indictment charging Cardenas and eight others with (1) one count of having conspired to import in excess of 50 kilograms of marijuana into the United States from Mexico, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 963; (2) one count of having imported over 50 kilograms of marijuana into the United States from Mexico in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1); (3) one count of having conspired to possess over 50 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846; and (4) one count of possession of over 50 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

Each of the defendants except Cardenas testified at trial. They admitted knowing that their actions were illegal but claimed that they were forced at gunpoint to lead a group of thirty in carrying the marijuana into the United States. They testified that they had heard there was work in the United States for a man known as El Bancero. They had taken a bus together from the El Million area in Mexico where they all lived to a town near the Rio Grande. They walked from there to the crossing point at the river where they were waiting to cross that night to work the next morning. A stranger whom they could not describe approached and offered them work, but he did not say what kind or where. Suddenly, after a white stake-bed truck loaded with marijuana and twenty more people arrived, four men with what appeared to be machine guns jumped out and ordered them to take the bundled marijuana across the river.

After a three and one-half day trial, the jury returned a verdict of guilty as to all four counts against all defendants, including Cardenas. Cardenas was sentenced to a term of five years imprisonment on each of counts one and three, and five years imprisonment followed by a five-year special parole term as to each of counts two and four, all four terms to run concurrently. The eight codefendants received identical sentences. Cardenas then perfected this timely appeal. ¹

II.

Cardenas first attacks the sufficiency of the evidence to support his convictions. In drug conspiracy cases, the government must prove beyond a reasonable doubt that a conspiracy existed, that the accused knew of the conspiracy, and that he knowingly and voluntarily joined it. United States v. Jackson, 700 F.2d 181 (5th Cir.), cert. denied sub nom. Hicks v. United States, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983). It is unnecessary in drug conspiracy cases to prove an overt act in furtherance of the conspiracy. United States v. Kupper, 693 F.2d 1129, 1134 (5th Cir.1982). We will not, however, "lightly infer a defendant's knowledge and acquiesence in a conspiracy." Jackson, 700 F.2d at 185. A showing that the defendant merely associated with those participating in a conspiracy is insufficient. Id. Similarly, the government cannot prove a conspiracy by presenting evidence that only places the defendant in "a climate of activity that reeks of something foul." United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982).

The government need not prove the existence of a formal agreement to establish a conspiracy, but it must do more than "pile inference upon inference upon which to base a conspiracy charge." United States v. Sheikh, 654 F.2d 1057, 1063 (5th Cir.1981) (citation omitted), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982). Circumstantial evidence, however, can be used to show the existence of a conspiracy. United States v. Aguirre Aguirre, 716 F.2d 293 (5th Cir.1983); see also United States v. Acosta, 763 F.2d 671 (5th Cir.), cert. denied sub nom. Weempe v. United States, --- U.S. ----, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985).

In order to sustain a conviction for the crime of possession of marijuana with intent to distribute, the government must prove three elements: (1) knowing (2) possession of marijuana (3) with intent to distribute it. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982) (quoting United States v. Richards, 638 F.2d 765, 768 (5th Cir.1981), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981)). A conviction on the importation offense requires proof of similar elements, the principal difference being that the government must show that the defendant played a role in bringing the marijuana from a foreign country into the United States. See United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981).

Possession of contraband may be actual or constructive, may be joint among several defendants, and may be proved by circumstantial as well as direct evidence. United States v. Wilson, 657 F.2d 755, 760 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); see also United States v. Stanley, 765 F.2d 1224, 1240 (5th Cir.1985). Constructive possession is the "knowing exercise of, or the knowing power or right to exercise dominion and control over the proscribed substance."...