U.S. v. Diaz

• Citation: 655 F.2d 580
• Decision Date: 08 September 1981
• Docket Number: No. 80-5239,80-5239
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miriam Rodriguez DIAZ, Defendant-Appellant. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 580

655 F.2d 580

UNITED STATES of America, Plaintiff-Appellee, v. Miriam Rodriguez DIAZ, Defendant-Appellant.

No. 80-5239.

United States Court of Appeals, Fifth Circuit.

Unit B

Sept. 8, 1981.

Benedict P. Kuehne and Donald I. Bierman, Miami, Fla., for defendant-appellant.

Linda Collins-Hertz, Steven E. M. Hartz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before MARKEY ^*, Chief Judge, HILL, and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

Appellant Miriam Rodriguez Diaz and three other individuals not parties to this appeal, Alfredo Diaz (Miriam's husband), Sergio Campo, ¹ and Paul C. Arcia, were charged in a three-count indictment dated March 27, 1979, with possession and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and with conspiring to possess and distribute cocaine in violation of 21 U.S.C. § 846. Defendants Alfredo Diaz and Sergio Campo pleaded guilty to Count III, the distribution charge, and the remaining counts were dismissed. Miriam Rodriguez Diaz and Paul Arcia stood trial together. The jury convicted the appellant on all charges but found Arcia innocent. Miriam Diaz appeals from her convictions. We affirm.

On March 19, 1979, special agents Gene Johnson and Forrest Beverly of the Drug Enforcement Administration, together with a confidential informant, went to the Coral Gables, Florida, home of Miriam and Alfredo Diaz seeking to arrange a possible purchase of cocaine. The DEA agents and their informant were greeted at the door by Miriam Diaz, who then beckoned for her husband. Alfredo Diaz, who was wearing a full leg cast at the time, directed the three callers to a small apartment at the side of the house. Following Mr. Diaz's instructions, the agents and the informant exited the house and proceeded to the entrance to the apartment where they were admitted by Mr. Diaz. The room into which the agents and the informant were ushered was a small apartment with a door leading into the interior of the main house. Agent Johnson began to negotiate with Alfredo Diaz for the purchase of approximately three kilograms of cocaine. Miriam Diaz was not present in the room during the initial discussions about the quality and price of the cocaine. Then Alfredo Diaz, speaking in Spanish, called to the appellant, his wife, who was in the main part of the house. Neither DEA agent understood precisely what Alfredo Diaz said since they did not speak Spanish. The confidential informant, however, could speak and understand Spanish.

Responding to her husband's call, the appellant entered the room carrying a shoe box which she opened and from which she removed two clear plastic bags containing cocaine. She handed the bags of cocaine to Agent Johnson who examined them and passed the bags to Agent Beverly. ²

Further negotiations as to the price and amount of cocaine followed with Alfredo Diaz and the agents agreeing to exchange two and one-half kilograms of cocaine for $112,000. Although the appellant did not participate in the negotiations, she remained in the room standing at the door leading to the main part of the house. After agreeing that the sale would take place later that day at another location, the agents and the informant left the Diaz residence to obtain the funds necessary to close the transaction. ³

Later that day the agents telephoned Mr. Diaz at his home. He instructed them to proceed to a Miami apartment where the delivery of the cocaine would take place. The agents, along with the informant, went to the apartment, but Alfredo Diaz did not appear. The trio then returned to the Diaz residence where they were met by Miriam Diaz and a man later identified as Sergio Campo. Campo informed the agents that Mr. Diaz was at the Miami apartment from which they had just come. Miriam Diaz then asked the agents to take her to the Toledo Apartments near the apartment where the drug sale was to take place. The appellant and Campo, who was carrying a set of triple beam scales in a brown paper bag, left the Diaz residence with the agents and informant and proceeded by automobile to the Toledo Apartments where the group dropped off Mrs. Diaz. The testimony of co-defendant Paul Arcia indicated that Miriam Diaz went to Arcia's apartment in the Toledo Apartments where she met and argued with her husband, Alfredo Diaz. The group, minus the appellant, then proceeded to what turned out to be Campo's apartment, the site originally selected for the sale. The agents, the informant, and Campo waited for Alfredo Diaz to arrive. A short time later Alfredo Diaz entered the apartment on crutches carrying a bag of cocaine which was less than the quantity ordered. Alfredo Diaz left only to return later with Paul Arcia, who carried the additional cocaine. After the cocaine was weighed on the scales Campo had brought with him, the sale was consummated, and the agents arrested Alfredo Diaz, Campo, and Arcia at once, and Miriam Diaz was arrested sometime later.

Before this court, the appellant has raised two main arguments. First, the appellant contends that the evidence presented during her trial was wholly insufficient to support her convictions for conspiracy to possess and distribute cocaine and for actual possession and distribution of the illicit drug. Second, the appellant maintains that under the Supreme Court's holding in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and its numerous progeny in this Circuit, the district court erred in denying the appellant's request to compel the government to disclose the identity of the confidential informant.

I.

In reviewing the appellant's argument that her motions for judgment of acquittal should have been granted because the evidence presented at trial was insufficient to support her convictions, we note that "(t)he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). This standard of review applies to any criminal conviction, including conspiracies. United States v. Malatesta, 590 F.2d 1379 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). In determining the sufficiency of proof on a motion for judgment of acquittal, and on review of a trial court's denial of the motion, this court has consistently applied the test of whether the jury might reasonably conclude that the evidence, viewed, of course, in the light most favorable to the government, is inconsistent with every reasonable hypothesis of the defendant's innocence, or, stated in another way, whether a reasonably minded jury must necessarily entertain a reasonable doubt of the accused's guilt. United States v. Marino, 617 F.2d 76 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980); United States v. Slone, 601 F.2d 800 (5th Cir. 1979); United States v. Caro, 569 F.2d 411 (5th Cir. 1978); United States v. Haggins, 545 F.2d 1009 (5th Cir. 1977).

Addressing the sufficiency of the evidence issue for the appellant's conspiracy conviction first, under 21 U.S.C. § 846 the essential element of a drug conspiracy is an agreement by two or more persons to violate the narcotics laws. See, e. g., United States v. Ayala, 643 F.2d 244 (5th Cir. 1981); United States v. Beasley, 519 F.2d 233 (5th Cir. 1975), vacated and remanded on other grounds, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201 (1976). As this court explained in Ayala : "The existence of such an agreement may be proved by either direct or circumstantial evidence. The very nature of conspiracy frequently requires that the existence of an agreement be proved by inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme." United States v. Ayala, 643 F.2d at 248. Furthermore, the prosecution need not prove that the accused engaged in "any overt act in furtherance of the conspiracy." United States v. Cardona, 650 F.2d 54, 57 (5th Cir. 1981).

While we recognize that "(i)t is elementary that neither association with conspirators nor knowledge of illegal activity constitute proof of participation in a conspiracy," United States v. Aguiar, 610 F.2d 1296, 1303 (5th Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 31 (1980), quoting Roberts v. United States, 416 F.2d 1216, 1220 (5th Cir. 1969), here our review of the record convinces us that the government's evidence was sufficient to prove that the appellant was an active, knowing, and willing participant in the conspiracy to possess and distribute cocaine. Miriam Diaz was more than merely physically present on the premises where the drug sale negotiations took place. At her husband's request she carried a shoe box into the room where the DEA agents and Alfredo Diaz were negotiating their drug deal. The jury reasonably could have found that the appellant then opened the shoe box, removed two clear plastic bags of cocaine, and handed them to one of the undercover agents. As her husband and the DEA agents negotiated for the purchase of over two and one-half kilograms of cocaine, the appellant remained in the room observing the proceedings. Later in the day when the agents were having difficulty locating Alfredo Diaz in order to complete the drug sale, Miriam Diaz assisted the agents in locating her husband, and indeed had the agents drive her to co-defendant Arcia's apartment where she met her husband and from where he and Arcia left a short time later to deliver the cocaine to the DEA agents. Drawing all reasonable inferences in favor of the government, as we are required to do in light of the jury's verdict, this evidence in the record is sufficient to support the appellant's conviction as an intentional and knowing participant in the conspiracy.

We think that the evidence of Miriam Diaz'...