U.S. v. Galvan-Garcia
| Decision Date | 01 May 1989 |
| Docket Number | No. 88-2752,GALVAN-GARCI,D,88-2752 |
| Citation | 872 F.2d 638 |
| Parties | 27 Fed. R. Evid. Serv. 1351 UNITED STATES of America, Plaintiff-Appellee, v. Reneefendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roland E. Dahlin, II, Marjorie A. Meyers, and Thomas G. Lindemuth, Federal Public Defenders, Houston, Tex., for defendant-appellant.
Frances H. Stacy, Asst. U.S. Atty. and Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, JOHNSON and JOLLY, Circuit Judges.
Defendant Rene Galvan-Garcia appeals his conviction of possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). We affirm.
On the evening of March 2, 1988, two Border Patrol agents were informed by their dispatcher that some type of activity had triggered electronic sensors near the Rio Grande River at McAllen, Texas. Upon arriving at the location where the activity had been detected, the two agents, who were travelling in a marked Border Patrol vehicle, observed a vehicle being driven in a suspicious pattern near the Rio Grande River. At this point, the agents began to follow the suspect vehicle, ultimately turning on the siren and flashing lights of their vehicle. In the ensuing high speed chase of the suspect vehicle by the Border Patrol agents in which another Border Patrol unit joined the pursuit, the agents identified the suspect vehicle as a Chevrolet station wagon.
Thereafter, as the agents were chasing the station wagon, the agents observed two bags being pushed out of the passenger-side window of the station wagon. After observing this activity, the agents who originally began pursuing the station wagon immediately advised the back-up Border Patrol unit that bags were being thrown out of the suspect vehicle. A search of the area conducted by the back-up unit where the pursuing agents reported the bags being thrown from the station wagon revealed three bags containing approximately 68 pounds of marijuana. Ultimately, the agents were able to stop the station wagon and apprehend its sole occupant--defendant Rene Galvan-Garcia. Following a jury trial, Galvan-Garcia was convicted of possessing marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The district court then sentenced Galvan-Garcia to a prison term of 46 months and a three year term of supervised release. Galvan-Garcia now appeals.
On appeal, Galvan-Garcia initially challenges the sufficiency of the evidence to support his conviction. In reviewing a sufficiency of the evidence claim following a criminal conviction, this Court will sustain the conviction if " 'after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Santisteban, 833 F.2d 513, 516 (5th Cir.1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). "In order to prove possession with intent to distribute, the government must establish that [a defendant] had knowledge, possession of a controlled substance, and a specific intent to distribute it." United States v. Kaufman, 858 F.2d 994, 1000 (5th Cir.1988). Further, the above elements may be established by circumstantial, as well as direct, evidence. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986).
In asserting his insufficiency of the evidence claim before this Court, Galvan-Garcia maintains that the Government failed to prove that he ever possessed the marijuana found in the bags on the side of the road. Possession of a controlled substance may be either actual or constructive. United States v. Martinez, 588 F.2d 495, 498 (5th Cir.1979). In the instant case, the evidence presented to the jury was sufficient to enable a reasonable trier of fact to conclude that Galvan-Garcia possessed the marijuana. Specifically, the jury was informed that two Border Patrol agents observed two bags, which were later discovered to contain marijuana, being thrown from a vehicle occupied solely by Galvan-Garcia. Accordingly, we reject the contention of Galvan-Garcia in this regard.
Galvan-Garcia next asserts that the district court erred in admitting evidence of his prior conviction for possession of marijuana in 1979. Specifically, Galvan-Garcia maintains that, prior to admitting testimony regarding the prior conviction, the district court erroneously failed to conduct an on-the record balancing of the probative and prejudicial effect of the conviction in accordance with Federal Rule of Evidence 609(a) and the opinion of this Court in United States v. Preston, 608 F.2d 626, 639 (5th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). Galvan-Garcia further contends that questions concerning the prior conviction propounded to him by the prosecutor during cross-examination, as well as references by the prosecutor to the conviction during closing argument, mandate reversal of his conviction. We do not agree.
Initially, it is noted that this Court reviews the decision of the district court on this point for abuse of discretion. United States v. Shaw, 701 F.2d 367, 385 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). In the instant case, however, while Galvan-Garcia filed a pretrial motion in limine seeking to exclude from trial the evidence of his prior marijuana conviction, Galvan-Garcia failed to object to the admission of such evidence at trial. Thus, this Court will reverse only if the asserted evidentiary error amounted to plain error. Douthit v. Jones, 619 F.2d 527, 538-39 (5th Cir.1980).
After reviewing the record, we are persuaded...
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