U.S. v. Garcia

• Decision Date: 12 June 1996
• Docket Number: No. 95-20170,95-20170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter GARCIA, Victor Hugo Alegria, Carlos Camacho and Agustin Vivas-Garcia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 394

86 F.3d 394

UNITED STATES of America, Plaintiff-Appellee, v. Walter GARCIA, Victor Hugo Alegria, Carlos Camacho and Agustin Vivas-Garcia, Defendants-Appellants.

No. 95-20170.

United States Court of Appeals Fifth Circuit.

June 12, 1996.

Order Denying Rehearing and Remanding for Resentencing July 8, 1996.

Paula Camille Offenhauser, Michael E. Clark, U.S. Attorney's Office, Houston, TX, for U.S.

Roland E. Dahlin, II, Federal Public Defender, George D. Murphy, Jr., Federal Public Defender, Houston, TX, for Walter Garcia aka Walter P. Garcia, defendant-appellant.

Richelieu Edward Wheelan, Houston, TX, for Victor Hugo Alegria, defendant-appellant.

Robert James Fickman, Houston, TX, for Carlos Alberto Camacho, defendant-appellant.

Andrew Lee Pickens, Tracey Maria Robertson, Fulbright & Jaworski, Houston, TX, for Augustin Vivas Garcia, defendant-appellant.

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

Before POLITZ, Chief Judge, and REYNALDO G. GARZA and JONES, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Appellants were convicted for participating in a conspiracy to possess 166.9 kilograms of cocaine with the intent to distribute it. Appellant Carlos Camacho was also convicted of being an illegal alien in possession of a firearm and ammunition, and for using a firearm during a drug transaction. Appellants have appealed from their convictions on several grounds. Having read the briefs, reviewed the record and considered the arguments of counsel, we AFFIRM all of the appellants'

                convictions and sentences with the exception of Carlos Camacho's conviction for using a firearm during a drug transaction.   We REVERSE Carlos Camacho's conviction for using a firearm during a drug transaction, and VACATE the sentence imposed upon him for that conviction
                

I. FACTS

Walter Garcia ("Garcia"), Victor Alegria ("Alegria"), Carlos Camacho ("Camacho") and Agustin Vivas-Garcia ("Vivas") were convicted of conspiracy to possess cocaine with intent to distribute it, as well as aiding and abetting the possession of cocaine with the intent to distribute it. Camacho was also convicted of the unlawful use of a firearm during the commission of a drug offense, unlawful possession of a firearm by an illegal alien and unlawful possession of ammunition by an illegal alien. The defendants appeal from those convictions.

The police began surveillance of Garcia and Vivas when they observed the two men at a payphone while they were conducting surveillance on another suspected drug dealer on May 25, 1994. During the next month, law enforcement agents conducted surveillance on the two men. The agents determined that neither man was regularly employed, and that Garcia lived at a residence at 7318 Northleaf (the "Northleaf residence"). Their conclusion that Garcia lived there was later bolstered when they discovered that the electricity for the residence was in Garcia's name.

On June 29, 1994, while the agents were conducting surveillance, Garcia arrived at the Northleaf residence in a Chevrolet Cavalier at 9:00 a.m. He was followed by a gray pick-up truck occupied by two white males. The truck backed up onto the driveway and stayed for ten minutes.

At 10:15 a.m., Garcia left the Northleaf residence, picked up Vivas at the Coppertree apartments, and drove to a Popeye's fried chicken restaurant. Garcia and Vivas exited the vehicle and entered Popeye's. A short while later, Antonio Perez ("Perez") and Alegria arrived at Popeye's in a grey Honda Accord. They parked the Accord next to the Cavalier, and entered the restaurant. A few minutes later, all four men exited the restaurant. Garcia then left Popeye's in the Accord, and the other three men left in the Cavalier.

Garcia drove the Accord to the Northleaf residence. During the drive, he made a telephone call to the Northleaf residence on his cellular phone. When he arrived at the Northleaf residence, Garcia pulled the Accord into the garage. While the Accord was in the garage, two agents saw Camacho standing in the doorway, looking up and down the street. ¹ Garcia left in the Accord within ten minutes of his arrival. The Accord was riding lower when he left than it had been when he arrived, which suggests that Garcia put something in the trunk while the Accord was in the garage.

Meanwhile, the Cavalier drove around in a manner that was believed to be a "heat run." That is, the police believed that the Cavalier was attempting to conduct countersurveillance to determine whether the police were conducting surveillance. At 12:45 p.m., the Cavalier arrived at a Jack-in-the-Box restaurant. All three occupants of the Cavalier entered the restaurant. Five minutes later, Garcia arrived at the Jack-in-the-Box in the Honda. Garcia then entered the Jack-in-the-Box. A few minutes later, Vivas and Garcia departed in the Cavalier, while Alegria and Perez departed in the Honda.

The police stopped both vehicles a short while later. A police officer searched the trunk of the Honda, where he found 98.6 kilograms of cocaine. When the police discovered the cocaine, Alegria tried to eat a piece of paper containing several addresses and phone numbers, including the phone number of the Northleaf residence. All four men were arrested.

The police then continued their investigation at the Northleaf residence. Camacho At trial, Garcia, Alegria, Camacho and Vivas were convicted, and Perez was acquitted. The four convicted defendants now appeal from their convictions.

                allowed the police to search the residence.   During their search, the police found an additional 68.3 kilograms of cocaine in the utility room, as well as a scale, baking soda, tape and surgical masks.   The latter items were apparently used in the packaging of cocaine.   The police testified that a chemical smell, which they identified with cocaine, was detectable in the house.   The police also seized a .357 revolver loaded with hollowpoint bullets that Camacho was carrying in his waistband
                

II. DISCUSSION

A. THERE IS SUFFICIENT EVIDENCE TO AFFIRM THE DEFENDANTS' CONVICTIONS FOR CONSPIRACY AND AIDING ABETTING POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE IT

All four defendants claim that there is insufficient evidence to support their convictions for conspiracy and for aiding and abetting possession of cocaine with the intent to distribute it. Each defendant claims to have been "merely present" during the drug transaction, and that there is no evidence linking any defendant to the cocaine. After reviewing the evidence, we find that the evidence is sufficient to support all of the defendants' convictions for conspiracy and aiding and abetting.

1. STANDARD OF REVIEW

This Court recently set out the applicable standard of review to be used to determine whether there is sufficient evidence to support a conviction. In United States v. Dean, 59 F.3d 1479, 1484 (5th Cir.1995), this Court stated:

In our review of the sufficiency of the evidence supporting the jury's verdict, we determine whether, viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt. We recognize that the jury was free to choose among all reasonable constructions of the evidence, and we accept all credibility choices that tend to support the jury's verdict. We view the evidence, both direct and circumstantial, as well as all reasonable inferences from that evidence, in the light most favorable to the verdict. Moreover, we determine only whether the jury made a rational decision, not whether its verdict was correct on the issue of guilt or innocence. Further, the evidence need not exclude every reasonable hypothesis of innocence. However, we must reverse a conviction if the evidence construed in favor of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.

To support a conviction for conspiracy to possess illegal narcotics with the intent to distribute them, the evidence must support a finding that a conspiracy existed, that the accused knew of the conspiracy, and that he voluntarily joined it. United States v. Limones, 8 F.3d 1004, 1009 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1543, 128 L.Ed.2d 194 (1994). To support a conviction for possession of cocaine with the intent to distribute it, the evidence must support a finding that the defendant knowingly possessed cocaine with the intent to distribute it. United States v. Tolliver, 780 F.2d 1177, 1183 (5th Cir.1986). To support a conviction for aiding and abetting possession with the intent to distribute, the evidence must support a finding that the accused aided and abetted both possession and distribution.

2. DISCUSSION

Each defendant claims to have been "merely present" during the cocaine transaction, and that there is insufficient evidence to link any of them to the cocaine. We disagree. Our review of the record found ample evidence to affirm each defendant's conviction.

Alegria claims that he was merely driving the Accord, which was not his car, and that there was no evidence that he knew Vivas claims that the evidence only supports a finding that he was conducting countersurveillance activity, not a finding that he participated in a conspiracy to possess cocaine with the intent to distribute it. He points out that this Court has held that evidence of countersurveillance activity, without evidence supporting the further inference that a defendant knew that he or she was conducting countersurveillance for a cocaine transaction, is insufficient to support a conspiracy conviction. See United States v. Dean, 59 F.3d 1479, 1487 (5th Cir.1995). In this case, however, the evidence showed more than just countersurveillance activity. For example, Vivas' fingerprints were found on packages of cocaine found in both the Accord and at the...