U.S. v. Garcia, 80-5714

• Decision Date: 04 September 1981
• Docket Number: No. 80-5714,80-5714
• Citation: 655 F.2d 59
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando GARCIA and Leonardo Sorzano, Defendants-Appellants. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 59

655 F.2d 59

UNITED STATES of America, Plaintiff-Appellee, v. Armando GARCIA and Leonardo Sorzano, Defendants-Appellants.

No. 80-5714

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

Sept. 4, 1981.

Jack R. Blumenfeld, Coconut Grove, Fla., for Garcia.

Thomas F. Almon, Miami, Fla., for Sorzano.

Michael P. Sullivan, Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.

HENDERSON, Circuit Judge:

The appellants, Armando Garcia and Leonardo Sorzano, challenge the sufficiency of evidence which resulted in their convictions for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 (1972). ¹ Sorzano also contends that the trial court incorrectly denied his motion for a mistrial based on remarks made by his codefendant's counsel. Three others, Sergio Sigler, Arturo Gonzalez and James Spodarek, were also named as defendants. Gonzalez and Spodarek entered guilty pleas prior to the trial and Sigler pled guilty to one count of the indictment after a judgment of acquittal had been entered in his favor at the close of the evidence as to the other counts.

The following scenario was outlined by the evidence presented to the jury. Special Agent Sol Weinstein of the Drug Enforcement Administration (DEA) posing as an Indianapolis, Indiana cocaine buyer, staged clandestine meetings to discuss arrangements for an anticipated purchase of cocaine in Miami, Florida. Present at one or more of the meetings were the defendants, Spodarek and Gonzalez, and confidential informant Robert Wortman. Approximately one week later Weinstein went to Miami, Florida, to consummate the deal. A Marriott hotel was designated as the location for the transaction.

Shortly before Weinstein arrived at the Marriott, another DEA agent observed Gonzalez, Spodarek and Wortman in an orange Volkswagen which drove into the hotel parking lot. When Weinstein reached the hotel, he rented adjoining rooms, one room to be used while completing the purchase and the other to accommodate surveillance agents. Some forty minutes later he met the three men beside the orange Volkswagen. Gonzalez and Spodarek accompanied Weinstein to the hotel room to examine his bankroll. They then drove the Volkswagen to appellant Leonardo Sorzano's home.

Sorzano, Gonzalez and Spodarek returned to the Marriott after several rendezvous with other men at a local baseball field. Weinstein met Sorzano for the first time at the hotel. Sorzano told Weinstein that he was "not involved." However, Weinstein was told by Gonzalez that Sorzano was the source of the cocaine. When confronted, Sorzano admitted his ability to obtain the drug and assured Weinstein that he could supply the agent with "six kilos" of cocaine a month. Sorzano and the three original occupants of the Volkswagen then returned to the baseball field. Sorzano called Weinstein shortly thereafter and expressed a willingness to deliver the drug to the baseball field, but not the Marriott. Weinstein refused, so Sorzano replied that he would call later. Although Sorzano's car was observed driving in the vicinity, he never again met with Weinstein. He was arrested as he drove past the Marriott shortly after the other defendants were taken into custody at the hotel.

The transaction shifted into a second phase some forty-five minutes later. Weinstein, Spodarek and Wortman agreed to rent a third hotel room. Then drug agents conducting surveillance saw three new suspects drive into the parking lot, exit from their automobile and approach the orange Volkswagen. One of the men, who was later identified as Armando Garcia, was carrying a package described as either "brown, blue, or black within the white" stripes as the men entered the hotel.

Weinstein first encountered the new participants in the third hotel room. He and Spodarek were admitted to the room by Gonzalez, who indicated that the cocaine had been delivered. As he stepped through the door, Weinstein saw a clear package of white powder, later analyzed as cocaine, in the vicinity of the bed. Referring to Garcia and his friend Sergio Sigler, Weinstein asked the identity of the "new players." Gonzalez stated that they were the owners of the cocaine. Garcia and Sigler, who were only about ten feet away, nodded their heads affirmatively as Gonzalez spoke. The exchange of information took place in English, which all participants spoke and understood. Weinstein announced that he was going to get the money. He left, returned, and left again with Gonzalez and Spodarek, who were then arrested. Garcia and Sigler remained in the hotel room with the cocaine this entire time and later were arrested there. A blue and white plastic bag was discovered next to the bag containing the cocaine. Neither appellant disputes the existence of a conspiracy between Gonzalez and Spodarek.

The jury was charged with respect to conspiracy and drug possession. Conspiracy is an agreement between two or more persons to commit a crime and an overt act in furtherance of the agreement by one of the participants. United States v. Marx, 635 F.2d 436, 438 (5th Cir.1981); United States v. Arredondo-Morales, 624 F.2d 681, 683 (5th Cir.1980). Title 21 U.S.C. § 846, though, does not require proof of an overt act. Proof of the conspiracy and of the defendant's participation in it is sufficient. United States v. Marx, 635 F.2d at 439; Cacace v. United States, 590 F.2d 1339, 1340 (5th Cir.1979). Participation in the conspiracy's common purpose and plan may be inferred from the defendant's actions and reactions to the circumstances. United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979). Conviction on the substantive crime is not prerequisite to culpability on a conspiracy charge. However, if the contemplated crime has been committed by any coconspirator, the other coconspirators, as partners of each other, may be charged as principals in the perpetration of the crime. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946); United States v. Sullivan, 578 F.2d 121, 123 (5th Cir.1978).

Possession of cocaine was the substantive crime underlying the conspiracy count. Both actual and constructive possession of the drug are proscribed by 21 U.S.C. § 841. A person has constructive possession of a thing when he has dominion and control over its use. United States v. Surface, 624 F.2d 23, 25 (5th Cir.1980). Constructive possession can be joint, as when more than one person occupy a room containing the item. United States v. Marx, 635 F.2d at 440, United States v. Ocanas, 628 F.2d 353, 361 (5th Cir.1980).

It is especially important in this case to remember that the evidence, direct and circumstantial, must be viewed in the light most favorable to the government and the inferences must be drawn to support the jury verdict. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). After having reviewed the evidence in light of the legal principles just enumerated, we hold that a reasonable jury would have found the evidence inconsistent with every logical hypothesis of innocence. United States v. Richards, 638 F.2d 765, 768 (5th Cir.1981); United States v. Rodgers, 624 F.2d 1303, 1306 (5th Cir.1980) (U.S. app. pending). We cannot say that the jury must necessarily have had a reasonable doubt as to the appellants' innocence. Consequently, the jury's verdict is conclusive. United States v. Shaw, 555 F.2d 1295, 1300 (5th Cir.1977).

Garcia obviously knew the admitted coconspirators, Gonzalez and Spodarek. ² He was present with them in the hotel room. In the Marriott parking lot, he apparently recognized the orange Volkswagen in which they rode and started toward it. Although there is no direct evidence that Garcia's blue and white bag contained cocaine, an inference that it did can be drawn from the fact that a similarly colored plastic bag was found with the cocaine and Garcia in the hotel room. Taking the view most favorable to the government, a reasonable juror would conclude that Garcia knowingly carried cocaine to the Marriott for sale to Weinstein. ³ This inference is corroborated by Garcia's affirmative nod when, not fifteen feet away, Gonzalez identified him as the owner of the drug in a language he could understand. Finally, Garcia remained in the room with total dominion and control over the cocaine after Gonzalez left just prior to his arrest. Had Garcia not been in on the deal, it is doubtful that he would have been permitted to stay with the drugs. His knowing and intentional participation as a coconspirator was established beyond a reasonable doubt.

Garcia's conviction for possession is also justified by the evidence. ⁴ An inference can be drawn that Garcia initially possessed the drug in the blue and white bag he brought to the Marriott. He was in constructive possession of the cocaine in the hotel room after Gonzalez left, because he had control over it. ⁵ Moreover, since the participants in the conspiracy like Gonzalez and Spodarek apparently possessed the drug, Garcia, as a coconspirator, will be considered to have had it also.

Sorzano also frequently accompanied Gonzalez. He rode to the Marriott with Gonzalez and met Weinstein there. This encounter laid the groundwork for a six-kilo drug sale to take place in the future. He called Weinstein to suggest that a cocaine deal be immediately consummated at a local baseball field similar to if not the one where he and Gonzalez had gathered with other cohorts. True, Sorzano did not supply the drugs for this purchase, but...