U.S. v. Gonzalez-Lira, GONZALEZ-LIR

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation936 F.2d 184
Parties33 Fed. R. Evid. Serv. 1505 UNITED STATES of America, Plaintiff-Appellee, v. Rodolfoefendant-Appellant.
Docket NumberGONZALEZ-LIR,No. 90-2609,D
Decision Date09 July 1991

Page 184

936 F.2d 184
33 Fed. R. Evid. Serv. 1505
UNITED STATES of America, Plaintiff-Appellee,
Rodolfo GONZALEZ-LIRA, Defendant-Appellant.
No. 90-2609.
United States Court of Appeals,
Fifth Circuit.
July 9, 1991.

Page 186

Arnulfo Guerra, Jr., Roma, Tex. (Court-appointed), for defendant-appellant.

Jeffery A. Babcock, Jr. and Paula C. Offenhauser, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before POLITZ, JOHNSON and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

Rodolfo Gonzalez-Lira appeals from his conviction for possession of marijuana with intent to distribute it. He argues that the trial judge erred in admitting certain evidence and that the evidence was not sufficient to support his conviction. After a careful review of the record and the controlling case law, this Court concludes that it must affirm the judgment of the trial court.


At 7:45 in the morning on Monday, February 26, 1990, Rodolfo Gonzalez-Lira drove a tractor-trailer rig up to the U.S. border station outside Falfurrias, Texas. He owned the truck tractor, but the refrigerated trailer was not his. Gonzalez produced for the border patrol agent a bill of lading which purported to have been prepared on May 25, 1989 (nearly a year earlier), and called for delivery of the load of lettuce (which was supposedly in the trailer) to an address in Austin, Texas by 6:00 a.m. that Monday morning. Gonzalez' breath smelled of alcohol. The border patrol agent directed Gonzalez to the secondary inspection area. Once there Gonzalez consented to a search of the trailer, unlocking the padlock himself. The agent found several boxes of spoiled lettuce at the rear of the trailer and detected an odor of marijuana. The agent called for a drug-sniffing dog, and canine "Barko" alerted several times outside the trailer. A search turned up bundles of marijuana stacked three deep along the length of the trailer. All told, the bundles weighed 3,243 pounds. On his person, Gonzalez carried no wallet, no identification, and no papers. He had $652 in cash, a key to the trailer, and a piece of paper with the name Ramsey and two phone numbers written on it.

Gonzalez was informed of his rights and questioned about his cargo. He stated that he had only recently purchased the tractor from an outfit in Edinburg, Texas. 1 He claimed that on the previous Friday night, February 23, an unknown man had offered him $500 to drive a cargo of lettuce north; on Saturday, this unknown man supplied the trailer, already loaded. On Sunday, the unknown man gave Gonzalez a bill of lading. Gonzalez professed to be wholly unaware of the presence of the marijuana.

At trial the prosecutor sought to introduce evidence that two years earlier, an individual named Moreno attempted to

Page 187

cross the border at the same inspection point in a tractor-trailer rig owned by Gonzalez. Moreno was stopped, and a search of the truck revealed some 2,000 pounds of marijuana. Moreno was convicted of possession with intent to distribute, but Gonzalez was not charged, and no evidence was ever developed to show that Gonzalez knew what Moreno was going to do with his truck. Gonzalez was allowed to retrieve his truck from the authorities; he later sold it and used a portion of the proceeds to purchase the truck used in this case. The careful trial judge initially granted the defense's motion in limine to forbid any mention of this other truck. At trial, however, the judge allowed the Government to introduce, over the defendant's objection, the testimony of an investigating police officer relating to the other truck and the prior smuggling attempt.

Before admitting the evidence, and out of the hearing of the jury, the court explained that

I'm going to overrule the objection. I'm going to allow the questions on two grounds. First of all, I think the defense has attempted to impeach the integrity of the investigation and thoroughness of the investigation of the United States authorities. And I think that the effort [the investigating officer] has shown goes to show that he was trying to get to the bottom of this. He followed up the lead on the other tractor-trailer.

Secondly, I think it's admissible under 404. The reason I think that is because [defense] counsel in opening statement stated to the jury ... that the question was knowledge and intent. [Defense counsel] put the issues of knowledge and intent directly before the jury in [his] opening statement and [has] continued to do so with respect to the interrogation of the [investigating officer] and the witness from the ... Border Patrol.... Specifically, [defense counsel's] questions dealt with, "did he know it was there" and "no, he just happened to pick up a load of spoiled lettuce". All of these issues going to demonstrate to the jury that this was a thoroughly innocent act on the part of the defendant, and that he had no knowledge of the ton of marijuana--ton and a half of marijuana in his trailer rig. But this evidence with respect to the other tractor-trailer shows previous to this event the fact that this defendant owned a tractor-trailer rig that was used in marijuana smuggling. And that it was the very tractor-trailer rig that was the subject and provided the money for that tractor in this particular transaction. And under those circumstances, there is not only the evidentiary tie-in from the previous ownership but also the mental intent and the knowledge that this defendant is well aware that tractor-trailer rigs are used for smuggling and that his own in the past has been used for smuggling, and it has been used in this same manner and at the same checkpoint, and that he has retrieved it....

2 R. 81-82. The trial judge concluded: "I find that the probative value on the issue of knowledge and intent, as well as the probative value on the issue of credibility, outweighs the prejudicial value of the 404 evidence." 2 R. 83.

Armed by this ruling, the prosecutor then elicited the following testimony from the investigating officer.

Q: All right. During your investigation into this case, did you learn of any other truck that was registered to the defendant?

A: Yes, sir, I did.

Q: And what kind of truck was that, sir?

A: It was a 1979 International tractor.

Q: All right. And would that be an International Freightliner?

A: Yes, sir.

Q: And what kind of tractor was involved in this very case that we're here about today?

A: Also a '79 Freightliner.

Q: But two different Freightliners?

A: Yes, sir.

Q: All right. Now, did your investigation disclose whether or not that other Freightliner that was registered to the defendant and owned by the defendant

Page 188

had ever been in the custody of the United States Government or of any local government?

A: Yes, I did.

Q: And what government had it been in the custody of?

A: In December of '88, the Drug Enforcement Administration Task Force in Corpus Christi seized the vehicle.

Q: Okay, and where was that vehicle seized?

A: The vehicle was seized at Falfurrias, Texas Border Patrol checkpoint.

Q: All right. And when it was seized at the Falfurrias checkpoint at that time, was there a trailer attached to it?

A: Yes, sir, there was.

Q: What was in the trailer of the vehicle at that time?

A: There were 2,000 pounds of marijuana.

Q: All right. Now was the defendant driving the vehicle at that time?

A: No, sir, he was not.

Q: Did anybody ever make arrangements to get that vehicle back from the Government?

A: Yes, sir.

Q: Who was that?

A: Mr. Rodolfo Gonzalez through his attorney, Raul Garcia, contacted the Nueces County Sheriff's Department in August of '89, paying off a $1,200 storage fee, to have the vehicle released to their custody.

Q: All right. And did Mr. Gonzalez himself pick it up or somebody else?

A: A subject by the name of Jose Lopez picked up the tractor and trailer.

2 R. 84-86. The prosecutor then introduced into evidence a photograph of the first tractor-trailer rig, and indicated that he was finished with the witness.

The Government's examination of the witness, however, did not end at that point. When the prosecutor indicated that he had no further questions, the court called for the attorneys to approach the bench. The court asked the prosecutor if he was going to question the agent about the fact that Gonzalez had sold the first tractor-trailer and used part of the proceeds to purchase the tractor used in this case. 2 R. 86-87. The court reminded the prosecutor that "that's one of the reasons for the admissibility of this evidence," and that its admissibility was not predicated on "just this 404 type stuff." 2 R. 87. The prosecutor responded that he had just "overlooked" that line of questioning and resumed his examination. He elicited testimony to the effect that Gonzalez had sold that first rig for $12,000 and used $4,000 of that money to purchase the tractor used in this case. 2 R. 87-88. When the Government finished with the witness the trial court instructed the jury that it was to use the testimony it had just heard only for the limited purposes of deciding how thorough the Government's investigation had been and whether Gonzalez had the requisite knowledge or intent. 2 R. 88-89. Neither party voiced any objection to the limiting instruction. 2 R. 89.

The jury returned a verdict of guilty. Gonzalez timely appeals, arguing that the evidence regarding the prior smuggling attempt should not have been admitted, and that the evidence was insufficient to support his conviction.


A. Admission of the Evidence Concerning the Prior Smuggling Attempt

Gonzalez argues that it was prejudicial error for the trial court to allow the testimony concerning the truck he had previously owned, particularly to the extent that such testimony linked Gonzalez to a crime for which he was never indicted or charged, much less convicted. The Government contends that...

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