U.S. v. Gutierrez, No. 76-2907

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, Circuit Judge, KUNZIG; KUNZIG; This circuit has only recently had occasion to address the standard applicable in a case such as this. In a carefully constructed passage which we quote at length
• Citation: 559 F.2d 1278
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. Siro T. GUTIERREZ, Defendant-Appellant.
• Docket Number: No. 76-2907
• Decision Date: 28 September 1977

Page 1278

559 F.2d 1278 UNITED STATES of America, Plaintiff-Appellee.
v.
Siro T. GUTIERREZ, Defendant-Appellant. No. 76-2907. United States Court of Appeals,
Fifth Circuit. Sept. 28, 1977.

Dick DeGuerin, Houston, Tex., for defendant-appellant.

James R. Gough, U. S. Atty., George A. Kelt, Jr., Jim C. Ezer, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Page 1279

Before COLEMAN, Circuit Judge, KUNZIG, Judge, ^* and GEE, Circuit judge.

KUNZIG, Judge:

This case comes to us on direct appeal. Appellant Siro T. Gutierrez and a co-defendant, one Gilbert G. Gonzales (who has not joined in this appeal), were tried and convicted by a jury in the Southern District of Texas (Houston Division). Appellant Gutierrez was charged, on several counts, with possession of heroin with intent to distribute and with conspiracy to distribute. 21 U.S.C. § 841(a)(1); 21 U.S.C. § 846; 18 U.S.C. § 2 (1970). ¹ Following his conviction on all counts, Gutierrez was sentenced to 30 years imprisonment and 6 years special parole. Gutierrez takes this appeal on the issue of the sufficiency of the evidence, urging that the circumstantial evidence adduced at his trial is, as a matter of law, not sufficient to support his conviction. We agree with appellant and we reverse and set aside the judgment entered below.

To understand the Government's case against Gutierrez, it is necessary at the outset to review the activities of Gilbert G. Gonzales (Gutierrez' nephew and co-defendant at trial). Gonzales met an undercover agent of the Drug Enforcement Administration (DEA) to whom he agreed to sell heroin. The sales, four in all, ² took place as planned.

The transactions followed a similar pattern. On each occasion, Gonzales (the nephew) would first meet with Conway (the DEA agent) and arrange the terms of sale. After having thus settled on the price and amount, Gonzales and Conway would rendezvous later on to make the actual exchange. All told, Gonzales marketed approximately 4 ounces of heroin to Conway for some $2900 of marked currency. On February 12, 1975, during the last such sale, Conway gave a signal to other agents who then arrested Gonzales.

After the first agreement between Gonzales and Conway, and in an effort to find Gonzales' source, DEA agents followed him. They saw Gonzales go to his uncle's house during that period before Gonzales returned to Conway and turned over the heroin. In a like fashion, agents observed Gonzales meet with his uncle or go to his house prior to consummating the two other transactions charged. Following Gonzales' arrest, law enforcement agents executed a search warrant on his uncle's house. That search of Gutierrez' home turned up $400 in marked bills in a bank bag within a chest in a closet. This money was the same that had passed from agent Conway to Gonzales earlier. ³

This sequence of events formed the basis for an indictment against Gutierrez and Gonzales. Appellant Gutierrez was charged on seven counts with conspiracy, possession, and distribution of heroin arising out of

Page 1280

three sales made by his nephew to law enforcement officers. Gonzales and Gutierrez were tried together and, despite the fact that Gutierrez took the stand on his own behalf, Gutierrez was convicted on all counts. Appellant moved the court below for a judgment of acquittal, claiming that the evidence established neither the existence of any conspiracy nor his knowing participation and claiming further that no proof connected him to possession or distribution of the drug. The trial court denied the motion, entering judgment against both defendants in accordance with the jury verdict. Appellant contends that the trial court erred and the issue, sufficiency of the evidence, is now before us.

The government asserts that there is a pattern, a repetition of contact between uncle and nephew, shown here which, taken together with the $400, does establish a conspiracy. The Government maintains that these are factual matters from which a reasonably minded jury found conspiracy. Conspiracy having been found, so the Government argues, the substantive offenses are attributable to the uncle.

Appellant replies that mere association with a lawbreaker is not sufficient to show knowing and willing membership in a conspiracy. In the face of Gutierrez' uncontradicted trial testimony that the $400 was received from Gonzales as repayment of money owed, appellant claims that the jury could not have reasonably inferred either the existence of conspiracy or Gutierrez' participation. Appellant argues that since no evidence at all, apart from actions imputed from the alleged co-conspirator, supports the substantive counts, they too must fail if the conspiracy count fails.

Upon careful examination of the briefs and of the trial transcript, and after considering the oral arguments, this court finds for appellant. We reverse the conviction.

This circuit has only recently had occasion to address the standard applicable in a case such as this. In a carefully constructed passage which we quote at length, Judge Ainsworth, speaking for the court, said:

In a criminal case the Government must prove every element of the offense beyond a reasonable doubt. In this respect, circumstantial evidence is intrinsically no different from direct evidence, . . . and the same test for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial. . . . Therefore, in testing the sufficiency of the evidence in this circumstantial evidence case it was the duty of the trial judge, before sending the case to the jury, to determine whether a reasonably...