U.S. v. Hernandez-Palacios

• Citation: 838 F.2d 1346
• Decision Date: 07 January 1988
• Docket Number: HERNANDEZ-PALACIO,No. 87-1399,D,87-1399
• Parties: 24 Fed. R. Evid. Serv. 819 UNITED STATES of America, Plaintiff-Appellee, v. Jose Ramonefendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1346

838 F.2d 1346

24 Fed. R. Evid. Serv. 819

UNITED STATES of America, Plaintiff-Appellee, v. Jose Ramon HERNANDEZ-PALACIOS, Defendant-Appellant.

No. 87-1399

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 7, 1988.

Miguel Solis, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., Janet E. Bauerle, Lubbock, Tex., for plaintiff-appellee.

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

Before RUBIN, REAVLEY, and JOLLY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A defendant was convicted by a jury on five counts: two of conspiracy to possess and import marijuana, possession and importation of marijuana, and traveling in interstate commerce to facilitate unlawful activity. He contends that the evidence was insufficient to warrant his conviction on any of the charges, the government presented false and misleading testimony to the jury, and the court gave an erroneous instruction regarding the burden of proof of guilt or innocence. We find the evidence insufficient to warrant the conspiracy convictions or the Travel Act conviction, and reverse the judgment on these counts. The defendant's other claims lacking merit, we affirm the remaining two convictions, and, because the sentences run concurrently, we do not remand.

I.

The prosecutor offered testimony at trial indicated that, on January 27, 1987, at the Bridge of the Americas border check, at El Paso, Texas, Jose Ramon Hernandez-Palacios was a passenger in one of two buses that sought entry to the United States. Hernandez stated that he was in charge of the buses and, later, that he was the owner. In addition to the drivers of the two buses, two more men were aboard the buses as passengers. An agent questioned the five men about their destination in the United States. The men informed the agents that they had been hired to drive two buses from Guadalajara, Mexico, to pick up a Mexican folk music group, called a Folklorico group, either in Las Cruces or Tucson, Arizona. The agent who boarded the first bus thought it unusual that the men did not know exactly where the Folklorico group would be; he saw no luggage, no toiletries, and no towels and he thought this unusual considering the group's alleged travels and the stated purpose of their trip. He smelled mothballs, which are frequently used to mask the smell of marijuana. He therefore directed both buses aside for further inspections and to question the occupants.

Because the travelers were aliens, they said they expected to remain in the United States for more than 72 hours and their destination in the United States was beyond the 25-mile limit, travel documents were required. Several agents testified that they questioned the men in the secondary inspection area in order to decide whether to issue the documents. Hernandez appeared nervous. He told an agent that he was worried about his money and documents on board one of the buses. The agent permitted him to retrieve a small bag containing these items. The agent also testified that, upon checking the items in the bag, he found $4000 in cash and some receipts that Hernandez indicated were for repairs and painting recently done on the vehicles. The agent further testified that, when he later inventoried the items in the bag, the receipts were no longer there.

Another agent testified that Hernandez told him that an individual named "Elias" had rented the buses to pick up the group, but that Hernandez was unable to tell the agent Elias's last name or how to reach him even though Hernandez had allegedly known Elias for six years. One of the agents made a phone call to the Las Cruces Holiday Inn, where Hernandez had said the Folklorico group was staying, and was informed no such group had registered. The agents therefore intensified their search of the buses.

In searching the buses, agents found panels that they surmised had been worked on recently due to the presence of fresh putty. Upon drilling through the panels in each bus, the agents found marijuana in a hidden compartment. They also found that tanks had been installed inside the diesel fuel tanks of the two buses and these tanks contained marijuana. A search of both buses also yielded bags of gray putty, a package of rivets, and a cordless drill with screw bits.

The government also called as a witness W.D. Russell, who was a service center manager for Greyhound Bus Lines and had been a bus mechanic for 30 years. Russell testified that he had examined the two buses on the weekend before the trial, and that based on the condition of the radiators, tires, and fuel systems, his opinion was that the buses could not have been driven from Guadalajara to El Paso without stopping for additional fuel.

The trial court denied Hernandez's motion for judgment of acquittal but granted the motions made by the four codefendants. The jury convicted Hernandez on all five counts of the indictment, and the court sentenced him to serve ten years on each of four of the counts and five years on the Travel Act count, all to run concurrently, a special parole term of eight years on the substantive marijuana counts, and a $250 fine.

II.

In evaluating the sufficiency of the evidence on appeal, the reviewing court must consider the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices. ¹ The standard is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ²

a. Conspiracy to import and conspiracy to possess

In a drug conspiracy prosecution under 21 U.S.C. Secs. 846 and 963, the government must prove beyond a reasonable doubt that a conspiracy existed, the accused knew of the conspiracy, and he knowingly and voluntarily joined it. ³ No evidence of overt conduct is required. ⁴ A conspiracy agreement may be tacit, and the trier of fact may infer agreement from circumstantial evidence. ⁵ This court, however, will not lightly infer a defendant's knowledge of and acquiescence in a conspiracy. ⁶ Although all of a defendant's alleged coconspirators are acquitted, the defendant may be convicted of conspiring with other unknown persons if the indictment asserts that other such persons exist and the evidence supports their existence and the existence of a conspiracy. ⁷

In this case the four codefendants were acquitted of the conspiracy charge. While the indictment alleged that there were other unknown conspirators, the evidence does not support the existence of any agreement or of any other conspirators with whom an agreement might have been reached. While the government asks us to suppose that there may have been two other coconspirators, namely the "Elias" who leased the bus services and Hernandez's brother, who Hernandez said at one point owned one of the buses, the government's theory of the case at the trial strongly implied that no "Elias" actually existed at all. Furthermore, even if there was a person named "Elias" or one for whom this was a pseudonym, and even if Hernandez's brother owned one of the buses, these two single facts are not sufficient to permit the conclusion beyond a reasonable doubt that they together with Hernandez were members of a conspiracy to possess or import marijuana. Because of the insufficient evidence of any agreement, the trial court should have granted Hernandez's motion for judgment of acquittal on the two conspiracy counts.

b. Possession and Importation

A possession conviction requires proof that a defendant had knowing possession of marijuana with the intent to distribute it. ⁸ An importation conviction requires proof of similar elements, along with the additional proof that the defendant played a role in bringing the marijuana from a foreign country into the U.S. ⁹ Possession may be actual or constructive, and may be proved by circumstantial evidence. ¹⁰ One who owns or exercises control over a motor vehicle in which contraband is concealed may be deemed to possess the contraband. ¹¹ Intent to distribute may be inferred from the possession of a large quantity of contraband. ¹²

The evidence was sufficient to convict Hernandez on both the possession and importation counts. His nervous behavior and the disappearance of the receipts that evidenced recent repairs to the buses, together with his statement that he was owner of and in charge of the buses on which the contraband was found, and the evidence that the buses could not have traveled from Guadalajara to the border without frequent stops for fuel when--absent the marijuana tanks--the fuel supply would have been ample for such a trip, all taken together, suffice to warrant the inference that he knowingly had possession of the marijuana. The large quantity found, over 1000 pounds, sufficiently evinces an intent to distribute. ¹³

The only additional requirement for an importation conviction is proof that the act would be consummated in the United States. Hernandez clearly played a role in bringing the marijuana across the border from Mexico into the United States. The fact that he was crossing the border with a quantity of marijuana sufficient for the jury to infer intent to distribute supports the conclusion that the distribution was to occur inside the United States.

Thus there was sufficient evidence to permit the factfinder to conclude that Hernandez was guilty of both possession and importation of marijuana.

c. Travel in foreign commerce to facilitate unlawful activity

Conviction under 18 U.S.C. Sec. 1952 requires proof of (1) travel in interstate or foreign commerce, (2) specific intent to promote, manage, establish, carry on, or distribute the proceeds of "unlawful activity", and (3) knowing and willful commission of an act in furtherance of that intent subsequent to the act of travel. ¹⁴ The term "unlawful activity" means "any business enterprise involving ... narcotics or...