U.S. v. Jaramillo

• Decision Date: 10 January 1995
• Docket Number: No. 93-2559,93-2559
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martha JARAMILLO, Defendant-Appellant.

Page 920

42 F.3d 920

UNITED STATES of America, Plaintiff-Appellee, v. Martha JARAMILLO, Defendant-Appellant.

No. 93-2559.

United States Court of Appeals Fifth Circuit.

Jan. 10, 1995.

Russell V. Henderson (Court-appointed), Houston, TX, for appellant.

Judith A. Lombardino, Paula C. Offenhauser, Kathlyn G. Snyder, Asst. U.S. Attys., Lawrence D. Findes, U.S. Atty., Houston, TX, for appellee.

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

Before BARKSDALE and PARKER, Circuit Judges, and COBB, District Judge. ¹

COBB, District Judge:

Appellant Martha Jaramillo was convicted for aiding and abetting others in the possession of cocaine with intent to distribute in violation of 18 U.S.C. section 2. Jaramillo contends that the government presented insufficient evidence to sustain a conviction for aiding and abetting. Jaramillo also maintains that the trial court should have granted her motion for a new trial based on newly discovered evidence. Finding that the trial court committed no error, we AFFIRM.

BACKGROUND

Martha Jaramillo appealed from her conviction for aiding and abetting in the possession of in excess of five (5) kilograms of cocaine with intent to distribute in violation of Title 21, United States Code, sections The investigation leading to Martha Jaramillo's arrest and conviction began in Louisville, Kentucky, where authorities apprehended a local cocaine dealer. The Louisville cocaine dealer agreed to act as a confidential informant (CI) for the Drug Enforcement Administration (DEA) by identifying suppliers for his cocaine trade. The CI provided names, addresses and telephone and pager numbers of his suppliers in the Houston area. The DEA then had the CI contact these suppliers to arrange for the purchase of a quantity of cocaine. Initially, the DEA officers monitored several conversations between the CI and Luz Maria Jaramillo.

841(a)(1), 841(b)(1)(A) and Title 18, United States Code, section 2. Martha Jaramillo's associates, Luz Maria Jaramillo and Edison Ortiz plead guilty to the same charges listed in the indictment.

After a few weeks of negotiation with his Houston suppliers, the CI agreed to send his ex-wife Sherryl and a female friend to Houston to pick up seven kilograms of cocaine. Sherryl flew to Houston. An undercover agent, Linda Smith, played the role of Sherryl's companion. DEA agents then set up an undercover operation at a La Quinta Inn located in southwest Houston.

The DEA had also set up surveillance at the apartment complex corresponding to the telephone number that the CI used to contact Luz Maria. At approximately 12:50pm on the date of the transaction, DEA agent William Owen watched a silver and black pickup truck arrive at that address. Two women and a man entered the apartment.

On the same day, Sherryl called Luz Maria Jaramillo. Luz Maria agreed to meet with Sherryl at 3:00 p.m. that day at the La Quinta selected. Shortly after 3:00pm, a silver and black pickup truck drove to and parked at the La Quinta. Luz Maria left the truck and walked to the motel room carrying only some keys. Sherryl and Agent Smith greeted her at the motel room door and invited her inside. At that time, Luz Maria tried to convince Sherryl and Agent Smith to conduct the transaction at her apartment complex. When this attempt failed, she called someone that she referred to as her cousin to deliver the cocaine to the La Quinta. The conversation was held in Spanish.

A transcription of this conversation showed that Luz Maria asked the other party to bring "it" to where she was. She also told the party to go all the way to the back after entering the Inn. Luz Maria had to make a second telephone call to give the party additional directions to the motel. According to Agent Smith's testimony, Luz Maria explained to Sherryl and Smith that "they" had gone to the wrong La Quinta Inn, thereby indicating that more than one person was bringing the cocaine.

While waiting for the cocaine to arrive, Luz Maria asked to count the purchase money. Agent Smith brought the $147,000 to the room and watched Luz Maria count the money. It took Luz Maria approximately thirty to forty-five minutes to count the money.

At 4:05pm, a green Chevrolet pickup truck entered the parking lot of the correct La Quinta. Luz Maria said "they're here" in English as she let Edison Ortiz and Martha Jaramillo into the motel room. Ortiz entered the room carrying a duffle bag. Martha, carrying only a purse, entered the room, greeted the occupants, and stood by the motel room wall near the door watching the transaction. Ortiz then removed two kilogram packages from the duffle bag and handed them to Agent Smith. After Agent Smith pretended to sample the contents of the packages, an arrest signal was given.

The agents found Martha's purse empty except for a set of keys to the silver and black pickup truck and a small light bulb from the interior light of an automobile. Investigators determined later that the silver and black pickup truck belonged to Edison Ortiz. Agents also recovered a pistol and a supply of ammunition as well as Luz Maria's identification and other papers in a subsequent search of the silver and black pickup truck.

ANALYSIS

1. Standard of Review

In reviewing an appeal based on insufficient evidence, the standard is whether any reasonable trier of fact could have found that the evidence established the appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Casilla, 20 F.3d 600, 602 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 240, 130 L.Ed.2d 163 (1994). The jury retains sole responsibility for determining the weight and credibility of the evidence. Casilla, 20 F.3d at 602. As such, we must construe all reasonable inferences from the evidence in favor of the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Casilla, 20 F.3d at 206. A review concentrates on whether the trier of fact made a rational decision to convict or acquit, not whether the fact finder correctly determined the defendant's guilt or innocence. United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1344 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2713, 129 L.Ed.2d 839 (1994). Further, the evidence need not exclude every reasonable hypothesis of innocence. United States v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1865, 128 L.Ed.2d 486 (1994). 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." United States v. Menesses, 962 F.2d 420, 426 (5th Cir.1992) (citing Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985) (quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir.1982))).

2. Sufficient Evidence Existed to Convict Jaramillo

Martha Jaramillo contends that insufficient evidence existed to support her conviction for aiding and abetting Luz Maria Jaramillo and Edison Ortiz in the possession of cocaine with intent to distribute. The aiding and abetting statute, 18 U.S.C. section 2, provides in pertinent part that:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principle.

To sustain a conviction for aiding and abetting under 18 U.S.C. section 2, the government must show that a defendant associated with a criminal venture, purposefully participated in the criminal activity, and sought by her actions to make the venture succeed. ² United States v. Ledezma, 26 F.3d 636, 641 (5th Cir.1994); Casilla, 20 F.3d at 603; see also Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). To associate with the criminal venture means that the defendant shared in the criminal intent of the principal. To participate in the criminal activity means that the defendant acted in some affirmative manner designed to aid the venture. United States v. Murray, 988 F.2d 518, 522 (5th Cir.1993).

To aid and abet simply means to assist the perpetrator of a crime while sharing the requisite criminal intent. "A conviction 'merely requires that [defendants'] association and participation with the venture were in a way calculated to bring about that venture's success.' " United States v. Williams, 985 F.2d 749, 753 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 148, 126 L.Ed.2d 110 (1993) (quoting United States v. Salazar, 958 F.2d 1285, 1292 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 185, 121 L.Ed.2d 129 (1992)). Mere presence and association, however, are not alone enough to sustain a conviction for aiding and abetting. Williams, 985 F.2d at 753; United States v. Martiarena, 955 F.2d 363, 366 (5th Cir.1992).

To sustain this conviction, the evidence and all reasonable inferences from that evidence must show that Jaramillo knew that a drug transaction was occurring, that she associated herself with the actors involved in the transaction, that she participated in the venture with the desire that the venture succeed, and that she perform some designed or intended action to achieve the goal of the crime. Martiarena, 955 F.2d at 366.

We find from the record below that Jaramillo was certainly involved in this narcotics transaction to a greater degree than by her mere presence. She drove with Ortiz to the La Quinta to make the drug delivery and stood in the room while a seven kilogram sale of cocaine took place. Jaramillo also carried a large purse that contained only a set of keys and a small light bulb. This evidence demonstrates that the government has shown that Jaramillo associated with those involved in the criminal transaction.

We find that the government also sufficiently demonstrated that Jaramillo actively participated in the criminal activity in an effort to insure its...