U.S. v. Jaras, No. 95-40113

CourtU.S. Court of Appeals — Fifth Circuit
Writing for the CourtBefore DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER; DENNIS; DUPLANTIER
Citation86 F.3d 383
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose JARAS, Defendant-Appellant.
Docket NumberNo. 95-40113
Decision Date11 June 1996

Page 383

86 F.3d 383
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose JARAS, Defendant-Appellant.
No. 95-40113.
United States Court of Appeals,
Fifth Circuit.
June 11, 1996.

Page 385

David Haskell Henderson, Jr., Assistant U.S. Attorney, Office of the United States Attorney, Beaumont, TX, for plaintiff-appellee.

Gary M. Polland, Houston, TX, Stephen S. Morris, Houston, TX, Roger Neil Moss, Lufkin, TX, for defendant-appellant.

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

Before DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER, District Judge. *

DENNIS, Circuit Judge:

Following a jury trial, Jose Jaras was convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and sentenced to 51 months imprisonment and three years of supervised release. In this appeal, he raises the following errors: (1) that the trial court erred in denying his motion to suppress evidence; (2) that there was insufficient evidence to convict him of the possession with intent charge; (3) that the prosecutor engaged in misconduct in failing to disclose impeachment material, failing to bring perjury to the attention of the court in a timely manner, and vouching for the credibility of a known perjurer; (4) that the district court misapplied the Sentencing Guidelines in calculating the base offense level; and (5) that the district court failed to afford Jaras his right of allocution. Because we find error requiring reversal of Jaras's conviction, we do not reach the sentencing issues presented in this case.

I. FACTS AND PROCEDURAL HISTORY

On April 1, 1994, police officer Don Mitchell stopped a car he observed swerving on Highway 59 in Corrigan, Texas to determine if its driver, Ramon Salazar, was drunk. Appellant, Jose Jaras, was riding in the car as a passenger. Officer Mitchell had Salazar exit the vehicle and proceeded to question him. Salazar explained to the officer that he had

Page 386

trouble staying in the lane because he was eating a hotdog, an explanation corroborated by the partially consumed hotdog he finished eating during the stop. Salazar informed Officer Mitchell that he was traveling to Ohio to visit a sick friend, and identified appellant as "Cheeto," stating that he had only known Cheeto for a couple of weeks. While waiting for a computer check of the car, Officer Mitchell approached Jaras, who was sitting in the front passenger seat, to question him. Jaras supplied a resident alien card and stated that he and Salazar were traveling to Illinois to visit Salazar's uncle.

Officer Mitchell testified that he became suspicious that Salazar and Jaras were transporting narcotics based on the conflicting stories he received, the difference in age of the two, 1 and the unlikelihood that Salazar would make an extended trip with a relative stranger. He asked Salazar, who was standing in front of the police car, 2 if there were any drugs in the vehicle. When Salazar responded, "not that I know of," Officer Mitchell asked if he could look in the car, and Salazar gave him permission to do so. Nothing in the record indicates that Jaras, who had remained in the passenger seat of the car, heard this exchange. The officer found no evidence from a search of the car's interior. In the trunk, however, he found a garment bag and two suitcases. Salazar claimed ownership of the garment bag and stated that the suitcases belonged to Jaras. Jaras, who had come to the rear of the vehicle at Officer Mitchell's instruction, did not respond, and Officer Mitchell informed him that Salazar had given him permission to search the car. The officer searched the garment bag and found no incriminating evidence. He then picked up the suitcases, noted that they were heavy, and asked Jaras what was inside them. Jaras said that he didn't know. The officer opened the suitcases and discovered a large quantity of what he believed was marijuana. He arrested both Salazar and Jaras, and seized the suitcases.

Jaras was charged by grand jury indictment with conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court denied his motion to suppress and, following a jury trial, Jaras was acquitted on the conspiracy count, but found guilty on the possession charge. The district court sentenced him to 51 months imprisonment, the minimum sentence under the Guidelines (based on an offense level of 24 and a criminal history category of I), and 3 years of supervised release. Jaras timely filed an appeal in this court.

II. SUFFICIENCY OF THE EVIDENCE

We first review Jaras's claim that the Government failed to adduce sufficient evidence at trial to convict him on the possession with intent charge, because a finding in appellant's favor on this issue prevents further prosecution of this charge under the double jeopardy clause. See Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978); Cordova v. Lynaugh, 838 F.2d 764, 766 n. 1 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 932 (1988). In order to convict Jaras of the offense of possession of marijuana with intent to distribute, the Government was required prove that he (1) knowingly (2) possessed marijuana (3) with intent to distribute it. See United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir.1990). Jaras claims that the Government did not adequately prove the knowledge element of the offense, arguing that Salazar, the sole witness called by the Government to establish knowledge, did not specifically testify that Jaras was aware of the purpose of the trip or that marijuana was in the trunk of the vehicle, and that Salazar's testimony was "incredible" as he had clearly lied on the witness stand.

Our review for sufficiency of the evidence is a narrow one. We must affirm if a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

Page 387

319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Salazar, 66 F.3d 723, 728 (5th Cir.1995). We thus consider the evidence, all reasonable inferences drawn therefrom, and all credibility determinations in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Salazar, 66 F.3d at 728; United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir.1995); United States v. Casel, 995 F.2d 1299, 1303 (5th Cir.), cert. denied --- U.S. ----, 114 S.Ct. 472, 126 L.Ed.2d 424 (1993). Our role does not extend to weighing the evidence or assessing the credibility of witnesses. Glasser, 315 U.S. at 80, 62 S.Ct. at 469; Casel, 995 F.2d at 1303. The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence. Salazar, 66 F.3d at 728; Resio-Trejo, 45 F.3d at 911 (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)).

The Government produced three witnesses in its case in chief. Officer Mitchell testified regarding the stop of Salazar's vehicle, its search, and his seizure of the two suitcases and arrest of Salazar and Jaras. Dennis Ramsey, a chemist-toxicologist working for the Texas Department of Public Safety, testified that the substance in the two suitcases seized by Officer Mitchell was marijuana that weighed slightly over one hundred pounds. Jaras's co-defendant, Salazar, testified that he was delivering marijuana for two nephews of his wife, Aleas and Johnny Garza, and that he had known Jaras, to whom he had been introduced by Aleas Garza, for about a year. Salazar further explained how he received the marijuana for the April 1, 1994, trip 3 and the details for payment. Regarding Jaras's involvement, Salazar testified that Jaras had accompanied him on a prior trip, on March 2, 1994, to deliver 50 pounds of marijuana to Lima, Ohio; 4 that he had to pay Jaras $500 out the payment he received for the trip; that Jaras knew on the March 2 trip that marijuana was in the car; and that he did not have to discuss the presence of the drugs with Jaras on either of the two trips "because he already knew about it already."

Jaras argues that Salazar's testimony failed to demonstrate that he had knowledge of the marijuana being transported on April 1, 1994. Review of that testimony, however, clearly reveals sufficient indicia of knowledge to support the jury's verdict. A conviction may be based on the uncorroborated testimony of one accomplice if the testimony is not insubstantial on its face. United States v. Gibson, 55 F.3d 173, 181 (5th Cir.1995); United States v. Gadison, 8 F.3d 186, 190 (5th Cir.1993). Jaras's real complaint is that the testimony of his co-defendant was inherently unreliable or "incredible," and thus cannot form the basis for establishing knowledge, because Salazar demonstrably lied on the witness stand. During cross examination by Jaras's attorney, Salazar repeatedly denied that he had entered a plea agreement with the Government. That was not true. Although the Government's attorney improperly failed to call this untruth to the attention of the defense and the trial court, the trial court itself, during a recess following the close of the Government's case, informed the defense of the plea agreement and offered the defense the opportunity to recall Salazar for purposes of impeachment. The defense agreed to this, called Salazar to the stand as his sole witness,

Page 388

and "cross examined" him on the details of the plea agreement and his failure to admit to it when previously testifying. Confronted with the written plea agreement, Salazar admitted to...

To continue reading

Request your trial
105 practice notes
  • U.S. v. Zertuche-Tobias, Criminal No. H-96-181.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 3 Diciembre 1996
    ...a suspect's silence or failure to object unless the officer expressly or impliedly asked for consent to search. United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) (citing cases). As in Jaras, O'Sullivan did not expressly or implicitly request Carrera's consent to search inside the enve......
  • United States v. Harvey, Criminal Action No. 1:12CR29.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 25 Octubre 2012
    ...in some capacity, is often seen as a necessary predicate for reasonably inferring implied consent. See, e.g., United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) (consent cannot reasonably be implied from a suspect's silence or failure to object unless the officer expressly or impliedly......
  • U.S.A v. Jackson, No. 09-2279.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 12 Marzo 2010
    ...to never open the briefcase and to destroy its contents rather than allow anyone else to peer inside"); United States v. Jaras, 86 F.3d 383, 389 (5th Cir.1996) ("The government presented no evidence of joint access or control at the suppression hearing."); United States v. In......
  • U.S. v. Cota-Lopez, No. CRIM.EP-02-CR-1072-P.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 13 Noviembre 2002
    ...124 F.Supp.2d 1057, 1070 (S.D.Tex.2000). Consent to a warrantless search must be voluntary and may be express or implied. U.S. v. Jaras, 86 F.3d 383, 390-91 (5th Cir.1996) (consent cannot reasonably be implied from a suspect's silence or failure to object unless the officer expressly or imp......
  • Request a trial to view additional results
105 cases
  • U.S. v. Zertuche-Tobias, Criminal No. H-96-181.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 3 Diciembre 1996
    ...a suspect's silence or failure to object unless the officer expressly or impliedly asked for consent to search. United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) (citing cases). As in Jaras, O'Sullivan did not expressly or implicitly request Carrera's consent to search inside the enve......
  • United States v. Harvey, Criminal Action No. 1:12CR29.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 25 Octubre 2012
    ...in some capacity, is often seen as a necessary predicate for reasonably inferring implied consent. See, e.g., United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) (consent cannot reasonably be implied from a suspect's silence or failure to object unless the officer expressly or impliedly......
  • U.S.A v. Jackson, No. 09-2279.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 12 Marzo 2010
    ...to never open the briefcase and to destroy its contents rather than allow anyone else to peer inside"); United States v. Jaras, 86 F.3d 383, 389 (5th Cir.1996) ("The government presented no evidence of joint access or control at the suppression hearing."); United States v. In......
  • U.S. v. Cota-Lopez, No. CRIM.EP-02-CR-1072-P.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 13 Noviembre 2002
    ...124 F.Supp.2d 1057, 1070 (S.D.Tex.2000). Consent to a warrantless search must be voluntary and may be express or implied. U.S. v. Jaras, 86 F.3d 383, 390-91 (5th Cir.1996) (consent cannot reasonably be implied from a suspect's silence or failure to object unless the officer expressly or imp......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT