U.S. v. Juarez, 77-5091

• Decision Date: 17 January 1978
• Docket Number: No. 77-5091,77-5091
• Citation: 566 F.2d 511
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando Adan JUAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 511

566 F.2d 511

UNITED STATES of America, Plaintiff-Appellee, v. Armando Adan JUAREZ, Defendant-Appellant.

No. 77-5091.

United States Court of Appeals Fifth Circuit.

Jan. 17, 1978.

Joel D. Conant, San Antonio, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, W. Ray Jahn, James E. Bock, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before TUTTLE, CLARK and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

The defendant, Armando Adan Juarez, was charged in a two-count indictment with conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846, and with aiding and abetting the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant was tried before a jury, convicted on both counts and sentenced to concurrent terms of 10 years imprisonment with a 15-year special parole term on each count. On appeal, defendant challenges the sufficiency of the evidence to support the jury's verdict and urges that certain remarks by the prosecutor during closing arguments amount to reversible error. We affirm.

I. SUFFICIENCY OF THE EVIDENCE

At the close of the government's case, defendant moved for a judgment of acquittal under Fed.R.Crim.P. 29(a). The motion was denied and was not renewed at the conclusion of the defendant's evidence. Under those circumstances, it is well-settled in this Circuit that defendant waived any objection to the denial of his motion. United States v. Binetti, 547 F.2d 265, 268 (5th Cir.), rev'd on rehearing on other grounds, 552 F.2d 1141 (5th Cir. 1977); United States v. Phipps, 543 F.2d 576, 577 (5th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 564 (1977); United States v. Edwards, 488 F.2d 1154, 1158-59 (5th Cir. 1974). Our review therefore involves a determination of whether to affirm the conviction would entail a "manifest miscarriage of justice." United States v. Perez, 526 F.2d 859, 863-64 (5th Cir.), cert. denied,429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976) (footnotes omitted); United States v. Jones, 486 F.2d 1081, 1082 (5th Cir. 1973); United States v. Andrews, 431 F.2d 952, 952 (5th Cir. 1970) (per curiam). We find no miscarriage of justice here, since the less stringent standard which applies when a timely motion for acquittal is made is fully satisfied.

In evaluating a claim of insufficient evidence in accordance with the lesser standard, we must consider the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), resolving all reasonable inferences and credibility choices in support of the jury's verdict. United States v. Zweig, 562 F.2d 962, 963 (5th Cir. 1977); United States v. Prout, 526 F.2d 380, 384 (5th Cir.), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976); United States v. Black, 497 F.2d 1039, 1041 (5th Cir. 1974). To reverse we must find that a reasonably minded jury necessarily must have entertained a reasonable doubt as to defendant's guilt. United States v. Haggins, 545 F.2d 1009, 1013 (5th Cir. 1977). ¹

At the time of the events leading to his conviction, defendant operated an auto repair service in a small garage located behind the "A & A Auto Parts" business at 3411 West Commerce Street, San Antonio, Texas. The parts store was operated by one Arturo Ortiz, who at the time was suspected of having dealt in heroin. A semi-public, coin-operated telephone, number 432-9673, was located in the parts store and billed in defendant's name. On February 6, 1976, Officer Russell Reina of the San Antonio Police Department ² called telephone number 432-9673 and asked to speak to "Mando." ³ After learning that "Mando" was not available, Reina agreed to speak with one Martin Reyes, who previously had sold heroin to Reina. ⁴ During this conversation, Reina and Reyes came to terms on another sale of heroin, and Reina consented to call back in three days to be sure Reyes had obtained the merchandise.

At 9:30 a. m. on February 9, 1976, Reina again called 432-9673 and asked to speak to "Mando." On this occasion, defendant answered the phone, and the following conversation ensued: ⁵

C. Mando?

A. Yeah.

C. This is Robert.

A. Robert, Robert?

C. Yes, what's up?

A. What Robert?

C. Well, that guy's friend, man.

A. Oh yeah, yeah, yeah.

C. What's up man?

A. Oh, nothing's happened.

C. Where were you all yesterday?

A. We weren't here yesterday.

C. Well, I was calling and calling over there.

A. Uh huh.

C. Martin didn't tell you?

A. No.

C. Oh.

A. What was he supposed to tell me?

C. That I was here, and I was to call you Sunday so that we could do something and all that.

A. No. he didn't tell me anything.

C. Uh huh. Well today I'm going back, can I do anything?

A. Sure.

C. Well uh, I'm with my with my girl, and I'm plain lost, understand me?

A. Uh huh.

C. Uh, just a minute. (to someone in the background) Gloria. (she answers) Yeah. Where are we going today? (her answer inaudible) What's the name, Wonderland? Do you know where Wonderland is?

A. Yeah.

C. Uh I'm, uh, going to take my girl over there about about 11:00.

A. Uh huh.

C. Uh, can I call you from there, when I get there, and can you bring me something?

A. Uh huh.

C. Okay, uh and the tires, how much is it going to cost?

A. Well, uh, I have to talk to that other guy, you know?

C. Uh huh.

A. Uh, about the tire, and then by the time you call, everything will be ready.

C. Okay, I'll talk to you at at about about 11:00 or 11:30.

A. Okay.

C. Around there. Is that all right?

A. That's okay.

C. Okay.

A. I'll see you.

C. Bye, bye. (emphasis added).

Approximately 90 minutes later, surveillance officers observed a green Chevrolet station wagon, Texas license number EBZ 987, leave the 3411 West Commerce location. The vehicle proceeded to another auto parts store and eventually returned to 3411 West Commerce. The investigating officers subsequently learned that although the vehicle was registered to Arturo Ortiz, the address on the registration statement was that of the defendant. ⁶

According to schedule, Reina called back to 11:20 a. m. Reyes answered the phone and told Reina that he was going to handle the deal "for Mando." It was agreed that Reyes would meet Reina at 12:15 p. m. at the "Wonderland Shopping Center." Some 30 minutes later, Reyes left 1211 West Commerce in the green station wagon, drove to a nearby dwelling and picked up an unidentified young man. The two men proceeded to a "Handy Andy" store in the shopping center, and a sale of heroin was consummated.

From February 9, 1976, until September 20, 1976, no contact was made with any of the parties involved in the sale. On the latter date, however, Officer Reina called 432-9673 and had the following conversation with the defendant:

A. Hello

C. Mando?

A. Yeah.

C. This is Robert speaking.

A. Robert, Robert, what Robert?

C. Do you remember me, Robert from Dallas?

A. No, I don't remember very well.

C. Uh well, we made a deal on some tires about it's been about five or six months.

A. Oh, uh huh.

C. I am a friend of that other guy.

A. Yes, uh huh.

C. Do you remember well now?

A. More or less.

C. uh

A. I know who you are.

C. I'm here in San Antonio, uh uh I have this deal and I wanted to talk with you to see if you can do something with me.

A. No, well you know, it's just that that stuff, no more.

C. There isn't any more?

A. No.

C. Well, just a chance there might be some, if not, well, that's all right.

A. Yeah.

C. How have you been?

A. Oh, swell.

C. Swell?

A. Uh huh.

C. Everything's all right?

A. Uh huh, lot of work.

C. That's good. Well, uh well, then then what's the use, right?

A. Yeah.

C. That's good everything's cool as hell?

A. Yes, uh huh.

C. That's good.

A. Everything's swell.

C. Well there isn't uh no chance to get something in a few days or a month, something like that?

A. I wouldn't know. I don't know anything just now.

C. You haven't seen Martin?

A. No, listen, I haven't seen him in a long time. It's been about six months, five months no about four months.

C. Well, what happened to him?

A. He just left.

C. Well, thank you.

A. Okay.

C. Bye. (emphasis added).

At some point soon after this conversation, the investigation apparently terminated.

As previously mentioned, Count Two of the indictment charged defendant with aiding and abetting the distribution of heroin. This court must recently reviewed the nature of that offense and the pertinent evidentiary requisites in United States v. Martinez, 555 F.2d 1269 (5th Cir. 1977). In Martinez, we explained that

it is not necessary that one sell contraband in order to aid and abet its distribution. . . . To aid and abet means to assist the perpetrator of the crime while sharing in the requisite criminal intent. . . . The crime consists of illegal assistance in the criminal act and a person may be convicted on the basis of his overall participation in the criminal venture. In order to sustain a conviction for aiding and abetting, the evidence must show that defendant was associated with the criminal venture, participated in it as in something he wished to bring about, and sought by his action to make it succeed. . . . Defendant must have shared the criminal intent or purpose and assisted in the accomplishment of that purpose.

Id. at 1271-72 (citations omitted). ⁷ Applying these standards to the instant case, we conclude that the evidence is sufficient to sustain a verdict of guilt for aiding and abetting the distribution of heroin.

The evidence at trial was undisputed that Martin Reyes sold a quantity of heroin to Officer Reina on February 9, 1976. ⁸ The negotiations leading to that sale were conducted over a telephone registered in defendant's name. The defendant's role in this illicit transaction is made most clear by the substance of his conversation with Reina a few hours before the sale. To the casual listener,...