U.S. v. Lechuga

Decision Date14 November 1989
Docket NumberNo. 88-1717,88-1717
Parties29 Fed. R. Evid. Serv. 41 UNITED STATES of America, Plaintiff-Appellee, v. Mario LECHUGA, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Orr & Davis, Stephen M. Orr, Austin, Tex., for Lechuga.

Helen M. Eversberg, U.S. Atty., James Deatley, Asst. U.S. Atty., Austin, Tex., Philip Police, LeRoy Morgan Jahn, Asst. U.S. Attys., San Antonio, Tex.,

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

Before THORNBERRY, GARWOOD and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Mario Lechuga (Lechuga) appeals his conviction, following a jury trial, for one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 846, and one count of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). Lechuga primarily contests the sufficiency of the evidence to support his conviction on each count. Lechuga also contends that the district court committed reversible error by admitting certain hearsay statements of one of Lechuga's alleged co-conspirators and opinion testimony of one of the government's witnesses. We affirm.

Facts and Proceedings Below

On January 5, 1988, Javier Pena (Agent Pena), an undercover special agent with the Drug Enforcement Administration (DEA), met with Isaac Carrasco (Carrasco) at the La Tapatia Restaurant (the Restaurant) in Austin, Texas, in order to discuss a possible cocaine transaction. Carrasco told Agent Pena that he preferred to deal with purchasers of large quantities of cocaine, that his "main man" 1 was out of town at the time, but Carrasco was willing to sell him an ounce of cocaine as a sample for $1,100. They agreed to carry out such a transaction later that day.

At approximately 2:55 p.m. that day, Agent Pena met Carrasco in the Restaurant's parking lot. Agent Pena and Carrasco entered a red truck, which apparently was owned by Carrasco, where Carrasco sold Agent Pena an ounce of cocaine for $1,100. During that time, Carrasco informed Agent Pena that a man--later identified as Ismael Montenegro (Montenegro)--who was sitting in a brown car parked next to the red truck was helping with the transaction. Saying that he had to retrieve the cocaine from Montenegro, Carrasco walked over to the brown car, and Montenegro gave something to Carrasco, which apparently was the ounce of cocaine that Carrasco subsequently sold to Agent Pena. Agent Pena and Carrasco discussed the possibility of a larger cocaine deal, but Carrasco again said his "main man" was out of town and would not be returning for about five days. As Agent Pena was leaving, Montenegro told him that the cocaine was of high quality.

Two days later, Agent Pena called 477-2355, the telephone number for the Restaurant, and spoke with Carrasco about buying ten more ounces of cocaine. Carrasco said that his "main man" was approximately twenty hours away in Wisconsin, but would be returning in about three days. On the following day, Agent Pena again called Carrasco at the Restaurant. Carrasco informed Agent Pena that Carrasco's people had whatever quantity Agent Pena wished to purchase. On January 15, Agent Pena called Carrasco about purchasing twenty ounces of cocaine, but Carrasco said that his source was having some sort of trouble because of snow on the roads. Later that day, Agent Pena called Carrasco, who said he would have the cocaine on the following day, and they agreed to meet at 11:30 a.m. at the Restaurant to carry out this second cocaine deal.

On the morning of January 16, 1988, Agent Pena called Carrasco. Carrasco said he would have another person, who was going to deliver the cocaine, helping him out with the deal and instructed Agent Pena to meet them at the Restaurant parking lot about 11:30 a.m. When Agent Pena arrived at the Restaurant at that time, Carrasco informed Agent Pena that the others were running late because, when the "main man" arrived the day before from Wisconsin, they had gone out drinking and were hung over. Carrasco, however, assured Agent Pena that the others would be arriving to deliver the cocaine in twenty or thirty minutes. At trial, Agent Pena testified that, in his opinion, Lechuga appeared to be hung over at the time of his arrest. Finally, Carrasco informed Agent Pena that the price, once again, would be $1,100 per ounce, but the quality would be even better than that sold in the January 5 transaction.

At approximately 11:55 a.m. that day, Agent Pena and the surveillance officers returned to the Restaurant, where the red truck used in the January 5 transaction was parked. Shortly thereafter, Lechuga drove the brown car used in the January 5 transaction into the parking lot, immediately followed by Montenegro in a blue car with a Wisconsin license plate. Montenegro parked the blue car next to the red truck. Lechuga parked the brown car about four or five car lengths away from those two vehicles and remained inside until his arrest. Montenegro left the blue car, walked over to the brown car, and spoke briefly to Lechuga. Montenegro then entered the kitchen area of the Restaurant and called for Carrasco. Carrasco emerged from the kitchen, greeted Agent Pena, and told him that they had the cocaine and that everything was fine. Agent Pena informed Carrasco that he was going to retrieve his money and a set of scales, did so, and returned to the area near the blue car. During that time, Carrasco trotted over to near the brown car, stopped abruptly, and returned to the area near the blue car. At that time, no other people were near the brown car except Lechuga, who remained inside the car. Carrasco and Agent Pena then entered the blue car to consummate the cocaine transaction. While Carrasco was having trouble finding the cocaine, Montenegro left the red truck and walked over to the blue car and was there assured by Carrasco that Agent Pena had the money. Montenegro then retrieved the cocaine from the back seat of the blue car and handed it to Carrasco. Montenegro then returned to the area near the red truck, paused, nodded towards the brown car, and entered the red truck. At trial, Joe Regaldo (Officer Regaldo), an officer of the Austin Police Department for six years and primarily involved with narcotics-related work for three years, who was one of several officers conducting concealed surveillance of the transaction, testified that, in his opinion, this nod indicated to Lechuga that the deal was going well. As Montenegro nodded towards Lechuga, Carrasco tendered the cocaine to Agent Pena to consummate the transaction.

Immediately thereafter, the government agents arrested Lechuga, Carrasco, and Montenegro. They retrieved from Lechuga's person an identification card with Lechuga's name and a Milwaukee, Wisconsin address; 2 a Wisconsin automobile title for the blue car that purported to have been assigned to Lechuga; a scrap of paper with the telephone number 477-2355 followed by "Isaac" and the name of the Restaurant; another scrap of paper with another phone number, 476-5419, matching that found on a scrap retrieved from Montenegro and on a matchbook retrieved from Carrasco; and a discount card signed by Montenegro. 3

On June 14, 1988, a jury convicted Lechuga both of cocaine distribution and of conspiracy to do so with respect to the January 16 transaction. 4 The district court subsequently sentenced him to six years' imprisonment on each count, to run concurrently, followed by five years of supervised release. The court also imposed a $4,000 fine and $100 special monetary assessment. This appeal followed.

Discussion

Lechuga challenges the sufficiency of the evidence supporting his conviction for distribution of cocaine and conspiracy to do so. In evaluating such a challenge, we must examine the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the jury verdict. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir.1989). It is the " 'sole province of the jury to weigh the evidence and the credibility of the witnesses.' " United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.) (quoting United States v. Davis, 752 F.2d 963, 968 (5th Cir.1985)), cert. denied, 479 U.S. 868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986). The evidence is sufficient to sustain the jury's verdict if a rational trier of fact could have found all essential elements of the offense in question beyond a reasonable doubt. See United States v. Palella, 846 F.2d 977, 981 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 162, 102 L.Ed.2d 133 (1988). When making such a determination, " '[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.' " United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.1988) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)).

In general, "[w]hat a jury is permitted to infer from the evidence in a particular case is governed by a rule of reason," and juries may properly " 'use their common sense' " in evaluating that evidence. Id. at 1537 (quoting United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir.1985), cert. denied, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986)). Moreover, as the United States Supreme Court remarked long ago, "[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof." Coggeshall v. United States (The Slavers, Reindeer), 69 U.S. (2 Wall.) 383, 17 L.Ed. 911, 914-15 (1865).

To establish guilt of conspiracy to distribute cocaine under 21 U.S.C. Secs. 841(a)(1), 846, the government must prove beyond a reasonable...

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