U.S. v. Longoria, 77-5093

• Decision Date: 10 March 1978
• Docket Number: No. 77-5093,77-5093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melinda LONGORIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 422

569 F.2d 422

UNITED STATES of America, Plaintiff-Appellee, v. Melinda LONGORIA, Defendant-Appellant.

No. 77-5093.

United States Court of Appeals, Fifth Circuit.

March 10, 1978.

Ronald B. Brin, Corpus Christi, Tex. (Court-Appointed), for defendant-appellant.

James R. Gough, Jr., Mary L. Sinderson, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., Marion L. Jetton, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before THORNBERRY, AINSWORTH and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Melinda Longoria appeals from a conviction for aiding and abetting possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C.A. § 841 (1972), and 18 U.S.C.A. § 2 (1969). Of appellant's numerous contentions of error, we need only address the argument that there is insufficient evidence to sustain the conviction. We agree with appellant that the government failed to establish her guilt beyond a reasonable doubt; therefore, the conviction must be reversed.

On February 15, 1975, appellant accepted a ride to Austin, Texas, with Gabriel Delgado, who offered appellant the ride under the guise that he, Delgado, had business in Austin. The car in which they were to travel was owned by Delgado, who was to do all of the driving. The journey originated in Edinburg, Texas, and was to carry appellant and Delgado through a border patrol checkpoint near Falfurrias, Texas. A short time after leaving Edinburg, and more than thirty minutes before arriving at the checkpoint, Delgado informed appellant that there was marijuana in the car. Being informed of the marijuana, appellant became nervous, upset, and aggravated. Delgado, fearing detection at the checkpoint, handed appellant $300 and instructed her to keep calm. Nothing more was said concerning the $300, and appellant was given no further information about the marijuana. She was not told how much marijuana was being carried, where the marijuana was being carried, where Delgado got the marijuana, or what Delgado intended to do with the marijuana. At the checkpoint, appellant and Delgado were questioned about their citizenship. During the questioning, one of the agents detected the odor of marijuana and with Delgado's consent searched the car. A search of the trunk revealed suitcases containing 176 pounds of marijuana. Delgado and appellant were immediately arrested and informed of their constitutional rights. On two separate occasions following the arrest, Delgado, having been asked a question by one of the agents, was instructed by appellant to "shut up." Subsequent searches revealed traces of marijuana in appellant's pocketbook; however, there is no contention that these traces were in any way related to the marijuana found in the trunk. Delgado entered a guilty plea to a charge of possession of marijuana with intent to distribute. Appellant, indicted on a similar charge, was tried and convicted by a jury.

Although the indictment charged appellant with possession with intent to distribute, the proof at trial, the charge to the jury, and the arguments on appeal make it clear that the conviction rests on the conclusion that appellant aided and abetted Delgado. However, "the rule is well established, both in this Circuit and others, that one who has been indicted as a principal may be convicted on evidence showing that he has merely aided and abetted the commission of the offense." United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971). Thus the question becomes whether the evidence, and all reasonable inferences favorable to the government's position, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), are such that the jury could reasonably and logically infer that appellant was guilty beyond a reasonable doubt of aiding and abetting the possession of marijuana with intent to distribute. United States v. Smith, 546 F.2d 1275 (5th Cir. 1977); United States v. Bright, 541 F.2d 471 (5th Cir. 1976). Unless the conviction is supported by "substantial evidence," it must be overturned. Glasser v. United States, supra; United States v. Martinez, 555 F.2d 1269 (5th Cir. 1977).

Proof that a defendant was merely associated with a criminal, or that defendant was present at the scene of a crime is not, without more, sufficient to sustain a conviction for aiding and abetting a criminal venture. United States v. Martinez, supra. To be upheld, the conviction must be based on evidence that the "defendant was associated with the criminal venture, participated in it as something he wished to bring about, and sought by his actions to make it succeed." United States v. Martinez, supra, United States v. Anthony, 474 F.2d 770 (5th Cir. 1973). To prove association, there must be evidence to establish that the defendant "shared in the criminal intent of the principal." United States v. Smith, 546 F.2d 1275 (5th Cir. 1977). To prove participation, there must be evidence to establish that the defendant engaged in some affirmative conduct; that is, there must be evidence that defendant committed an overt act designed to aid in the success of the venture. Proof of mere negative acquiescence will...