U.S. v. Lopez
| Decision Date | 08 December 1992 |
| Docket Number | No. 91-6116,91-6116 |
| Parties | 37 Fed. R. Evid. Serv. 736 UNITED STATES of America, Plaintiff-Appellee, v. Jamie Barrera LOPEZ, Eugenio Ozuna Ramirez, Jr., Eliseo De La Garza, and Robert San-Martin Delgado, Defendants-Appellants. Fifth Circuit |
| Court | U.S. Court of Appeals — Fifth Circuit |
William M. Mills, Atlas & Hall, McAllen, Tex., for Ramirez.
Bobby Flores, McAllen, Tex., for Delgado.
L. Aron Pena, Edinburg, Tex., for Garza.
Paul T. Cappuccio, Associate Deputy Atty. Gen., U.S. Dept. of Justice, Washington, D.C., Paula Offenhauser, Kathlyn G. Snyder, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for the U.S.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, WILLIAMS, and SMITH, Circuit Judges.
At a joint trial, Defendants-Appellants Jamie Barrera Lopez, Eugenio Ozuna Ramirez, Jr., Eliseo De La Garza, and Robert San-Martin Delgado were each convicted on one count of conspiring to possess and distribute marihuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). Lopez, Ramirez, and Delgado were also each convicted on one count of possessing marihuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and of 18 U.S.C. § 2. Both counts relate to a series of negotiations beginning May 1, 1990, leading up to the sale of 432 pounds of marihuana on May 16, 1990. Delgado and Lopez were sentenced to 78 months in prison, Ramirez was sentenced to 71 months, and De La Garza to 66 months. Each appellant faces a four-year term of supervised release following imprisonment.
I. FACTS AND PRIOR PROCEEDINGS
Between May 1 and May 16, 1990, McAllen undercover police officer Anacleto Botello and narcotics agent Israel Saldivar worked through a confidential informant to negotiate the purchase of a large quantity of marihuana. The informant initially introduced Botello to De La Garza on May 1, 1990. Botello testified that he asked De La Garza about purchasing 200 to 300 pounds of marihuana at a cost of $425 per pound. On May 2, De La Garza introduced the officers to Ramirez, who confirmed the purchase quantity and price.
Several attempts to get together on a deal misfired for one reason or another. Finally on May 16, in the midafternoon, the informant called the agents, who met Ramirez at a Circle K convenience store. Ramirez then led the agents to the property owned by Lopez on Two Mile Line Road to conclude the transaction. Because the transfer was to take place at the back of the property, however, the officers refused to close the deal and left. At 6:30 p.m., the officers again met Ramirez and the informant at the Circle K. Botello testified that Ramirez wanted the officers to accompany him to pick up the owner of the marihuana, but the officers persuaded Ramirez to meet them at the load vehicle containing the drugs. The surveillance team followed Ramirez first to the Two Mile Line property, where he picked up an unidentified man, and then to the load vehicle's location.
Meanwhile, the informant directed the officers to a house on Harvey Street. When they arrived, they did not see the load vehicle. Two men came out of the house, spoke with the informant, got into a car, and led the officers down the street to another house. Both officers testified that one of the men, Delgado, motioned for them to follow. When they reached the other house, Delgado pulled into the driveway and parked behind a white pickup with a camper top. Delgado and his companion then left the car to sit at a nearby picnic table. After waiting awhile, Saldivar and the informant went to the pickup to see whether it contained marihuana. At that point, Ramirez arrived with Lopez, who got out of the passenger side of Ramirez's vehicle. According to Saldivar, Lopez walked up, looked into the truck, and asked what Saldivar was doing, to which Saldivar responded that he was checking out the marihuana. Having seen the drugs, Saldivar then signaled Botello, who gave the bust signal. Other officers appeared and arrested Ramirez, Lopez, and Delgado. The fourth man escaped and was never identified. De La Garza was not present and was arrested later. Following a three day trial, a jury rendered guilty verdicts on all counts, and all defendants timely appealed.
II. DISCUSSION
All four appellants charge that the evidence presented in the district court was insufficient to sustain their convictions. Because decisions about the credibility of the evidence are the province of the jury, we review both the evidence and the inferences drawn from the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 77, 80, 62 S.Ct. 457, 468, 469, 86 L.Ed. 680 (1942). In weighing the evidence in this case we follow the Supreme Court's holding that circumstantial evidence is not intrinsically different from testimonial evidence. United States v. Bell, 678 F.2d 547, 549 n. 3 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." Id. at 549; see also United States v. Vasquez, 953 F.2d 176, 181 (5th Cir.), cert. denied sub nom. Gomez v. United States, --- U.S. ----, 112 S.Ct. 2288, 119 L.Ed.2d 212 (1992). Thus, whether dealing with testimonial or circumstantial evidence, the test for sufficiency of the evidence is whether the jury could reasonably, logically and legally infer that the defendant was guilty beyond a reasonable doubt. United States v. Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied sub nom. Hicks v. United States, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983).
Count one of the indictment alleges that all appellants conspired to possess marihuana with the intent to distribute. To prove conspiracy under 21 U.S.C. § 846, the prosecution must show beyond a reasonable doubt (1) that there was an agreement to violate the narcotics laws; (2) that each appellant knew of the agreement and intended to join the conspiracy; and (3) that each appellant voluntarily participated. United States v. Vergara, 687 F.2d 57, 60-61 (5th Cir.1982). Concert of action can indicate agreement and voluntary participation. The surrounding circumstances may establish knowledge of a conspiracy. Also, the government need not prove an overt act in furtherance of the conspiracy to prove that a drug conspiracy existed. United States v. Carter, 953 F.2d 1449, 1454 (5th Cir.), cert. denied sub nom. Hammack v. United States, --- U.S. ----, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992).
After a meticulous review of the record, we hold that the evidence was sufficient for a reasonable jury to find each of the four defendants guilty of conspiracy beyond a reasonable doubt. We discuss separately the evidence relevant to each defendant.
Agent Botello testified that the confidential informant introduced him to De La Garza, with whom he discussed the purchase of a particular amount of marihuana for a specific price. Agent Saldivar then "flashed" $80,000 to indicate that the agents were willing to make the deal. Botello further testified that De La Garza introduced him to Ramirez, a "man that [Botello] needed to know." De La Garza participated in subsequent negotiations and attempts to conclude the sale, which finally was to occur on May 16, the day of the arrests. De La Garza testified, offering an innocent explanation for some of his actions and suggesting that the agents were lying about their conversations with him. But credibility is for the jury, which chose to believe the agents and not De La Garza. Carter, 953 F.2d at 1455. The evidence was sufficient for the jury to discredit De La Garza's explanation reasonably and permissibly and to find him guilty of conspiracy.
De La Garza argues that he could not have been part of the later operation because he was no longer present in the region at the time of the sale. It is not necessary for every co-conspirator to participate in every transaction, however, to be a member of a single conspiracy. United States v. Stowell, 947 F.2d 1251, 1258-59 (5th Cir.1991), rehearing denied, 953 F.2d 188 (5th Cir.) (per curiam), cert. denied, --- U.S. ----, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992). Additionally, the time when a member joined the conspiracy or the role he played is irrelevant to whether he is guilty of conspiracy, and he need not have known all of his co-conspirators. Vergara, 687 F.2d at 61.
De La Garza also asserts that he was entitled to a jury instruction on multiple conspiracies. The record shows that De La Garza failed to request such a jury instruction. Thus there was no error.
Ramirez asserts that the government merely piled inference on inference and did not prove its case beyond a reasonable doubt. There was direct testimony, however, that Botello and Ramirez expressly negotiated the terms of the drug transaction after De La Garza introduced them. This alone is clearly sufficient evidence to justify a conviction for conspiracy. But in addition, at the second meeting on May 16, Ramirez agreed that he would pick up the owner of the marihuana and meet the agents at the load vehicle to conclude the deal. The jury...
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