U.S. v. Lopez, No. 95-50113

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore JOLLY, DUHE and DENNIS; DENNIS
Citation74 F.3d 575
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Antonio LOPEZ, Defendant-Appellant.
Decision Date23 January 1996
Docket NumberNo. 95-50113

Page 575

74 F.3d 575
UNITED STATES of America, Plaintiff-Appellee,
v.
Antonio LOPEZ, Defendant-Appellant.
No. 95-50113.
United States Court of Appeals,
Fifth Circuit.
Jan. 23, 1996.

Page 576

Richard L. Durbin, Jr., Asst. U.S. Atty., Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.

Adrienne Urrutia, Asst. Federal Public Defender, Office of the Federal Public Defender, San Antonio, TX, for defendant-appellant.

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

Before JOLLY, DUHE and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

Following a jury trial, appellant, Antonio Lopez, was found guilty of importing marijuana, in violation of 21 U.S.C. Secs. 952 and 960, and possessing marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841. Lopez appeals his conviction and sentence solely on the ground that there was constitutionally insufficient evidence to sustain the jury's verdict. Because we find that appellant's convictions are adequately supported by the record, we affirm.

FACTS

On the night of April 18, 1994, at approximately 10:45 p.m., appellant drove a blue Ford sedan with Texas license plates to the Ysleta Port of Entry in order to cross from the Mexican side of the border into Texas. Traffic was light at this time and only Lanes 3 and 4 were open. U.S. Customs Service Inspector, Rosalva Morales, testified that she noticed the car because it initially approached Lane 3, where the inspector was opening trunks, but abruptly switched into Lane 4, where she was working as primary inspector. Morales approached the car and began asking routine questions regarding Lopez's citizenship and any items he was bringing into the country. Lopez was not carrying a drivers license or any identification and Morales's attention was drawn to him because he appeared to be wearing women's cosmetics. She asked him to exit the car, and open the hood and trunk. Morales testified that she did not smell anything unusual as she stood a foot from the car's open driver's side window.

Senior U.S. Customs Service Inspector Angel Hernandez accompanied Lopez to the back of the vehicle while he opened the trunk. Hernandez testified that Lopez's hand trembled as he tried to find the right key, but that he managed to open the trunk. When Hernandez looked into the trunk area, he observed what appeared to be a false compartment in the back of the seat. He asked U.S. Customs Service Inspector Luis Mata to take a look at the compartment, and then escorted appellant to the Customs headhouse. Hernandez testified that he did not smell marijuana when the trunk was opened.

Inspector Mata drove the car from Lane 4 to the secondary area, where he prepared the vehicle for a canine sniff by closing the window and running the air conditioner to send air from the front of the car out the back. Canine Officer, Lisa Holley, then walked her dog, Bark, around the vehicle. After Bark alerted on the rear of the car, Mata pulled the back seat open and found twelve packages wrapped in plastic. The substance contained in the packages subsequently tested positive for marijuana. Mata testified that when he drove the car from the primary to the secondary inspection area, he smelled a strong odor of marijuana. Mata, however, failed to include this information when he typed his report. He testified that at the prompting of Officer Holley, he added the information by hand to the report.

Lopez took the stand in his own defense and testified that he was not aware that

Page 577

there was marijuana hidden in the car, that he did not smell marijuana in the car, and that he would not have driven the car had he known there was marijuana in it. According to Lopez, he had gone to Guadalupe, Mexico with a man named Roger, and had spent the day drinking with Roger and two other men, Francisco and Edward. When arrested, he was driving a car that he believed belonged to Edward, who was too drunk to drive back to the United States. 1 Lopez testified that Roger was driving Edward in another car and that the two were to pick up the car at Lopez's apartment in San Elizario, Texas. Following his arrest, Lopez did not see any of these men again.

The jury clearly rejected Lopez's version of events,...

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112 practice notes
  • U.S. v. Triumph Capital Group, Inc., Docket No. 06-4970-cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 25 Septiembre 2008
    ...then `a reasonable jury must necessarily entertain a reasonable doubt.'" Glenn, 312 F.3d at 70 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th We review a district court's denial of a motion for a judgment of acquittal de novo, "applying the same standard of sufficiency as ......
  • U.S. v. Saborit, No. CR 96-4043-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 23 Junio 1997
    ...___, 117 S.Ct. 752, 136 L.Ed.2d 688 (1997); United States v. Giraldi, 86 F.3d 1368, 1371 (5th Cir. 1996) (same); United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996) (same), cert. denied, ___ U.S. ___, 116 S.Ct. 1867, 134 L.Ed.2d 964 (1996): United States v. Dean, 59 F.3d 1479, 1484 (5th......
  • United States v. Preston, CRIMINAL ACTION NO. 12-138 SECTION "K"(1)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 7 Abril 2015
    ...added). Though the court may not "weigh[] the evidence or assess[] the credibility of witnesses," United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)(citations omitted), "[a] verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated p......
  • United States v. Larry Davis & DCM Erectors, Inc., 13-cr-923 (LAP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 3 Agosto 2017
    ...then 'a reasonable jury must necessarily entertain a reasonable doubt.'" Glenn, 312 F.3d at 70 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996), cert. denied, 517 U.S. 1228 (1996)).Page 23 2. Wire Fraud and Conspiracy to Commit Wire Fraud-Elements "The 'essential ......
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112 cases
  • U.S. v. Triumph Capital Group, Inc., Docket No. 06-4970-cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 25 Septiembre 2008
    ...then `a reasonable jury must necessarily entertain a reasonable doubt.'" Glenn, 312 F.3d at 70 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th We review a district court's denial of a motion for a judgment of acquittal de novo, "applying the same standard of sufficiency as ......
  • U.S. v. Saborit, No. CR 96-4043-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 23 Junio 1997
    ...___, 117 S.Ct. 752, 136 L.Ed.2d 688 (1997); United States v. Giraldi, 86 F.3d 1368, 1371 (5th Cir. 1996) (same); United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996) (same), cert. denied, ___ U.S. ___, 116 S.Ct. 1867, 134 L.Ed.2d 964 (1996): United States v. Dean, 59 F.3d 1479, 1484 (5th......
  • United States v. Preston, CRIMINAL ACTION NO. 12-138 SECTION "K"(1)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 7 Abril 2015
    ...added). Though the court may not "weigh[] the evidence or assess[] the credibility of witnesses," United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)(citations omitted), "[a] verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated p......
  • United States v. Larry Davis & DCM Erectors, Inc., 13-cr-923 (LAP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 3 Agosto 2017
    ...then 'a reasonable jury must necessarily entertain a reasonable doubt.'" Glenn, 312 F.3d at 70 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996), cert. denied, 517 U.S. 1228 (1996)).Page 23 2. Wire Fraud and Conspiracy to Commit Wire Fraud-Elements "The 'essential ......
  • Request a trial to view additional results

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