U.S. v. Medina

• Decision Date: 18 October 1989
• Docket Number: No. 88-2800,88-2800
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Gilberto MEDINA and Benito Vega-Garza, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 528

887 F.2d 528

UNITED STATES of America, Plaintiff-Appellee, v. Juan Gilberto MEDINA and Benito Vega-Garza, Defendants-Appellants.

No. 88-2800

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Oct. 18, 1989.

Rehearing Denied Dec. 6, 1989.

Matias Morin, Jr., Robert J. Yzaguirre, McAllen, Tex., for Vega-Garza.

Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEE, DAVIS and JONES, Circuit Judges.

GEE, Circuit Judge:

Defendants Juan Gilberto Medina and Benito Vega-Garza appeal their convictions for conspiracy to possess with intent to distribute marihuana and possession with intent to distribute marihuana. We affirm.

At about 6:00 p.m. in December of 1987, two United States Border Patrol Agents, Richard Halverson and Thomas Miller were on line watch duty ¹ in the Madero area of the Rio Grande River. As the agents were driving along a paved road located approximately 800 yards north of the Rio Grande River, they observed a blue van travelling on an elevated levee road that runs alongside a canal located about 400 yards north of the river. The agents saw the van turn off of the levee road and onto a narrow private road leading to Magic Valley Estates (the Estates), a series of picnic lots on the bank of the Rio Grande. The road leading to the Estates was notorious for alien and drug smuggling activities and, given that it was a Tuesday in December, it was unusual to see people driving into the Estates area after dark.

Suspicious that the van may be being used for smuggling, the agents pulled into a nearby driveway to observe. About five minutes after the van went by, a small red pickup drove along the levee road and also turned onto the road leading to the Estates. The agents remained there for an additional twenty minutes, during which time no other vehicles entered or departed the Estates area. ²

At about 6:30 p.m., the agents moved to the entrance of the Estates road and closed the gate to the road. They then saw the previously sighted pickup truck and van coming toward the entrance, with the van ten to fifteen feet behind the pickup. Both were travelling slowly and without lights. The pickup then turned on its headlights and, almost immediately, the van turned on its headlights. The headlights on the van pointed upward, indicating that it was carrying a heavy load. The van had appeared to be riding level when it entered the area. The pickup and van continued until they reached the agents.

When Agent Halverson questioned the driver of the van, Appellant Juan Medina, the agent smelled the odor of marihuana. He then saw large black bundles through the side window of the van. A registration check of the van indicated that it was registered to a Joe Vega at 501 North Sugar Road in Pharr, Texas.

Agent Miller spoke with Appellant Vega, the driver of the pickup. When this agent asked Appellant Vega if he knew a Joe Vega, Vega said that Joe was his brother, Jose Ovieda Vega. A registration check of the pickup revealed that it was registered to the appellant at 501 North Sugar Road, Pharr, Texas. The occupants of the two vehicles were then arrested and taken to the Border Patrol Office.

The case was turned over to the Drug Enforcement Administration (DEA). After being advised of his Miranda rights, Vega was questioned regarding his personal history. During the course of that questioning he informed the DEA agent that he resided at 501 North Sugar Road in Pharr, Texas, with his brother, Jose Ovieda Vega.

Along with Gladis Sias-Pereyra, a passenger in the van, Medina and Vega were indicted for conspiring to import marihuana in violation of 21 U.S.C. Sections 963, 952(a) and 960(b)(2) (Count 1); importing marihuana in violation of 18 U.S.C. Section 2 and 21 U.S.C. Sections 952(a) and 960(b)(2) (Count 2); conspiring to possess with intent to distribute marihuana in violation of 21 U.S.C. Sections 846, 841(a)(1) and 841(b)(1)(B) (Count 3); and with possessing with intent to distribute marihuana in violation of 18 U.S.C. Section 2 and 21 U.S.C. Sections 846, 841(a)(1) and 841(b)(1)(B) (Count 4).

A jury found Medina and Vega guilty on all four counts of the indictment. ³ Motions for judgment of acquittal were granted as to counts one and two. Medina and Vega were each sentenced to concurrent 60 month sentences with a 4 year supervised release on counts three and four and were ordered to pay a $50 special assessment on each count.

Appellant Vega makes two contentions on appeal. The first is that the evidence was insufficient to convict him of either conspiracy or possession with intent to distribute. Vega maintains that there was no evidence offered which could be reasonably used to infer a decision as to when the marihuana was placed in the van, about who participated in the loading of the van, what the purpose of his entry into the recreation area was, or what role he played.

In evaluating the sufficiency of the evidence of appeal, the reviewing court must consider the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in support of the jury's verdict. The evidence is sufficient if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

United States v. Yamin, 868 F.2d 130, 133 (5th Cir.1989) (footnotes omitted). The essential elements of conspiracy are: (1) the existence of a conspiracy; (2) knowledge of the conspiracy; and (3) voluntary participation in the conspiracy. United States v. Kaufman, 858 F.2d 994, 999 (5th Cir.1988). No showing of an overt act is necessary. The "agreement between the co-conspirators and the defendant need not be proved by direct evidence, but may be inferred from concert of action." United States v. Vergara, 687 F.2d 57, 60-61 (5th Cir.1982). Such action may be inferred from the circumstances as a whole. Acts which are not per se unlawful lose that character when cumulatively viewed as the constituent elements of a criminal conspiracy. United States v. Muller, 550 F.2d 1375, 1380 (5th Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977).

The evidence in the present case, reviewed cumulatively in the light most favorable to the Government, is sufficient to support a finding beyond a reasonable doubt that a conspiracy existed, that Vega knew of the conspiracy, and that he voluntarily participated in it. The pickup truck in which Vega was riding entered a secluded area known for drug smuggling just minutes after the van driven by Medina. It was unusual for vehicles to be in the area at that time of day and year. During the twenty minutes from the time Vega's pickup and the van entered the Estates area until the agents closed the road, no other vehicles entered or left. The van entered empty, a jury could have inferred, and returned loaded with about 650 pounds of marihuana. The two vehicles left together, with Vega leading, travelling in the dark without lights. Medina, the driver of the Van, followed Vega's lead in finally turning its lights on. The van belonged to Vega's brother, with whom Vega lived.

Although, when viewed separately, each of the foregoing circumstances might be considered consistent with innocent behavior, the cumulative effect of all this evidence and the reasonable inferences which may be drawn from it would enable a reasonable trier of fact to find that Appellant Vega was guilty of conspiracy to possess marihuana with the intent to distribute it.

Appellant Vega relies upon a number of cases to show that the evidence was insufficient to support his conviction. We do not find these cases controlling. In United States v. Tolliver, 780 F.2d 1177, 1180-81 (5th Cir.1986), vacated on other grounds, 479 U.S. 1074, 107 S.Ct. 1267, 94 L.Ed.2d 128 (1987), a woman, Angela Onick, was observed driving into a motel parking lot in a car owned by the common law wife of Tolliver, a known drug dealer. At the motel, Ms. Onick met with Tolliver, walked with him to a nearby restaurant, and returned to the car with him. Ms. Onick then departed. Shortly thereafter Tolliver was arrested in the motel with several co-defendants in possession of substantial quantities of heroin and money. Agents then detained Ms. Onick and searched the car she was driving. In the crack between the seat back and the seat bottom the agents found heroin which matched in purity the heroin which was seized in the Tolliver arrest. In the trunk of the car, the agents found a blender with heroin residue, a strainer, a spoon, and a battery operated digital scale. Following her conviction for conspiracy to possess heroin with intent to distribute and possession with intent to distribute, she appealed. We reversed because there was no evidence to support an inference that Ms. Onick knew of Tolliver's dealings in heroin or that she knew the car she was driving contained contraband.

In contrast to Ms. Onick's situation in Tolliver, Vega's knowledge of the marihuana could easily be inferred from his entering a secluded area just after the van entered and remaining for 20 minutes, during which time 27 bundles of marihuana weighing in total 650 pounds were loaded into the van.

Although mere presence at the scene of the crime or close association with a co-conspirator alone will not support an inference of participation in a conspiracy, Vergara, 687 F.2d at 61, presence is a significant factor to be considered within the context of the circumstances under which it occurs.

In most cases ... the evidence establishes not mere presence but presence under a particular set of circumstances. In such a case, the task of determining the sufficiency of the evidence is not aided by the ritualistic invocation of the "mere presence" rubric. Rather, it requires an examination of all of the proved circumstances, including...