U.S. v. Montoya-Ortiz, MONTOYA-ORTIZ

• Decision Date: 12 November 1993
• Docket Number: MONTOYA-ORTIZ,No. 92-8204,92-8204
• Citation: 7 F.3d 1171
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reymundo, and Ruben Montoya, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1171

7 F.3d 1171

UNITED STATES of America, Plaintiff-Appellee, v. Reymundo MONTOYA-ORTIZ, and Ruben Montoya, Defendants-Appellants.

No. 92-8204.

United States Court of Appeals Fifth Circuit.

Nov. 12, 1993.

Rehearing Denied Dec. 13, 1993.

H. Thomas Hirsch, Allen R. Stroder, H. Thomas Hirsch & Associates, Odessa, TX, for defendants-appellants.

Joan E.T. Stearns, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

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

Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.

BARKSDALE, Circuit Judge:

The challenges by Reymundo Montoya-Ortiz and Ruben Montoya-Lujan to their convictions and sentences for cocaine conspiracy and possession turn in large part on the use that can be made of evidence of prior similar acts. They contend, inter alia, that the evidence is insufficient to sustain their convictions. We AFFIRM.

I.

Montoya-Ortiz and Montoya-Lujan are first cousins. They were convicted for conspiracy to possess with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). ¹ Each was sentenced to life in prison.

II.

A.

Montoya-Ortiz and Montoya-Lujan contest the sufficiency of the evidence. Our standard of review for such a contention is well established:

When a challenge is made to the sufficiency of the evidence supporting a conviction, this court must decide whether a rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. We must view the evidence in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury. The standard is the same whether the evidence is direct or circumstantial.

United States v. Gardea-Carrasco, 830 F.2d 41, 43-44 (5th Cir.1987) (footnotes omitted). It is equally well established that "[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.... A jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

"To establish a conspiracy under 21 U.S.C. § 846, the government must prove 'that a conspiracy existed, that each co-defendant knew of the conspiracy, and that each co-defendant voluntarily joined in it.' " United States v. Simmons, 918 F.2d 476, 483-84 (5th Cir.1990) (quoting United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.1989)). Proof of a formal agreement is not necessary; all that is required is proof beyond a reasonable doubt "[t]hat two or more persons in some way or manner, positively or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan". Id. at 484 (quoting United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.1986)). "An agreement may be inferred from concert of action, participation from a 'collocation of circumstances' and knowledge from 'surrounding circumstances' ". United States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir.1993).

For the substantive possession count, the Government is required to prove that a defendant knowingly possessed cocaine with the intent to distribute it. E.g., id. at 1175. "[P]ossession may be either actual or constructive". United States v. Smith, 930 F.2d 1081, 1085 (5th Cir.1991). " 'Constructive possession' has been defined as ownership, dominion, or control over the contraband itself, or dominion or control over the premises in which the contraband is concealed". Id. (emphasis in original).

The vehicles used for the offenses in issue departed from Presidio, Texas. Montoya-Lujan contends that the Government failed to prove beyond a reasonable doubt that he knowingly and intentionally joined the conspiracy, maintaining that the evidence showed only that he was present in Presidio at the time of those offenses. He contends, further, that there is no evidence to show that he constructively possessed the cocaine. Montoya-Ortiz similarly contends that the evidence was insufficient to establish the requisite knowledge and intent for conspiracy and possession with the intent to distribute. The evidence, viewed in the light most favorable to the verdict, was as follows.

On the afternoon of October 17, 1990, a pickup truck, pulling a flat-bed trailer loaded with bales of hay, entered the primary inspection area of the United States Border Patrol checkpoint south of Marfa, Texas. It was driven by Montoya-Ortiz; Jesus Ramos-Calderon (a/k/a Chuy) was a passenger. ² Ramos-Calderon was known to Border Patrol agents to be involved in narcotics trafficking. The truck was referred to the secondary inspection area and a canine inspection was conducted. Although the dog showed interest in the bales of hay, no contraband was found. Montoya-Ortiz and Ramos-Calderon were taken inside the checkpoint trailer and interviewed. Montoya-Ortiz stated that they had come to Presidio to get hay at the Mario Pando Farm, downriver from Presidio, for his race horses, and that he leased the farm. There was evidence that, in the Presidio area, there is a Pando Farm that grows and sells alfalfa hay (the type on Montoya-Ortiz's trailer). Other testimony established that quality hay could be purchased in New Mexico, less than an hour's drive from Montoya-Ortiz's home in Andrews, Texas. On the other hand, Presidio is about a three-hour drive from Andrews.

About 15 or 20 minutes after the truck driven by Montoya-Ortiz entered the checkpoint, and while he and Ramos-Calderon were still inside the checkpoint trailer, a second pickup truck loaded with bales of hay entered the primary inspection area. The truck was driven by Edmundo Calixto Moreno; it, too, was referred to the secondary inspection area. During a canine inspection, the dog alerted, indicating narcotics on the truck. Border Patrol Agent Casteneda advised Moreno of his rights and told him that he was being placed under arrest. As Ramos-Calderon had instructed him to do, Moreno indicated that he did not know anything about any narcotics. He appeared to be very nervous, licking his lips and wiping his hands on his pants.

Moreno was taken to the checkpoint trailer, where Montoya-Ortiz and Ramos-Calderon were being interviewed. Although, in a space about 10 by 20 feet, Moreno had to pass within two feet of Ramos-Calderon and Montoya-Ortiz, they gave no indication that they recognized Moreno, and appeared to deliberately ignore him. Agent Casteneda testified that Moreno and Ramos-Calderon looked at each other, and Moreno then turned away from Ramos-Calderon so quickly he "thought he was going to snap his head off at his shoulders". ³ Moreno told Agent Casteneda that he was from Kermit, Texas, and had borrowed a truck to go to Presidio to purchase hay. He stated that he had gone to a ranch and asked a woman where to purchase it; she took him to another place where he purchased 35 bales.

The truck driven by Moreno was searched; and, when the bales of hay were removed from the truck bed, eight duffel bags containing 484 pounds of cocaine (approximately 220 kilograms, with a street value of $12 to $13 million) were discovered. After Moreno was confronted with the results of the search, he admitted that he had lied about a woman assisting him in purchasing hay. He stated that he had taken the truck to a motel in Presidio where others took the truck away from him and loaded it with hay and cocaine. The manager of the La Siesta Motel in Presidio testified that Moreno rented a room that day, and a receipt was introduced into evidence.

Moreno testified that Ramos-Calderon, who had been Moreno's boss when they worked in an oil field, picked him up in Kermit, Texas, on the morning of October 17, and drove him to the La Siesta Motel in Presidio. Ramos-Calderon instructed Moreno to rent a room and wait for him while he loaded the truck with cocaine. Ramos-Calderon returned about 45 minutes later and told Moreno that the truck was ready. Then another truck, driven by Montoya-Ortiz, arrived. Moreno testified that he had no direct contact with Montoya-Ortiz, but that each saw the other. Ramos-Calderon told Moreno that he was going to ride with Montoya-Ortiz; Moreno was to drive Ramos-Calderon's truck, with the cocaine. Moreno testified that Ramos-Calderon got into the passenger side of Montoya-Ortiz's truck, Montoya-Ortiz said something to Ramos-Calderon, and Ramos-Calderon then turned around and told Moreno to let them (Montoya-Ortiz and Ramos-Calderon) go ahead and to wait 20 minutes before following them to Odessa.

A few minutes after Moreno was brought into the checkpoint trailer, Montoya-Ortiz and Ramos-Calderon were released. Subsequently, a registration check on the vehicle driven by Moreno revealed that it was registered to Ramos-Calderon. Border Patrol agents therefore contacted area law enforcement agencies for assistance in stopping Montoya-Ortiz and Ramos-Calderon. They were stopped outside of Balmorhea, Texas, by Deputy Sheriff Floyd Estrada. Estrada's stepmother is Montoya-Ortiz's aunt. Montoya-Ortiz recognized Estrada, and got out of the truck to greet him, calling him by his first name, "Flavio". Montoya-Ortiz asked Estrada what was going on, and Estrada told him to keep his distance and that everything would be explained in time, because they were waiting for the Border Patrol to arrive from Marfa. Estrada testified that Montoya-Ortiz appeared to be extremely nervous and kept looking around and asking what was going on.

Border Patrol Agent Mendoza arrived 10-15 minutes later and advised Ramos-Calderon that there was some indication that he was connected to a narcotics seizure at the Marfa checkpoint....