U.S. v. Moreno, 80-1280

• Citation: 649 F.2d 309
• Decision Date: 30 June 1981
• Docket Number: No. 80-1280,80-1280
• Parties: 8 Fed. R. Evid. Serv. 1041 UNITED STATES of America, Plaintiff-Appellee, v. Ramon Vasquez MORENO, Defendant-Appellant. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 309

649 F.2d 309

8 Fed. R. Evid. Serv. 1041

UNITED STATES of America, Plaintiff-Appellee, v. Ramon Vasquez MORENO, Defendant-Appellant.

No. 80-1280.

United States Court of Appeals,

Fifth Circuit.

Unit A

June 30, 1981.

Phil Harris, Weslaco, Tex., for defendant-appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before BROWN, THORNBERRY and JERRE S. WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Ramon Vasquez Moreno, appellant, was convicted by a jury of possession of marijuana with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1976), and of conspiracy to possess marijuana with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1976). Appellant now appeals these convictions on two grounds: (1) the alleged insufficiency of the evidence on the possession count; and (2) the error allegedly committed by the district court in admitting into evidence certain references to the past marijuana dealings of appellant's brothers. Since we find that the evidence was sufficient to sustain appellant's conviction on the possession count, and that the district court did not abuse its discretion on the evidentiary point, we affirm.

I. Facts

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the facts are as follows.

Appellant operated Moreno's Gulf Service Station in Los Fresnos, Texas, located in the Rio Grande Valley of Texas. According to the uncorroborated testimony of Johnny Lee Guidry, an unindicted co-conspirator, appellant, while at his service station on August 16, 1977, told Guidry to load 1,936 pounds of marijuana which was owned by appellant's brother, Carlos Moreno. The marijuana, contained in burlap sacks, and the tractor-trailer, upon which the marijuana was to be loaded, were concealed in a shed located about 20 miles away in Las Llesgas, Texas. Carlos Moreno also owned the tractor-trailer. Surprisingly, the record does not reflect the ownership of the shed.

Guidry, Juan Vasquez, and a third, unidentified person drove to the shed and loaded the sacks containing the marijuana onto the trailer, covering the sacks with grain and the trailer itself with a tarpaulin. Upon completing these tasks, the three men returned to appellant's service station and informed appellant that the trailer had been loaded. Guidry and the other two men were to be paid $200.00 each by either Carlos or Ramon Moreno for their work. Payment was to be made after the marijuana had reached its destination of Austin, Texas, and payment therefor had been received. ¹

When the day turned to night, Guidry, Juan Vasquez, Julian Henry Garza, Paulino Pena, and Vicente Arredondo went to the shed and connected the trailer to the tractor. Then, Arredondo, driving the marijuana-ladened tractor-trailer, and Pena and Garza, following in an automobile, left the shed for Austin. The latter two men were supposed to call Ramon Moreno, appellant here, to report whether the tractor-trailer had gotten through the border patrol checkpoint in Sarita, Texas, located between Las Llesgas and Austin. After the tractor-trailer departed, Guidry and Vasquez returned to appellant's service station. Pena and Garza eventually called the service station informing everyone that the border patrol agents at the border patrol checkpoint had discovered the marijuana. The next morning, appellant, his brother Carlos, Guidry, Pena, Garza, and two or three other people met at appellant's service station and discussed the preceding night's events.

Appellant, along with three other codefendants, ² was indicted for conspiracy to possess marijuana with intent to distribute it, and for possession of marijuana with intent to distribute it. Appellant was convicted on both counts. He does not challenge the sufficiency of the evidence on the conspiracy count. He does, however, challenge the sufficiency of the evidence on the possession count. He further contends that both of his convictions should be reversed on the ground that the district court committed reversible error in permitting the government to elicit on its redirect examination of Guidry references to the past marijuana dealings of appellant's brothers. We address each contention separately.

II. Sufficiency of the Evidence

Appellant contends that the evidence was insufficient to support his conviction for the substantive offense of possession of marijuana with intent to distribute it. He argues that there was insufficient evidence to show that he "possessed" the marijuana, and claims that he instead was a mere messenger who simply conveyed an instruction from his brother Carlos to Guidry. Appellant notes that the only testimony relating to him was that of Guidry, whose testimony was given as part of a plea bargaining agreement in connection with a previous conviction for possession of cocaine.

The standard of review in a criminal case when the issue is the sufficiency of the evidence is whether the jury could have reasonably found that the evidence was inconsistent with every reasonable hypothesis of innocence. United States v. Rodgers, 624 F.2d 1303, 1306 (5th Cir. 1980), cert. denied, -- U.S. --, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981); United States v. Witt, 618 F.2d 283, 284 (5th Cir. 1980), cert. denied, -- U.S. --, 101 S.Ct. 234, 66 L.Ed.2d 107 (1980). In applying this standard, we must consider the evidence and all reasonable inferences therefrom in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Thompson, 603 F.2d 1200, 1204 (5th Cir. 1979).

We note at the outset that the absence of corroboration of Guidry's testimony regarding appellant does not by itself bar conviction. Generally, a conviction may be based solely upon the uncorroborated testimony of an accomplice if the testimony is not incredible or otherwise insubstantial on its face. United States v. Garner, 581 F.2d 481, 486, n. 2 (5th Cir. 1978); United States v. Kelley, 559 F.2d 399, 400 (5th Cir. 1977), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 497 (1977).

It is well settled that possession of a controlled substance with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (1976), may be either actual or constructive. United States v. Martinez, 588 F.2d 495, 498 (5th Cir. 1979); United States v. Felts, 497 F.2d 80, 82 (5th Cir. 1974), cert. denied, 419 U.S. 1051, 95 S.Ct. 628, 42 L.Ed.2d 646 (1974).

As with actual possession, constructive possession may be exclusive or joint, United States v. Martinez, 588 F.2d at 498, and is susceptible of proof by circumstantial as well as direct evidence. United States v. Maspero, 496 F.2d 1354 (5th Cir. 1974). Constructive possession may be shown by "ownership, dominion or control over the contraband itself, or dominion or control over the premises or the vehicle in which the contraband was concealed." United States v. Martinez, 588 F.2d at 498, quoting United States v. Salinas-Salinas, 555 F.2d 470, 473 (5th Cir. 1977). "(M)ere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession." United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973) (citations omitted).

Since there is no evidence that appellant was ever in actual, physical possession of the marijuana, his conviction for possession may stand only if the evidence establishes constructive possession. Having carefully reviewed the record, we find that the evidence is sufficient to establish that appellant had dominion or control over the marijuana throughout the transaction. While at his service station, appellant instructed Guidry to go to the shed and load the marijuana into the tractor-trailer. Either appellant or his brother Carlos was to pay Guidry and the other men who participated in the operation for their work in loading and delivering the marijuana. After the men loaded the marijuana, they immediately returned to appellant's service station and informed appellant that the loading had been performed. When the tractor-trailer departed for its intended destination, the participants who remained in Los Fresnos congregated at appellant's service station that night. Further, it was appellant who was to receive the telephone call from Pena and Garza informing everyone whether the tractor-trailer managed to get past the border patrol station without the marijuana being discovered. ³ Finally, appellant's service station was the location at which the participants in this distribution scheme, including appellant, met the morning after the marijuana was discovered.

From this evidence, the jury could have reasonably concluded beyond a reasonable doubt that, instead of being a mere "messenger," appellant was an integral part of the narcotics distribution operation and that he enjoyed a close and continuous working relationship with those, such as his brother Carlos or Guidry, who may have had actual physical possession of the marijuana. This evidence is sufficient to show that he had joint dominion or control over the drug. See United States v. Candanoza, 431 F.2d 421, 424-25 (5th Cir. 1970); Cazares-Ramirez v. United States, 406 F.2d 228, 233-34 (5th Cir. 1969), cert. denied, 397 U.S. 926, 90 S.Ct. 933, 25 L.Ed.2d 106 (1970); United States v. McGruder, 514 F.2d 1288, 1290 (5th Cir. 1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 790, 46 L.Ed.2d 646 (1976); cf. United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973) (insufficient working relationship found). Not only did appellant instruct and monitor the progress of the men who had actual possession of the marijuana, but he, along with his brother Carlos, also had the...