U.S. v. Moreno
| Decision Date | 17 August 1999 |
| Docket Number | No. 98-20083,98-20083 |
| Citation | 185 F.3d 465 |
| Parties | (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LOURDES JEANETTE MORENO, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas
Before JONES, DeMOSS, and STEWART, Circuit Judges.
Defendant-Appellant Lourdes Jeanette Moreno appeals her conviction and sentence for importing more than five kilograms of cocaine and possession with intent to distribute cocaine. She challenges the sufficiency of the evidence; the reference to her invocation of her right to counsel at trial; and the jury instructions on deliberate ignorance. After careful review, we affirm.
Lourdes Jeanette Moreno ("Moreno"), a Honduran citizen and permanent resident of Houston, arrived at Houston's Bush Intercontinental Airport on a flight from Honduras shortly after midnight. While passing through a U.S. Customs checkpoint, she reviewed with an agent, in Spanish, the customs declaration she had filled out on the plane. After they corrected several errors she had made, she indicated that she had food to declare and was referred to an agricultural inspector.
A U.S. Department of Agriculture inspector opened one of her two large bags upon seeing a suspicious aerosol can. He discovered some clothes, food, cigars and two smaller black leather bags. The inspector noticed that the two bags appeared empty, yet were heavy. Surprised to see nothing in the heavy bags, he referred Moreno to a customs inspector, Debra Zezima ("Zezima").
Zezima, out of Moreno's sight, cut into one of the bags. White powder, later determined to be cocaine, spilled out. Moreno was escorted to a detention room where Zezima informed her that she was carrying out a routine search for contraband. She physically searched Moreno yet found nothing of interest. In her handbag, Zezima found two Honduran passports. One, a worn passport, contained numerous entry stamps for travel between the United States and Honduras over the last several years; it had been extended until 1999. The second was new, just issued in Honduras days before. Zezima was curious as to why she had two passports.
Also found in her purse were her resident alien card, her ticket and boarding pass, luggage tags, a ticket for excess baggage, her itinerary, business cards, two address books, and two letters. All documents were in Moreno's name. She had $29 dollars on her; when asked how she planned to get home, she said her roommate would pay for a cab on her arrival. Moreno remained calm throughout the questioning.
Zezima, after handcuffing Moreno and again outside of her presence, drilled a whole in a heavy briefcase also in Moreno's possession. The briefcase smelled strongly of glue, a sign that it might contain a secret compartment such as a false bottom. It, too, contained cocaine secreted in a hidden compartment. In all, the agents found about 25 pounds of cocaine (7.8 kilos)-10 in each black leather bag and 5 in the briefcase. Zezima also had determined that Moreno had paid cash for her ticket and that she carried a beeper, both arousing Zezima's suspicions.
Other agents were called in, including the lead agent, Steven Coffman ("Coffman"). Together, they informed Moreno that they had found cocaine and advised her of her rights. A customs inspector who spoke Spanish acted as an interpreter as needed. Moreno signed a waiver of rights and was escorted back to the passenger area. There, she observed the two leather suitcases on a table with the rest of the luggage on a cart. Moreno informed Coffman that she was carrying the bags into the United States for a man named Nicholas, whose last name she did not know, at the request of her friend Sylvia. He had paid her $75. Moreno expected Nicholas to page her in Houston and tell her where to deliver the bags. She identified the luggage on the cart as her own. She also identified some of the other items in her luggage, and explained who their designated recipients were.
Coffman listed each piece of luggage and what Moreno had paid for them. She paid $30 for each large red suitcase, $20 for a smaller bag, and $12 for the briefcase, purchased on Harwin Street in Houston.1 When agent Coffman informed her that the briefcase also contained cocaine, she told him that Nicholas had given her the briefcase and invoked her right to counsel. Moreno was transported to jail where she was booked, searched and detained.
Moreno was charged in a two-count indictment with importation of a controlled substance and possession of cocaine with the intent to distribute. Prior to trial, she moved to suppress the statements obtained from her following her arrest. The court granted the motion to suppress Moreno's request for counsel and directed the government not to elicit testimony about the request; it denied the motion in all other respects.
At trial, during the government's case-in-chief, Coffman, in response to the prosecutor's questions and in violation of the pre-trial order, indicated that Moreno had requested counsel when told there was cocaine in the briefcase. Moreno moved for a mistrial. The record reflects that the judge was very displeased with the testimony and the prosecutor's failure to adhere to the pre-trial order. After an extended colloquy with counsel, the court instructed the jury to disregard the testimony and denied the motion.
Moreno explained at trial that she worked locally by selling food to people at cantinas and to local customers. She financed visits to her family in Honduras by transporting packages for Hondurans living in Houston. She generally charged $5 per pound for clothing and other goods and $7 per pound for appliances to be taken to Honduras. She frequently brought letters, food and clothes on her return trips.
After spending a few weeks collecting items to bring with her, for which she earned $300, Moreno purchased with cash a ticket to Honduras. While there, she received a call from Sylvia asking her to bring back bags as a favor for a friend. Apparently, he had borrowed the bags when in the United States and now needed to return them. A man named Nicholas came by and delivered the bags. She testified that she noticed one was heavier than the other and opened it up to determine why; she found the briefcase inside.
She also testified that a friend, Luisa, had given her the beeper. The travel agent who sold the ticket testified that about 50% of her Central American customers pay cash and that they commonly carried beepers. She obtained the new passport while there because Honduran authorities had told her that the old passport was in such disrepair that it would not be accepted anymore; she did not explain why it had been extended to 1999.
The court charged the jury not to consider any testimony or other evidence which had been stricken. Over Moreno's objection, the court instructed the jury that it could find knowledge from the defendant's deliberate ignorance. The jury convicted Moreno on both counts. She was sentenced to 135 months' imprisonment, and timely appeals.
Moreno raises three issues on appeal. First, Moreno challenges the sufficiency of the evidence supporting her conviction. Next, Moreno contends that the district court erred in denying her motion for a mistrial since the government impermissibly presented testimony bearing upon her invocation of her right to counsel. Finally, Moreno avers that the district court committed reversible error by instructing the jury on deliberate ignorance. We shall consider each in turn.
Moreno moved for acquittal at the close of the government's case-in-chief and at the end of trial. A motion for judgment of acquittal challenges the sufficiency of the evidence to convict. See FED. R. CRIM. P. 29(a). Moreno argued that insufficient evidence established her knowledge that she possessed and imported cocaine. The court denied each motion.
Post conviction, our review for sufficiency of the evidence is narrow. See United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997) (citing United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)). We review the evidence de novo. See United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). In doing so, we view the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the verdict. See id.; United States v. Posada-Rios, 158 F.3d 832, 855 (5th Cir. 1998). In addition, all credibility determinations are made in the light most favorable to the verdict. See United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998). Ordinarily, we must affirm if a rational trier of fact could have found that the government proved the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Medina, 161 F.3d at 867.
The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence. See United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998); Westbrook, 119 F.3d at 1189. "If the evidence tends to give 'equal or nearly equal circumstantial support' to guilt or innocence, however, reversal is required: When the evidence is essentially in balance, 'a reasonable jury must necessarily entertain doubt.'" Ortega Reyna, 148 F.3d at 543 (quoting Lopez, 74 F.3d at 577).
To establish a violation of 21 U.S.C. 841, possession with intent to distribute, the government must prove beyond a reasonable doubt that Moreno (1) knowingly (2) possessed cocaine (3) with the intent to distribute it. See Medina, 161 F.3d at 873; United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). Possession...
To continue reading
Request your trial
-
U.S. v. Runyan
...error doctrine, determining whether the improper comment was harmless beyond a reasonable doubt. See, e.g., United States v. Moreno, 185 F.3d 465, 472 (5th Cir.1999) (improper comment on a defendant's invocation of his right to counsel); Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir.1984)......
-
U.S. v. Mendoza, 06-51685.
...government. Id. "In addition, all credibility determinations are made in the light most favorable to the verdict." United States v. Moreno, 185 F.3d 465, 471 (5th Cir.1999). "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusi......
-
Beaty v. Com.
...we require additional circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge. United States v. Moreno, 185 F.3d 465, 471 (5th Cir.1999) (quotation omitted). Here, the methamphetamine laboratory was located in the back seat and trunk of the vehicle and drew att......
-
U.S. v. Tarwater
...review prosecutorial comments about a defendant's post-Miranda silence under a harmless error standard.) See, e.g., United States v. Moreno, 185 F.3d 465, 472 (5th Cir.1999). Before the prosecutors made the challenged statements in their rebuttal defense counsel argued to the jury: You have......