U.S. v. Ornelas-Rodriguez

• Decision Date: 19 January 1994
• Docket Number: No. 92-7596,ORNELAS-RODRIGUE,E,92-7596
• Citation: 12 F.3d 1339
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sergioduardo Lopez-Gutierrez, Rogelio Alejandro Garcia, and Geraldo Antonio Urrego, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1339

12 F.3d 1339

UNITED STATES of America, Plaintiff-Appellee, v. Sergio ORNELAS-RODRIGUEZ, Eduardo Lopez-Gutierrez, Rogelio Alejandro Garcia, and Geraldo Antonio Urrego Defendants-Appellants.

No. 92-7596.

United States Court of Appeals Fifth Circuit.

Jan. 19, 1994.

Rehearing Denied Feb. 18, 1994.

Amador C. Garcia, Corpus Christi, TX (Court-appointed), for Rogelio Alejandro Garcia.

Paul D. Inman, Gibson, Dunn & Crutcher, Dallas, TX (Court-appointed), for Eduardo Lopez-Gutierrez.

Frank Garza, Corpus Christi, TX (Court-appointed), for Sergio Ornelas-Rodriguez.

Don Ervin, Houston, TX, for Geraldo Antonio Urrego.

Timothy G.E. Hammer, Paula C. Offenhauser, James L. Turner, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for U.S.

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

Before DUHE, EMILIO M. GARZA, Circuit Judges, and BLACK, District Judge. ¹

NORMAN W. BLACK, District Judge:

Defendants, Sergio Ornelas-Rodriguez ("Ornelas"), Eduardo Lopez-Gutierrez ("Lopez"), Rogelio Alejandro Garcia ("Garcia") and Geraldo Antonio Urrego ("Urrego"), were tried jointly before a jury and convicted of possession with intent to distribute approximately 47 kilograms of cocaine and with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(A) and 846. All four defendants now appeal their convictions. We AFFIRM the district court in all respects.

I.

Cynthia Cruz met co-defendant Urrego at a party on October 31, 1991 and they became romantically involved. Urrego introduced her to co-defendants Garcia and Lopez. Urrego told Cruz he was in the real estate business and asked her to go to Guatemala to pick up some important papers from his brother. She agreed to go and was accompanied by her friend McKinney and her two children. The women were taken to the airport by Urrego and Lopez.

After picking up the papers in Guatemala, Oscar Lopez told Cruz he had purchased a Chevrolet from Urrego that he was unhappy with and asked her to drive it back to Texas. Cruz spoke with Urrego on the telephone and he told her to make the return trip in the automobile. The car was allegedly in need of repair, and Urrego sent Cruz money so this could be done.

The women left for Houston and in Tapachula they were met by Garcia and Ornelas who informed them that they would be following them through Mexico in a red Mustang. All evidence showing Cruz and McKinney had been in Guatemala was taken from them including the papers Cruz was sent to retrieve. When the women arrived in Matamoros they were told to wait one more day before entering the United States. Cruz called Urrego and informed him she was coming home. He accepted her decision.

When Cruz arrived at the Sarita Border Patrol Checkpoint, Agent Guillen asked if he could inspect the trunk. Cruz consented. When Guillen opened the trunk he detected a strong odor of mothballs and glue and noticed that the trunk was not as deep as it should have been. Cruz was directed to the secondary inspection area where the car was inspected by a canine unit. The dog alerted as it was brought toward the trunk of the vehicle. Guillen then drilled holes into the trunk and a white powder was extracted which tested positive for cocaine. Agents discovered a total of 49 bundles of cocaine in the car.

Cruz and McKinney were interrogated by Guillen in an office overlooking the primary inspection area. Three hours after the women were detained the Mustang arrived at the checkpoint. McKinney began screaming "It's them!" and dove for the floor. The driver was Ornelas and Garcia was his passenger. The vehicle and its occupants were detained at the primary checkpoint. When Ornelas was told to turn off the car and get out he hesitated. Agents believed he was contemplating an escape and physically removed Ornelas from the car. Both men were very nervous.

Agents searched the Mustang and found a tourist entry document for entry into Mexico in the names of Garcia and Ornelas, a page with three phone numbers and two duffle bags. One of the bags contained a set of keys to the Chevrolet driven by Cruz. Ornelas admitted these were his bags but during the interrogation Garcia said the keys belonged to him. On the way to the holding cell Agent McGuire overheard Garcia tell Ornelas that if they had waited one more day (until Thanksgiving) they would not have been caught.

Both Garcia and Ornelas claimed they did not know Cruz or McKinney and that they had come down from Houston to visit family in San Juan de los Lagos. When Garcia was shown a photograph of him embracing Cruz he admitted he had met her at a club in Houston and loaned her his car.

Warren, a Corpus Christi police officer assigned to the DEA Task Force, interviewed Cruz. The conversation digressed and according to Cruz he made sexual advances toward her. He told her that if she cooperated he would help her and she complied. Afterwards, Warren told Cruz she had been used by Urrego and that if she did not help them apprehend him the brunt of the offense would fall on her. Cruz was told to call Urrego and lure him to Corpus Christi. She called Urrego and told him the car had broken down and he agreed to come and help her.

The DEA arranged for video and audio surveillance at the Marriott Hotel and Cruz was given a "bug". When Urrego and Lopez arrived at Cruz' room McKinney was allegedly out with the car. Cruz told them the car had been stopped and searched outside Vera Cruz by Mexican officials and that after the search she said "Pancho" had told her everything. Lopez got up and suggested they wait for McKinney in the lobby. As they were leaving the room, three officers emerged from an adjacent room and told the men to stop. Lopez appeared to reach for his beltline so the officers drew their guns and forced Urrego and Lopez into the elevator. Lopez, who did not have a weapon, was restrained. Urrego was hit several times in the head and kicked in the stomach. His vehicle was seized and the suspects were taken to DEA headquarters.

Urrego, who gave a false name, was interviewed by Agent Irr; however, the interview stopped when Urrego asked for an attorney. Urrego's briefcase was found in his car and it contained telephone records for a Lilia Colmenares of Houston. Several calls from Guatemala and Matamoros were on the statement. Urrego claimed he lived at the Houston address on the Colmenares bill. It was also discovered that the three phone numbers on the paper found in the Mustang all belonged to Urrego.

Agent O'Brien interviewed Lopez who told him he had been staying in a LaQuinta Inn in Houston "waiting for a load" which he thought was a load of cocaine. He knew two women would be bringing it into the country because he had taken them to the airport.

Cruz, McKinney, Ornelas, Garcia, Urrego and Lopez were indicted on December 11, 1991 and charged with possession with intent to distribute approximately 47 kilograms of cocaine and with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) & (b)(1)(A) and 846. Cruz decided to plead guilty and cooperate with the government. ² Lopez, Ornelas, Garcia and Urrego pled not guilty and all four were convicted by a jury. ³

The district court sentenced Rodriguez and Garcia to 169 months each. Lopez received a term of 121 months. Their sentences were to be followed by concurrent five-year terms of supervised release. Urrego was sentenced to a 292 month term of confinement to be followed by concurrent 10-year terms of supervised release. Rodriguez, Garcia and Lopez were each ordered to pay a fine of $1000.00 and Urrego's fine was assessed at $25,000.00. All four defendants were ordered to pay the mandatory special assessment of $100.00 each.

II.

All four defendants first raise the claim that the evidence was insufficient to sustain their convictions. In reviewing the sufficiency of the evidence, this Court views all evidence, whether direct or circumstantial, and all inferences drawn from this evidence, in the light most favorable to the verdict. United States v. Madison, 990 F.2d 178, 181 (5th Cir.1993). The conviction should be affirmed "if the evidence so viewed would permit a rational jury to find all elements of the crime proven beyond a reasonable doubt...." United States v. Roberson, 6 F.3d 1088, 1093 (5th Cir.1993). "It is not necessary that the evidence exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992). The Court must not concentrate on "whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993).

To prevail in a drug conspiracy prosecution brought pursuant to 21 U.S.C. Secs. 841(a)(1) and 846, the government must prove beyond a reasonable doubt that 1) there existed an agreement between two or more individuals to violate the narcotic laws, 2) defendant was aware of the agreement and 3) defendant was a voluntary participant in the agreement. United States v. Gallo, 927 F.2d 815, 820 (5th Cir.1991). All of these elements may be inferred from the "development and collocation of circumstances." United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982).

The jury may rely on presence or association in conjunction with other evidence but mere presence at the scene or a close association with the conspirators, without more, is an insufficient basis for inferring participation. United States v. Maltos, 985 F.2d 743 (5th Cir.1992). Furthermore, placing a defendant in a "climate of activity that reeks of...