U.S. v. Pena

• Decision Date: 16 December 1991
• Docket Number: No. 90-2430,90-2430
• Citation: 949 F.2d 751
• Parties: 34 Fed. R. Evid. Serv. 790 UNITED STATES of America, Plaintiff-Appellee, v. Jairo Hernan PENA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 751

949 F.2d 751

34 Fed. R. Evid. Serv. 790

UNITED STATES of America, Plaintiff-Appellee, v. Jairo Hernan PENA, Defendant-Appellant.

No. 90-2430.

United States Court of Appeals Fifth Circuit.

Dec. 16, 1991.

Salvador G. Longoria, Guadin & Longoria, New Orleans, La., for defendant-appellant.

Paula C. Offenhauser, Peggy M. Ronca, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, WILLIAMS and BARKSDALE, Circuit Judges.

CLARK, Chief Judge:

Jairo Hernan Pena appeals his conviction on one count of aiding and abetting Miguel Munevar and others in possession with intent to distribute in excess of five (5) kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. Finding no error in the jury's verdict or district court procedures, we affirm.

I. Background

A. Facts

Jairo Hernan Pena owns a car repair shop called Keeper Classics, Inc. (Keeper Classics). On June 8, 1988, Miguel Munevar contacted Pena and requested he tow a green Suburban motor vehicle from an apartment complex. Pena contends that Munevar told him the doors were jammed and Munevar could not get into the car. The government asserts that Pena knew that the car contained stolen drugs and that he was assisting Munevar in the theft of 200 kilograms of cocaine from Colombian drug traffickers. Pena agreed to get the Suburban towed to his shop and included the cost in the repair bill. He phoned Gary Fattig, a tow truck driver, to request the tow at 3 p.m. Fattig responded that he would get to the Suburban within the hour.

Pena left Keeper Classics about 5:45 p.m. Fattig did not arrive with the Suburban until 6 p.m. Apparently Fattig did not remain long at Keeper Classics and drove away from Keeper Classics within a few minutes of his arrival. After making several turns and stopping briefly, Fattig returned to Pena's shop. He then towed the Suburban to American Storage, a car storage lot. Once at American Storage, Fattig and Rick Edwards, assistant manager of the storage lot, discovered that the Suburban contained bricks of cocaine. Edwards called the Houston Police Department (HPD) who arrived on the scene around 7 p.m. When the HPD arrived at American Auto Storage, the officers observed bricks of cocaine in the Suburban. One brick was open and the contents were spilling out. HPD notified the Drug Enforcement Agency (DEA) when inspection revealed a DEA transponder on the Suburban. The HPD took Fattig and Edwards to the station for questioning.

Pena testified that Munevar called him at home around 10 p.m. the evening of the 8th, inquiring about the Suburban. Pena agreed to check at the shop after he stopped at the grocery store. When Pena went by the shop, the Suburban was not there. Pena paged Fattig several times within a fifteen-minute interval. Detective Wilson of the HPD testified that while he was interviewing Fattig that evening, Fattig's pager went off several times, showing Keeper Classics' phone number.

Upon returning to work the morning of June 9th, Pena again paged Fattig several times. Munevar again called Pena asking where the Suburban was. Fattig returned Pena's page under surveillance by law enforcement agents. Fattig stated that he had the Suburban but wanted to treat it as a repossession. When Pena informed Munevar of the additional cost, Munevar responded that money was no problem and apparently requested at that time that Pena keep his name out of the transaction. After a taped telephone conversation with Fattig, Pena created a false unpaid invoice on the Suburban. Pena admitted that there was no outstanding bill on the Suburban and that the entire invoice was a fiction. Pena used the name Fabio Montoya on the invoice. He knew Montoya was a wanted drug trafficker who would not be around.

That afternoon, Pena went to American Storage where he learned of the police hold on the Suburban. Pena did not demand possession of the Suburban and did not have any repossession paperwork with him.

That evening, around dinner time, Munevar arrived at Pena's home. Pena contends that it was during this conversation that he first became aware of the cocaine. Pena testified that Munevar told him of his plan to steal cocaine in which Cesar Ospina and the Ochoa family had an interest. Munevar accused Pena of involvement in the plan. Pena testified he expressed his anger at Munevar for getting him involved in any way and rejected Munevar's offer of $20,000 to retrieve the Suburban.

Later that night, around 3 a.m., DEA Special Agent Michael McDaniel, Officer Nick Wilson, and Agent Cummins arrived to arrest Pena. ¹

The evidence as to what Pena told the arresting officers at this point is contradictory. Pena testified that when the officers first arrived he said, "Oh Mike, you are here about the truck, aren't you?". The officers testified that they read Pena his rights and took him to the HPD station for questioning. McDaniel testified that during the station interview, Pena admitted that he and Munevar schemed to steal the cocaine from Ospina and that Pena would receive $20,000 in return for arranging the tow. Pena denies making such statements.

B. Proceedings

Pena's indictment contained two counts. Count one charged Pena with conspiring to possess with intent to distribute in excess of five (5) kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count two charged Pena with aiding and abetting Miguel Munevar and others in possession with intent to distribute in excess of five (5) kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.

Both parties filed numerous pre-trial motions. The jury returned a not guilty verdict as to count one and a guilty verdict as to count two. Pena filed a motion for a new trial immediately following the verdict. Four months later Pena filed an amended new trial motion alleging newly discovered evidence. The court denied the motion as amended and sentenced Pena to 120 months followed by 5 years supervised release, a $5,000 fine and a special assessment of $50. Pena appeals.

II.

Pena raises four issues on appeal. First, whether there is sufficient evidence that Pena had knowledge of the unlawful purpose of the tow at any time when he had constructive possession of the Suburban. Second, whether the district court erred in admitting evidence of McDaniel's handwritten notes which were prepared 12 hours after the interview with Pena. Third, whether the jury instruction on deliberate ignorance was improper because the government's case focused on Pena's actual knowledge. Fourth, whether the newly discovered evidence of Fattig's drug problems warranted a new trial.

A. Sufficiency of the Evidence

The jury found Pena guilty of aiding and abetting the possession with intent to distribute in excess of five (5) kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. The crime of aiding and abetting occurs when a defendant associates with a criminal venture, purposefully participates in it, and seeks by his actions to make it succeed. United States v. Vaden, 912 F.2d 780, 783 (5th Cir.1990). The government does not need to prove each element of the crime, only that Pena aided and abetted that crime. United States v. Stanley, 765 F.2d 1224, 1242 (5th Cir.1985).

When reviewing a verdict for sufficiency of evidence, this court must determine "whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Santisteban, 833 F.2d 513, 516 (5th Cir.1987).

Pena argues that because the jury found him not guilty of conspiracy, no reasonable trier of fact could then find him guilty of aiding and abetting. In order to return a verdict of not guilty of conspiracy, Pena contends that the jury necessarily discredited Pena's alleged confession to McDaniel on June 10th and also the additional circumstantial evidence of Pena's actions on June 9th. Therefore, Pena asserts, the same evidence cannot support a guilty verdict for aiding and abetting. We disagree.

First, we note that the crimes of conspiracy and aiding and abetting are separate and distinct. A person may aid and abet the commission of a crime without being a conspirator. See United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980); United States v. Krogstad, 576 F.2d 22, 29 (3rd Cir.1978). "The essence of a conspiracy offense is proof of knowledge of and voluntary participation in an agreement to violate the law, whereas aiding and abetting requires that there be a 'community of unlawful intent' between the aider and abettor and the principal." United States v. Phillips, 664 F.2d 971, 1010 (5th Cir.1981) (cites omitted), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Second, even if the counts were overlapping, the law does not require consistency of verdict between the separate counts. United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 476, 83 L.Ed.2d 461 (1984); United States v. Montalvo, 820 F.2d 686, 690 (5th Cir.1987). Inconsistent verdicts may simply be a reflection of the jury's leniency. Montalvo, 820 F.2d at 690.

Viewed in the light most favorable to upholding the verdict, we find the evidence to be sufficient. Such evidence must support a finding that Pena's intent to aid and abet Munevar existed prior to Fattig's transfer of the Suburban to the storage lot. After this point, Pena could no longer aid or abet Munevar in the illegal possession of the cocaine because Fattig had deviated from his agency and was no longer the agent for Pena and the HPD hold on the Suburban had ended any prior possession by Munevar or Pena. Pena's...