U.S. v. Percel

Decision Date23 December 2008
Docket NumberNo. 07-20236.,07-20236.
Citation553 F.3d 903
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Sugentino PERCEL; Eric Vasquez, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

John Richard Berry, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Henry E. Marines, Law Offices of Henry Marines, Miami, FL, for Percel.

Claudia M. Ima, Miami Lakes, FL, for Vasquez.

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

Before GARWOOD, GARZA and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Sugentino Percel and Eric Vasquez, along with six other individuals, were arrested and charged with conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846 (Count One) and with aiding and abetting the knowing and intentional possession with intent to distribute of five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii), and 18 U.S.C. § 2 (Count Two). Percel and Vasquez appeal their convictions, arguing that (1) the district court gave erroneous jury instructions, (2) the jury lacked sufficient evidence to convict Vasquez on either count, and (3) the district court abused its discretion in permitting testimony about a prior drug transaction involving Percel and Vasquez. We affirm.

I

Percel's and Vasquez's arrests resulted from a surveillance operation conducted by agents of the Drug Enforcement Agency (DEA). That operation began with surveillance of two addresses in Harris County, Texas—7430 Weatherhill and 7622 Lima. Agents observed a meeting between three of the suspects, Juan Antonio Escobar, Leon Baldomero DeLeon, and Bonifacio Hernandez, at Bravos Restaurant. The agents then saw Escobar and DeLeon drive to 7430 Weatherhill, load a Ford Explorer parked outside the home with a heavy-looking black duffle bag (which agents later discovered contained a money counter) and several black plastic bags containing brick-shaped objects, and drive the Explorer to another house at 8915 Alejo, where Escobar and DeLeon unloaded the bags.

Escobar then left DeLeon at the home and met with Hernandez, Percel, and German Arias in the parking lot of Bravos. The four returned to 8915 Alejo in the Explorer, where the DEA agents observed Percel and Arias carrying black bags into the house.

Escobar left the home again, leaving Percel and Arias there, and drove to an AutoZone to buy canned axle grease. He then picked up Jesus Alejandro Osorio and Vasquez at 3737 Watonga and drove them to 8915 Alejo, where the three stayed for approximately fifteen minutes before returning to 3737 Watonga. Upon returning to 3737 Watonga, Vasquez and Osorio got into a minivan with Illinois license plates, and Vasquez drove the minivan back to 8915 Alejo, followed by Escobar in his Explorer. Vasquez parked the minivan in the garage, which was quickly closed, and Escobar parked the Explorer in the driveway and entered the home.

About an hour later, Escobar exited the home and drove the Explorer out of the driveway. The garage door then opened and Arias drove the minivan out of the garage and onto the street, with Osorio in the passenger seat. The minivan and the Explorer drove off in tandem toward Bingle Road.

Five minutes later, a Harris County Sheriff's Department patrol unit stopped the minivan on Bingle Road traveling in the direction of the 3737 Watonga residence. The unit searched the minivan and found ten kilograms of cocaine hidden in the right rear quarter panel. The cocaine was packed in one-kilogram bricks that were wrapped in two layers of cellophane with a layer of grease or menthol in between and enclosed in a vacuum-sealed bag to conceal the odor from drug-detection canines.

While the minivan was stopped, Escobar circled his Explorer around and headed back to 8915 Alejo. Escobar stopped near the driveway, and agents observed Hernandez, DeLeon, Percel, and Vasquez exit the house and get into the Explorer, which sped away, going sixty miles per hour in a thirty-mile-per-hour speed zone and running red lights and stop signs. Agents stopped the Explorer near 3737 Watonga and took its passengers out of the Explorer.

After these stops, the agents conducted searches of the three addresses surveilled—3737 Watonga, 8915 Alejo, and 7430 Weatherhill. At 3737 Watonga, they found industrial-sized green cellophane and vacuum-sealing bags identical to those used on the cocaine bricks found in the minivan. Both items contained cocaine residue on them. The agents also found a small scale and some bags with cocaine residue in the kitchen.

In the kitchen at 8915 Alejo, the agents found a heat-sealing machine and materials consistent with those used to wrap the cocaine bricks, including grease, rubber gloves smeared with grease, and green cellophane. The agents also found a tool set that they believed was used to remove and replace the panel in the minivan. In the front bedroom, the agents found two plastic bags with twenty-five kilograms of cocaine wrapped in the same manner as the cocaine found in the minivan.

At 7430 Weatherhill, the agents found a number of scales, plastic bags, a vacuum-sealing machine, green cellophane, $47,000 in cash, a semi-automatic handgun, and eight kilograms of cocaine. The agents also found a white Dodge pickup truck with a hidden compartment behind the cab area that would have held approximately fifty kilograms of cocaine. The truck belonged to Leonardo Garcia, who was present at the home during the search.

Percel, Vasquez, Osorio, Hernandez, Escobar, DeLeon, Garcia, and Arias were arrested and charged. Hernandez, Escobar, DeLeon, Garcia, and Arias all pled guilty to at least one of the charges. Percel, Vasquez, and Osorio were tried together and each convicted by a jury on both counts. Percel and Vasquez were sentenced to 151 months imprisonment, followed by 5 years supervised release, a mandatory special assessment of $200, and a fine of $17,500.

At the trial, DeLeon and Arias testified against the defendants as part of the terms of their plea agreement. DeLeon testified that he sold thirty-five kilograms of cocaine to Osorio and Hernandez, who in turn sold it to Percel, Vasquez, and Arias. According to DeLeon, on the night in question, he and Escobar brought the cocaine from 7430 Weatherhill to 8915 Alejo, where everyone, including Percel and Vasquez, helped package the cocaine. DeLeon also stated that Vasquez, Percel, and Arias concealed the cocaine in the minivan when it was brought into the garage.

Arias testified that he had been close friends with Percel for twenty-eight years and had known Vasquez for approximately seven years. According to Arias, Percel and Vasquez made arrangements for him to come to Houston from New York with a minivan to buy drugs. Arias stated that he was taken to 8915 Alejo, where he saw cocaine and took part in packaging the cocaine, along with Percel and Vasquez. Arias also testified that Vasquez drove the minivan into the garage of the house and that Arias helped Vasquez and Percel hide the cocaine in the panel of the minivan.

Additionally, Arias testified about a similar prior drug deal involving himself, Percel, and Vasquez. According to Arias, in December 2005 or January 2006, he drove a rented van from New York to Houston, where Percel and Vasquez helped him conceal fifteen kilograms of cocaine in the van. Arias then handed the van off to a man and woman who drove it to Boston. Arias received $5,000 for his trip.

Prior to the trial, the Government filed a notice of intent to offer evidence of this previous drug transaction, and the district court ruled that such evidence was admissible under Federal Rule of Evidence 404(b). After Arias gave the testimony, the court gave a limiting instruction to the jury, telling them that they "must not consider any of this evidence in deciding if the Defendants committed the acts charged in the indictment" but could only consider it to determine whether the defendants had the state of mind or intent necessary for the crime charged, had the motive or opportunity to commit the acts charged, acted according to a plan, or committed the act by accident or mistake.

Percel testified on his own behalf, while Vasquez declined to testify. Percel claimed that he was in Houston with a friend to visit the friend's relatives. Percel testified that he believed he was going to a party with Vasquez and Hernandez at the Alejo house. According to Percel, he never went into the kitchen or the garage of the house, never saw any cocaine, and never saw the minivan at the Alejo house. Instead, he remained in the living room, where he watched TV, played dominoes, and drank some beer. He also denied involvement in the cocaine transaction.

When instructing the jury at the close of the evidence, the judge stated, "The law does not require a defendant to prove his or her innocence or produce any evidence at all and no inference whatever may be drawn from the election of a defendant to testify." The instruction to which the parties agreed stated that "no inference whatever may be drawn from the election of a defendant not to testify." Neither side raised any objections to the erroneous instruction when given, and the written instructions sent to the jury room contained the proper language.

II

The first issue Percel and Vasquez raise on appeal is whether the district court committed reversible plain error in its oral jury instructions when it omitted the word "not" in stating that "no inference whatever may be drawn from the election of a defendant to testify." Generally, incorrect jury instructions are not considered structural errors,1 and because neither Percel nor Vasquez objected to the jury instruction in the district court, we review the instruction for plain error.2 A jury instruction is plain error if "(1) it was erroneous; (2) the error was plain; and (3) the plain error affected...

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