U.S. v. Prieto-Tejas

Citation779 F.2d 1098
Decision Date06 January 1986
Docket NumberD,No. 85-1069,PRIETO-TEJA,85-1069
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marioefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Lucien B. Campbell, Federal Public Defender, Kevin E. Shannon, Asst. Federal Public Defender, El Paso, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., Mike McDonald, Sidney Powell, Michael R. Hardy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Mario Prieto-Tejas appeals his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C Sec. 841(a)(1); conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1), 846; and carrying a firearm unlawfully during the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(2). He argues that the evidence was insufficient to support each conviction. We affirm the narcotics convictions and reverse the conviction for carrying a firearm unlawfully during the commission of a felony.

Facts and Proceedings Below

On October 7, 1984, Border Patrol Officer Michael Jackson stopped Mario Prieto-Tejas and Guillermo Dusal at the Sierra Blanca traffic checkpoint on Highway I-10 in Hudspeth County, in far west Texas. Dusal was driving a 1978 Oldsmobile and Prieto-Tejas, who owned the automobile, was riding in the front passenger seat. When Jackson approached the vehicle, he noticed that both men were wearing an "excessive" amount of gold jewelry. As Jackson questioned the men about their citizenship, he smelled burning marijuana and observed several partially burned marijuana cigarettes in the car's ashtray. Jackson then directed the vehicle to a secondary inspection area.

At the secondary inspection point, Jackson asked Dusal and Prieto-Tejas to step out of the vehicle and continued questioning them about their citizenship. Both men informed Jackson that they were from Cuba. Dusal stated that he had no identification; Prieto-Tejas produced an I-94 immigration form. Jackson then searched the vehicle. He observed that the lower right door panel was loose; when he pulled it open, a small plastic bag of cocaine fell to the floorboard. At that point, Jackson took Dusal and Prieto-Tejas to a holding cell in the checkpoint trailer. He then resumed his search of the vehicle. He found a small bag of marijuana in the glove compartment, 1 and under the upholstery of the front seat center arm rest he found a large plastic bag of cocaine and a .25 caliber pistol. A search of the trunk disclosed a counterbalance metric scale bearing traces of cocaine.

Drug Enforcement Administration (DEA) Agent Larry Nichols arrived at the checkpoint and interviewed Dusal and Prieto-Tejas. Dusal told Nichols that he lived in San Antonio, but had traveled to California several weeks earlier and had worked there as a waiter. Prieto-Tejas said that he worked as a dishwasher in Los Angeles and bought and sold gold jewelry. Dusal informed Nichols that Prieto-Tejas had purchased the car in California and, because he was unable to drive, had elicited Dusal's help to drive to San Antonio. Prieto-Tejas testified at trial that he paid $2,250 in cash for the vehicle in Los Angeles on October 2, 1984. Because Dusal wished to return to San Antonio, he agreed to drive for Prieto-Tejas. When questioned at the checkpoint, Prieto-Tejas told Nichols that the cocaine belonged to him, but denied knowledge of the gun. Dusal admitted ownership of the gun, but said he had placed it in the back seat of the car and suspected that Prieto-Tejas had moved it to the front armrest. He also stated that the cocaine belonged to Prieto-Tejas and that he had seen him use it during the journey.

Chemical analysis of the substance seized at the checkpoint revealed that the smaller bag held 2.89 grams of 73 percent pure cocaine and that the larger bag found in the armrest contained 27.79 grams of 82 percent pure cocaine. The residue found on the counterbalance metric scale also was identified as cocaine. At trial, DEA Agent Nichols testified that the street value of an ounce of cocaine (approximately twenty-eight grams) ranges from $2,200 to $2,500, especially when bought in bulk. He said that the current price per gram on the street is about $78 to $100. He further explained that the average purity of cocaine found on the street is 25 percent. Therefore, an ounce of 84 percent cocaine could be diluted and sold as three ounces on the street. On cross-examination, Nichols stated that a user may consume cocaine of 80 percent purity, that high purity cocaine can be found on the street, and that an ounce of such purity is still worth $2,200 to $2,500.

Dusal and Prieto-Tejas were indicted and were convicted by a jury on all three counts. Both were sentenced to two concurrent five-year prison terms for the narcotics violations, and one five-year term for the firearms count, which was to run consecutively to the other sentences. Prieto-Tejas timely filed this appeal.

Discussion
Standard of Review

Prieto-Tejas challenges the sufficiency of the evidence underlying each conviction. 2 In considering his claims, we must view the evidence and all reasonable inferences that may be drawn from the evidence in a light most favorable to the government. We must find the evidence sufficient to support a conviction if a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. United States v. Barnes, 761 F.2d 1026, 1031 (5th Cir.1985); United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Possession with Intent to Distribute

A conviction for possession of a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1) 3 requires proof of knowing possession with intent to distribute (or manufacture or dispense) the substance. United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984). Both possession and intent to distribute may be proved by circumstantial evidence. Id. at 1019, 1022-23; see United States v. Rogers, 719 F.2d 767, 769-71 (5th Cir.1983). Prieto-Tejas admitted knowing possession of all the cocaine found in his car, but claimed that it was for his personal consumption and that the evidence failed to establish his intent to distribute. We disagree.

Intent to distribute a controlled substance may generally be inferred solely from possession of a large amount of the substance. United States v. Goldstein, 635 F.2d 356, 362 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981); United States v. Grayson, 625 F.2d 66, 66 (5th Cir.1980). The purity and value of the substance also are relevant to the possessor's intent to distribute. United States v. Ledezma-Hernandez, 729 F.2d 310, 313 (5th Cir.1984); United States v. Gonzalez, 700 F.2d 196, 204 (5th Cir.1983). A quantity of narcotics too large to be used by the possessor alone "justifies the conclusion that possession was for distribution rather than personal consumption." United States v. Mendoza, 722 F.2d 96, 103 (5th Cir.1983).

The bags contained 27.79 grams of 82 percent pure cocaine and 2.89 grams of 73 percent pure cocaine. In total, the cocaine was worth between $2,200 and $9,000, depending on whether it was diluted before sale. The evidence suggested that this cocaine was of a purity usually diluted for distribution. A reasonable trier of fact could conclude that Prieto-Tejas intended the cocaine for distribution. See United States v. Compton, 704 F.2d 739, 742 (5th Cir.1983) (finding approximately thirty-three grams of cocaine--one bag of 82 percent and another of 83 percent purity--plus smaller bags of lesser purity to be sufficient evidence of intent to distribute); 4 United States v. Vergara, 687 F.2d 57, 62 (5th Cir.1982) (finding possession of $8,500 worth of heroin sufficient evidence of intent to distribute).

Prieto-Tejas testified that he was addicted to cocaine and that at the time of his arrest he had been using up to three or four grams a day for several months. He stated that he consumed thirty grams about every ten days when he was able to obtain it. He suggested that he consumed one to one and a half ounces at the least each month. He stated at trial that he had paid $1,200 for the approximately thirty grams of cocaine found in his car by the Border Patrol Agent. He also recounted that he had paid $2,250 in cash for the car five days before the trip. Prieto-Tejas further testified that he made $130 to $160 a week as a dishwasher. His testimony concerning his income from trading gold jewelry was somewhat uncertain and conflicting, but suggested that he made between $3,000 and $12,000 a year. Construed most favorably to him, his testimony would indicate that his total income was at the most $2,000 per month. But the jury could conclude from this evidence that he made less than half this amount.

A reasonable trier of fact could conclude that Prieto-Tejas intended to sell the cocaine based on one of two inferences. Prieto-Tejas accounts for possession of a large amount of cocaine by claiming to have a large habit. But such a habit would cost him at the very least $1,000 to $2,000 a month. 5 His testimony indicates that his income could not support a large consumption of cocaine. Therefore, a reasonable factfinder could infer either that he did not use a large amount and intended to sell a portion of the cocaine, or that he did consume large amounts and also sold cocaine to supplement his income in support of his expensive habit.

The metric scale found in Prieto-Tejas's possession provides some further evidence of an intent to distribute cocaine. The scale had traces of cocaine in the weighing pans and the DEA agent testified that scales of this type are...

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