U.S. v. Resio-Trejo

Citation45 F.3d 907
Decision Date08 February 1995
Docket NumberD,No. 94-60054,RESIO-TREJ,94-60054
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Pedroefendant-Appellant. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Oscar J. Pena, Sr., Laredo, TX, for appellant.

Paula C. Offenhauser, Asst. U.S. Atty., Houston, TX, Gaynelle Griffin Jones, U.S. Atty., Brownsville, TX, for appellee.

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

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Pedro Resio-Trejo (Resio) appeals his conviction, following a jury trial, for possession with intent to distribute marihuana in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B). In this appeal, Resio raises two points of error, arguing that the evidence introduced at trial was insufficient to support his conviction and that statements made by the prosecutor during the trial constituted reversible error. We affirm.

Facts and Proceedings Below

At approximately 10:30 p.m. on April 29, 1993, Resio, heading in a northerly direction on Interstate 35, approached the United States Border Patrol checkpoint north of Laredo, Texas, driving a truck tractor with no trailer attached. Resio was the sole occupant of the truck. While Border Patrol Agent Stephen Williams (Williams) was asking Resio routine citizenship questions, 1 a Border Patrol canine alerted to the gas tank on the driver's side of the tractor. The Border Patrol agents then sent the tractor to the secondary inspection area. After Resio exited the tractor, the canine handler conducted a search of the entire vehicle. During this search, the dog alerted to the gas tank on the driver's side as well as the gas tank on the passenger's side. When Williams removed the cap of one of the gas tanks and inserted a coat hanger, he felt something solid in the gas tank, which he suspected to be a secret compartment. At this point, the agents began looking for a trap door for loading contraband into the tank.

After visually examining the gas tanks, Border Patrol Agent Marco Antonio Cordero (Cordero) detected the odor of bondo, a sealant used in body repairs of vehicles. As Cordero scratched off the paint on the surface of the tank, a bright pink bondo sealant became visible. Cordero testified that bondo usually fades and discolors as it dries. Given the bright pink color, Cordero surmised that it was a fresh application. The gas tanks, placards, and straps were all painted black. When the agents pounded the tanks with a hammer and screwdriver, the sealant cracked, revealing cut-out trap doors located on the top of each gas tank. After removing the bolts securing the trap doors, the agents discovered 54 bales of marihuana weighing approximately 326.4 pounds. 2 Drug Enforcement Agency (DEA) Agent Colin McNease (McNease), who was called to the scene at 11:00 p.m. that night, testified that the marihuana seized from the gas tanks appeared to be fresh.

Cordero testified that whoever altered the tanks and concealed the secret compartments "did a very good job." Border Patrol Agent Mario Ernesto Moreno (Moreno), who had training in welding, testified about the complexity of the alterations and explained that the 115-gallon steel fuel tanks could only be cut with a torch or a grinder. The secret compartments, each with a 51-gallon capacity, were specially welded to fit inside the gas tanks, leaving less than two-thirds of the original tank capacity for fuel. Moreno also testified that the persons altering the tanks would have to remove the tanks from the truck, an operation that would require lifting the cab. In order to avoid the danger of explosion, the tanks would have to be drained, flushed, and dried before construction of trap doors could begin. Moreno testified that the alterations to the gas tanks would take several days to complete and that the alterations appeared recent. From the time the canine first alerted to the driver's side gas tank, the search and removal of the marihuana took over one hour. During the search of the vehicle and the subsequent dismantling of the gas tanks, the agents described Resio's demeanor as indifferent and stated that he never asked any questions about what was being done to the tractor. After discovering the marihuana, Resio was arrested, and the truck was impounded.

DEA Agent McNease found various documents under the mattress in the truck's sleeper. At trial, the government used this documentary evidence to show that Resio had been in possession of the truck for the ten months prior to his arrest. Documents introduced at trial showed that a Luis Jaime Rodriguez (Rodriguez) had purchased the truck on February 15, 1992, and obtained title on April 21, 1992. The government introduced documents showing that Rodriguez secured insurance coverage for the truck effective April 14, 1992. The insurance agent who issued the policy testified that the policy was cancelled on May 14, 1992, the date of Rodriguez's death. 3 A driver's daily log book found in the tractor listed the carrier as L.J.W. Trucking, Inc. and the driver as Rodriguez. The entries in this log started on April 28, 1992, and ended on May 3, 1992. A second daily log found in the tractor recorded trips of a driver listed as "Pete Resio" beginning May 16, 1992, for L.J.W. Trucking Services. 4 Beginning on November 24, 1992, the name P.R.T. Express began appearing in the daily entries as the name of the carrier, with Resio still listed as the driver. 5 These daily logs also included daily inspection reports starting on July 1, 1992. There are two months, December 1992 and March 1993, for which the government did not introduce daily logs or inspection reports. However, the government did introduce daily log entries and inspection reports for the period January 1, 1993, to February 28, 1993, and April 1, 1993, to April 29, 1993, the date of Resio's arrest. These daily logs and inspection reports were signed "Pete Resio."

An insurance policy for the truck discovered in it identified Resio as the insured, effective July 20, 1992, with expiration date of July 20, 1993. Another similar insurance policy found in the truck also listed Resio as the insured for the same truck, effective March 18, 1993, and expiring March 18, 1994. Under Texas law, any carrier operating trucks with a gross weight in excess of 26,000 pounds must obtain a permit by registering the truck with the Texas Railroad Commission (TRC) and filing proof of insurance. TRC records reflected that the truck was registered by "Rodriguez" as a private carrier in August 1992 and that this registration was renewed in April 1993. The August 1992 application listed Pedro Resio as the owner of the tractor. The permit number identified on the April 1993 renewal application matched the Interstate Commerce Commission number on the doors of the truck under the "P.R.T. Express" insignia.

In April 1993, Resio applied to the Texas Department of Transportation for a reassignment of the certificate of title. The Texas Certificate of Title application requires the signature of the owner of the vehicle. The application submitted by Resio contained the purported signature of Rodriguez, dated April 16, 1993, as the owner transferring title to the tractor. The government also introduced the taxpayer's copy of a Heavy Vehicle Use Tax Return dated April 13, 1993; the return is signed by Rodriguez. Finally, the agents found an annual vehicle inspection report dated June 15, 1992, and Texas vehicle registration receipts for March 1992 and March 1993, all of which were in Rodriguez's name.

On August 3, 1993, a federal grand jury returned an indictment charging Resio with one count of conspiracy to possess with intent to distribute 326.4 pounds of marihuana in violation of 21 U.S.C. Secs. 846, 841(a)(1) and (b)(1)(B) (Count One) and one count of possession with intent to distribute the same marihuana in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B) (Count Two). After a jury was empaneled and sworn, the government announced that it would proceed only on Count Two and moved to dismiss the conspiracy count. The district court denied Resio's motion for a judgment of acquittal at the close of the government's case. The defense rested without presenting any evidence. On October 19, 1993, the jury found Resio guilty of Count Two. On December 30, 1993, the district court sentenced Resio to sixty-six months of imprisonment and four years of supervised release and imposed a $500 fine and a $50 mandatory special assessment. Resio filed a timely notice of appeal.

Discussion

Resio's first point of error is that the government failed to introduce sufficient evidence to support his conviction for possession with intent to distribute approximately 326.4 pounds of marihuana in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B). In reviewing challenges to the sufficiency of the evidence, we review the evidence, whether direct or circumstantial, in the light most favorable to the jury verdict. United States v. Nguyen, 28 F.3d 477, 480 (5th Cir.1994). 6 All credibility determinations and reasonable inferences are to be resolved in favor of the verdict. Id. We hold the evidence sufficient if we conclude that a rational trier of fact could have found therefrom the essential elements of the crime beyond a reasonable doubt. United States v. Villasenor, 894 F.2d 1422, 1425 (5th Cir.1990). In making such a determination, "[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

In order to obtain a conviction for possession with intent to distribute marihuana, the government must prove that Resio knowingly possessed marihuana with the intent to distribute it. United States v....

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