U.S. v. Rodriguez

• Decision Date: 18 February 1994
• Docket Number: No. 93-7291,93-7291
• Citation: 15 F.3d 408
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 408

15 F.3d 408

UNITED STATES of America, Plaintiff-Appellee, v. Johnny RODRIGUEZ, Defendant-Appellant.

No. 93-7291.

United States Court of Appeals Fifth Circuit.

Feb. 18, 1994.

H. Michael Sokolow, Joe F. Sepeda, Asst. Federal Public Defenders, Roland E. Dahlin, II, Federal Public Defender, Houston, TX, for defendant-appellant.

B. Janice Ellington, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for plaintiff-appellee.

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

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

BARKSDALE, Circuit Judge:

Johnny Rodriguez appeals from his conviction and sentence, with the sentencing issue (the fine imposed) turning on the plain error rule, a rule which seems to receive inconsistent application. Doubtless, this will be righted by the Supreme Court's recent clarification of the rule in United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We AFFIRM.

I.

At a border checkpoint, marijuana was found in a truck. At issue is whether Rodriguez was its driver. Following a jury trial, he was found guilty of possession with intent to distribute 120 kilograms of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B). He was sentenced to 80 months of imprisonment, followed by five years of supervised release, and fined $1,000.

II.

Rodriguez contends that the district court abused its discretion by denying a continuance; that the evidence was insufficient to sustain his conviction, because it was insufficient to prove that he was the driver of the truck in which the marijuana was found; and that the fine was improperly imposed.

A.

The first challenge is to the denial of Rodriguez's motion for trial continuance, in order to allow another attempt to serve a subpoena on alibi witness Primativo Vega, a professional truck driver from California. In his notice of alibi defense, Rodriguez asserted that he was not in the truck in which the marijuana was found; instead, that he was a passenger in a truck driven by Vega.

Rodriguez pleaded not guilty on December 1, 1992; trial was set promptly for January 7, 1993. Three days before that setting, Rodriguez moved for a continuance, asserting the need for additional investigation and time in which to locate defense witnesses. Trial was re-set for January 26.

But, pursuant to Rodriguez's January 22 motion for a definite trial setting and a three-week continuance in order to locate and subpoena potential witnesses, trial was re-set for February 17, 1993. And, his February 2 motions for issuance of subpoenas for Vega and five others were granted.

At a pretrial conference on February 16, defense counsel informed the court that the United States Marshals in California had failed in four attempts to serve Vega, and requested a continuance of another week to attempt service. The court denied the motion, stating that the parties had been given a special trial setting, and that it did not appear that Vega had any interest in coming to court. That afternoon, Rodriguez filed a motion for continuance, asserting that the three witnesses for the alibi defense had not been served with subpoenas; the Government opposed the request.

The next day (the first day of trial), defense counsel informed the court that two of the three alibi witnesses were, or would be, present, but that Vega was a crucial, non-served alibi witness. Counsel proffered Vega's testimony. It was, in part: Rodriguez abandoned his truck at a truck stop in Edinburg, Texas, and obtained a ride with Vega and his co-driver through the Falfurrias checkpoint, an hour's drive to the north. At the checkpoint, they saw the truck (abandoned earlier that day by Rodriguez) in the secondary inspection area (where the marijuana was found). When Vega's co-driver opened Vega's trailer at the secondary inspection area, an individual named Jose Rangel, who had driven Rodriguez's truck from the truck stop to the checkpoint, asked to be allowed into Vega's truck. Vega gave Rodriguez a ride to Premont (ten miles beyond the checkpoint), and others gave him a ride from there to San Antonio.

Defense counsel admitted that, when he last talked to Vega, he (counsel) knew the original trial date (January 7), but did not give that information to Vega. Counsel also conceded that it was possible that Vega did not want to be found. The district court denied a continuance, stating that, although Vega was "obviously a very important witness", Rodriguez had had ample time in which to secure his attendance, and there was no reason to believe that additional time would make any difference if Vega did not want to be found.

The denial of a continuance is reviewed only for abuse of discretion. United States v. Botello, 991 F.2d 189, 193 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 886, 127 L.Ed.2d 80 (1994). And, if the continuance is sought because

of the unavailability of a witness, the movant must show:

[that] due diligence has been exercised to obtain the attendance of the witness, that substantial favorable evidence would be tendered by the witness, that the witness is available and willing to testify, and that the denial of the continuance would materially prejudice the defendant.

Id. (quoting United States v. Walker, 621 F.2d 163, 168 (5th Cir.1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981)).

Obviously, assuming that Vega's testimony would have been consistent with the proffer, it would have been "substantial favorable testimony", as the district court noted. But, Rodriguez failed to demonstrate due diligence in obtaining Vega's attendance. He listed Vega in his alibi notice on January 22; when the trial was concomitantly continued for the third time (all at Rodriguez's request in order to obtain witnesses), resulting in the February 17 setting, Rodriguez had nearly four weeks in which to secure Vega's attendance, yet he waited until two weeks before trial to request the subpoena. Moreover, he has not demonstrated that Vega would have been willing to give favorable testimony, and risk incriminating himself by testifying that, while giving Rodriguez a ride, he helped Rangel escape from arrest at the checkpoint. ¹ See Botello, 991 F.2d at 193 (affirming the denial of continuance, partly because there was no reason to assume that the absent witness would be willing to incriminate himself by testifying).

In short, the district court did not abuse its discretion in denying Rodriguez's eve-of-trial motion for a third continuance.

B.

Rodriguez contests his conviction, maintaining that there was insufficient evidence to prove that he was the driver of the truck in which marijuana was found when it was inspected at the checkpoint. ²

In reviewing a sufficiency of the evidence challenge, we examine the evidence in the light most favorable to the jury's verdict, making all reasonable inferences and credibility choices in favor of the verdict. United States v. Montoya-Ortiz, 7 F.3d 1171, 1173 (5th Cir.1993). The evidence is sufficient if "a rational trier of fact could have found that [it] established guilt beyond a reasonable doubt". Id. (quoting United States v. Gardea-Carrasco, 830 F.2d 41, 43-44 (5th Cir.1987)). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.... A jury is free to choose among reasonable constructions of the evidence". Id. (quoting 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)). Although individual facts and incidents, considered separately, might be inconclusive, they "may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof". United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989) (internal quotation marks, brackets, and citation omitted).

Border Patrol agent Gill testified that he was stationed at the Falfurrias checkpoint on June 6, 1992, when a 1986 red Peterbilt truck arrived at 2:15 a.m. At trial, Gill identified Rodriguez as the driver. Rodriguez told Gill that he was a United States citizen and was carrying a load of watermelons. While talking to Rodriguez, Gill noticed that he was nervous; that there was a heavy odor of cologne emanating from the cab of the truck, which Gill thought might be masking the smell of narcotics; and that the dates on the bill of lading had been altered. Gill referred the truck to the secondary inspection area.

Gill was using a flashlight at the primary inspection area and got "a fairly good look" at Rodriguez; got a "real good look" at the secondary inspection area, after Rodriguez opened the doors of the trailer, because Rodriguez was "right next to" him, standing only about a foot away; got another "real good look" when asking for permission to search the cab of the truck because, again, Rodriguez "was standing right next to" Gill; and, finally, got a similar good look at Rodriguez when he (Gill) was beginning to climb into the cab of the truck because, once again, Rodriguez "was standing right next to" him. Although it was dark, Gill had a powerful flashlight, light from light poles, and the lighting in the truck, which enabled him to observe Rodriguez. Nearly four months later, Gill viewed a photographic lineup and identified Rodriguez as the driver.

Rodriguez appeared nervous and his hands trembled when Gill asked for permission to search the cab, but he consented. Inside the cab, in the sleeper compartment behind the driver's seat, Gill found several bundles of marijuana, which weighed approximately 265 pounds. But, when he turned to arrest Rodriguez, he had disappeared.

Border Patrol agent Shaffer testified that the next vehicle to enter the checkpoint after the red truck was another 18-wheeler, driven by Vega;...