U.S. v. Rosas-Fuentes, ROSAS-FUENTE

• Decision Date: 19 August 1992
• Docket Number: No. 91-8414,ROSAS-FUENTE,D,91-8414
• Citation: 970 F.2d 1379
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amado Rigobertoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1379

970 F.2d 1379

UNITED STATES of America, Plaintiff-Appellee, v. Amado Rigoberto ROSAS-FUENTES, Defendant-Appellant.

No. 91-8414.

United States Court of Appeals, Fifth Circuit.

Aug. 19, 1992.

Ernest Mireles, Eagle Pass, Tex. (court-appointed), for defendant-appellant.

Michael McCrum, Richard L. Durbin, Jr., Alia Moses Ludlum, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GOLDBERG, JONES and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Appellant, Amado Rigoberto Rosas-Fuentes (Rosas) and his companion, Santiago Valdez (Valdez) were charged in a two-count indictment with (1) conspiracy to possess with intent to distribute more than 20 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and (2) possession with intent to distribute more than 20 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). Valdez pleaded guilty. Following a bench trial, the court found Rosas guilty of both counts. The court sentenced Rosas to 33 months imprisonment and 3 years of supervised release on each to 33 months imprisonment and 3 years of supervised release on each count to be served concurrently. In this appeal, Rosas complains, among other things, that the evidence is insufficient to support his conviction. After thorough review of the record, we find that there is insufficient evidence to support Rosas' conviction and, therefore, do not reach Rosas' other contentions.

FACTS

On October 17, 1990, Valdez and his passenger, Rosas, arrived at the U.S. Border Patrol checkpoint in Eagle Pass, Texas, in a pickup truck. Border Patrol Agent Ronald Marcell (Marcell) asked them whether they were United States citizens. Valdez responded that they had to go back to Eagle Pass because Rosas had forgotten his identification "card" and his wallet. Both Valdez and Rosas said that they were born in Eagle Pass. When asked about their destination, Rosas told Marcell that Valdez was giving him a ride to Carrizo Springs to meet someone who could tell him where in San Antonio he could find a certain car part. Valdez was then going to drop him off in San Antonio to purchase the part. At trial, Valdez admitted that he was travelling to Ft. Worth. Because both men appeared nervous and anxious to leave Border Patrol Agents Mendoza and Santini handled the secondary inspection. Mendoza asked for and received Valdez' consent to search the vehicle. The agent noticed a gap between the bed of the truck and the cab. In the space, the agent saw two gasoline tanks, one that was dirty and one that was clean. Agent Mendoza then tapped the tanks, and the extra tank did not make the usual hollow sound. Mendoza crawled under the truck and observed that the extra tank was inadequately secured with loose bolts that had tool marks on them, as if the tank had been recently removed and replaced. Agent Santini then used a piece of wire and ran it down the filler line of the tank. The wire met an obstruction about 12 inches down the line. Agent Marcell joined the search and loosened the filler line under the truck. He inserted his pen, which immediately met a solid obstruction. At that time, the agents were fairly certain that the tank contained some type of illegal contraband. During the search at secondary, Agent Santini testified that Rosas asked several times if they had found anything. Record Vol. 3 at p. 74.

the checkpoint, Marcell referred them to the secondary inspection area.

Marcell testified that he arrested Rosas and Valdez and advised them of their Miranda rights while still at the checkpoint. Marcell then transported Rosas alone to the Border Patrol Station in El Paso. Marcell said that on the way to the Station, Rosas asked him in Spanish if they had found anything in the tank. Marcell responded in Spanish, " 'Well, you tell me.' " Rosas' response was, " 'Well, yes.' " Record Vol. 3, at p. 46. All of the agents testified that both men appeared nervous, that is, with their hands in their pockets, heads down, making no eye contact with the agents. Agent Mendoza testified that in the past he had seen Rosas go through this checkpoint, and his demeanor had been "pretty bold" in contrast to this day. Record Vol. 3, at p. 11.

At the Station, the agents removed the spare tank and saw that someone had cut open the upper part of the tank and closed it with duct tape. Inside the tank they found 24 packages of marijuana, weighing 21,321 grams or about 53 pounds.

STANDARD OF REVIEW

The government argues that the defendant failed to renew his motion for acquittal at the close of all of the evidence, therefore, he waived his sufficiency review on appeal. The government contends that we should reverse only for plain error or "manifest miscarriage of justice." U.S. v. Ruiz, 860 F.2d 615, 617 (5th Cir.1988). This standard applies, however, only when the defendant fails to move for acquittal at the end of a jury trial. Rosas had a bench trial, and his plea of not guilty serves as a motion for acquittal, therefore, error is preserved. U.S. v. Pitts, 428 F.2d 534, 535 (5th Cir.), cert. denied, 400 U.S. 910, 91 S.Ct. 154, 27 L.Ed.2d 149 (1970), citing, Hall v. U.S., 286 F.2d 676 (5th Cir.), cert. denied, 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961).

When a jury trial has been waived and a bench trial held we must

determine whether [the] findings are supported by any substantial evidence. It is not [our] function to make credibility choices or to pass upon the weight of the evidence. The test is whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty....

United States v. Jennings, 726 F.2d 189, 190 (5th Cir.1984) (quoting, Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971). When reviewing the sufficiency of the evidence to support a conviction, we view the facts and all reasonable inferences therefrom in the light most favorable to the Government. U.S. v. Garcia, 917 F.2d 1370, 1376 (5th Cir.1990).

SUFFICIENCY OF THE EVIDENCE

The elements of conspiracy are as follows: (1) the existence of an agreement between two or more persons to violate the narcotics laws, (2) knowledge of the conspiracy, and (3) voluntary participation in the conspiracy. U.S. v. Arzola-Amaya, 867 F.2d 1504, 1511 (5th Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). In U.S. v. Blessing, 727 F.2d 353, 355 (5th Cir.1984), cert. denied sub nom., Rodriguez v. U.S., 469 U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 773 (1985), this court stated,

[t]he government must show beyond a reasonable doubt that the defendant had the deliberate, knowing, and specific intent to join the conspiracy.... this court will not 'lightly infer a defendant's knowledge and acquiescence in a conspiracy.' It is not enough that the defendant merely associated with those participating in a conspiracy, nor is it enough that the evidence places the defendant in 'a climate of activity that reeks of something foul.' (citations omitted)

To sustain a conviction for possession with intent to distribute, the government must show that the defendant knowingly possessed the contraband with intent to distribute it. U.S. v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.1989). The government may prove actual or constructive possession by either direct or circumstantial evidence. Ruiz, 860 F.2d at 619. To show constructive possession, the government must show that the defendant controlled, or had the power to control, the vehicle or the contraband; mere proximity to the contraband is not enough. U.S. v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir.19...