U.S. v. Sacerio, No. 90-1637

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, JOLLY, and WIENER; E. GRADY JOLLY
• Citation: 952 F.2d 860
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos SACERIO and Narciso Roberto Rubio, Defendants-Appellants.
• Docket Number: No. 90-1637
• Decision Date: 22 January 1992

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952 F.2d 860 UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos SACERIO and Narciso Roberto Rubio, Defendants-Appellants. No. 90-1637. United States Court of Appeals,
Fifth Circuit. Jan. 22, 1992.

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Betsy Walker, Biloxi, Miss. (Court-appointed), for defendants-appellants.

Martha Carson, D'Iberville, Miss. (Court-appointed), for Rubio.

Peter Barrett, Asst. U.S. Atty., George Phillips, U.S. Atty., Biloxi, Miss., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

I

Carlos Sacerio and Narciso Roberto Rubio appeal their convictions on one count of conspiracy to possess cocaine with the intent to distribute and one count of possession

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of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. We reverse. II

Rubio worked at a car wash in Miami. Juan Castellanos, a regular customer at the car wash, asked Rubio to drive a car from Miami to New Orleans for $200.00 plus expenses. Rubio was to deliver the car to Luis Martinez in New Orleans. As Rubio was driving a white Ford Tempo from New Orleans to Miami on I-10 in Gulfport, Mississippi, Mississippi Highway Patrol Officer Potts stopped him for speeding. Rubio gave Potts his license and the rental car agreement with Hertz, showing that the car had been rented to Castellanos. Martinez was listed as an additional authorized driver. Officer Potts questioned Rubio in English and Rubio responded in English with no signs of difficulty. Potts ran a check on Rubio's license and found that it was suspended.

Potts phoned Hertz, who told him to impound the car. Rubio consented to a search of the car and followed Potts to the Sheriff's Department where the car was put on a rack for inspection. A thorough search failed to show anything. Apparently Rubio was not concerned because he fell asleep during the search.

Potts took Rubio to the bus station in Gulfport so he could get transportation back to Miami. Potts then called Hertz and asked that anybody calling about the car be referred to him. The next day Potts got a message that someone had called about the impounded Tempo. Potts returned to the Tempo, searched it again, and found one kilo of cocaine concealed under the dashboard of the car. Potts contacted the Mississippi Bureau of Narcotics, who then contacted the Drug Enforcement Agency (DEA). DEA agent Delgado searched the car and found another kilo of cocaine concealed under the dashboard.

According to Rubio's testimony, after Potts dropped him off at the bus station, he called Martinez, who told Rubio that he should continue to New Orleans and that he would try to solve Rubio's problem. Rubio also called his sister and asked her to call some of his friends to help him with his problem. Sacerio, one of Rubio's friends, called Rubio at the bus station and agreed to meet him in New Orleans. Sacerio flew to New Orleans, leaving his car at the Miami airport, and rented room 615 at the Howard Johnson Motel in Kenner, Louisiana. Both Rubio and Sacerio occupied the room.

Sacerio arranged for a call to be made to Armando Baralt, an attorney and the brother of a friend of Sacerio's. Baralt returned the call and he testified that he thought he talked to Martinez. Baralt met with Rubio, Sacerio, and Martinez in room 615 to discuss getting the Tempo released. Baralt called Potts using a fictitious name, Lee Collins, and asked him how to obtain the car. Potts told Baralt to contact Hertz at the Gulfport airport to make arrangements for retrieving the car. Baralt called Hertz and they informed him the car would have to be released to an authorized driver.

Baralt, Martinez, and Juan Peinado drove to the Gulfport airport in Baralt's vehicle, followed by Sacerio and Rubio, who were using Peinado's truck. Baralt, Martinez, and Peinado went to the Hertz counter to claim the car and were arrested shortly thereafter. Baralt informed the arresting officers that two more were coming in a truck. Rubio and Sacerio were arrested when they arrived, forty-five minutes later.

A key to room 615 was found in Sacerio's pocket and Sacerio consented to a search of the room. In room 615, the agents found less than a gram of cocaine in a bag in a drawer by the bed, a piece of paper with the directions to the Gulfport airport, a map with an "X" by Miami and Hialeah, and a menu with Rubio family names scribbled on the back.

At trial, Rubio testified that he did not know about the two kilograms of cocaine, that he was paid to drive the car to Miami by someone he did not know well, that he spoke little English and that he suffered a head trauma. Sacerio did not testify at trial.

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Rubio and Sacerio were indicted along with Peinado, Martinez and Baralt. They were charged with conspiracy to possess cocaine with the intent to distribute it and possession of cocaine with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and § 846. Rubio, Sacerio, Peinado, and Baralt were tried together. The jury found Rubio, Sacerio, and Peinado guilty on both counts and acquitted Baralt. Sacerio filed a timely appeal. We conclude that Rubio also filed a timely appeal. ¹ Peinado has not appealed.

III

Rubio and Sacerio raise several issues on appeal. First, there is insufficient evidence to support a conviction on either count. Second, the district court erred in admitting evidence of Peinado's subsequent drug transactions, contrary to Fed.R.Evid. 404(b) and 403. Third, the district court erred in admitting the hearsay testimony of Baralt. Fourth, the district court erred in denying defendants' motions for severance of the trial. Fifth, the district court erred in denying defendants' motions for a new trial and acquittal.

A. Sufficiency of the Evidence

1) Conspiracy

In reviewing an appeal based on the insufficiency of the evidence, the evidence and all reasonable inferences that may be drawn from it must be viewed in the light most favorable to the verdict. United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989). The evidence is sufficient to sustain the verdict if a reasonable trier of fact could have found that the government proved all of the essential elements of the crime beyond a reasonable doubt. Id. The government must prove that the defendants were guilty beyond a reasonable doubt, not merely that they could have been guilty. See United States v. Littrell, 574 F.2d 828, 832 (5th Cir.1978). Reviewing the evidence, and the inferences therefrom, in the light most favorable to support the verdict, we cannot say that no "innocent inferences remain." United States v. Gutierrez, 559 F.2d 1278, 1281 n. 5 (5th Cir.1977). Although some of the circumstances are suspicious, mere suspicion cannot support a verdict of guilty. See United States v. Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983); United States v. Palacios, 556 F.2d 1359, 1365 (5th Cir.1977).

In order to prove conspiracy to possess and distribute cocaine, the government must prove: (1) the existence of an agreement between two or more persons; (2) the defendant's knowledge of the agreement; and (3) the defendant's voluntary participation in the conspiracy. Lechuga, 888 F.2d at 1476. "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." United States...