U.S. v. Sanchez, s. 90-8739

• Citation: 961 F.2d 1169
• Decision Date: 19 May 1992
• Docket Number: 91-8023,Nos. 90-8739,s. 90-8739
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Filemon Sotelo SANCHEZ, Jose Angel Naegele, and Rebeca Portillo Brito, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Ricardo Portillo BRITO, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1169

961 F.2d 1169

UNITED STATES of America, Plaintiff-Appellee, v. Filemon Sotelo SANCHEZ, Jose Angel Naegele, and Rebeca

Portillo Brito, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. Ricardo Portillo BRITO, Defendant-Appellee.

Nos. 90-8739, 91-8023.

United States Court of Appeals Fifth Circuit.

May 19, 1992.

Robert Ramos, Hill & Ramos, El Paso, Tex., for Filemon Sotelo Sanchez.

Douglas Gelo, El Paso, Tex. (Court-appointed), for Jose Angel Naegele.

Charles Louis Roberts, El Paso, Tex., for Rebeca Portillo Brito.

Diane D. Kirstein, Asst. U.S. Atty., Joan E.T. Stearns, Richard L. Durbin, Jr., Asst. U.S. Atty., San Antonio, Tex., for U.S.

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

Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit Judges:

REYNALDO G. GARZA, Circuit Judge:

This is a consolidated appeal from a rather large marijuana conspiracy trial. Appellants

                Rebeca Portillo Brito (Rebeca), Filemon Sotelo Sanchez (Filemon), and Jose Angel Naegele (Naegele), and appellee Ricardo Portillo Brito (Ricardo) 1, were all named in a 27 count indictment alleging, inter alia, violations of 21 U.S.C. §§ 841(a)(1) and 846, possession with intent to distribute and conspiracy to possess with intent to distribute more than 100 kilograms of marijuana, and 21 U.S.C. § 843, use of a telephone to facilitate the commission of a felony.   After a jury trial, Filemon was convicted of the conspiracy, possession and telephone counts and Naegele, Rebeca and Ricardo were each convicted of one conspiracy count. 2  Ricardo's post-verdict motion for acquittal was granted by the district court.   Filemon, Rebeca and Naegele all appeal their convictions, while the United States appeals the post-verdict judgment of acquittal granted to Ricardo
                

I. FACTS

On December 7, 1988, Naegele was arrested in New Mexico as he drove a pickup laden with approximately 100 pounds of marijuana. Accompanying Naegele was Juan Aron Sotelo Sanchez (Juan), a named co-conspirator and brother of Filemon, who drove a Pontiac Fiero with a CB radio identical to that in Naegele's truck and tuned to the same channel. ³ Naegele told police he had transported marijuana on one other occasion. He stated he had known Juan Sanchez for three months. Naegele pled guilty to state charges under New Mexico law; charges were never formally brought against Juan.

On June 1, 1989, Border Patrol agents at the Sierra Blanca check point near El Paso, Texas, found 94 pounds of marijuana in a pickup truck they had pulled over for secondary inspection. The name "Juan Sanchez" was found next to two phone numbers, one for "Sanchez Brothers Builders, Inc." at 492 Mockingbird, the El Paso residence of Filemon, and the other for the El Paso residence of Rebeca and her common law husband Juan Aron Sotelo Sanchez.

Wiretaps of the two phones were authorized. During the 60 days the phones were tapped, the FBI intercepted approximately 5000 phone calls. ⁴ Numerous calls concerned conversations in which elaborate codes were used to conceal drug related matters. Rebeca was recorded making plane reservations for her husband Juan and co-defendant Rafael Ramirez Valdez (Ramirez), for a trip to Midland-Odessa in Texas. Named co-conspirator Bivian Madrid Villalobos phoned Juan at his residence and discussed a marijuana deal in code. Filemon, two days after the Villalobos conversation with Juan, spoke with the Flores brothers ⁵ in Dallas and stated he had "340 wooden boards." Two days later, the Flores brothers arrived in El Paso. The day after their arrival, a pinata ⁶ party was held for the child of Rebeca and Juan. Numerous defendants were present at the party as well as friends and family members of Rebeca and Juan. ⁷ On September Six days after this last phone call, the FBI intercepted a call from Ramirez to Juan in which a 10 pound load of marijuana was discussed. The next day, the Border Patrol at the Sierra Blanca checkpoint intercepted a car with 10 pounds of marijuana in the gas tank.

                11, 1989, the day after the party, Ivan Flores was arrested outside El Paso on Interstate Highway 10.   He was driving a semi-truck with trailer, the gas tank of which was found to contain 330.5 pounds of marijuana.   Intercepted phone calls involving Filemon and Juan indicated their extensive knowledge of and participation in this particular seized shipment.   Inside the driver's wallet were found a business card for Sanchez Brothers Builders, Inc., with the same phone number on it, and another card with the name "Chico" 8 and the notation "Home 858-8528", the home phone of Rebeca and Juan.   The day after this seizure, a coded phone conversation between Ramirez and Juan relating the fact of the bust was intercepted.   Later the same day, a conversation between Rebeca and her brother, Ricardo, was intercepted in which Rebeca related the facts of the Flores brothers' bust and in which both she and Ricardo expressed remorse and concern over the seizure. 9
                

II. DISCUSSION

A. FILEMON SOTELO SANCHEZ

1. Sufficiency of the Evidence

In his first point of error, Filemon contends the evidence was insufficient to support his convictions. He claims the government failed to establish that he joined the conspiracy, had knowledge of the conspiracy, and that he voluntarily participated in the conspiracy. The sole basis of this claim is that the testimony of the government's main witness, F.B.I. case agent William J. May (agent May), as to the meaning of certain code words could just as easily have been disbelieved as believed by the jury. Because the testimony of agent May was the sole inculpatory evidence against Filemon, its susceptibility to equally different interpretations requires the reversal of the possession and telephone use convictions as well.

The well established standard in this circuit for reviewing a conviction allegedly based on insufficient evidence is whether a reasonable jury could find that the evidence establishes the guilt of the defendant beyond a reasonable doubt. United States v. Gonzales, 866 F.2d 781, 783 (5th Cir.), cert. denied, 490 U.S. 1093, 109 S.Ct. 2438, 104 L.Ed.2d 994 (1989). The evidence adduced at trial, whether it be direct or circumstantial, together with all inferences reasonably drawn from it, is viewed in the light most favorable to the verdict. United States v. Pigrum, 922 F.2d 249, 253 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2064, 114 L.Ed.2d 468 (1991). The assessment of the weight of the evidence and the determination of the credibility of the witnesses is solely within the province of the jury. United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986). If the "evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged," this court must reverse the convictions. Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985) (quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir.1982) (as quoted in United States v. Fortenberry, 919 F.2d 923, 926 (5th Cir.1990)). This is so because, as was observed by the late Judge Alvin B. Rubin, where an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence viewed in the light most favorable to the verdict, "a reasonable jury must necessarily entertain a reasonable doubt." Id. (quoting Cosby at id.). With the scope of our review thus defined, we proceed to the merits of Filemon's claims on appeal.

To establish guilt of a drug conspiracy, it must be proven that an agreement with intent to distribute existed, that the defendant had knowledge of the agreement, and that the defendant voluntarily participated in the conspiracy. United States v. Lewis, 902 F.2d 1176, 1180 (5th Cir.1990). An agreement may be inferred from concert of action, participation from a "collocation of circumstances," and knowledge from surrounding circumstances. United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.1988). Mere presence at the scene and close association with those involved are insufficient factors alone; nevertheless, they are relevant factors for the jury. United States v. Simmons, 918 F.2d 476, 484 (5th Cir.1990).

The United States introduced into evidence several taped phone conversations involving Filemon and other named co-conspirators. The substance of the conversations and the meaning thereof was elaborated upon by agent May. Agent May testified that Filemon's use of certain terminology, in the context of the conversations, demonstrated Filemon's role as a principal in a large marijuana conspiracy. This testimony was predicated on agent May's characterization of specific terminology as coded terminology. These coded terms, testified agent May, represented variously marijuana, methods of transportation, the receipt of large quantities of marijuana and money to be paid for marijuana. For example, the government introduced a phone conversation between Filemon and named co-conspirator Abel Flores, intercepted on September 7, 1989. During the conversation, Filemon informs Abel Flores "I've got 340 wooden boards." Two hours later, another phone conversation was intercepted between Filemon and named co-conspirator Victor Manuel Ramirez (Victor). This conversation, in part, was as follows:

Filemon: ... pick up [a van] because I am going to need it. It already rained ... it already rained on me.

Victor: Already?

Filemon: Yes, a lot.

Victor: That's good.

Filemon: A lot.

Victor: Don't leave me out.

Filemon: No.

Victor: OK.

Filemon: Three forty ...

Victor: Uyyy.

Filemon: ... fell on me.

Victor: Yeah?

Filemon: Yeah.

Victor: That's good. And it is already here?

Filemon: Already ... I already have it in my hands.

On September 9, 1989, two days after Filemon's conversation with Victor, Ivan Flores phoned Juan to inform Juan that Ivan...