U.S. v. Valdiosera-Godinez

• Decision Date: 23 May 1991
• Docket Number: VALDIOSERA-GODINEZ and A,No. 90-8212,90-8212
• Citation: 932 F.2d 1093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rugeriolejandro Garcia-Gil, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1093

932 F.2d 1093

UNITED STATES of America, Plaintiff-Appellee, v. Rugerio VALDIOSERA-GODINEZ and Alejandro Garcia-Gil Defendants-Appellants.

No. 90-8212

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 23, 1991.

Charles Louis Roberts, El Paso, Tex., for Garcia-Gil.

Rugerio Valdiosera-Godinez, Lompoc, Cal., for Valdiosera-Godinez.

LeRoy Morgan Jahn, Mark R. Stelmach, Asst. U.S. Attys., Ronald F. Ederer, San Antonio, Tex., for the U.S.

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

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Defendants-appellants Rugerio Valdiosera-Godinez and Alejandro Garcia-Gil, along with co-defendant Francisco Javier Garcia-Pescador, were tried before a jury in the United States District Court for the Western District of Texas and convicted of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and conspiracy to commit this offense, in violation of 21 U.S.C. Sec. 846. Both appellants challenge their convictions, and Garcia-Gil challenges his sentence. We affirm.

Responding to a telephone tip from an anonymous caller, the United States Customs Service dispatched two agents to the Rhino Self Storage at the intersection of Lear and Lockheed in El Paso, Texas. The caller had reported three Hispanic males and two cars with Mexican license plates in the vicinity of storage unit B-29, concluding that the three were either stripping the cars or unloading dope. Agents Daniel Urbina and Curtis Compton approached unit B-29 and parked their car seven or eight feet from the entrance. Agent Urbina announced in Spanish that he was a federal agent and asked if he could speak with the defendants. He then asked each defendant individually if the white Chevrolet parked outside the storage unit belonged to him; all denied it. At this time, an El Paso Police Department officer arrived and parked his patrol car away from the storage unit behind the customs agents' automobile.

Agent Urbina then asked each defendant individually three more questions: is the white Chrysler Dart parked inside the storage unit yours? is this storage garage yours? and, do you mind if I search? Each defendant answered all three questions in the negative. Upon searching the storage unit and the car within, the agents discovered a number of packages wrapped in white plastic and containing white powder. A field test of the powder revealed it to be cocaine. Agent Compton then arrested the defendants, and Agent Urbina read them their rights, again in Spanish. The total cocaine seized weighed 66 1/2 pounds and was determined to have a purity of 91%, giving it a street value of approximately $500,000. The defendants moved to suppress the cocaine as seized in violation of the Fourth Amendment. The district court denied this motion.

I.

DEFENDANT VALDIOSERA-GODINEZ

A. Sufficiency of the Evidence

Valdiosera-Godinez first argues that the evidence to convict him of possession of cocaine and conspiracy to possess it was insufficient. As to the substantive offense, "the government must prove beyond a reasonable doubt that the defendants knowingly possessed [cocaine] and intended to distribute it. Possession may be actual or constructive, may be joint among several defendants, and may be proved by direct or circumstantial evidence." United States v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir.1987). As to the offense of conspiracy,

the government must prove beyond a reasonable doubt: (1) the existence of an agreement between two or more persons to violate the narcotics laws; (2) the defendant knew of the conspiracy; and (3) the defendant voluntarily participated in the conspiracy. Each element of the conspiracy charge must be proved beyond a reasonable doubt. No element need be proved by direct evidence, but may be inferred from circumstantial evidence. An agreement may be inferred from "concert of action." Voluntary participation may be inferred from "a collocation of circumstances."

United States v. Arzola-Amaya, 867 F.2d 1504, 1511 (5th Cir.) (citations omitted), cert. denied, --- U.S. ----, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

The government's case against Valdiosera-Godinez rested entirely on circumstantial evidence. After examining the record, however, we conclude that a rational trier of fact, viewing this evidence in the light most favorable to the government, could have found the elements of the two offenses beyond a reasonable doubt. See generally United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989). We must therefore sustain the jury's verdict.

The evidence presented at trial showed the following: Agents Urbina and Compton discovered the defendants in a storage shed that contained only a Chrysler Dart automobile and a U-Haul packing box. The door of the shed was partially closed, lifted about five feet off the ground. While Valdiosera-Godinez was standing next to the trunk on the left side of the car, the other two defendants, who had tools in their hands, were leaning into the back seat of the car through the open rear doors. The horizontal portion of the Chrysler's back seat had been flipped forward and was resting against the front bucket seats, exposing the underside of the seat. The foam of this underside had been hollowed out in rectangular shapes. Of the two bolts that secure the vertical portion of the back seat, one had been removed and the other was halfway out. When Agent Urbina removed the second bolt, he discovered 19 rectangular bundles of 91% pure cocaine taped to the back of the vertical portion.

The packing box, sitting in the corner of the shed near the right front of the car, appears from the photographs to have been approximately 30 inches on a side. Significantly, the box was unsealed and completely open; exposed to view were nine more bundles of 91% pure cocaine. Parked just outside and partially blocking the shed was a Chevrolet Celebrity automobile. The foam underside of the horizontal portion of the Chevrolet's back seat had been hollowed out in a manner similar to the Chrysler's back seat. This was the situation as it existed when Agent Urbina came on the scene, which caused quite a stir. He testified: "I looked in [the shed] and identified myself as a customs agent, and [the defendants'] mouths fell wide open. Their eyes got real big and they became very nervous."

We consider first the possession count. A rational trier of fact could conclude that the defendants each constructively possessed the cocaine. Constructive possession is "the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance." Gardea Carrasco, 830 F.2d at 45 (quoting United States v. Vergara, 687 F.2d 57, 61-62 (5th Cir.1982)). A rational jury could infer that persons found in a small, enclosed space in the presence of a large, open box have the knowing power to walk several steps and gather the contents of the box into their arms. Valdiosera-Godinez asserts that his position in the storage unit "precluded any line of vision" to the U-Haul box. Even so, a person need not have continuous sight of an object to possess it. The only possible relevance of this fact is to suggest that Valdiosera-Godinez had, only moments before the customs agents arrived, innocently walked up and engaged strangers in conversation. This is a possibility, but not a reasonable possibility.

First, the position of the shed's door did not allow contact with the other two defendants without a deliberate entry. It is highly unlikely that persons involved in cocaine smuggling would allow a stranger to enter the domain of their operations to strike up a casual conversation. Second, had Valdiosera-Godinez truly been unaware of the existence of the cocaine and nature of the activities inside the storage unit, he would not have shown surprise or nervousness when Agent Urbina made himself known. His reactions imply the discovery of a criminal enterprise, not the mere interruption of a mundane discussion of auto repair. As to Valdiosera-Godinez's intent to distribute the cocaine, it is easily inferred from the drug's quantity (66 1/2 pounds), purity (91%), and value ($500,000). See generally United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986).

The conspiracy count is subject to the same analysis. The inference of an agreement to possess and distribute cocaine is overwhelming. How else does one synthesize 66 1/2 pounds of cocaine, one car presently concealing the drug, one car prepared to conceal it, and a transfer operation in progress? Had Valdiosera-Godinez not been privy to this agreement and part of it, the other two men certainly would not have allowed him to stick around. It is irrelevant that he was not holding tools when Agent Urbina arrived. His participation in the conspiracy need have consisted of no more than handing others tools, watching for the cops, or protecting the drugs from would-be thieves. The conspiracy cases cited by Valdiosera-Godinez are distinguishable. They essentially involved defendants with mere presence at suspicious places or mere association with established conspirators. In this case, Valdiosera-Godinez's presence and association are coupled with a total absence of rational, non-inculpatory explanations of the facts. The evidence adduced at trial was sufficient to convict the defendant of the offenses charged.

B. Prosecutor's Closing Arguments

Valdiosera-Godinez next argues that the prosecutor made two improper statements to the jury in his closing arguments. First, he alleges that the government "improperly bolstered its case by advising the jury [that] at the time of the arrest, [Valdiosera-Godinez] had been giving directions and orders to Pescador and Garcia-Gil while they were working inside the vehicle in the storage shed." Because the government had adduced no evidence in support of this point, the...