U.S. v. Vasquez-Chan

• Decision Date: 02 November 1992
• Docket Number: Nos. 91-10286,D,91-10326,VASQUEZ-CHA,GAXIOLA-CASTILL,s. 91-10286
• Citation: 978 F.2d 546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sylviaefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juliaefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 546

978 F.2d 546

UNITED STATES of America, Plaintiff-Appellee, v. Sylvia VASQUEZ-CHAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Julia GAXIOLA-CASTILLO, Defendant-Appellant.

Nos. 91-10286, 91-10326.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 22, 1992.

Decided Nov. 2, 1992.

Sean Bruner, Jacqueline Marshall, Ralls & Bruner, P.C., Walter B. Nash III, Law Offices of Nash & Jones, P.C., Tucson, Ariz., for defendants-appellants.

Robert L. Miskell, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona (Tucson).

Before: CANBY, REINHARDT, and LEAVY, Circuit Judges.

REINHARDT, Circuit Judge:

Based almost exclusively on the seizure of over six hundred kilograms of cocaine in the house in which they were temporarily residing, Sylvia Vasquez-Chan [Vasquez] and Julia Gaxiola-Castillo [Gaxiola] were convicted by a jury of conspiracy to possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841, 18 U.S.C. § 2, and 21 U.S.C. § 846. Both defendants were sentenced to the mandatory minimum period of incarceration: ten years, with an additional six years of supervised release. We find that the evidence was legally insufficient upon which to base findings of guilt; accordingly, we reverse the convictions. ¹

I

The Drug Enforcement Agency's investigation of the drug ring that Gaxiola and Vasquez were accused of involvement with was no simple operation: there was a massive, planned, and well-organized surveillance of a number of individuals who might be involved in large-scale cocaine trafficking operations in the Tucson area. In late 1990, the Tucson DEA agents identified several persons (none of whom was Gaxiola or Vasquez) who were suspected of participating in such trafficking. Undercover Agent Moore of the DEA infiltrated the organization and posed as the representative of a group from Phoenix interested in buying a large quantity of cocaine. Agent Moore had a number of meetings with three of the conspirators over a substantial period of time regarding the details of the proposed transactions. In the meantime, other agents conducted large-scale surveillance of the unlawful operations. That surveillance included, among other things, mobile surveillance of the conspirators' movements and contacts; ground and aerial surveillance of a variety of vehicles used to transport the conspirators and contraband; stationary ongoing surveillance of three residences (as well as a restaurant) utilized in the conspiracy; wiretaps of stationary and mobile phones; and investigations into other individuals believed to be involved in the conspiracy.

In none of Moore's numerous conversations with the conspirators was either Gaxiola's or Vasquez's name mentioned, nor were those defendants ever referred to even obliquely. Moreover, the large-scale operation and accompanying surveillance did not suggest that either Gaxiola or Vasquez was involved in the conspiracy in any way. The two defendants did not come to the DEA's attention until the day on which a hundred-kilogram drug transaction arranged by Moore was scheduled to take place. On that day, DEA surveillance revealed a new residence, at 7151 South Camino Libertad in Tucson, from which cocaine was apparently being removed in preparation for the transaction. Although the DEA spotted two Hispanic males actively transporting cocaine from the house to a van, neither Vasquez nor Gaxiola was seen assisting in the delivery, nor, at that time, were they seen anywhere in or about the residence. After the hundred-kilogram transaction had been completed and at least one principal in the conspiracy arrested, DEA agents went to the residence at 7151 South Camino Libertad in order to "secure" it. Once there, they looked through an uncovered kitchen window and saw Vasquez working at a kitchen counter. Six armed agents--guns drawn--knocked on the door of the residence and announced "police officers" in Spanish. Vasquez immediately opened the door. She was cooperative and showed no signs of evasiveness. The agents immediately placed her on the floor and ordered Gaxiola, the only other adult occupant of the house, to sit on the living room couch with her infant on her lap. Agents then searched the house and found approximately 600 kilograms of cocaine in a back bedroom.

Vasquez was read her Miranda rights and agreed to waive them and speak with the agents. During questioning, she admitted that she had been residing in the house for about three months. She stated that she worked as a caretaker for a man named Gerardo Peralta, was paid between $300 and $800 every fifteen days, and that the money arrived by messenger. ² According to Vasquez, she did not lease or rent the residence, although agents found a utility bill for the house in the names of Gerardo Peralta and Sylvia V. Chan. Gaxiola similarly waived her rights and, during questioning, stated that she had been Vasquez's roommate in Mexico and had been visiting her and staying at the house for a few weeks. Vasquez also told the officers that the cocaine had been delivered by messengers about three days earlier, although she could not describe them to police.

The cocaine found in the house was in the form of kilogram-sized bricks, most of which were in large round containers. Some of the containers were sealed, some had their lids off. All were of the same opaque, cardboard construction as the type that had been seen being removed from the residence earlier that day. The vast majority of the containers were stored in the small bedroom occupied by Gaxiola and her infant child; there were only two bedrooms in the house, and Vasquez occupied the larger one. Gaxiola at some time had touched several of the 55-gallon drums strewn about the room in which she slept: twelve of her fingerprints were located on six of the containers, one of those prints being on the inside surface of a container cover. None of Vasquez's fingerprints were found on any canisters, nor were any of Vasquez's or Gaxiola's fingerprints found on any of the plastic bags of cocaine. In addition, investigators found neither woman's prints on other cocaine paraphernalia found in the house. Agents found Vasquez's purse in the master bedroom in which she slept. It contained a Mexican passport that bore Vasquez's photograph but a different name.

II

In determining whether the evidence was sufficient to support Vasquez's and Gaxiola's convictions, we must determine whether, after viewing all of the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime(s) beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560 (1979); United States v. Penagos, 823 F.2d 346, 347 (9th Cir.1987). When there is an innocent explanation for a defendant's conduct as well as one that suggests that the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one. See United States v. Bishop, 959 F.2d 820, 831 (9th Cir.1992); Penagos, 823 F.2d at 349.

Both defendants were convicted on two counts: possession of cocaine with intent to distribute and conspiracy to possess with intent to distribute. The evidence was insufficient to support the conviction of either of the defendants on either count.

A

The jury was properly instructed that Vasquez and Gaxiola could be convicted of possession if they either directly possessed the cocaine in question or if they aided and abetted the possession of cocaine by others. See 18 U.S.C. § 2; Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949).

Direct Possession

Neither defendant denied knowing that the cocaine was in the house; the crucial question is whether either "possessed" the drugs. In order for either defendant to be guilty of possession, she must have had the power to exercise dominion and control over the narcotics. See Penagos, 823 F.2d at 350; United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir.1987). The defendant's mere proximity to the drug, her presence on the property where it is located, and her association with the person who controls it are insufficient to support a conviction for possession. See United States v. Savinovich, 845 F.2d 834 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988); United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir.1985).

Viewed in the light most favorable to the prosecution, the following evidence tended to support a conclusion that Vasquez had dominion and control over the cocaine in the house: she knew that a large quantity of cocaine was present, she had lived in the house for three months, she was employed as a caretaker for the house, her statements regarding the reasons for her stay at the house were inconsistent, messengers delivered a large amount of cocaine to the back bedroom on one occasion while she was in the residence, she carried a false passport, and her name was among those listed on an electric bill sent to the house. Evidence that tended to support a contrary conclusion included the uncontradicted facts that: other individuals clearly had control over the cocaine, Vasquez's fingerprints were not located on any of the cocaine containers or mixing paraphernalia, the owners of the cocaine did not refer to her directly or indirectly during any of the discussions or negotiations, she did not come to the attention of the government during the extensive investigation of the narcotics conspiracy involved in this case, she did not lease or rent the premises, she did not attempt to destroy or conceal the evidence or flee from police, she did not carry a firearm nor was one present in the residence, no bills or documents...