U.S. v. Velgar-Vivero, VELGAR-VIVER

• Decision Date: 17 November 1993
• Docket Number: No. 92-7400,J,VELGAR-VIVER,92-7400
• Citation: 8 F.3d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eccehomoose Antonio Torres-Tirado and Eulices Rivas-Cordova, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 236

8 F.3d 236

UNITED STATES of America, Plaintiff-Appellee, v. Eccehomo VELGAR-VIVERO, Jose Antonio Torres-Tirado and Eulices Rivas-Cordova, Defendants-Appellants.

No. 92-7400.

United States Court of Appeals Fifth Circuit.

Nov. 17, 1993.

Rehearing Denied Jan. 11, 1994.

Nancy C. Harrison, Houston, TX (Court-appointed), for Jose Antonio Torres-Tirado.

Laura L. Elizalde, Houston, TX (Court-appointed), for Eulices Rivas-Cordova.

Thomas Rodriguez, Houston, TX (Court-appointed), for Eccehomo Velgar-Vivero.

Michael E. Clark, Chief, Crim. Div., Paula C. Offenhauser, Jeffery A. Babcock, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for plaintiff-appellee.

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

Before JOHNSON, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

For the second time, Eccehomo Velgar-Vivero, Jose Antonio Torres-Tirado, and Eulices Rivas-Cordova appeal their convictions of conspiracy to possess with the intent to distribute cocaine, ¹ aiding and abetting the importation of cocaine, ² aiding and abetting the possession of cocaine on a vessel arriving in the United States, ³ aiding and abetting possession with the intent to distribute cocaine, ⁴ and use of a firearm during a drug-trafficking crime. ⁵ In the first appeal, we reversed their convictions because of noncompliance with the Speedy Trial Act. United States v. Ortega-Mena, 949 F.2d 156 (5th Cir.1991). We now affirm the convictions of Torres-Tirado, affirm the convictions and sentence of Rivas-Cordova, but reverse the convictions of Velgar-Vivero because of insufficient evidence.

I. Facts and Procedural History

Customs officials received information that THE SPRING BRIDE, a cargo ship traveling from the Republic of Colombia to Galveston, Texas, was being used to transport cocaine into the United States. As the vessel entered the Port of Galveston, U.S. Customs frogmen entered the water and approached the rudder hold of the vessel. As they neared, six men ⁶ bailed out of the hold and attempted to flee. Five were apprehended immediately, and the sixth, Velgar-Vivero, hid under the dock and was caught three hours later.

The rudder hold of the vessel is accessible only from the water and is approximately 6' X 6' X 10'. In the rudder hold, the officers discovered 11 canvas bags containing approximately 850 pounds of cocaine, all secured to the wall with an elaborate rope web. They also discovered personal effects in separate piles, including food, bottled water, flashlights, and a burlap bag containing five loaded handguns. The agents also found five lists, each of which displayed several phone numbers: (1) a list from Torres-Tirado's wallet; (2) a list from Rengifo-Acosta's wallet; (3) a list from Ortega-Mena's wallet; (4) a list from Rivas-Cordova's bag; and (5) a list from an unidentified wallet. The agents found no wallet or identification for Velgar-Vivero or the juvenile. ⁷ The list from the unidentified wallet duplicated phone numbers from the list found in Torres-Tirado's and Rengifo-Acosta's wallets. The agents ultimately used the phone numbers from Rengifo-Acosta's and Ortega-Mena's wallets to execute controlled deliveries of the cocaine shipment. ⁸

When he was retrieved from the water, Rivas-Cordova had a sock full of bullets in his shirt pocket. The agents placed the sock on the dock but Rivas-Cordova grabbed the sock and pitched it into Galveston Bay. Later, inside the Customs office, Rivas-Cordova somehow regained possession of the list of phone numbers in his bag and ate it.

The five adult stowaways were indicted on five drug-related charges. On the eve of the first trial in October 1990, Ortega-Mena and Rengifo-Acosta pled guilty to four counts of the indictment. Velgar-Vivero, Torres-Tirado, and Rivas-Cordova were convicted of all five counts in the indictment. We reversed in February 1992 under the Speedy Trial Act. The defendants then were re-indicted on the same five counts, and trial began in October 1992. Velgar-Vivero, who was the only defendant to testify in the second trial, ⁹ stated that he stowed away on the vessel to come to the United States to find work. He testified that he had been working as a longshoreman loading bananas on to THE SPRING BRIDE when he decided to stow away. He climbed into the dark rudder hold and fell asleep. When he awoke, the vessel was underway.

The defendants again were convicted on all five counts. Velgar-Vivero and Torres-Tirado were sentenced to concurrent 235-month sentences on the drug counts and a consecutive 60-month sentence on the gun count. At sentencing, Rivas-Cordova received an increase in his offense level for obstruction of justice. He was sentenced to concurrent 292-month terms on the drug counts and a consecutive 60-month sentence on the gun count. The defendants timely appealed, contesting the sufficiency of the evidence to support their convictions. Rivas-Cordova also contests the assessment at sentencing of the offense level increase for obstruction of justice.

II. Discussion

A. Insufficiency of Evidence Claims

1. Standard of Review

When reviewing the sufficiency of the evidence, we must determine whether, viewing the evidence and the inferences therefrom in a light most favorable to the jury's guilty verdicts, a rational trier of fact could have found these defendants guilty beyond a reasonable doubt. United States v. Rena, 981 F.2d 765, 771 (5th Cir.1993); United States v. Roberts, 913 F.2d 211, 217 (5th Cir.1990). Accordingly, we need not be persuaded that the evidence excludes every reasonable hypothesis of innocence. United States v. Brechtel, 997 F.2d 1108, 1116 (5th Cir.1993). Instead, our function is to measure whether any rational jury could conclude that the government proved beyond a reasonable doubt each element of the offense. Rena, 981 F.2d at 770.

2. The Conspiracy Count

In a narcotics conspiracy, the government must prove beyond a reasonable doubt that: (1) an agreement existed between two or more persons to violate narcotics laws; (2) each alleged conspirator knew of the conspiracy and intended to join it; and (3) each alleged conspirator participated in the conspiracy. United States v. Maseratti, 1 F.3d 330, 337 (5th Cir.1993); United States v. Guerra-Marez, 928 F.2d 665 (5th Cir.1991). In meeting its burden, the government is permitted to use direct or circumstantial evidence, or both, to prove conspiracy. Rena, 981 F.2d at 770. The jury certainly may consider the defendant's presence at the crime scene, along with other evidence, in finding a conspiracy, but presence, by itself, is insufficient to prove conspiracy. United States v. Chavez, 947 F.2d 742, 745 (5th Cir.1987). Granted, one's presence may trigger another's suspicions; but we have stated on numerous occasions that mere suspicion of conspiratorial activity cannot support a guilty verdict. See United States v. Sacerio, 952 F.2d 860, 863 (5th Cir.1992); United States v. Jackson, 700 F.2d 181, 185 (5th Cir.1983).

We find sufficient evidence to support the conspiracy convictions of Torres-Tirado and Rivas-Cordova. ¹⁰ A conspiratorial relationship between Torres-Tirado and the other narcotics conspirators could have been established from both his presence and his possession of a phone list that included the same number as the list of another participant. Although no number on Torres-Tirado's list was used to make a controlled delivery of the cocaine, the agents did use phone numbers on Rengifo-Acosta's list to execute a delivery. Both lists included a number that matched that on the unidentified participant's list, thereby implicating all the lists and their possessors. From these facts, a jury reasonably could have concluded that Torres-Tirado knowingly entered into an agreement to violate narcotics laws.

Rivas-Cordova's conduct also is legally sufficient to support a finding of conspiracy. He possessed ammunition of a caliber identical to the caliber of the guns found in close proximity to the drugs. Further, he destroyed the phone list found among his possessions, ¹¹ making it impossible for the agents to use that list to establish his connection to the drugs or to the other participants. His attempts to hinder the investigation support a reasonable inference of guilty knowledge.

Velgar-Vivero's conspiracy conviction is much more troubling. The government asks us to affirm Velgar-Vivero's conviction with evidence that shows only that he was present at the crime scene and subsequently fled from it. We have rejected that argument before, and we reject it again today. See United States v. DeSimone, 660 F.2d 532, 537 (5th Cir.1981); United States v. Lopez-Ortiz, 492 F.2d 109, 115 (5th Cir.1974). Evidence of presence and flight is redundant: one necessarily involves the other. The government must proffer something more, which it failed to do. The government offered no evidence linking Velgar-Vivero to either the cocaine or the guns. Further, the government failed to link him with the phone numbers used to execute controlled deliveries. ¹²

Recognizing the dearth of evidence against Velgar-Vivero, the government insists that the jury reasonably could infer that both the unidentified wallet, which contained inculpatory phone numbers, and the fifth gun belonged to Velgar-Vivero. This inference, however, is based solely on Velgar-Vivero's presence in and flight from the rudder hold, which are legally insufficient evidence to establish guilt. While the jury obviously chose not to believe Velgar-Vivero's stowaway defense, their disbelief is not tantamount to proof beyond a reasonable doubt that he agreed to, knew about, and participated in the conspiracy. The government was required to meet that burden with more evidence than exists here. The evidence establishing Velgar-Vivero's presence and flight creates only suspicion. But "[i]t is not enough that the defendant merely associated with those participating in a...