U.S. v. Vergara

• Decision Date: 14 September 1982
• Docket Number: No. 82-2122,82-2122
• Citation: 687 F.2d 57
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Hector Santos VERGARA, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 57

687 F.2d 57

UNITED STATES of America, Plaintiff-Appellee, v. Jose Hector Santos VERGARA, Defendant-Appellant.

No. 82-2122

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 14, 1982.

Mitchell Esper, Richard D. Esper, El Paso, Tex., for defendant-appellant.

Daniel K. Hedges, U. S. Atty., James R. Gough, Chief Asst. U. S. Atty., John Potter, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Jose Hector Santos Vergara and five others ¹ were jointly indicted for conspiracy to possess heroin with intent to distribute, possession with intent to distribute and distribution, contrary to 21 U.S.C. §§ 846 and 841(a)(1). Vergara and Daniel Espinoza were convicted in a trial by jury. Vergara challenged the sufficiency of the evidence at trial and reurges that contention on appeal. ² Finding no reversible error, we affirm.

Facts

The transcript of evidence reflects a series of drug transactions during February and March of 1979 between one or more of the five indictees and undercover officer Jose Hernandez of the Laredo, Texas Police Department. In early February, Dennis Harker, a Drug Enforcement Agency (DEA) agent, directed Hernandez to purchase heroin from Roberto Melendez and to attempt to ascertain his "source" of supply.

On February 8, 1979, a confidential informant introduced Hernandez to Melendez at 1106 Price Street, Laredo, the residence Melendez shared with Rosalinda Prado. The informant made known Hernandez's interest in purchasing one-half ounce of heroin for $750. Later that day, Hernandez returned and bought a one-half gram sample from Melendez for $15. Prado was present during the transaction, which took place in Hernandez's vehicle parked in front of the Price Street residence. Harker and other federal agents, working with local agents, had the residence under surveillance and observed the purchase.

Later on February 8, Hernandez made one fruitless trip to the Price Street residence, but then returned to see Pablo Pedraza enter Melendez's home. Melendez exited the house, joined Hernandez waiting in his vehicle nearby, and exchanged one-half ounce of heroin Pedraza had supplied for $750 in cash. Hernandez told Melendez that he would purchase more the following week if his "man" was satisfied with the quality. The surveillance team observed this transaction.

On March 2, 1979, Hernandez resumed contact with Melendez. Early in the morning, under the watchful eyes of the surveillance officers, Hernandez went to the Price Street residence and obtained from Prado a telephone number where Melendez might be reached. Within two hours, Hernandez and Melendez met four times on the parking lot of a grocery store on Guadalupe Street. The men engaged in extensive negotiations during these meetings, finally agreeing upon the sale of one ounce of heroin for $1,800. At Melendez's suggestion, Hernandez followed Melendez and Daniel Espinoza to a residence at 2406 San Salvador Street. Upon arrival, Espinoza entered the house and quickly returned, accompanied by Mario Ramos. After the two joined Hernandez and Melendez, Ramos entered Hernandez's auto and exchanged an ounce of heroin for $1,800. Ramos urged Hernandez to contact him through Espinoza for future purchases of heroin. The surveillance team witnessed the travels and transaction.

Hernandez again contacted Melendez on March 15, 1979, seeking to negotiate the purchase of a quantity of approximately five ounces of heroin at a price of $1,700 per ounce. Hernandez and Melendez arranged to meet in the parking lot of a bar near the residence on Price Street. It was agreed that Hernandez would wait there for Melendez to return from a meeting with his source. Surveillance agents tracked Melendez and Prado, traveling in Prado's Pinto, to Vergara's home on Garden Street. Prado briefly entered the house before departing the area with Melendez. On two more occasions, within less than one-half hour, Melendez, Prado and Espinoza were seen driving up to the Vergara home. Each time, Espinoza entered and remained in the house for a few minutes, after which he and his companions immediately drove away. After the second visit, the two reported to Hernandez that they had not yet succeeded in contacting their source but expected to do so very soon. They made it clear that their efforts were on-going.

Vergara returned home around 1:30 p. m., remained a few minutes, left, and again returned approximately 30 minutes later. Melendez, Prado, and Espinoza awaited Vergara's return. Espinoza joined Vergara in front of his house and spoke briefly with him. During the conversation, Vergara pointed toward his automobile, a black on white Cadillac. Espinoza, empty-handed, walked to the automobile, opened the door, reached inside and retrieved a brown paper bag. He placed the bag against his side, quickly rejoined his companions, and drove immediately to meet the waiting Hernandez. Throughout the trip from Vergara's home to the rendezvous with Hernandez, the Pinto was under constant surveillance. No stops were made; nothing and no one entered or left the vehicle.

Upon arrival at the parking lot where Hernandez awaited his return, Melendez entered Hernandez's car and delivered the brown paper bag. After checking the contents, Hernandez signaled officers nearby who arrested Melendez, Prado and Espinoza. Officers were dispatched to arrest Vergara. The brown bag contained heroin.

Sufficiency of the Evidence

Vergara contends that the evidence adduced at trial is insufficient to prove beyond a reasonable doubt that he conspired to possess heroin with intent to distribute, or that he actually possessed heroin with such intent. In considering these challenges, we are bound to view the evidence and all inferences that reasonably may be drawn therefrom in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), accepting all credibility choices, whether based on direct or circumstantial evidence, that tend to support the jury's verdict. United States v. Salinas, 654 F.2d 319 (5th Cir. 1981). We will reverse only if a reasonably minded jury must necessarily have entertained a reasonable doubt of a defendant's guilt. United States v. Bell, 678 F.2d 547 (5th Cir. 1982) (en banc).

Conspiracy

Count 1 alleges that between February 8 and March 15, 1979, Vergara and others conspired to possess heroin with intent to distribute. Vergara argues that the government failed to prove beyond a reasonable doubt that he knew of or intentionally participated in a conspiracy, that he engaged in drug-related conversations with any of the coconspirators, or that any connection he may have had with the conspiracy went beyond mere presence at the scene of criminal activity or innocent association with one or more of the coconspirators.

As we recently observed in United States v. Davis, 666 F.2d 195, 201 (5th Cir. 1982), "(t)he essence of conspiracy under section 846 is an agreement to violate the narcotics laws." Before a defendant may be convicted of conspiracy under section 846, the government must prove both the existence of an agreement to commit a crime and that each conspirator knew of, intended to join and participated in the conspiracy. United States v. Glasgow, 658 F.2d 1036 (5th Cir. 1981). No showing of an overt act is necessary in a drug conspiracy prosecution, United States v. Davis, ³ but knowledge, intent and participation, the essential elements of the crime, must be proved beyond a reasonable doubt. United States v. Arredondo-Morales, 624 F.2d 681 (5th Cir. 1980).

An agreement between the coconspirators and the defendant need not be proved by direct evidence, but may be inferred from concert of action. United States v. Dean, 666 F.2d 174 (5th Cir. 1982). Although mere presence at the scene of the crime or close association with a coconspirator will not support an inference of participation in a conspiracy, United States v. Davis, a defendant's voluntary participation may be inferred from " 'a development and a collocation of circumstances.' " United States v. Marx, 635 F.2d 436, 439 (5th Cir. 1981) (quoting from United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979)). Similarly, a defendant's guilty knowledge may be established through proof of surrounding circumstances. United States v. Arredondo-Morales. A conviction will not be reversed for lack of evidence that a defendant was acquainted with or knew all of the coconspirators, United States v. Wilson, 657 F.2d 755 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982), or lack of evidence that he knew each detail of the conspiracy, United States v. Rosado-Fernandez, 614 F.2d 50 (5th Cir. 1980), or because he became a member of the conspiracy after its inception, or played only a minor role in the overall scheme, United States v. Davis; United States v. Alvarez, 625 F.2d 1196 (5th Cir. 1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981).

The record contains ample evidence to support the finding that a conspiracy existed; contentions to the contrary are without merit. However, the question whether Vergara's involvement in the conspiracy was established is entitled to close scrutiny.

In the course of the first two purchases by Hernandez, it became clear that Melendez had more than one "source." The...