U.S. v. Villarreal

• Citation: 324 F.3d 319
• Decision Date: 06 March 2003
• Docket Number: No. 01-40392.,01-40392.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo Ricardo VILLARREAL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

324 F.3d 319

UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo Ricardo VILLARREAL, Defendant-Appellant.

No. 01-40392.

United States Court of Appeals, Fifth Circuit.

March 6, 2003.

COPYRIGHT MATERIAL OMITTED

Renata Ann Gowie, Asst. U.S. Atty. (argued), James Lee Turner, Asst. U.S. Atty., Jeffery Alan Babcock, Houston, TX, for Plaintiff-Appellee.

Adrienne Urrutia (argued), San Antonio, TX, for Defendant-Appellant.

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

Before HIGGINBOTHAM and DAVIS, Circuit Judges, and HUDSPETH^*, District Judge.

HUDSPETH, District Judge:

Appellant Rodolfo Ricardo Villarreal ("Villarreal") and several others were charged in a multi-count indictment with various drug offenses. Villarreal was named as a defendant in two counts of the indictment. In the first count, he was charged with conspiracy to distribute and to possess with intent to distribute more than 1000 kilograms of marihuana in violation of 21 U.S.C. § 846. In the third count, he was charged with the substantive offense of knowingly possessing more than 100 kilograms of marihuana with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Villarreal went to trial on his plea of not guilty. On January 12, 2001, the jury returned a verdict, finding Villarreal not guilty of conspiracy, but guilty of the substantive offense of possession of marihuana with intent to distribute it.

After the trial, but before sentencing, Villarreal's attorney, Fernando Sanchez, Jr., was allowed to withdraw as counsel. He was replaced by Adrienne Urrutia. On April 16, 2001, Ms. Urrutia filed a motion for new trial on behalf of Villarreal. Following an evidentiary hearing, the district court denied the motion for a new trial. On July 11, 2001, Villarreal was sentenced to serve 120 months' imprisonment in the custody of the Bureau of Prisons to be followed by eight years of supervised release.¹ This appeal followed.

Villarreal appeals his conviction on several grounds. First, he contends there was insufficient evidence to support his conviction and that the district court should have granted his motion for a judgment of acquittal. Second, he contends that his motion for a new trial based on newly discovered evidence should have been granted by the district court. Third, he contends that his trial counsel, Fernando Sanchez, Jr., rendered ineffective assistance. Finally, Villarreal contends that the cumulative effect of these alleged errors rendered his conviction fundamentally unfair. Finding no reversible error, we affirm Villarreal's conviction and sentence.

I. SUFFICIENCY OF THE EVIDENCE

Villarreal made a motion for a judgment of acquittal at the time the Government rested its case-in-chief. He did not renew his motion after he presented defense evidence nor at the close of all the evidence. However, he timely filed a post-verdict motion for a judgment of acquittal pursuant to Fed.R.Crim.P.29(c). Therefore, we review Villarreal's claim that the evidence was insufficient under the "rational jury", not the "manifest miscarriage of justice", standard. See United States v. Thomas, 12 F.3d 1350, 1373 (5th Cir.1994); United States v. Allison, 616 F.2d 779, 783-84 (5th Cir.1980). Under this standard of review, we decide whether, viewing all the evidence in the light most favorable to the verdict, a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Peters, 283 F.3d 300, 307 (5th Cir.), cert. denied, Edmonson v. United States, 535 U.S. 1071, 122 S.Ct. 1949, 152 L.Ed.2d 852 (2002), and cert. denied, Peters v. United States, 536 U.S. 934, 122 S.Ct. 2612, 153 L.Ed.2d 797 (2002). All reasonable inferences must be drawn, and all credibility determinations made, in the light most favorable to the verdict. United States v. Hull, 160 F.3d 265, 272 (5th Cir.1998).

In arriving at its verdict in this case, the jury could have considered the following evidence: San Ygnacio, Texas is a small town located approximately 40 miles south of Laredo on U.S. Highway 83. Highway 83 parallels the Rio Grande River, which is the international boundary between the United States and Mexico. In December 1998, agents of the Laredo Multi-Agency Narcotics Task Force became aware that a house located at 107 Benavides in San Ygnacio was being used by drug dealers as a "stash house", i.e., a place in which drugs could be stored temporarily before shipment to other destinations. The rear of the house was located approximately 150 yards from the Rio Grande River, with nothing but a wooded area in between. In an effort to further their investigation, Task Force officers installed an infra-red surveillance camera in a location which permitted monitoring of activity taking place at the suspected stash house. The camera was monitored from Zapata, Texas, another small town approximately 15 miles southeast of San Ygnacio. On February 11, 1999, officers monitoring the surveillance camera observed suspicious activity in and around the stash house. For example, at 2:52 p.m. a red Chevrolet Tahoe arrived and parked in front of the house. The driver, later identified as Jose Soto-Gutierrez, got out of the Tahoe and went inside the house. Eight minutes later, Soto returned and drove away. At 4:13 p.m. a gray Mercury Marquis was observed arriving at the stash house. An unknown person backed the Mercury around to the rear of the house. Based on experience, the officers monitoring the surveillance camera inferred that the Mercury was being loaded with drugs. At 4:37 p.m., Villarreal arrived at the stash house driving his tow-truck. Soto-Gutierrez was riding in the tow-truck as a passenger. Soto-Gutierrez got out of the tow-truck and walked around to the back of the house where the gray Mercury was located. A few minutes later, Soto-Gutierrez was seen walking back toward the driveway entrance followed by the gray Mercury. Villarreal, Soto-Gutierrez, and one or two unknown individuals loaded the gray Mercury on the tow-truck. Villarreal and Soto-Gutierrez got back in the tow-truck, and at 4:42 p.m., Villarreal drove it away. From the monitoring office in Zapata, vehicles were dispatched to intercept and stop the tow-truck.

Jorge Luna, a Laredo police officer, received a call requesting assistance. Specifically, he was asked to stop a red tow-truck with two occupants carrying a gray vehicle which was suspected to contain illegal drugs. Luna positioned himself at the intersection of Zacatecas and U.S. 83, on the south side of Laredo. At approximately 5:50 p.m., he spotted the described tow-truck approaching from the south. Officer Luna fell in behind the truck, followed it a short distance, and then effected a stop.

Villarreal stepped out of his truck, and Officer Luna requested to see his driver's license. Villarreal then proceeded to volunteer that he was coming in to Laredo from San Ygnacio and that he was taking the gray Mercury to Perez Garage. He further volunteered that he had received a telephone call from an unknown person asking him to pick up the vehicle at Pepe's Convenience Store in San Ygnacio and to deliver it to the Perez Garage in Laredo. When Officer Luna asked Villarreal to identify his passenger (Soto-Gutierrez), Villarreal stated that Soto-Gutierrez was a friend of his whom he had happened to encounter at the same convenience store in San Ygnacio. According to Villarreal, Soto-Gutierrez had asked for a ride upon learning that Villarreal was headed toward Laredo. Villarreal further stated that he did not know the name, address, or telephone number of the owner of the gray vehicle, but that he had been told that someone at the garage would pay him on delivery. As to Villarreal's demeanor, Officer Luna described him as being "pretty calm", but also over-cooperative in that he was volunteering detailed information in response to a simple request to see his driver's license. Villarreal then gave verbal consent to a search of his tow-truck and its cargo. Upon opening the rear door of the gray Mercury, Luna immediately observed several large brown taped bundles on the floorboards between the front seat and the rear seat. The bundles were partially covered by a piece of carpet, but still visible. Concluding that the bundles were probably packages of marihuana, Luna placed both Villarreal and Soto-Gutierrez under arrest. Soto-Gutierrez attempted to flee the scene, but was reapprehended a short time later. A thorough search of the gray Mercury revealed the presence of numerous bundles of marihuana in the trunk of the vehicle in addition to those seen by Officer Luna on the rear floorboards. The total gross weight of the marihuana was 289 kilograms, well in excess of the 100 kilograms alleged in the third count of the indictment.

To convict him of possessing marihuana with the intent to distribute, the Government was required to prove beyond a reasonable doubt that Villarreal (1) knowingly (2) possessed the marihuana (3) with the intent to distribute it. United States v. Garcia-Flores, 246 F.3d 451, 454 (5th Cir.2001). As in most cases, the only element in dispute was Villarreal's knowledge that he was in possession of a controlled substance.

A jury may ordinarily infer a defendant's knowledge of the presence of drugs from his control over the vehicle in which they are found. Garcia-Flores, 246 F.3d at 454; United States v. Moreno, 185 F.3d 465, 471 (5th Cir.1999); United States v. Shabazz, 993 F.2d 431, 441 (5th Cir.1993). If the contraband is hidden, however, we require additional circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge. United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir.1998); United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.1995).

In this case, the marihuana was not "hidden" in the usual sense...