U.S. v. Villasenor

• Citation: 894 F.2d 1422
• Decision Date: 12 February 1990
• Docket Number: No. 88-2838,88-2838
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arnoldo VILLASENOR and Fidel Villasenor, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1422

894 F.2d 1422

UNITED STATES of America, Plaintiff-Appellee, v. Arnoldo VILLASENOR and Fidel Villasenor, Defendants-Appellants.

No. 88-2838.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1990.

J. Roberto Flores, McAllen, Tex. (court-appointed), for defendants-appellants.

Paula C. Offenhauser, Frances H. Stacy, Asst. U.S. Attys., Henry Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEE, REAVLEY and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Fidel (Fidel) and Arnoldo (Arnoldo) Villasenor (collectively, the Villasenors) appeal their convictions, following a jury trial, for conspiracy to possess marihuana with intent to distribute it, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), 846. Arnoldo also appeals his conviction for possession of marihuana with intent to distribute it, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), and 18 U.S.C. Sec. 2. They contest the sufficiency of the evidence supporting the convictions. We affirm in part and reverse in part.

Facts and Proceedings Below

Viewed most favorably to the government, the evidence reflected the following.

From approximately 1984 through at least January 1988, Arnoldo and Rosa Maria Alaniz (Alaniz), whom the jury could have found was Arnoldo's common-law wife, leased a house together in McAllen, Texas. Both Arnoldo and Alaniz signed the original lease agreement for the house. Although the water and telephone bills were in Alaniz's name, Arnoldo provided the money--in cash--to pay for the utility bills, as well as the $475 monthly rent, through January 1988. No one paid the February 1988 rent. The owner of the house thereafter named Arnoldo in a suit for nonpayment of rent. A number of photographs of the house were placed in evidence, revealing it to be a medium-sized, single-story structure.

Besides Arnoldo and Alaniz, Arnoldo's brother--Fidel--had the only keys to the house. Beginning in the spring of 1987, Fidel lived in a bedroom in the house. During this time, the Villasenors split at least some of the bills relating to the house, such as the approximately $400 monthly telephone bill. At some point in December 1987, the beds were removed from Fidel's bedroom, ¹ and Fidel moved into an apartment in McAllen. "Once in a great while" during January 1988, however, Fidel would fall asleep watching television on a sofa in the living room of the house.

Most of the time when Fidel was there and always when he was not there, the bedroom door was locked. ² On the inside of the bedroom door was some form of a push-button lock. Although the Villasenors knew how to unlock the bedroom door from the outside, Alaniz testified she did not know how to do so and never went into the room during that time. Arnoldo and Alaniz frequently argued over Fidel's living in the house and keeping his bedroom door locked, but Arnoldo told Alaniz that it was none of her business. Frequently, Alaniz would be absent from the house for long periods, though not overnight, and her testimony can arguably be understood as saying that some of these absences were at Arnoldo's request.

Beginning in mid-November 1987, Arnoldo began to spend at least some of the evenings at the apartment of Matilda Fass (Fass) in McAllen. Arnoldo, however, continued to spend at least the daytime hours with Alaniz at the house they leased and in which Arnoldo's clothes were located. Although the lease agreement for Fass's apartment listed "Arnold," as well as Fass and her two children, as living in the apartment, the agreement was only in Fass's name and was signed only by Fass. Moreover, although the electricity bill for the apartment was in Arnoldo's name, Fass paid the rent and the utility bills relating to the apartment.

On February 1, 1988, Arnoldo voluntarily entered an alcohol detoxification program. Alaniz visited Arnoldo at the program. She picked him up from the program on February 8. Arnoldo dropped off Alaniz at the house and apparently drove to Fass's apartment where he spent the evenings of February 8 and 9. Alaniz did not see Arnoldo again at the house until approximately 5:00 a.m. on February 10.

At some point during the time Arnoldo was enrolled in the detoxification program, Fidel came over to the house as Alaniz was leaving to visit Arnoldo. Alaniz turned her car around and returned to the house where she found Fidel standing by the door to his former bedroom. Fidel turned away from the door and picked up the telephone. Alaniz never saw Fidel enter the bedroom after he stopped residing there in December 1987. Moreover, she also never saw either Fidel or Arnoldo take anything in or out of the bedroom, such as any bundles or similar items.

Arnoldo was employed by his father as a produce truck driver. This was seasonal work. Thus, business was "very slow" at times, and Arnoldo drove only two or three loads during many months. Fidel was employed as a mechanic. ³ Because Alaniz had more legible handwriting than the Villasenors, they occasionally asked her to make various numerical records for them, some of which related to monetary expenditures. ⁴

On February 10, 1988, agents of the federal Drug Enforcement Administration (DEA) searched the house pursuant to a warrant. Alaniz, as well as a man identified as Roger Longoria (Longoria), were inside the house at the time. Inside the locked former bedroom of Fidel, the DEA agents found various bundles of marihuana, which were wrapped in trash bags, cellophane, or both, and which had a gross weight of approximately 1,069 pounds; an industrial strength vacuum cleaner; plastic self-sticking paper, which a DEA agent testified was of a kind commonly used for packaging marihuana; and numerous trash bags and rolls of silver duct tape. The floor of the bedroom was covered with a large tarp. Inside the house, the agents also found a diamond bracelet with initials matching Arnoldo's ("A.V."), which was appraised at $3,930.

Arnoldo, Fidel, Alaniz, Longoria, and five named others were subsequently indicted for possessing marihuana with intent to distribute it on or about February 10, 1988; and for conspiring, among themselves and with others known and unknown, to do so from on or about February 3 to on or about February 10; and for distribution of marihuana within 1,000 feet of a public school on or about February 10, see 21 U.S.C. Sec. 845a(a). The government subsequently dismissed charges against all of the defendants, except for the Villasenors. As to Alaniz, the dismissal was in exchange for her testifying at the Villasenors' trial.

The district court granted the Villasenors' motion for acquittal on the third count concerning marihuana distribution near a public school, in light of the government's concession at trial that there was no evidence of any distribution on or about February 10, 1988. The jury convicted Arnoldo of possession of marihuana with intent to distribute it and of conspiracy to do so. The jury also convicted Fidel on the conspiracy count, but acquitted him on the possession count. The district court sentenced Arnoldo to concurrent terms of eighty-five months' imprisonment on each count, followed by concurrent four-year terms of supervised release on each count, and sentenced Fidel to eighty months' imprisonment, followed by four years' supervised release, on the conspiracy count. The court also imposed a fifty dollar special assessment on each count of conviction. This appeal followed.

Discussion

The Villasenors challenge the sufficiency of the evidence supporting their respective convictions. In evaluating such a challenge, we examine the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the jury verdict. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989). We will sustain the verdict if a rational trier of fact could have found the essential elements of the offense in question beyond a reasonable doubt. See United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989). In making such a determination, "[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Generally speaking, "[w]hat a jury is permitted to infer from the evidence in a particular case is governed by a rule of reason, and juries may properly 'use their common sense' in evaluating that evidence." United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.1988) (citation omitted). "As the United States Supreme Court remarked long ago, '[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences be sufficient to constitute conclusive proof.' " Lechuga, 888 F.2d at 1476 (quoting Coggeshall v. United States (The Slavers, Reindeer), 69 U.S. (2 Wall.) 383, 17 L.Ed. 911, 914-15 (1865)).

Arnoldo contests the sufficiency of the evidence as to his conviction for possession of marihuana with intent to distribute it, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B) and 18 U.S.C. Sec. 2. To establish such a violation, the government must prove beyond a reasonable doubt that Arnoldo (1) knowingly (2) possessed marihuana (3) with intent to distribute it. See Ayala, 887 F.2d at 68. Possession may be actual or constructive. This Court has defined constructive possession as "ownership, dominion, or control over illegal drugs or dominion over the premises where drugs are found." United States v. Onick, 889 F.2d 1425, 1429 (5th Cir.1989) (emphasis in original); see Ayala, 887 F.2d at 68. All of these elements may be inferred from...