U.S. v. Williams-Hendricks, WILLIAMS-HENDRICK

• Citation: 805 F.2d 496
• Decision Date: 19 November 1986
• Docket Number: No. 86-2070,WILLIAMS-HENDRICK,D,86-2070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David N.efendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 496

805 F.2d 496

UNITED STATES of America, Plaintiff-Appellee, v. David N. WILLIAMS-HENDRICKS, Defendant-Appellant.

No. 86-2070.

United States Court of Appeals Fifth Circuit.

Nov. 19, 1986.

Rehearing and Rehearing En Banc Denied Dec. 16, 1986.

Matias Morin, Jr., Edinburg, Tex., Joseph A. Connors, III, McAllen, Tex., for defendant-appellant.

Susan L. Yarbrough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before JOLLY, HILL and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Appellant David N. Williams-Hendricks (Hendricks) appeals his conviction for four drug-related crimes and alleges that there was insufficient evidence to support his convictions. We find that there is sufficient evidence in the record and affirm these convictions.

I

On September 29, 1985, Hendricks and his son David R. Williams (Williams) arrived at the United States port of entry near Hidalgo, Texas, in a pickup truck. Williams was the driver and Hendricks was the passenger. At the primary inspection area, United States Customs Officer Baldamar Garcia asked Hendricks and Williams about their citizenship. Hendricks replied that he was a resident alien, and displayed a proper card; Williams stated that he was an American citizen. When asked if they had anything to declare, Hendricks said "We don't have anything." He also told Officer Garcia that he and his son were coming from Mexico, after having been in Guatemala and Honduras.

A computer check of the pickup truck's license plate, conducted by Officer Garcia, indicated that the vehicle had not previously been involved in any illegal activity. Moreover, the vehicle was not riding low, nor was any unusual odor emanating from it. Hendricks, however, appeared nervous, and Officer Garcia therefore decided to inspect the rear of the truck, where he found only a few tools in the truck bed. During this time, Garcia noticed that Hendricks was closely watching him and that Hendricks' eyes "got big." Exercising his prerogative, Garcia decided to refer the truck to the secondary inspection station. As Officer Garcia was filling out the referral form and preparing to send Hendricks' truck to secondary inspection, Hendricks asked him, "Why are you sending us in?"

At the secondary inspection station, Customs Officer Robert Lindsey noticed that Hendricks had left the vehicle and walked toward the immigration building. Hendricks was summoned back to the truck. Lindsey first examined the small amount of luggage that Hendricks and Williams had. Lindsey then looked under the truck and saw that it had two gasoline tanks, which is a common arrangement for that type of vehicle. When Lindsey struck one of the tanks, he heard a metallic ring; when he struck the other tank, he heard a dull thud. When asked what was inside the second tank, Hendricks replied, "I know nothing about it." The gas tank was removed, and upon further inspection was found to contain thirty-eight pounds of tightly compacted marijuana. Both Hendricks and Williams denied any knowledge of the marijuana.

After being arrested and advised of his rights, Hendricks told Agent Allen Tittle of the Drug Enforcement Administration (DEA) that he lived in New Orleans and owned property in Belize, from where he had just returned after a four-month stay. He refused to answer some of the questions asked by Tittle but continued to deny any knowledge of the marijuana.

Hendricks and Williams were charged with one count of conspiracy to import marijuana (Count 1), one count of importing marijuana (Count 2), one count of conspiracy to possess marijuana with intent to distribute it (Count 3), and one count of possession with intent to distribute marijuana (Count 4).

Prior to Hendricks' trial, Williams pled guilty to the two substantive counts of the indictment (Counts 2 and 4). Testifying for the defense at his father's trial, Williams maintained that Hendricks knew nothing about the marijuana. According to Williams, he drove his father's pickup truck to Honduras as part of a convoy of vehicles that Hendricks was going to use in a transportation business he owned in Honduras. Hendricks flew to Honduras and was not part of the convoy. After they both arrived in Honduras, Williams worked for his father as an automobile mechanic for several months. When Hendricks and Williams decided to return to New Orleans, Williams testified that his father, who could not drive and did not have a driver's license, accompanied him as a passenger because Hendricks had a better command of Spanish and also because it was safer not to drive alone.

Williams testified that on the way to New Orleans, he and his father stopped in Veracruz, Mexico. According to Williams, he left his father in a hotel room and drove off to look for a prostitute. He met a prostitute, asked her if she knew where to get marijuana, and followed her to a house, where three men helped him remove one of the truck's gas tanks. The three men allegedly then filled the tank with marijuana in return for $800. Williams then testified that on the next day he and Hendricks drove the truck to the United States border where the marijuana was discovered. Williams testified that he did not admit his guilt at the time of discovery because he wanted to consult an attorney first.

Hendricks testified in his own behalf that he was a Honduran citizen and resident of New Orleans. He also explained that he owned a transportation business in Honduras that he had purchased with money saved from the twenty years he had spent as a merchant marine engineer. He testified that the pickup in which the marijuana was found had been purchased by his wife in April 1985, but had been transferred to his name shortly thereafter to limit the Honduran entry tax liability. According to Hendricks, both gas tanks worked when the pickup arrived in Honduras but his son had complained to him that one of the tanks was broken before the pair left Honduras. Hendricks testified that he and Williams stayed in separate rooms in Veracruz when they stopped for the night and that he was angry with Williams when the marijuana was discovered. Hendricks denied that his son took the blame for the marijuana so that he would not lose his resident alien card or be deported.

After Hendricks testified, the district court recalled Williams and read into the record the testimony that Williams had given at his plea proceeding. At that proceeding, Williams had indicated that the marijuana was sold to him by people he had met by chance in Mexico City. Williams explained the contradiction between his testimony at his plea proceeding and his testimony at his father's trial by saying he had not meant to say Mexico City in his plea proceeding, but instead had meant to say the state of Mexico. In addition, he indicated that he had not mentioned meeting a prostitute at his plea proceeding because he did not think it was important.

The jury found Hendricks guilty on all four counts. The district court sentenced him to four concurrent four-year periods of imprisonment, 179 days of each to be served concurrently, and the remainder suspended in favor of four years' supervised probation. The court also ordered Hendricks to pay a fine of $1,000.

On appeal, Hendricks claims that there was insufficient evidence to convict him of either the two substantive counts or the two conspiracy counts. We review each of these contentions in turn.

II

Hendricks was convicted of the substantive counts of possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a) ¹, and of importing marijuana in violation of 21 U.S.C. Sec. 952(a). ²

In order to sustain a conviction for the crime of possession of marijuana with intent to distribute, the government must prove three elements: (1) knowing (2) possession of marijuana (3) with intent to distribute it. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982) (quoting United States v. Richards, 638 F.2d 765, 768 (5th Cir.), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981)). A conviction on the importation offense requires proof of similar elements, the principal difference being that the government must show that the defendant played a role in bringing the marijuana from a foreign country into the United States. See United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981).

Possession [of contraband] may be actual or constructive, may be joint among several defendants, and may be proved by circumstantial as well as direct evidence. United States v. Wilson [657 F.2d 755, 760 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); United States v. Stanley, 765 F.2d 1224, 1240 (5th Cir.1985) ]. Constructive possession has been defined as " 'the knowing exercise of, or the knowing power or right to exercise dominion and control over the proscribed substance.' " United States v. Glasgow, 658 F.2d [1036] at 1043 [ (5th Cir.1981) ] (quoting from United States v. Marx, 635 F.2d at 440 [ (5th Cir.1981) ]. One who owns or exercises dominion or control over a motor vehicle in which a contraband substance is concealed may be deemed to possess the contraband. Id.; United States v. Riggins, 563 F.2d 1264 (5th Cir.1977), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 150 (1978).

Vergara, 687 F.2d at 62. In addition, intent to distribute may be inferred from the possession of a large quantity of an illegal substance. Id.

Before examining the record to see if there is sufficient evidence to support the convictions, we must be mindful of our role in reviewing the sufficiency of the evidence. "The verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). We have...