United States v. Rodriguez

• Decision Date: 05 August 2016
• Docket Number: No. 15-10590,No. 15-10579,15-10579
• Citation: 831 F.3d 663
• Parties: United States of America, Plaintiff–Appellee, v. David Rodriguez, Jose Cavazos, Daniel Longoria, Defendants–Appellants. United States of America, Plaintiff–Appellee, v. Travis Kyndall Longoria, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

831 F.3d 663

United States of America, Plaintiff–Appellee,

v.David Rodriguez, Jose Cavazos, Daniel Longoria, Defendants–Appellants.

United States of America, Plaintiff–Appellee,

v.Travis Kyndall Longoria, Defendant–Appellant.

No. 15-10579

No. 15-10590

United States Court of Appeals, Fifth Circuit.

August 5, 2016

Brian W. Portugal, James Wesley Hendrix, U.S. Attorney's Office, Dallas, TX, for Plaintiff–Appellee.

Jacob Austin Blizzard, Parker & Blizzard, P.L.L.C., Abilene, TX, for Defendant–Appellant David Rodriguez.

Thomas Wheeler Watson, Mehaffey & Watson, Abilene, TX, for Defendant–Appellant Jose Cavazos.

Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX, Michael Lowell King, King Law, P.C., Lubbock, TX, for Defendant–Appellant Daniel Longoria.

Kevin W. Willhelm, Willhelm Law Firm, Abilene, TX, for Defendant–Appellant Travis Kyndall Longoria.

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendants challenge, inter alia , the sufficiency of the evidence supporting their convictions of conspiracy to distribute or possess with intent to distribute marihuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. We find no error and affirm.

I.

The defendants operated a marihuana importation and distribution scheme in Abilene, Texas, from 2004 to 2014. The scheme followed a pattern, beginning with Daniel Longoria—the owner of a mechanic's shop called Abilene Automotive & Performance (“AA&P”). Daniel acquired marihuana from suppliers in Mexico in return for money orders or from Fabricio Perez in Del Rio, Texas, in a series of “fronting” exchanges.¹ Instead of collecting the marihuana personally, Daniel would solicit someone to act as a drug mule and travel to Mexico or Del Rio to collect the marihuana, and he would furnish the mule with a vehicle to transport the load.

The mule would not travel alone: Jose Cavazos (Daniel's brother-in-law) or Travis Longoria (Daniel's son) would follow along to Mexico or Del Rio and provide further instructions. Once the mule arrived at the pick-up location, the suppliers would take the car and plant the marihuana in the vehicles provided by Daniel—for example, in the spare tire or gas tank. The mules would attempt to return the load to AA&P, but law-enforcement agents often stopped them in transit, seizing hundreds of pounds of marihuana. If the load reached AA&P, Cavazos—who worked there as a mechanic—and Daniel would break the vehicles down and remove marihuana from them. Daniel would then store and distribute the marihuana throughout Abilene, including by transferring some to Travis and David Rodriguez for resale.

The Abilene Police Department, the Department of Homeland Security, and the Taylor County Sheriff's Department investigated the defendants through undercover informants,² direct surveillance, and searches of their trash and homes. The searches recovered marihuana-distribution paraphernalia such as bongs, pipes, cash, marihuana, scales, baggies, saran wrap, gloves, burner phones, and firearms and ammunition. Forensic searches of the phones revealed discussions about marihuana distribution.

A federal grand jury indicted Daniel, Travis, Cavazos, and Rodriguez for conspiracy to distribute or possess with intent to distribute more than 100 kilograms of marihuana.³ Rodriguez unsuccessfully moved to sever his case from his co-conspirators', arguing that the overwhelming evidence against them would spill over and infect the jury's consideration of his individual guilt or innocence. The case proceeded to a joint trial at which the government offered testimony from twenty-six witnesses and physical evidence of the marihuana distribution. At the close of the government's case, each defendant moved unsuccessfully for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Only Daniel and David offered witnesses, but each failed to renew his motion for judgment of acquittal.

The court instructed the jury at the end of the trial—over Rodriguez's objection—that it could find the defendants guilty of lesser-included offenses of conspiracy to distribute or possess with intent to distribute between fifty and 100 kilograms of marihuana or of less than fifty kilograms. The jury found Daniel, Travis, and Cavazos guilty as charged but found Rodriguez guilty only of the lesser-included charge of conspiring to distribute or possess with intent to distribute less than fifty kilograms.

II.

We review “preserved challenges to the sufficiency of the evidence de novo .” United States v. Grant , 683 F.3d 639, 642 (5th Cir. 2012). We “view all evidence, whether circumstantial or direct, in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury's verdict.” Id. (internal quotation omitted). We determine only whether “a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” and are mindful that “[t]he jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.” Id. (quotations omitted).

“The essential elements of a drug conspiracy are (1) an agreement by two or more persons to violate the narcotics laws; (2) a defendant's knowledge of the agreement; and (3) his voluntary participation in the agreement.” United States v. Vargas – Ocampo , 747 F.3d 299, 303 (5th Cir. 2014) (en banc). “An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” Grant , 683 F.3d at 643 (internal quotation omitted).

Each defendant urges that the evidence failed to establish an agreement or that the conspiracy involved more than 100 kilograms of marihuana. The defendants—by pointing to the absence of proof that they expressly agreed or to the fact that police did not seize more than 100 kilograms of marihuana from any of them personally—ignore that the government may prove agreement, knowledge, participation, and the quantities involved by circumstantial evidence.⁴

Twenty-six government witnesses—unindicted co-conspirators, family members, and law-enforcement officers—testified to the distribution activities. Agent William Bloom testified about his undercover operations that implicated Daniel: Bloom used Juan Collins as a mole while Juan Collins transported marihuana between Daniel and Perez. Bloom himself went undercover and arranged drug transactions with Daniel while at AA&P (even offering to transport marihuana between Daniel and Perez).

Johnnie Amanda Blake, Daniel's ex-wife, and John Davis, an unindicted co-conspirator, testified that Cavazos removed marihuana from vehicles at AA&P and stored marihuana there. Fernando Landeros, one of Daniel's mules, testified that Cavazos also met him at 4:00 AM at a hotel in Del Rio to pick up a load.⁵ Agent Robert Melton testified that Daniel hired Nico Prado and provided him with a truck⁶ to pick up marihuana from Del Rio, during which trip Prado met with and was followed by Travis.⁷ Prado testified that Travis helped him place a spare tire full of marihuana underneath his truck before Prado drove through a border patrol checkpoint. Finally, Prado testified that Travis picked up around five pounds of marihuana from Rodriguez on two or three occasions. Joel Flores, who dealt marihuana with Travis, testified that he met Rodriguez at AA&P and that he and Travis would purchase marihuana from Rodriguez—marihuana that Rodriguez got from Daniel.

There was not just testimony; the government offered excerpts from the defendants' phone records. Daniel's phone records showed distribution-related communications between himself and Perez—in addition to contact with his mules (Collins and Prado) and a potential buyer in Alabama (Charles Anthony Allison). A recorded telephone call from the county jail between Travis and Daniel included discussion of the conspiracy. Travis's phone records detailed his marihuana-dealing activity over the course of three to four years.

The government offered significant physical evidence of marihuana-distribution paraphernalia. The government seized bongs, pipes, $20,000 cash, scales, baggies, and marihuana wrappings from Rodriguez's trash and house. It offered firearms and ammunition, marihuana, wrappings, cash, and scales seized from the Longorias' house. Moreover, the government offered testimony from the forensic experts who tested the substances seized from the defendants, confirming that the substances were marihuana.

Finally, much of the above evidence sufficed to establish the quantities of marihuana distributed. John Davis testified that he held 30 to 40 pounds of marihuana once or twice per month for a year for Daniel and Cavazos, which alone amounts to 360 pounds (or, roughly 163 kilograms).⁸ Johnnie Amanda Blake and her son, Chase Blake, said that they saw Daniel and Cavazos handling a couple of hundred pounds of marihuana at AA&P on multiple occasions. When Cavazos met Landeros at a hotel in Del Rio, he picked up a load of 300 pounds. Travis assisted Prado in attempting to transport more than 44 pounds (roughly 20 kilograms) of marihuana. Travis's own phone records showed he dealt marihuana in quantities ranging from a quarter pound to ten pounds over the course of three to four years. Finally, Flores testified that he and Travis picked up between ten and fifteen pounds of marihuana from Rodriguez. Also, Prado linked Rodriguez to AA&P, where Daniel and Cavazos dealt with hundreds of pounds.

Though the defendants allege they were not privy to every detail of the other co-conspirators' activity or the quantities involved, the “government need not prove knowledge of all the details of the conspiracy by any [defendant], but only that they had knowledge of the essential object of the conspiracy.” United States v. Acosta , 763 F.2d 671, 691 (5th Cir. 1985). The preceding, non-exhaustive discussion of the evidence...