United States v. Vasquez

• Decision Date: 12 April 2012
• Docket Number: No. 10–41270.,10–41270.
• Citation: 677 F.3d 685
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Pedro VASQUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

677 F.3d 685

UNITED STATES of America, Plaintiff–Appellee,

v.Pedro VASQUEZ, Defendant–Appellant.

No. 10–41270.

United States Court of Appeals, Fifth Circuit.

April 12, 2012.

Amy Howell Alaniz, Asst. U.S. Atty. (argued), McAllen, TX, Renata Ann Gowie, Asst. U.S. Atty., Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Fed. Pub. Def. (argued), H. Michael Sokolow, Asst. Fed. Pub. Def., Fed. Pub. Defender's Office, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.ON PETITION FOR REHEARING

Before REAVLEY, ELROD and GRAVES, Circuit Judges.

PER CURIAM:

Appellants' Petition for Panel Rehearing is DENIED. We withdraw the prior panel opinion, issued on January 13, 2012, and substitute the following.

A jury convicted defendant-appellant, Pedro Vasquez of (1) possessing with intent to distribute over five kilograms of cocaine, (2) importing cocaine into the United States, and (3) conspiring to possess with intent to distribute over five kilograms of cocaine. Vasquez appeals all three convictions and his sentence of three concurrent 125–month terms. We AFFIRM.

Facts and Procedural History

On May 25, 2010, United States Customs and Border Patrol (“CBP”) Antiterrorist Contraband Enforcement Team (“ATCET”) Officer Analia Natividad Salazar selected Vasquez's Chevrolet Suburban, based on trend analysis, for inspection at the Lincoln–Juarez Bridge Number 2, in Laredo, Texas, approximately 4.5 kilometers from Nuevo Laredo, Mexico. This CBP ATCET stop occurred at 11:55 a.m. in Laredo, Texas. Several CBP personnel were present at and participated in the stop at the federal inspection area (“FIA”), including but not limited to Officer José (Joe) Gonzalez. Officer Salazar testified that she found it unusual that Vasquez drove the vehicle at “an extremely slow pace” after he passed the primary inspection, and was “very alert to his surroundings ... pretty much looking forwards, sideways, backwards ....” Officer Salazar further testified that Vasquez was constantly fidgeting his hands when other CBP officers were inspecting the Suburban, and his eyes were concentrated on the Suburban, particularly when officers inspected the hood area. Officer Salazar noticed that when they inspected the hood area, Vasquez “was a bit anxious of wanting to see what was being done and also wanting to get near ....” Officer Salazar testified that when she asked him why he was entering the United States, Vasquez said he had attended an alcoholics' anonymous meeting in Nuevo Laredo, Mexico, and he was returning to work at Cristalina Pools, a pool construction company in Laredo, Texas.

Rolando Villalobos, the owner of Cristalina Pools, testified that Vasquez had worked for him for about two-and-a-half years. Villalobos further testified that Vasquez would typically cross from Nuevo Laredo, Mexico, on foot every morning, where he would then be picked up by other Cristalina Pools employees. As far as Villalobos knew, Vasquez did not own a car. On several occasions, Villalobos permitted Vasquez to leave work early in order to attend meetings in Nuevo Laredo, Mexico. Villalobos testified that he knew nothing about the meetings except that Vasquez told him they were for alcohol-addiction treatment. Shortly before May 25, 2010, Vasquez asked Villalobos for some time off to try and make some money towing vehicles. Villalobos granted the request.

Officer Gonzalez testified that he was among the CBP personnel who inspected the Suburban. He further testified that the inspection revealed what appeared to be two car batteries in the engine compartment. Gonzalez also testified that this was unusual, because Vasquez's Suburban is a gasoline vehicle that needs only one battery. Gonzalez went on to testify that he and other officers disassembled the batteries' casings. They discovered that each car-battery casing was lined with lead sheeting and that each contained a motorcycle battery and three shrink-wrapped bundles of cocaine. The six bundles of cocaine had a total weight of 10.25 kilograms. The motorcycle batteries were connected to the Suburban's electrical system. Gonzalez testified that tools, a hitch, and some chains in a bucket were found in the back of the Suburban. CBP officers found another set of tools (a 1/2–inch wrench, a 7/16–inch wrench and 2 pliers) behind the driver's seat on the floor. The sizes of the wrenches and pliers fit the terminals on the motorcycle batteries. However, Gonzalez testified that wrenches and pliers of that size are extremely common.

United States Department of Homeland Security Immigration and Customs Enforcement (“ICE”) Special Agent Owen William Tims—the lead investigator and case agent, as well as the duty agent on May 25, 2010—testified that he interviewed Vasquez at 1:20 p.m. on the bridge with the assistance of two Spanish-speaking officers. He further testified that Vasquez was visibly nervous. Special Agent Tims also testified that Vasquez initially denied ownership of the car, but shortly changed his answer and admitted to owning it. He went on to testify that Vasquez became more nervous at that point, his hands and his mouth began quivering, and he started shifting frequently in his seat. Vasquez's counsel attempted to elicit testimony from Special Agent Tims regarding Vasquez's other statements during the interview, but the district court sustained the prosecutor's hearsay objection. Special Agent Tims entered the information that he obtained from his interview of Vasquez in an ICE C–CATS report.

CBP Officers Blanca De Leon and Maria Villarreal interviewed Vasquez again in Spanish and wrote an I–213 Record of Deportable Alien immigration report in English. Neither Officer De Leon nor Villarreal testified at trial. Vasquez's attorney attempted to question Special Agent Tims about the report. The government objected that Special Agent Tims could not testify to a report that someone else authored. The district court sustained the government's objection.

ICE agents and CBP officers had discovered a sales contract in the Suburban. Javier Niera, of J&R Auto Sales, in Laredo, Texas, properly authenticated the sales contract and testified that he sold the Suburban to Vasquez in working order, with a single car battery. However, Niera testified that the Suburban's air conditioning system was leaking and would work for only two or three days before it needed more freon. Niera testified that another man¹ accompanied Vasquez when the Suburban was purchased. Niera had previously seen the other man at the car lot. The man had previously purchased at least four other vehicles, and during a previous visit, he had looked over the Suburban. Niera testified that the man did all the talking and paid for the Suburban, although only Vasquez signed the sales contract. Niera also testified that the other man asked Niera to leave the Suburban's old plates on it, but Niera refused because Texas law requires dealers to remove and destroy plates registered in the name of a vehicle's previous owner.

Corey Grubbs, an ICE Special Agent, as well as Dr. Xiu Liu, Ph.D., a forensic chemist with the United States Drug Enforcement Agency (“DEA”), testified that 10.25 kilograms of cocaine had a street-value between $111,875 and $138,375 in Nuevo Laredo, Mexico; between $148,625 and $179,375 in Laredo, Texas; between $225,500 and $266,500 in San Antonio, Texas; and between $266,500 and $287,000 in Austin, Texas.

Standards of Review

I. Sufficiency of the Evidence

Vasquez moved for a judgment of acquittal at the close of the government's case-in-chief and again after the close of the evidence. This court reviews the district court's denial of a motion for acquittal de novo. United States v. Campbell, 52 F.3d 521, 522 (5th Cir.1995). A motion for acquittal should be granted if the government fails to present evidence sufficient for a reasonable jury to have found that each essential element of the offense was established beyond a reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998). This court considers the evidence in the light most favorable to the government, with all reasonable inferences and credibility determinations made in the government's favor. United States v. Santillana, 604 F.3d 192, 195 (5th Cir.2010). “ The jury may choose among reasonable constructions of the evidence: The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” Id. (citing United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996) (emphasis supplied)). “ ‘ [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.’ ” United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989) (quoting Coggeshall v. United States ( The Slavers), 69 U.S. (2 Wall.) 383, 17 L.Ed. 911, 914–15 (1864) (emphasis supplied)). Jurors may properly “ ‘use their common sense’ ” and “ ‘evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings'.” Ayala, 887 F.2d at 67 (quoting United States v. Henry, 849 F.2d 1534, 1537 (5th Cir.1988)).

II. Jury Instructions

Generally, this court reviews jury instructions for abuse of discretion and harmless error. United States v. Betancourt, 586 F.3d 303, 305 (5th Cir.2009). However, when a defendant fails to object to jury instructions, we review for plain error:

A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury's hearing and, on request, out of the jury's presence. Failure to object in accordance with this rule precludes appellate review, except as...