United States v. Gonzalez , 404 F. App'x 819 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4058
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUBEN JUAREZ GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:09-cr-00070-BO-3)
Submitted: November 29, 2010 Decided: December 14, 2010
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Michael G. James, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ruben Juarez Gonzalez was convicted of: conspiracy to
distribute and to possess with intent to distribute 500 grams or
more of cocaine, 21 U.S.C. §§ 841(a)(1), 846 (2006); possession
with intent to distribute more than 500 grams of cocaine and
aiding and abetting the same, 21 U.S.C. § 841(a)(1) (2006), 18
U.S.C. § 2 (2006); illegal entry, 8 U.S.C. § 1325(a) (2006); and
false representation of United States citizenship, 18 U.S.C.
§ 1325(a) (2006). He received an aggregate sentence of seventy-
eight months. Gonzalez now appeals, contending that the
district court erred when it denied his Fed. R. Crim. P. 29
motion for judgment of acquittal with respect to the two drug
charges. We affirm.
“We review de novo the district court’s ruling on a
motion for judgment of acquittal and . . . will uphold the
verdict if, viewing the evidence in the light most favorable to
the government, it is supported by substantial evidence.”
United States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert.
denied, 129 S. Ct. 663 (2008). “Substantial evidence is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Id. (internal quotation marks
omitted). We “can reverse a conviction on insufficiency grounds
only when the prosecution’s failure is clear.” United States v.
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Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal
quotation marks omitted). We review both direct and
circumstantial evidence and permit “the government the benefit
of all reasonable inferences from the facts proven to those
sought to be established.” United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). We “do not review the credibility
of witnesses and assume the jury resolved all contradictions in
the testimony in favor of the government.” United States v.
Sun, 278 F.3d 302, 312 (4th Cir. 2002).
To convict Gonzalez of conspiracy under 21 U.S.C.
§ 846, the government had to prove “(1) an agreement between two
or more persons to engage in conduct that violates a federal
drug law, (2) the defendant’s knowledge of the conspiracy, and
(3) the defendant’s knowing and voluntary participation in the
conspiracy.” United States v. Kellam, 568 F.3d 125, 139 (4th
Cir.), cert. denied, 130 S. Ct. 657 (2009) (internal quotation
marks omitted). “After a conspiracy is shown to exist, . . .
the evidence need only establish a slight connection between the
defendant and the conspiracy to support the conviction.” Id.(internal quotation marks omitted).
Testimony at trial established that “Maurice” and
“Primo” visited confidential informant Anthony Caldwell and
asked if he wanted to purchase one kilogram of cocaine.
Caldwell testified that a third individual, “Rudy,” was known to
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be Maurice’s supplier. Caldwell replied that he could only
afford one-half kilo but that he had a buyer for the remainder.
Caldwell contacted authorities, alerting them to the impending
transaction. The next day, Maurice, Rudy, and Gonzalez traveled
to Caldwell’s residence. Maurice drove one truck, while
Gonzalez drove Rudy in another truck. While traveling to the
residence, Maurice and Rudy had numerous telephone conversations
with Caldwell about the deal. Cell phone records disclosed that
two phones belonging to Gonzalez were used during some of these
calls. The conversations were recorded.
After Maurice, Rudy and Gonzalez arrived at the
Caldwell residence, Caldwell spoke to Rudy and Maurice about the
impending transaction. Gonzalez heard some of the
conversations. Caldwell left the property and returned with an
undercover officer, James Yowell, who posed as a potential buyer
of one-half of the cocaine. Gonzalez saw Maurice retrieve the
bundle of cocaine from his truck, and he entered the residence
with Yowell, Caldwell, Maurice, and Rudy. The men went to the
kitchen. Gonzalez was described as calm, and he said nothing
when Yowell cut the bundle open to inspect the drug. Yowell
testified that Gonzalez positioned himself so as to block the
exit from the kitchen.
Caldwell and Yowell left the residence on the pretext
of having to get money to pay for the cocaine. When they did
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not return, Rudy, Maurice, and Gonzalez left the residence.
Police soon initiated traffic stops of the trucks Gonzalez and
Maurice were driving. Inside the Gonzalez truck, they found
five cell phones. Two belonged to Gonzalez, and three to Rudy.
This evidence was sufficient to convict Gonzalez of
conspiracy. There clearly was an agreement among at least two
persons to violate the drug laws. Gonzalez’s knowledge of and
participation in the conspiracy are established by his driving
Rudy to the Caldwell residence, the use of his two cell phones —
presumably to discuss the impending transaction — during the
drive, his hearing conversations at the residence about drugs
and money, his calm and unquestioning demeanor when Yowell cut
open the bundle of cocaine, and his blocking the exit from the
kitchen.
With respect to Count Two, the government was required
to prove “(1) possession of the controlled substance; (2)
knowledge of the possession; and (3) intent to distribute.” See
United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009).
“A defendant is guilty of aiding and abetting if he has
knowingly associated himself with and participated in the
criminal venture.” United States v. Burgos, 94 F.3d 849, 873
(4th Cir. 1996) (en banc) (internal quotation marks omitted);
see 18 U.S.C. § 2(a). To prove association, the government need
only establish that the defendant was “cognizant of the
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principal’s criminal intent and the lawlessness of his
activity.” Burgos, 94 F.3d at 873. “[P]articipation in every
stage of an illegal venture is not required, only participation
at some stage accompanied by knowledge of the result and intent
to bring about that result.” United States v. Arrington, 719
F.2d 701, 705 (4th Cir. 1983) (internal quotation marks
omitted).
The evidence discussed above was sufficient to convict
Gonzalez of aiding and abetting the possession with intent to
distribute cocaine. He clearly was cognizant of the intent of
Maurice and Rudy to distribute the cocaine, and he participated
in the offense by, for instance, driving Rudy to and from the
Caldwell residence, allowing the use of his cell phones to
facilitate the anticipated transaction, and blocking the exit
from the kitchen while the cocaine was inspected.
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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