United States v. Montano ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-20861
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN CARLOS MONTANO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(94 CR 123 4)
_________________________________________________________________
September 18, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Juan Carlos Montano appeals his conviction for aiding and
abetting possession with intent to distribute cocaine and
conspiracy to possess with intent to distribute cocaine. He was
sentenced to serve concurrent terms of 151 months in prison and
five years supervised release on each count. His only argument
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
on appeal is that the evidence is insufficient to support his
convictions. We affirm.
When the sufficiency of the evidence is challenged, this
court reviews the evidence in the light most favorable to the
Government, making all reasonable inferences and credibility
choices in favor of the verdict. Glasser v. United States, 315
U.S. 60, 80 (1942). The conviction must be affirmed if any
rational trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. United States v.
Smith, 930 F.2d 1081, 1085 (5th Cir. 1991).
The jury is in a unique position to determine the
credibility of the various witnesses. United States v. Layne, 43
F.3d 127, 130 (5th Cir.), cert. denied, 115 S. Ct. 1722 (1995).
This court defers to the jury's resolutions of conflicts in the
evidence. Id.
To convict Montano of conspiring to distribute cocaine, the
Government must prove an agreement between two or more persons to
violate the narcotics laws, that Montano knew of the conspiracy,
and that he voluntarily participated in it. United States v.
Sanchez-Sotelo, 8 F.3d 202, 208 (5th Cir. 1993), cert. denied,
114 S. Ct. 1410 (1994). The existence of the conspiracy may be
established by circumstantial evidence. Discrete circumstances
that, standing alone, would be inconclusive may prove a
conspiracy when taken together and corroborated by moral
coincidences. United States v. Rodriguez-Mireles, 896 F.2d 890,
892 (5th Cir. 1990).
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"Although mere presence at the scene of the crime or a close
association with a co-conspirator alone cannot establish
voluntary participation in a conspiracy, . . . presence or
association is a factor that, along with other evidence, may be
relied upon to find conspiratorial activity by the defendant."
United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)
(citations omitted), cert. denied, 114 S. Ct. 2150 (1994).
Further, knowledge may be inferred from the circumstances. Id.
Once the Government establishes an illegal conspiracy, "only
slight evidence is needed to connect [Montano to the]
conspiracy." United States v. Thomas, 12 F.3d 1350, 1359 (5th
Cir.) (internal quotation and citation omitted), cert. denied,
114 S. Ct. 1861 and 2119 (1994).
To convict a defendant of possession with intent to
distribute cocaine the Government must show that he knowingly had
actual possession of the cocaine, United States v. Ivy, 973 F.2d
1184, 1188 (5th Cir. 1992), cert. denied, 113 S. Ct. 1826 (1993),
or that he knowingly had constructive possession of the cocaine.
Constructive possession includes ownership, dominion, or control
over the cocaine. See United States v. Shabazz, 993 F.2d 431,
441 (5th Cir. 1993). Possession of an amount larger than could
be personally consumed will support a finding of intent to
distribute. United States v. Inocencio, 40 F.3d 716, 725 (5th
Cir. 1994).
Aiding and abetting requires proof that the defendant
associated with a criminal venture, participated in the venture,
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and sought by action to make the venture successful. United
States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994), cert. denied,
115 S. Ct. 1431 (1995). Association with the venture means the
defendant shared the principal's criminal intent; participation
means "the defendant acted in some affirmative manner designed to
aid the venture." United States v. Jaramillo, 42 F.3d 920, 923
(5th Cir.), cert. denied, 115 S. Ct. 2014 (1995).
We turn now to the record of Montano's trial. Police
conducting surveillance on April 26 and 27, 1994, followed
narcotics suspects to the Parqueview Apartments where the police
later seized over 100 kilograms of cocaine. Officer Fern
testified that Ledesma and Tellez, two of Montano's co-
conspirators, drove in a blue van to a shopping mall where
Ledesma used the pay telephone. From there, the police followed
Ledesma and Tellez as they drove to a hospital and a restaurant.
Finally, Ledesma and Tellez drove to the Parqueview Apartments,
exited the van, and entered apartment 905. Shortly afterward,
Ledesma and Obando, another co-conspirator, left apartment 905 in
the blue van. They drove to a mall where they made multiple
telephone calls. Ledesma and Obando left the mall travelling in
an indirect route to a Chevron Station where Ledesma made more
phone calls. From the Chevron Station, Ledesma walked across the
street to a Price Buster Store where Ledesma again used the
telephone. When the officer next saw Ledesma and Obando, they
were travelling in separate vehicles; Ledesma drove the blue van
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and Obando drove a white Blazer. They drove directly back to the
Parqueview Apartments.
Montano was waiting in the parking lot of the Parqueview
Apartments. After Obando parked the Blazer, Montano conversed
with Obando, looked back and forth down the parking lot, and then
walked to the back of the vehicle. Montano removed a large,
green, Army-type duffel bag from the back of the Blazer and
carried it toward apartment 905 of the complex. The bag appeared
to be full and heavy. Officer Hammons testified that the duffel
bag appeared to be full of kilo-sized packages. Shortly
afterward, Montano was seen coming out of apartment 905 and
walking back in the direction of the S-10 Blazer. When Montano
saw a person who was apparently an undercover police officer
putting his telephone back into his pocket, he was startled. The
officer described Montano's eyes as "really big." Montano was
then seen leaving the area in a small car. A police officer was
informed that suspects were leaving the scene. The police
apprehended Montano and Obando in a Honda shortly afterward. The
police seized cocaine and duffel bags from apartment 905. A
canine handler testified that his dog "alerted" at the tailgate
of the Blazer, indicating that the odor of narcotics could be
detected there. Testimony indicated that cocaine was found
inside a duffel bag in the Blazer as well.
Turning to Montano's argument, Montano contends that the
Government did not produce evidence that he knew or had any
contact with the co-conspirators prior to the time when he was
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seen conversing with Ledesma near the Blazer and when he was seen
carrying the duffel bag from the Blazer to apartment 905.
Montano asserts, therefore, that the Government failed to prove
an agreement between him and the co-conspirators. He suggests
that the jury had to infer that he made an agreement in the small
amount of time that he was seen conversing with Ledesma. Montano
further asserts that the Government failed to prove that he had
knowledge, intent, or even possession of the cocaine. Montano
maintains that carrying a bag from a vehicle to an apartment does
not indicate knowledge of, or participation in, a drug
conspiracy.
Montano moved for judgment of acquittal at the close of the
Government's case, and he rested without presenting any
additional evidence after the Government closed its case. The
court denied Montano's motion.
Montano's actual involvement in the alleged conspiracy
consists of conversing with Ledesma in the parking lot, carrying
a duffel bag in the direction of apartment 905, appearing
startled when he confronted an apparent police officer near
apartment 905, and leaving the area shortly after he met the
police officer near apartment 905. Although sparse, this
evidence is sufficient to sustain Montano's convictions. Montano
was seen carrying the duffel bag that appeared to be full of
square, kilo-sized packages toward apartment 905. Cocaine and
duffel bags were later found in the apartment and in the Blazer.
Approximately 119.06 kilograms of cocaine was seized. The
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quantity of drugs involved establishes the requisite intent to
distribute. See United States v. Sanchez, 961 F.2d 1169, 1176
(5th Cir.) ("Intent to distribute is typically inferred from the
fact that an amount is too large for any purpose other than
distribution."), cert. denied, 113 S. Ct. 330 (1992).
Montano contends that the Government did not produce
evidence that he knew of, or agreed to become a part of, the drug
conspiracy. He asserts that the jury had to infer from the
evidence that in that small time frame when Montano conversed
with Ledesma at the back of the Blazer, he agreed to join a drug
conspiracy.
Montano's assertions ignore the fact that "[a]n agreement
may be inferred from concert of action, participation from a
collocation of circumstances, and knowledge from surrounding
circumstances." Sanchez, 961 F.2d at 1174 (internal quotation
omitted). Contrary to Montano's position, testimony indicated
that he was waiting for the Blazer when it arrived in the
Parqueview Apartments parking lot. Montano conversed with
Ledesma and seemed to be following Ledesma's instructions to
carry the duffel bag toward apartment 905. Montano concedes on
brief that he was following Ledesma's instructions to carry the
bag. Montano was seen looking "back and forth down the parking
lot" while conversing with Ledesma. Montano exited the apartment
and walked back toward the Blazer. When Montano rounded a corner
and met a person who appeared to be a police officer, he became
noticeably apprehensive. Thirty to forty-five seconds later,
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Montano was seen leaving the parking lot. One duffel bag with
cocaine remained in the Blazer. These facts combined with
Montano's hasty departure from the area provided sufficient
evidence from which the jury could infer that Montano knew of the
drug activity and agreed to participate in the conspiracy.
Viewing the evidence in the light most favorable to the
Government and drawing all reasonable inferences in favor of the
verdict, the evidence is sufficient to support the convictions.
Montano's convictions are AFFIRMED.
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