United States v. Chavez-Salcido ( 1999 )


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  •                        UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    ____________________
    No. 98-50930
    ____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    EZEQUIEL CHAVEZ-SALCIDO,
    Defendant-Appellant.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Western District of Texas
    (P-98-CR-74-2)
    _________________________________________________________________
    November 5, 1999
    Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Having   been    convicted     for    importation   and   possession   of
    marijuana with intent to distribute, in violation of 
    21 U.S.C. §§ 952
    (a), 960(a)(1), and 841(a)(1), Ezequiel Chavez-Salcido contests
    the sufficiency of the evidence (claims not aware of marijuana
    hidden in vehicle in which a passenger) and being denied a “minor
    or   minimal   role”    sentencing    downward    adjustment     (claims   only
    “courier” status).       We AFFIRM.
    I.
    At approximately 6:00 p.m. on Friday, 3 April 1998, Customs
    Inspector Insley, inspecting traffic entering the United States
    from Mexico at the Presidio, Texas, port of entry, stopped an
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    automobile in which Chavez was a passenger.                The driver, Chavez’s
    codefendant Luis Contreras-Lara, told the Inspector that he and
    Chavez were headed to El Paso; Chavez nodded, indicating agreement.
    Because Contreras had to lower his head to answer questions through
    the open window and appeared nervous, the Inspector directed the
    vehicle    to   the   secondary     inspection      point.     (At    trial,   the
    Inspector testified that the vehicle was “a regular sized car” — “I
    think it was a four door Chrysler Labaron” — but that, in order to
    respond to the Inspector, Contreras, instead of just looking over
    and responding, as “most people” do, had to “lower his head a
    little bit and crank it out”; that this, again, “was a little
    unusual.     I remember him kind of cranking his head ... underneath
    the roof a little bit like he was cramped for space.”)
    When the Inspector rejoined Chavez and Contreras at the
    secondary inspection point, they had exited the vehicle; and
    Contreras had opened the trunk to show it was empty.              The Inspector
    testified that this was unusual, because in such situations, people
    usually    remain     in   their   vehicles.        Customs   Inspector   Seward
    testified that, while at the secondary inspection point, Contreras
    and Chavez told him they were going to El Paso (consistent with
    what Inspector Insley had been told).
    While      examining    the   interior    of    the   vehicle,    which   was
    registered under Contreras’ name, Inspector Insley noticed that the
    floorboard was elevated; he lifted the carpet and discovered a
    hatch.     When a drug-detecting dog alerted, the Inspector had the
    vehicle searched.
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    Inspector Insley testified that, when he sat in the driver’s
    seat, his knees were elevated “like [he] was sitting on a phone
    book”.    Special Agent McGraw , a criminal investigator located at
    the port of entry, testified that the entire floorboard had been
    raised about eight inches, and the passenger seat was “tilted”.
    Customs Agents discovered four trap doors leading to a hidden
    compartment: one door near the passenger’s feet, one near the
    driver’s feet, and two in the back seat floor.                    They found 62
    pounds of marijuana, and seized from Contreras what appeared to be
    a drug ledger.      (Contreras later pleaded guilty to possession of
    the marijuana, and received a 12-month prison sentence, referenced
    in part II.B., infra, concerning denial of the downward adjustment
    for Chavez.)
    As was customary after a drug seizure, Special Agent McGraw,
    referenced supra, was immediately dispatched to the scene.                 Around
    6:30 that same evening, Chavez was given a form (in Spanish)
    advising   him     of   his   rights,   which   Chavez     read,   signed,    and
    indicated he understood.               With the assistance of Special Agent
    Koker, who had been trained in Spanish, Special Agent McGraw
    interviewed Chavez. The Special Agents testified that, during the
    interview, Chavez was “extremely nervous”, spoke rapidly, and took
    rapid breaths.
    Special Agent Koker testified that Chavez told the Special
    Agents:     that    Contreras    had    approached   him    the    night   before
    (Thursday night) while Chavez was at work in Chihuahua City, asked
    him to go to Denver with him to pick up an income tax refund at a
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    mountain resort where Contreras had worked, and offered to pay for
    the trip; that he had known Contreras for about a year; that they
    planned to return to Chihuahua City by Sunday morning, because
    Chavez had to work that night; and that he (Chavez) was going to
    Denver   to   visit    his   girlfriend    (initially,   Chavez    could   not
    remember her last name, not recalling it until an hour later).
    Immigration       Inspector   Cook,     who   processed      Chavez   for
    deportation at the port of entry around 8:30 that same evening,
    testified that Chavez was very inquisitive about what was going to
    happen to him; and that Chavez’s questions (in Spanish) translated
    into “what happens if I knew it was there”.              The Inspector also
    testified that, when he asked Chavez whether he knew the marijuana
    was in the vehicle, Chavez hesitated, looked down, and swallowed
    nervously, before stating that he did not know.
    At trial, Chavez testified that Contreras was going to Denver
    to purchase an automobile and needed him to return the other
    vehicle to Chihuahua City; that, en route to the port of entry, he
    (Chavez) did not drive the vehicle or notice anything unusual about
    its interior, because he had left work around 5:00 a.m. and had
    slept all the way to the port of entry; that he did not take a
    change of clothes, because they were not going to stay overnight;
    and that he did not bring any money, because his work check had not
    been deposited.       Chavez denied that either he or Contreras told the
    Customs Inspectors that they were going to El Paso.
    Chavez moved for judgment of acquittal at the close of the
    Government’s case and at the close of all the evidence.                A jury
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    convicted him of both importing and possessing marijuana with
    intent to distribute.
    At   sentencing,    Chavez   made     only    one    objection     to   the
    presentence report (PSR):         that he should receive a downward
    adjustment for his mitigating role in the offense.                The district
    court   denied   the   adjustment,   adopted      the    PSR’s    findings   and
    recommendation, and sentenced Chavez, inter alia, to two concurrent
    terms of 27 months’ imprisonment.
    II.
    A.
    For the sufficiency challenge, Chavez having timely moved for
    judgment of acquittal, we must determine “whether, viewing the
    evidence in the light most favorable to the government, a rational
    trier of fact could have found the essential elements of the
    offense beyond a reasonable doubt”.         United States v. Greer, 
    137 F.3d 247
    , 249 (5th Cir. 1998) (citing United States v. Bell, 
    678 F.2d 547
    , 549 (5th Cir. 1982) (en banc)); see United States v.
    Pankhurst, 
    118 F.3d 345
    , 351-52 (5th Cir. 1997).                 All reasonable
    constructions of the evidence are available to the jury, and
    neither elimination of each reasonable theory of innocence nor
    contradiction of all conclusions other than guilt is required. See
    United States v. Lopez, 
    74 F.3d 575
    , 577 (5th Cir. 1996) (citations
    omitted). In short, we must give credence to “all credibility
    choices that tend to support the jury’s verdict”. United States v.
    McKenzie, 
    768 F.2d 602
    , 605 (5th Cir. 1985) (citations omitted).
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    To convict on both charges, the Government had to prove that
    Chavez knowingly brought the marijuana into the United States, and
    possessed it with the intent to distribute it.           See United States
    v. Diaz-Carreon, 
    915 F.2d 951
    , 953 (5th Cir. 1990) (citing United
    States v. Williams-Hendricks, 
    805 F.2d 496
    , 500 (5th Cir. 1986)).
    The elements of both offenses may be established by circumstantial
    evidence. See United States v. Cardenas, 
    9 F.3d 1139
    , 1158 (5th
    Cir. 1993) (possession with intent to distribute); United States v.
    Manotas-Mejia, 
    824 F.2d 360
    , 367 (5th Cir. 1987) (importation).
    Although several defendants can jointly possess a proscribed
    substance, either actually or constructively,           Cardenas, 9 F.3d at
    1158 (citing United States v. Molinar-Apodaca, 
    889 F.2d 1417
    , 1423
    (5th Cir. 1989)), the Government must establish an adequate nexus
    between the drugs and the defendant.         United States v. Cardenas,
    
    748 F.2d 1015
    , 1020 (5th Cir. 1984) (citing United States v. Ferg,
    
    504 F.2d 914
     (5th Cir. 1974)).          Accordingly, mere presence in a
    vehicle where drugs are found, or association with the person who
    controls the   drugs   or    vehicle,    alone,   are   not   sufficient   to
    establish possession.       
    Id.
     (quoting United States v. Stephenson,
    
    474 F.2d 1353
    , 1355 (5th Cir. 1973)).             Therefore, for “hidden
    compartment cases”, like the one at hand, the Government must
    produce “additional evidence indicating knowledge – circumstances
    evidencing a consciousness of guilt on the part of the defendant”.
    Diaz-Carreon, 
    915 F.2d at 954
     (citations omitted; emphasis in
    original).
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    Chavez contests the sufficiency of the evidence on only one
    element for each of the two offenses — he claims he was not aware
    of the concealed marijuana.          But, based upon our “commonsense,
    fact-specific” review of the earlier described evidence, see United
    States v. Smith, 
    930 F.2d 1081
    , 1086 (5th Cir. 1991), including
    viewing that evidence in the light most favorable to the Government
    (as required by our standard of review), a rational juror could
    have concluded, beyond a reasonable doubt, that Chavez knowingly
    played a role in bringing the marijuana into the United States and
    possessed it with intent to distribute it.
    For example, the jury was shown a videotape, produced by Agent
    McGraw, in which an Agent, approximately the same height as Chavez,
    sat in the front seat of Contreras’ vehicle and stated that his
    head was touching the vehicle’s ceiling.          A rational juror could
    reasonably infer that, at some point en route to the border, Chavez
    would   have   asked   about   the    vehicle’s    unmistakably   altered
    dimensions.    In short, the jurors were entitled to reject Chavez’s
    testimony that he slept the entire trip to the port of entry and
    never noticed the elevated seats.        See United States v. Mulderig,
    
    120 F.3d 534
    , 547 (5th Cir. 1997) (quoting United States v. Ayala,
    
    887 F.2d 62
    , 67 (5th Cir. 1989) (permissible for jurors to “rely on
    their ‘common sense’ and ‘knowledge of the natural tendencies and
    inclinations of human beings’”)).
    Other evidence supporting Chavez’s knowing about the marijuana
    included:   his contradictory statements regarding his destination
    (first El Paso, then Denver); his story that he was traveling to
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    Denver to see his girlfriend, in the light of his inability to
    remember her last name and failure to bring money or a change of
    clothing; the difficulty of making a round trip between Friday and
    Sunday, as Chavez claimed, and still being able to spend time with
    his girlfriend in Denver, given the estimated 15-20 hour drive from
    Chihuahua City, Mexico, to Denver, Colorado; his nervous appearance
    when questioned; his hesitation before denying knowledge of the
    drugs; and his repeated inquiries about the consequences if he had
    known about the drugs’ presence.                    See Diaz-Carreon, 
    915 F.2d at 954-55
       (nervousness,             conflicting           statements      to     inspection
    officials,     and        implausible         story      may     adequately      establish
    consciousness of guilt); United States v. Pennington, 
    20 F.3d 593
    ,
    598   (5th    Cir.    1994)    (“circuitous           route”     and    timing    of    trip
    supported conclusion defendants possessed marijuana).
    Again, Chavez claims, for his sufficiency challenge, only non-
    awareness of the marijuana.                   In short, this is a classic jury
    issue.       For   example,        as    discussed,        two   Government      witnesses
    testified that Chavez had indicated (to one) and stated (to the
    other) that his destination was El Paso (not Denver); in his
    testimony,     Chavez      denied       doing      so.      As   stated,      viewing    the
    evidence,     as     we    must,    in    the      light    most    favorable      to    the
    Government, a rational juror could have found, beyond a reasonable
    doubt, that Chavez was aware of the marijuana.
    B.
    In claiming entitlement to the minor or minimal participation
    adjustment     under       Guideline      §     3B1.2,     Chavez      states    that    the
    - 8 -
    commentary    applies    to     this    case,      §    3B1.2    commentary,       n.2
    (suggesting adjustment “where an individual was recruited as a
    courier for a single smuggling transaction involving a small amount
    of drugs”); and notes that Contreras, who owned the vehicle and
    admitted ownership of the marijuana, received a significantly
    lesser sentence than he.
    But, to qualify for the adjustment, Chavez had to show that he
    was   “substantially     less    culpable       than”     Contreras.         Id.    at
    background n.; see, e.g., United States v. Buenrostro, 
    868 F.2d 135
    , 138 (5th Cir. 1989) (Ҥ 3B1.2 turns upon culpability, not
    courier    status”)     (emphasis       added).         Factual     determinations
    regarding Chavez’s role are reviewed only for clear error.                       E.g.,
    United States v. Zuniga, 
    18 F.3d 1254
    , 1261 (5th Cir. 1994)
    (citation omitted).
    At   sentencing,    Chavez       contended       that,    because    Contreras
    accepted    responsibility      for,     and    claimed        ownership   of,     the
    marijuana, Contreras was primarily to profit from it; that, at
    most, Chavez was only along to help drive; that it was unfair for
    him to receive a sentence twice as long as Contreras’; that he had
    no history of drug trafficking or other criminal involvement; and
    that he had steadfastly maintained his innocence.
    The district court considered this evidence, as well as (1)
    Contreras’ statement to the probation officer (included in Chavez’s
    PSR) that Chavez was aware of the drugs, and (2) the jury’s similar
    finding concerning Chavez’s awareness. The district judge found no
    differentiation between the roles of Chavez and Contreras.
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    Based on our review of the record, the court did not clearly
    err in finding that Chavez was not “substantially less culpable”
    than Contreras.   The downward adjustment denial must stand.
    III.
    For the foregoing reasons, the judgment is
    AFFIRMED.
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