U.S. v. Rosas-Fuentes ( 1992 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-8414
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AMADO RIGOBERTO ROSAS-FUENTES,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(August 19, 1992)
Before GOLDBERG, JONES and DEMOSS, Circuit Judges
DEMOSS, Circuit Judge:
Appellant, Amado Rigoberto Rosas-Fuentes (Rosas) and his
companion, Santiago Valdez (Valdez) were charged in a two-count
indictment with (1) conspiracy to possess with intent to distribute
more than 20 kilograms of marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 846, and (2) possession with intent to distribute
more than 20 kilograms of marijuana, in violation of 21 U.S.C. §
841(a)(1). Valdez pleaded guilty. Following a bench trial, the
court found Rosas guilty of both counts. The court sentenced Rosas
to 33 months imprisonment and 3 years of supervised release on each
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count to be served concurrently. In this appeal, Rosas complains,
among other things, that the evidence is insufficient to support
his conviction. After thorough review of the record, we find that
there is insufficient evidence to support Rosas' conviction and,
therefore, do not reach Rosas' other contentions.
FACTS
On October 17, 1990, Valdez and his passenger, Rosas, arrived
at the U.S. Border Patrol checkpoint in Eagle Pass, Texas, in a
pickup truck. Border Patrol Agent Ronald Marcell (Marcell) asked
them whether they were United States citizens. Valdez responded
that they had to go back to Eagle Pass because Rosas had forgotten
his identification "card" and his wallet. Both Valdez and Rosas
said that they were born in Eagle Pass. When asked about their
destination, Rosas told Marcell that Valdez was giving him a ride
to Carrizo Springs to meet someone who could tell him where in San
Antonio he could find a certain car part. Valdez was then going to
drop him off in San Antonio to purchase the part. At trial, Valdez
admitted that he was travelling to Ft. Worth. Because both men
appeared nervous and anxious to leave the checkpoint, Marcell
referred them to the secondary inspection area.
Border Patrol Agents Mendoza and Santini handled the secondary
inspection. Mendoza asked for and received Valdez' consent to
search the vehicle. The agent noticed a gap between the bed of the
truck and the cab. In the space, the agent saw two gasoline tanks,
one that was dirty and one that was clean. Agent Mendoza then
tapped the tanks, and the extra tank did not make the usual hollow
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sound. Mendoza crawled under the truck and observed that the extra
tank was inadequately secured with loose bolts that had tool marks
on them, as if the tank had been recently removed and replaced.
Agent Santini then used a piece of wire and ran it down the filler
line of the tank. The wire met an obstruction about 12 inches down
the line. Agent Marcell joined the search and loosened the filler
line under the truck. He inserted his pen, which immediately met
a solid obstruction. At that time, the agents were fairly certain
that the tank contained some type of illegal contraband. During
the search at secondary, Agent Santini testified that Rosas asked
several times if they had found anything. Record Vol. 3 at p. 74.
Marcell testified that he arrested Rosas and Valdez and
advised them of their Miranda rights while still at the checkpoint.
Marcell then transported Rosas alone to the Border Patrol Station
in El Paso. Marcell said that on the way to the Station, Rosas
asked him in Spanish if they had found anything in the tank.
Marcell responded in Spanish, "'Well, you tell me.'" Rosas'
response was, "'Well, yes.'" Record Vol. 3, at p. 46. All of the
agents testified that both men appeared nervous, that is, with
their hands in their pockets, heads down, making no eye contact
with the agents. Agent Mendoza testified that in the past he had
seen Rosas go through this checkpoint, and his demeanor had been
"pretty bold" in contrast to this day. Record Vol. 3, at p. 11.
At the Station, the agents removed the spare tank and saw
that someone had cut open the upper part of the tank and closed it
with duct tape. Inside the tank they found 24 packages of
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marijuana, weighing 21,321 kilograms or about 53 pounds.
STANDARD OF REVIEW
The government argues that the defendant failed to renew his
motion for acquittal at the close of all of the evidence,
therefore, he waived his sufficiency review on appeal. The
government contends that we should reverse only for plain error or
"manifest miscarriage of justice." U.S. v. Ruiz, 860 F.2d 615, 617
(5th Cir. 1988). This standard applies, however, only when the
defendant fails to move for acquittal at the end of a jury trial.
Rosas had a bench trial, and his plea of not guilty serves as a
motion for acquittal, therefore, error is preserved. U.S. v.
Pitts, 428 F.2d 534, 535 (5th Cir.), cert. denied, 400 U.S. 910, 91
S. Ct. 154, 27 L. Ed. 2d 149 (1970), citing, Hall v. U.S., 286 F.2d
676 (5th Cir.), cert. denied, 366 U.S. 910, 81 S. Ct. 1087, 6
L. Ed. 2d 236 (1961).
When a jury trial has been waived and a bench trial held we
must
determine whether [the] findings are supported by any
substantial evidence. It is not [our] function to make
credibility choices or to pass upon the weight of the
evidence. The test is whether the evidence is sufficient
to justify the trial judge, as trier of the facts, in
concluding beyond a reasonable doubt that the defendant
was guilty. . . .
United States v. Jennings, 726 F.2d 189, 190 (5th Cir. 1984)
(quoting, Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th
Cir.), cert. denied, 404 U.S. 828, 92 S. Ct. 139, 30 L. Ed. 2d 56
(1971). When reviewing the sufficiency of the evidence to support
a conviction, we view the facts and all reasonable inferences
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therefrom in the light most favorable to the Government. U.S. v.
Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990).
SUFFICIENCY OF THE EVIDENCE
The elements of conspiracy are as follows: (1) the existence
of an agreement between two or more persons to violate the
narcotics laws, (2) knowledge of the conspiracy, and (3)
voluntary participation in the conspiracy. U.S. v. Arzola-Amaya,
867 F.2d 1504, 1511 (5th Cir.), cert. denied, 493 U.S. 933, 110
S. Ct. 322, 107 L. Ed. 2d 312 (1989). In U.S. v. Blessing, 727 F.2d
353, 355 (5th Cir.), cert. denied sub nom., Rodriguez v. U.S., 469
U.S. 1105, 105 S. Ct. 777, 83 L. Ed. 2d 773 (1985), this court stated,
[t]he government must show beyond a reasonable doubt that
the defendant had the deliberate, knowing, and specific
intent to join the conspiracy. . . . this court will not
'lightly infer a defendant's knowledge and acquiescence
in a conspiracy.' It is not enough that the defendant
merely associated with those participating in a
conspiracy, nor is it enough that the evidence places the
defendant in 'a climate of activity that reeks of
something foul.' (citations omitted)
To sustain a conviction for possession with intent to
distribute, the government must show that the defendant knowingly
possessed the contraband with intent to distribute it. U.S. v.
Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989). The
government may prove actual or constructive possession by either
direct or circumstantial evidence. Ruiz, 860 F.2d at 619. To show
constructive possession, the government must show that the
defendant controlled, or had the power to control, the vehicle or
the contraband; mere proximity to the contraband is not enough.
U.S. v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986). Intent
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to distribute may be inferred from the possession of a large
quantity of narcotics, street value of the narcotics and/or purity
of the narcotics. U.S. v. Pilgrum, 922 F.2d 249, 254 (5th Cir.),
cert. denied sub nom., Allen v. U.S., U.S. , 111 S. Ct. 2064,
114 L. Ed. 2d 468, 59 U.S.L.W. 3782 (1991).
The district court concluded that the evidence was
insufficient to support a finding that Rosas actually or
constructively possessed the marijuana. We agree that no evidence
showed that Rosas had any power to control the marijuana and its
movement and distribution, nor was there any evidence that he had
any power to control the truck in which it was concealed. However,
the district court convicted Rosas of possession because he
participated in the conspiracy. In so holding, the court followed
the rule that it may hold each conspirator criminally culpable for
substantive offenses committed by the conspiracy of which he is a
member, while he is a member. Garcia, 917 F.2d at 1377; Pinkerton
v. U.S., 328 U.S. 640, 647, 66 S. Ct. 1180, 1184, 90 L. Ed. 1489
(1946). The government's case, therefore, turns on whether the
evidence sufficiently proves that Rosas was part of a conspiracy.
The government argues that the district court had sufficient
evidence before it to hold that Rosas was part of a conspiracy to
possess with intent to distribute marijuana. The government,
however, presented very limited evidence linking Rosas to a
conspiracy. This evidence consisted primarily of Rosas' statement
to Marcell, his nervous demeanor at the checkpoint and his
implausible explanation for riding to Carrizo Springs and San
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Antonio with Valdez, who admittedly was delivering a load of
marijuana to Ft. Worth. The district court found that Rosas'
statement showed that he knew that a controlled substance was in
the tank. However, we do not agree that this statement proves
knowledge of the marijuana. It could have been just as reasonable
to infer from this statement that Rosas was admitting the obvious,
that the agents must have found something or else they would not
have arrested them.
In addition, the district court found unbelievable Valdez' and
Rosas' story that they were going to Carrizo Springs to meet Rosas'
unnamed friend for directions and then to San Antonio for a car
part. The court questioned whether Valdez would risk losing a
large load of marijuana with a street value of $53,000 to do a
favor for an unknowing acquaintance and speculated that Carrizo
Springs and San Antonio would not be part of a direct route to Fort
Worth. The trial judge found little to believe in Rosas' or
Valdez' testimony, but in our view, the government did not sustain
its burden of proving Rosas' knowledge of the conspiracy.
In rendering his decision, the trial judge relied primarily on
U.S. v. Garcia, 917 F.2d 1370 (5th Cir. 1990), where Garcia was
convicted of conspiracy with intent to distribute marijuana on
evidence that he guarded a truck knowing it contained marijuana.
Unlike this case, the Garcia court heard testimony from a
government informant saying that he overheard a conversation in
which the owner of the truck, Pacheco, told Garcia that the truck
contained marijuana. No such evidence of knowledge exists here.
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Likewise, in Garcia, there was evidence that Pacheco paid Garcia
$200 to watch the truck. The existence of some sort of agreement
between Pacheco and Garcia regarding the truck and its contents was
clearly established, and the dispute was over whether Garcia knew
the truck contained marijuana. There is no such evidence from
which we can infer an agreement between Valdez and Rosas. In fact,
Valdez denied that Rosas was a participant in any conspiracy and
that Rosas had any knowledge of the marijuana.
Based on our review of the evidence, we hold that no trier of
fact could have justifiably found beyond a reasonable doubt that
Rosas knew of the marijuana and thus participated in the
conspiracy. See also, U.S. v. Gardea Carrasco, 830 F.2d 41, 45
(5th Cir. 1987) (reversing conviction of defendant who loaded
suitcases containing marijuana onto an airplane but was not privy
to conversations concerning the conspiracy or the contents of the
suitcases); U.S. v. Jackson, 700 F.2d 181, 185-86 (5th Cir. 1983)
(reversing conviction of defendant who was present when the
conspirators were exchanging money for drugs because insufficient
evidence was presented to show defendant's presence when the
conspiracy was discussed or his knowledge of the "nature or purpose
of the meeting, or even that a large amount of money was present.
. . . ").
We agree with the district court that the evidence of Rosas'
possession of the marijuana is clearly insufficient. We also agree
that Rosas' conviction for possession could rest only upon his
participation in the conspiracy under the Pinkerton rule. A
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reversal of the conspiracy conviction causes the possession
conviction to fall. We, therefore, REVERSE and RENDER judgment of
acquittal on both the conspiracy and the substantive possession
counts.
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