United States v. Vazquez , 370 F. App'x 459 ( 2010 )

REVISED MARCH 30, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 12, 2010
No. 08-41362 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EDICA EDIT VAZQUEZ; ZONIA S VASQUEZ
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-cr-00745
Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Sisters Zonia Vasquez and Edica Vazquez1 were caught at the Laredo
border towing a trailer loaded with 124 kilograms of marijuana. They were
convicted by a jury of conspiracy to possess with intent to distribute in excess of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Because of their common last name, we refer to each defendant by her first name.
No. 08-41362
100 kilograms of marijuana, possession with intent to distribute in excess of 100
kilograms of marijuana, and importation of in excess of 100 kilograms of
marijuana. The district court sentenced Edica and Zonia on the basis of 400 to
700 kilograms of marijuana. The court relied on the assumption that on prior
trips in which Edica and Zonia crossed the border hauling a trailer, as recorded
by border cameras, that trailer contained marijuana. We AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
A. Conviction, Sentencing, and Appeal
Zonia and Edica were indicted on charges of conspiracy to possess with
intent to distribute in excess of 100 kilograms of marijuana, possession with
intent to distribute in excess of 100 kilograms of marijuana, and importation of
in excess of 100 kilograms of marijuana. Zonia and Edica stipulated that 121
kilograms of marijuana had been concealed in hollowed-out planks in the bed of
the trailer that they were towing across the border. After a joint trial, the jury
convicted both women on all counts.
The district court sentenced Edica and Zonia on the basis of 400 to 700
kilograms of marijuana, relying on the assumption that on prior trips in which
they crossed the border hauling a trailer, as recorded by border cameras, the
trailer contained marijuana. The district court sentenced Edica to 86 months of
imprisonment on each count, to be served concurrently, and five years of
supervised release. The court sentenced Zonia to 97 months on each count, to be
served concurrently, and five years of supervised release.
Edica and Zonia timely appealed as to whether: (1) the evidence was
sufficient to support convictions for conspiracy, possession with intent to
distribute marijuana, and importation; (2) the district court erred by admitting
evidence of their prior border crossings with the trailer, where there was no
proof that they transported marijuana on those prior occasions; and (3) the
district court erred by holding them responsible for marijuana estimated to have
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No. 08-41362
been smuggled during their prior crossings, under a theory of relevant conduct
and mathematical extrapolation.
B. Evidence at Trial
The evidence presented by the Government at trial established that in
May 2008, Zonia drove her Chevrolet Tahoe, that was towing a homemade
flatbed trailer, across the international bridge from Mexico to Laredo, Texas.
Edica was a passenger in the front seat, and Zonia’s daughter was a passenger
in the back. When routinely stopped at the border and questioned by a Customs
and Border Protection (CBP) officer, Zonia was stoic and explained that they had
gone to Mexico to drop off tables and chairs for a party. Zonia told the CBP
officer that the trailer belonged to a friend of hers, Pancho, who was in Nuevo
Laredo, Mexico. Edica, who was very excited and “appeared to be too friendly,”
interrupted and explained that she was getting a ride to work.
The CBP officer testified that people are usually in a bad mood when they
come across the bridge. According to the officer, he felt that “something didn’t
seem right.” He inspected the trailer and noticed that its wooden planks
appeared twice as thick as usual. The officer testified that he had seen another
trailer loaded with contraband that had a similar appearance.
Immigration and Custom Enforcement (ICE) agents further questioned
the women, and testified at trial that Zonia told them that she needed a trailer
to transport tables and chairs from the Laredo Country Club, where she worked,
to her home in Laredo, as she was planning a party for her son. Zonia said that
her former mother-in-law had introduced her over the phone to Pancho, who had
a trailer that she could borrow if she picked it up in Nuevo Laredo. After Zonia
dropped off her daughter and another person in downtown Nuevo Laredo to
shop, she picked up the trailer from Pancho, but she could not remember exactly
where. Zonia then picked up her passengers and headed back into the United
States. Pancho had instructed Zonia to leave the trailer at the H.E.B. store
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No. 08-41362
parking lot in Laredo when she was through using it. When the ICE agents told
Zonia that marijuana had been found in the trailer, she slumped her shoulders
and kept quiet for about five minutes. She then told the agents that she had
taken the trailer, loaded with tables and chairs, to Nuevo Laredo, where she had
delivered the tables and chairs to her mother-in-law’s house, and that she was
returning the empty trailer. The agents told her that they would check her story
against photographs taken by cameras at the border crossings. Zonia seemed
surprised about the cameras. She then went back to her original story, telling
the agents that she had picked up the trailer from Pancho in Nuevo Laredo and
was taking it to the United States to use to transport tables and chairs.
Edica initially told the agents that she and Zonia’s daughter had walked
from Laredo to Nuevo Laredo with an elderly aunt, whom they had dropped off
at a downtown home. As they were walking back, someone who was driving a
Tahoe and towing a trailer gave them a ride. When the agents told Edica that
drugs had been found in the trailer and falsely told her that Zonia had already
told them what had happened, Edica changed her story. Edica explained that,
earlier that day, she had talked with “someone” at her home and they had
arranged to pick up a trailer in Nuevo Laredo that was going to be loaded with
narcotics. Edica’s partner was to be paid about $6,000 for her participation, and
from that Edica was to be paid $2,000 to $3,000. They had agreed to drop off the
trailer at the H.E.B. parking lot in Laredo, and Edica had left her car at the
parking lot so she could drive to work later. Edica’s partner picked her up from
the H.E.B. parking lot, and they and Edica’s niece traveled into Mexico. Pancho,
whom Edica said she had never seen before, connected the trailer.
Over the defendants’ objections, the Government presented photographs
showing that Zonia had towed the trailer through the Border Patrol Checkpoint
located north of Laredo, Texas, on Interstate Highway 35, at least five times
between September 2007 and April 2008. On at least three of those occasions,
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Zonia had traveled from Mexico into the United States about an hour before
reaching the checkpoint. The Government also presented evidence showing that
Edica had towed the trailer with her vehicle through the checkpoint at least six
times during that period and on five of those occasions had crossed the border
about an hour before reaching the checkpoint. An ICE agent and a CBP officer
testified that there was no reason to believe that there were drugs in the trailer
on these previous trips, and that there was a good chance that the drug dogs
would have detected them if there had been. The district court instructed the
jury that this similar-act evidence could not be considered in deciding whether
the defendants had committed the charged offenses, but could be considered with
regard to the defendants’ states of mind, intent, plan, or whether the charged
acts were committed by mistake.
At trial, Zonia claimed that she did not know there was marijuana hidden
in the trailer. Zonia testified that she and her children lived in Laredo with her
sister Edica and other family members. In May 2008, she had intended to borrow
some tables and chairs from the Laredo Country Club, where she worked, for a
birthday party at her house. She testified that she had known Pancho for several
years, but she did not know his phone number. Pancho called her at work on
May 2, 2008, and Zonia arranged to borrow a trailer from him. On May 3, Zonia
and her daughter picked up Edica in downtown Laredo and drove to Nuevo
Laredo, Mexico. Zonia dropped off her daughter and Edica downtown to shop,
and then met Pancho at a Holiday Inn. Pancho hooked up the trailer, and
instructed Zonia to drop the trailer off at the H.E.B. in downtown Laredo when
she was finished using it. The trailer had one table and about five chairs on it,
and Pancho asked Zonia to deliver the table and chairs to some people at a local
park. After she made the delivery, Zonia picked up her daughter and Edica.
Zonia acknowledged that she had towed the same trailer into the United
States on prior occasions, including the week before her arrest. On that date, she
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No. 08-41362
and Edica had taken the trailer to haul “stuff” from a flea market in San
Antionio. Pancho was at the flea market and needed the trailer, so they left their
stuff with him.
II. DISCUSSION
A. Sufficiency of the Evidence
Both Edica and Zonia challenge the sufficiency of the evidence to support
their convictions on all three counts. They preserved this issue by moving for
judgments of acquittal at the close of the Government’s case-in-chief and at the
close of all evidence. Accordingly, review is de novo. United States v. Percel, 553
F.3d 903, 910 (5th Cir. 2008).
This court will uphold the jury’s verdict if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt. Id. at 910. This court “view[s] the evidence in the
light most favorable to the verdict and draw[s] all reasonable inferences from the
evidence to support the verdict.” Id. (quotation marks and citation omitted). This
court does “not weigh evidence or assess the credibility of witnesses, and the jury
is free to choose among reasonable constructions of the evidence.” United States
v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). “Nonetheless, the
government must do more than show that the defendants ‘could have been
guilty.’” Id. (citation omitted). Reversal is required “if the evidence tends to give
equal or nearly equal circumstantial support to guilt and to innocence.” Id.
1. Evidence of Agreement and Participation
Edica first argues that the evidence was insufficient to support her
conspiracy conviction because it failed to show that she agreed with Zonia to
possess and transport a controlled substance or that she “participated” in the
conspiracy. She contends that her mere presence in Zonia’s truck while Pancho
hooked the trailer to it was insufficient to prove either an agreement or her
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No. 08-41362
participation. She asserts that, to the extent she stated that she was going to be
paid $2,000 to $3,000, the question remains, “what for?”
To support a conviction for conspiracy to possess with intent to distribute
a controlled substance, the Government must prove an agreement between two
or more people to violate narcotics laws, the defendant’s knowledge of the
agreement, and the defendant’s voluntary participation in the conspiracy. United
States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008). Although Edica asserts
that the Government did not prove all three of these elements, she makes no
argument about the second element; she challenges only the sufficiency of the
evidence to show an agreement and her voluntary participation. See United
States v. Stalnaker, 571 F.3d 428, 433 (5th Cir. 2009) (“Where a defendant
asserts that the evidence was insufficient to convict him but fails to make any
argument whatsoever to support this contention, the issue is considered
abandoned.”) (internal quotation marks and citation omitted).
The agreement element was proved by Edica’s admission to the ICE agents
that she and another person agreed to pick up a trailer in Nuevo Laredo that
was going to be loaded with drugs. The evidence showed that Edica participated
in the conspiracy by traveling to Nuevo Laredo and accompanying Zonia when
the trailer loaded with drugs was hooked to Zonia’s vehicle. To the extent this
shows that Edica was merely present, there was other circumstantial evidence
that supports an inference of her participation. See Percel, 553 F.3d at 910(“Though mere presence at a crime scene is insufficient to support an inference
of participation in a conspiracy, the jury may consider presence and association,
along with other evidence, in finding conspiratorial activity by the defendant.”).
Edica admitted that she was going to paid a portion of her coconspirator’s
payment for picking up the trailer. It is implausible that Edica would be paid
between $2,000 and $3,000 if she was not participating in the conspiracy.
Additionally, Edica told the agents that she had left her car at the H.E.B.
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No. 08-41362
parking lot in Laredo, where she and her coconspirator were to leave the trailer.
A reasonable jury could conclude from this evidence that both the agreement and
participation elements of Edica’s conspiracy conviction were established beyond
a reasonable doubt. Jackson v Virginia, 443 U.S. 307, 319 (1979).
2. Evidence of Possession
Edica also argues that the evidence was insufficient to support her
conviction for possession with intent to distribute marijuana conviction. She
claims that there was no evidence that she possessed or exercised control over
the marijuana, the trailer, or the vehicle towing the trailer, or that she acted
through Zonia.
To support this conviction, the Government had to prove that Edica
knowingly possessed a controlled substance with intent to distribute it.
Patino-Prado, 533 F.3d at 309. “Possession may be actual or constructive, may
be joint among several defendants, and may be proven by direct or
circumstantial evidence.” Ramos-Cardenas, 524 F.3d at 605. “Constructive
possession may be shown by ownership, dominion or control over the contraband
itself, or dominion or control over the premises or the vehicle in which the
contraband was concealed.” United States v. Salinas-Salinas, 555 F.2d 470, 473
(5th Cir. 1977). “Existence of a ‘working relationship’ between [the defendants]
would support an inference of such dominion or control.” United States v.
Galvan, 693 F.2d 417, 421 (5th Cir. 1982).
The evidence showed that Zonia, the owner of the vehicle towing the
trailer and the one who picked up the trailer from Pancho, had constructive
possession of the drugs in the trailer. The evidence of the conspiracy between
Edica and Zonia to possess with intent to distribute marijuana, discussed above,
and Edica’s presence while the trailer was hooked up show the existence of a
“working relationship” with Zonia, sufficient to support an inference that Edica
exercised joint dominion or control over the drugs. United States v. Moreno, 649
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No. 08-41362
F.2d 309, 313 (5th Cir. 1981). A reasonable jury could conclude from this
evidence that the possession element of this offense was established beyond a
reasonable doubt. Jackson, 443 U.S. at 319.
3. Evidence of Importation
Edica argues that because there was no evidence of her participation in
the conspiracy and no evidence of her possession of the marijuana, the evidence
was insufficient to support her importation conviction. To prove importation, the
Government had to establish that: “(1) the defendant played a role in bringing
a quantity of a controlled substance into the United States from outside of the
country; (2) the defendant knew the substance was controlled; and (3) the
defendant knew the substance would enter the United States.” United States v.
Moreno, 185 F.3d 465, 471 (5th Cir. 1999); see 21 U.S.C. § 952(a). As addressed
above, the evidence shows both her participation in the conspiracy and
possession of the marijuana. This same evidence shows that Edica played a role
in bringing the marijuana into the United States.
4. Evidence of Knowledge
Zonia asserts that the evidence was insufficient to prove her knowledge,
an element of each of her offenses of conviction. See Patino-Prado, 533 F.3d at
309 (conspiracy and possession with intent to distribute); Moreno, 185 F.3d at
471 (importation). However, the object of the knowledge differs for each offense.
The conspiracy offense required proof of the defendant’s knowledge of the
agreement to violate narcotics laws. Patino-Prado, 533 F.3d at 309. The
possession offense required proof that the defendant knowingly possessed a
controlled substance, while the importation offense required that the defendant
knew that the substance she was importing was a controlled substance. United
States v. Igbinosun, 528 F.3d 387, 392-93 (5th Cir.), cert. denied, 129 S. Ct. 725(2008). Zonia’s arguments challenge only the sufficiency of the evidence to show
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No. 08-41362
that she knew of the marijuana hidden in the trailer. See Stalnaker, 571 F.3d at
433 (holding that inadequately briefed sufficiency claims are waived).
Ordinarily, knowledge of drugs can be inferred from the defendant’s
control over the vehicle in which the drugs are found; “however, when the drugs
are hidden, control over the vehicle alone is not sufficient to prove knowledge.”
United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008). In such cases, “this
court requires other circumstantial evidence that is suspicious in nature or
demonstrates guilty knowledge.” Id. “This is so because it is at least a fair
assumption that a third party might have concealed the controlled substances
in the vehicle with the intent to use the unwitting defendant as the carrier in a
smuggling enterprise.” United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th
Cir. 1999). This also applies to contraband hidden in a trailer. United States v.
Garcia-Flores, 246 F.3d 451, 454 (5th Cir. 2001). Such other evidence “may
include nervousness, conflicting statements to law enforcement officials, and an
implausible story.” United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999).
Inconsistent statements to border patrol officers regarding the defendant’s
method of travel and purpose of the trip “are well-recognized circumstantial
evidence of guilty knowledge.” Mendoza, 522 F.3d at 489-90.
Zonia’s inconsistent statements given to the CBP officers and ICE agents
about her use of the trailer and the purpose of her trip were evidence of her
guilty knowledge. Id. She argues that she testified that the officers and agents
either misunderstood her or lied about what she said. Whether to believe the law
enforcement officers’ testimony over Zonia’s testimony was a question for the
jury. Ramos-Cardenas, 524 F.3d at 605. Zonia further argues that her testimony
that Pancho asked her to use the drug-filled trailer to deliver a table and chairs
to unnamed people in a park was plausible. Again, this was a question for the
jury. Id. The jury could also infer guilty knowledge based on the quantity and
value of the drugs, over 121 kilograms of marijuana valued between $15,000 and
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No. 08-41362
$39,000, which is unlikely to have been entrusted to an unsuspecting driver.
Garcia-Flores, 246 F.3d at 455. A reasonable jury could conclude from all of this
evidence that the knowledge element of Zonia’s possession conviction was
established beyond a reasonable doubt. Jackson, 443 U.S. at 319.
5. Reliance on Hearsay Evidence
Zonia also notes that the Government tried to make its case through
hearsay evidence of Edica’s statements to the CBP officers that were too vague
to rise to the level of proof beyond a reasonable doubt. However, the district
court instructed the jury not to consider Edica’s statements in any way with
respect to Zonia. Juries are presumed to follow their instructions. Patino-Prado,
533 F.3d at 313. Moreover, the Government did not refer to this evidence in its
closing arguments regarding Zonia’s guilt.
Zonia argues that Bruton v. United States, 391 U.S. 123 (1968), “and its
progeny place little or no value on this type of testimony because it is testimony
that remains untested by cross-examination.” She contends that the admission
of this unobjected-to evidence of Edica’s statements should be reviewed for plain
error to determine whether it had a significant impact on the finding of guilt.
However, she makes no further argument regarding the admission of these
statements. An appellant’s brief must contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.” FED. R. APP. P. 28(a)(9)(A). Although she cites
Bruton, Zonia does not provide any reasons for her contention that the use of
Edica’s statements violated Bruton or that the use of those statements had a
significant impact on the finding of guilt. Thus, she has waived any Bruton-
violation argument by failing to adequately brief it. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993) (issues not briefed adequately are waived); see
Stalnaker, 571 F.3d 428, 433 (applying waiver rule in direct criminal appeal).
B. Evidence of Prior Crossings with a Trailer
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No. 08-41362
Edica and Zonia next argue that the district court erred by admitting
evidence of their prior border and checkpoint crossings with the trailer because
there was no proof that they transported marijuana on those prior occasions. The
Government avers that it proved that the defendants hauled the trailer and that
it was not required to prove that the defendants transported marijuana on these
prior occasions.
As required by Federal Rule of Evidence 406(b), the Government notified
the defendants before trial of its intent to offer this evidence. Both defendants
filed motions in limine and objected at trial to the use of this evidence. The
district court overruled the defendants’ objections, finding that, under Federal
Rule of Evidence 404(b), the prior acts did not have to be bad acts and the
evidence was admissible to show knowledge or lack of mistake.
Relevant evidence “is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by [the Federal Rules of
Evidence], or by other rules prescribed by the Supreme Court pursuant to
statutory authority.” FED. R. EVID. 402. Rule 404(b) provides that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of the
person in order to show action in conformity therewith.” FED. R. EVID. 404(b).
However, such evidence may be still admissible for “other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. “The purpose of Rule 404(b) is to ‘guard
against the inherent danger that the admission of ‘other acts’ evidence might
lead a jury to convict a defendant not of the charged offense, but instead of an
extrinsic offense.’” United States v. Stephens, 571 F.3d 401, 409 (5th Cir. 2009)
(quoting United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007)).
This court reviews a decision to admit Rule 404(b) evidence under an
abuse of discretion standard. United States v. McCall, 553 F.3d 821, 827 (5th
Cir. 2008). Such review is necessarily heightened in a criminal case, however,
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No. 08-41362
which demands that evidence be strictly relevant to the particular offense
charged. Id. Nevertheless, erroneous admissions under Rule 404(b) are subject
to a harmless error inquiry if abuse is found. Id. An error is harmless when it
does not affect the substantial rights of the defendant. Id.This court applies the two-step test outlined in United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978) (en banc), to determine whether the district
court erred in admitting extrinsic evidence.2 McCall, 553 F.3d at 827. “First, it
must be determined that the extrinsic offense evidence is relevant to an issue
other than the defendant’s character. Second, the evidence must possess
probative value that is not substantially outweighed by its undue prejudice and
must meet the other requirements of [R]ule 403.” Beechum, 582 F.2d at 911.
1. Relevance of the Extrinsic Evidence
Evidence is relevant “if it makes the existence of any fact at issue more or
less probable than it would be without the evidence.” United States v. Williams,
900 F.2d 823, 826 (5th Cir. 1990). But whether extrinsic evidence is relevant
under Rule 404(b) “is a function of its similarity to the charged offense.”
Beechum, 582 F.2d at 911 (quotation marks and citation omitted). “[S]imilarity,
and hence relevancy, is determined by the inquiry or issue to which the extrinsic
offense is addressed.” Id. For example, if the issue is intent, then the extrinsic
evidence of a prior act is relevant if it required the defendant have the same
state of mind or intent as the charged offense; if the issue is knowledge then
extrinsic act evidence must “be of such a nature that its commission involved the
same knowledge required for the offense charged.” Id. at 911, 912 n.15.
2
“Rule 404(b) is only implicated when the offered evidence is extrinsic; evidence
intrinsic to the charged offense does not implicate the rule.” United States v. Crawley, 533 F.3d
349, 353-54 (5th Cir. 2008). “‘Other acts’ evidence is intrinsic when it is inextricably
intertwined with the charged offense, when both acts are part of the same criminal episode,
or when the ‘other act’ was a necessary preliminary step toward the completion of the charged
crime.” Id. at 354. None of the parties argue that the evidence at issue was intrinsic.
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“[S]imilar act evidence is relevant only if the jury can reasonably conclude
that the act occurred and that the defendant was the actor.” Huddleston v.
United States, 485 U.S. 981, 689 (1988) (citing Beechum, 582 F.2d at 911). This
court has held that evidence of a prior drug smuggling attempt using the
defendant’s trailer was not admissible under Rule 404(b) to show the defendant’s
knowledge of drugs hidden in his trailer, where there was no evidence that the
defendant committed the prior smuggling offense. United States v. Gonzalez-
Lira, 936 F.2d 184, 190 (5th Cir. 1991); but see id. at 193 (evidence of defendant’s
trailer’s involvement in the prior smuggling operation should be admissible
under Rule 406(b) to demonstrate defendant’s “knowledge and absence of
mistake”) (Garwood, J., concurring).
Because the prior act must be similar to that at issue in the charged
offense, both the Supreme Court and this court have required that the prior
offense be a bad act in order to be relevant to prove criminal intent. For example,
in Huddleston v. United States, the Supreme Court held that at the defendant’s
trial for selling stolen videotapes, where the contested issue was whether the
defendant knew that the videotapes were stolen, the defendant’s prior sales of
televisions that he likely knew were stolen was relevant only because the
Government presented evidence showing that the televisions had in fact been
stolen. 485 U.S. at 689, 691. In Beechum, this court held that evidence that the
defendant had, for ten months, wrongfully possessed credit cards belonging to
other people was relevant to whether the defendant intended to turn in a silver
dollar stolen that day from the mail. 582 F.2d at 916. The court reasoned that
the wrongful possession of the credit cards required the same intent, or state of
mind, as the wrongful possession of the silver dollar. Id.However, Rule 404(b) covers “other crimes, wrongs, or acts,” and this court
stated in United States v. Williams that “‘[o]ther act’ extrinsic evidence need not
be evidence of other wrongful acts but may be evidence of any extrinsic acts
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No. 08-41362
relevant to the criminal act charged.” Williams, 900 F.2d at 826 n.2. In Williams,
a package of cocaine bearing a fictitious return address was delivered by mail to
an address in New Orleans on March 7. Id. at 825. The defendant then arrived
at that address to recover the package. Id. The defendant was arrested and
indicted with drug trafficking, although he insisted that he expected the package
to contain a shipment of jogging suits for resale. Id. At trial, the Government
had sought to introduce evidence of nineteen prior, similar packages that had
been mailed to various addresses in New Orleans. Id. at 825. Relying on
Huddleston, the district court granted the defendant’s motion to exclude the
evidence regarding the other mailings on the basis that the presence of cocaine
in the prior mailings was not supported by sufficient evidence. Id. at 826.
This court applied the Beechum analysis and concluded that extrinsic
evidence of the nineteen prior packages was admissible under Rule 404(b). Id.
at 825-27. On the relevance prong, the court reasoned that the evidence of the
prior mailings would be relevant to the defendant’s knowledge of the contents
of the March 7 package and intent to perpetrate the crime if: “1) there existed
a pattern of mailings similar to the March 7 mailing, and 2) the defendant was
involved in those mailings.” Id. at 826. “If a jury could reasonably find those
conditional facts by a preponderance of the evidence, then the extrinsic evidence
of the prior mailings would contribute to a showing of knowledge and intent
through demonstration of a modus operandi.” Id. The court held that the district
court erred by requiring that, to establish the relevancy of extrinsic evidence, the
Government had to offer evidence of the presence of cocaine in the prior
mailings. Id. at 826. The court explained that:
Even if the prior mailings did not contain cocaine, they may still be
relevant to show modus operandi. They might, for example, have
been used to test whether packages with fictitious return addresses
would be delivered without incident. Because we find that the
presence of cocaine was not a fact upon which relevancy of the
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No. 08-41362
extrinsic evidence is conditioned, and because we find sufficient
evidence to support jury findings that there existed a pattern of
mailings similar to the March 7 mailing and that defendant was
involved in those prior mailings,3 we find that the relevancy prong
of the Beechum test is met in this case.
Id. Under the abuse of discretion standard, the court reversed the district court’s
exclusion of the evidence of the prior mailings of similar packages. Id. at 827.
Under the circumstances of the instant case, Williams controls. As Edica
and Zonia argue, here there was no evidence presented at trial that any of their
prior border-crossing trips involved marijuana and the ICE agent and CBP
officer testified that they had no reason to believe that the trailer was loaded
with drugs on prior occasions. But as the Government argues, it presented
sufficient proof for a jury to find by a preponderance of the evidence that both
Edica and Zonia had towed the trailer across the border and through the
checkpoint, and “the pertinent conditional facts in this case do not include
whether the [trailer] contained [marijuana].” Id. The extrinsic evidence of the
defendants’ prior travel with the trailer—regardless of whether it was loaded
with marijuana on each occasion—contributed “to a showing of knowledge and
intent through demonstration of a modus operandi.” Id. The modus operandi
evidence was relevant because it tended to show that Edica and Zonia lied to the
ICE agents about their relationship with Pancho, that this was not an isolated
incident in which they borrowed the trailer from Pancho, and that Edica was not
“merely present” but was a regular and willing participant in hauling the trailer.
2. Probative Value versus Prejudicial Effect
We proceed to the second prong of the Beechum test: whether the probative
value of the extrinsic evidence substantially outweighs its potential for
prejudice. Probative value “is not an absolute; it must be determined with regard
to the extent to which the defendant’s unlawful intent is established by other
evidence, stipulation, or inference. It is the incremental probity of the evidence
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No. 08-41362
that is to be balanced against its potential for undue prejudice.” Beechum, 582
F.2d at 914. Thus, probative value is determined in reference to the “necessity”
for the extrinsic evidence. Id. at n.18.
The district court did not abuse its discretion in finding that the probative
value of the evidence of Edica and Zonia’s prior crossings with the trailer were
not substantially outweighed by its possible prejudicial effects. The Government
alleged and was required to prove beyond a reasonable doubt that Edica and
Zonia were intentional participants in the trafficking conspiracy, and that they
knowingly possessed with intent to distribute and imported the marijuana. By
pleading not guilty, Edica and Zonia both placed their intent at issue. United
States v. Duffaut, 314 F.3d 203, 209 (5th Cir. 2002). Under Beechum, probative
value is augmented if there is slight direct evidence. 582 F.2d at 914; see
Williams, 900 F.2d at 827 (“The very limited evidence the government could thus
adduce on the issues of knowledge and intent increases the incremental probity
of the extrinsic evidence.”) Here, the probative value of the extrinsic offense
evidence was relatively great because there was slight direct evidence. Edica’s
specific defense was that she was merely present; Zonia’s was that she did not
know the marijuana was in the trailer. Without admission of the extrinsic
evidence in the instant case, the Government’s evidence would be limited to a
showing that Edica and Zonia towed a borrowed trailer across the border with
marijuana hidden in it, and their explanations regarding borrowing the trailer
were confused and contradictory. Other than the testimony of the CBP officers
and ICE agents regarding their contradictory stories, the admitted evidence shed
little light on Edica and Zonia’s intent.
Additionally, the district court properly instructed the jury that it could
not use evidence of the prior crossings in deciding if the defendants were guilty
of the charged offenses, and could consider that evidence only for the limited
purposes of determining whether the defendants “had the state of mind or intent
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No. 08-41362
to commit the crime charged in the indictment, whether the defendant acted
according to a plan or in preparation for commission of a crime, or whether the
defendant committed the acts for which he or she is on trial by accident or
mistake.” See, e.g., United States v. Peterson, 244 F.3d 385, 392 (5th Cir. 2001)
(holding that a limiting instruction given at the conclusion of trial mitigated
prejudice from 404(b) evidence).
We therefore hold that the district court did not abuse its discretion by
admitting evidence of Edica and Zonia’s prior border and checkpoint crossings
towing the trailer.
C. Sentencing Enhancement for Drugs Estimated to Have Been Smuggled
on Prior Crossings
Edica and Zonia argue that the district court erred in sentencing them
based on an amount of marijuana not proven in court and arrived at on the basis
of pure speculation. The Government asserts that the court’s conclusion that
Zonia and Edica were part of an ongoing marijuana trafficking operation is
plausible; prior trafficking by them was more likely than not to have occurred.
This court reviews the district court’s sentencing decisions for
reasonableness under an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 50 (2007). The “district court’s interpretation or application of the
Sentencing Guidelines is reviewed de novo, and its factual findings . . . are
reviewed for clear error. There is no clear error if the district court’s finding is
plausible in light of the record as a whole.” United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008) (internal quotation marks and citation
omitted). Remand is required if such an error occurred “unless the proponent of
the sentence establishes that the error ‘did not affect the district court’s selection
of the sentence imposed.’” United States v. Delgado-Martinez, 564 F.3d 750, 753
(5th Cir. 2009).
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No. 08-41362
This court has “repeatedly held that a district court may find the facts
relevant to a defendant’s Guidelines calculation by a preponderance of the
evidence,” and has rejected arguments that relevant conduct should be
determined under a standard greater than a preponderance of the evidence.
United States v. Scroggins, 485 F.3d 824, 834 (5th Cir. 2007). “The district
court’s calculation of the quantity of drugs involved in an offense is a factual
determination.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
(quoting United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)).
The Pre-Sentence Report noted that the “offense conduct” involved 121.24
kilograms of marijuana seized from the trailer being towed by Zonia’s vehicle.
This would have resulted in a base offense level of 26, because the offense
involved at least 100 kilograms but less than 400 kilograms of marijuana.
U.S.S.G. § 2D1.1(c)(7).3 However, the probation officer determined that the
defendants should be held responsible for a total of 1,561.27 kilograms based on
both the offense conduct and their relevant conduct, resulting in a base offense
level of 32. The probation officer relied on the evidence that Zonia drove her
vehicle, towing the empty trailer, through the Border Patrol Checkpoint on
Interstate Highway 35, on six separate dates between September 2007 and April
2008 and then drove her vehicle without the trailer back to Laredo on the same
or following dates. Similarly, the border cameras recorded Edica’s vehicle,
towing the empty trailer, passing through the Checkpoint on six separate dates
and then returning to Laredo without the trailer on the same or the following
dates. The probation officer concluded:
Since the modus operandi was similar to the instant offense, the
defendants made twelve successful trips north of Laredo, Texas, and on
each trip they delivered 120 kilograms of marijuana. Therefore, they are
held responsible for an additional 1,440 kilograms of marijuana for a total
of 1,561.24 kilograms of marijuana.
3
The 2007 edition of the Sentencing Guidelines was used in this case.
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No. 08-41362
With a total offense level of 32, Edica’s advisory guidelines range was 121 to 155
months. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. With a total offense level
of 34, Zonia’s advisory range was 151 to 188 months. Id.
The district court found the amount of marijuana attributed by the Pre-
Sentence Report troubling. The court stated on the record that defendants
“clearly ha[d] access to some group or organization that’s moving a lot a
marijuana” and found that “the strong preponderance of the evidence—which
simply means it’s more likely true than not . . . [was] that [the defendants] have
been moving marijuana [ ] as a joint operation, for a good while.” However, the
court declined to “make the quantum leap that each trip was a smuggling trip
of this amount of marijuana.” On that basis, the court placed the defendants’
base offense level at 28, “somewhere more than 400 kilos, but less than 700.”
The district court then calculated that this base offense level gave Zonia
a total offense level of 30. Because she had no criminal history points, this
resulted in a guidelines range of 97 to 121 months. See U.S.S.G. Ch. 5, Pt. A,
Sentencing Table. The court sentenced Zonia at the low end of the resulting
range to 97 months. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. Edica’s total
offense level was 28. Id. She had no criminal history points, resulting in a
guidelines range of 78-97 months. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table.
The court sentenced her to 86 months.
The base offense level for unlawful importing and possession of drugs is
determined by the quantity of drugs involved. See § 2D1.1(a)(3). In determining
a defendant’s base offense level, the district court may consider drug quantities
not specified in the count of conviction if they are part of the defendant’s
relevant conduct. § 2D1.1 cmt. n.12. Relevant conduct includes all acts and
omissions “that were part of the same course of conduct or common scheme or
plan as the offense of conviction.” § 1B1.3(a)(2). When an amount of drugs seized
“does not reflect the scale of the offense, the court shall approximate the
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No. 08-41362
quantity of the controlled substance.” § 2D1.1 cmt. n.12. Drug estimates may be
calculated based on extrapolating from “any information that has sufficient
indicia of reliability to support its probable accuracy . . . even hearsay.” United
States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006).
In this case, the Government presented photographic evidence that Edica
and Zonia together had previously transported the same trailer via the same
route on numerous prior occasions, using either Edica or Zonia’s vehicle. The
district court also possessed the following information at the time of sentencing:
Edica and Zonia had both been found guilty by a jury, implicitly rejecting Zonia’s
contradictory testimony that she did not know the marijuana was concealed in
the trailer; border agents discovered that all ten of the planks of the homemade
trailer had been carefully hollowed out and stuffed full with 120 kilogram
bundles of marijuana; after first telling the agents a lie, Edica eventually
admitted that she had agreed to accompany the trailer into the United States,
that she knew it contained narcotics, and that she was going to be paid some
$2,000 to $3,000; and Zonia had told five different versions of the events of that
day and provided various accounts of her relationship with Pancho.
Given the totality of the record in this case, including the persuasive
evidence of a modus operandi, the district court’s finding that Zonia and Edica
were part of an ongoing marijuana trafficking operation is “plausible in light of
the record as a whole,” and we therefore affirm. Cisneros-Gutierrez, 517 F.3d at
764.
III. CONCLUSION
For the reasons discussed above, we AFFIRM the convictions and the
sentences for both defendants.
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