United States v. Ziechidias Caleb ( 2020 )


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  •      Case: 18-50824      Document: 00515293507         Page: 1    Date Filed: 01/31/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 18-50824                       January 31, 2020
    Summary Calendar
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    ZIECHIDIAS CALEB,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 3:08-CR-2260-1
    Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
    PER CURIAM: *
    Ziechidias Caleb appeals his conviction of possession with intent to
    distribute marijuana. He argues that the evidence was insufficient to prove
    that he possessed the marijuana or knew of its presence and that there was
    insufficient evidence to support venue in the Western District of Texas.
    Regarding the sufficiency of the evidence as to the elements of knowledge
    and possession, we consider whether, viewing the evidence and all reasonable
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-50824     Document: 00515293507       Page: 2   Date Filed: 01/31/2020
    No. 18-50824
    inferences in the light most favorable to the verdict, any rational trier of fact
    could have found the essential elements of the crime beyond a reasonable
    doubt. See United States v. Vargas-Ocampo, 
    747 F.3d 299
    , 303 (5th Cir. 2014)
    (en banc). The trial evidence established that a canine at the Sierra Blanca
    checkpoint in the Western District of Texas alerted to a suitcase in the luggage
    compartment of a Greyhound bus, and the testimony of two border patrol
    agents and the bus driver indicated that Caleb’s name was on a Greyhound tag
    attached to the suitcase.
    The border patrol agents testified that one of the agents attempted to
    locate Caleb aboard the bus first by announcing his name and then by
    displaying the suitcase but that Caleb did not respond during either attempt.
    The agents testified that after Caleb was located through a row-by-row
    inspection of each passenger’s bus ticket, Caleb stated that the suitcase
    “look[ed] like” it was his suitcase. Caleb’s failure to come forward when his
    name was announced and the suitcase was displayed presented sufficient
    circumstantial evidence of consciousness of guilt that the suitcase contained
    marijuana and belonged to him. See United States v. Lopez-Monzon, 
    850 F.3d 202
    , 206-07 (5th Cir. 2017); United States v. Davis, 
    993 F.2d 62
    , 66 (5th Cir.
    1993). While Caleb argues that the bus driver was more credible in testifying
    that the agents only performed a row-by-row search for Caleb and did not
    announce his name or display the suitcase, it is within the sole province of the
    jury to evaluate the credibility of witnesses and to choose among reasonable
    constructions of the evidence. United States v. Velasquez, 
    881 F.3d 314
    , 328
    (5th Cir.), cert. denied, 
    139 S. Ct. 138
    (2018).
    Furthermore, possession of a controlled substance may be proven by
    either direct or circumstantial evidence, may be actual or constructive, and
    may be joint with others. United States v. Ramos-Cardenas, 
    524 F.3d 600
    , 605
    2
    Case: 18-50824    Document: 00515293507     Page: 3   Date Filed: 01/31/2020
    No. 18-50824
    (5th Cir. 2008). The evidence that the Greyhound tag that was attached to the
    suitcase contained Caleb’s name and that Caleb stated the suitcase “look[ed]
    like” his suitcase presented a sufficient basis for a rational juror to conclude
    beyond a reasonable doubt that the suitcase was Caleb’s and that he had
    control over the suitcase and constructively possessed it. See United States v.
    Fells, 
    78 F.3d 168
    , 170-71 (5th Cir. 1996); 
    Davis, 993 F.2d at 66
    . The defense’s
    theory that someone other than Caleb may have been responsible for the
    suitcase also was undercut by evidence that the suitcase was checked as excess
    baggage by a passenger who would remain on the same bus as the suitcase,
    the excess-baggage fee for the suitcase was paid for shortly after Caleb
    purchased his bus ticket, and the suitcase and Caleb both had the same
    departure city, Indio, California, and the same final destination, Greenville,
    South Carolina. Viewing the evidence and all reasonable inferences in the
    light most favorable to the verdict, a rational juror could have found beyond a
    reasonable doubt the elements of knowledge and possession. See 
    Fells, 78 F.3d at 170-71
    ; 
    Davis, 993 F.2d at 66
    .
    Regarding venue, Caleb argues that the evidence was insufficient to
    prove that he possessed the marijuana in the Western District of Texas because
    Greyhound retained the care, custody, and control of the suitcase during the
    bus trip after it was checked as luggage in California. The relevant question
    on de novo review is whether, after considering the evidence in the light most
    favorable to the verdict, “a rational jury could conclude that the government
    established venue by a preponderance of the evidence.”        United States v.
    Romans, 
    823 F.3d 299
    , 309 (5th Cir. 2016) (internal quotation marks and
    citation omitted).
    Assuming that Caleb’s appellate challenge to venue has not been waived,
    there was sufficient evidence to prove by a preponderance of the evidence that
    3
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    No. 18-50824
    Caleb had constructive possession of the suitcase and marijuana while the bus
    traveled through the Western District of Texas, as the Greyhound tag on the
    suitcase showed that the suitcase belonged to Caleb. See 
    Fells, 78 F.3d at 169
    -
    71; United States v. Catano, 
    553 F.2d 497
    , 500 n.3 (5th Cir. 1977).
    AFFIRMED.
    4
    

Document Info

Docket Number: 18-50824

Filed Date: 1/31/2020

Precedential Status: Non-Precedential

Modified Date: 1/31/2020