United States v. Gonzalez , 236 F. App'x 962 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 21, 2007
Charles R. Fulbruge III
Clerk
No. 05-51766
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMMY GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-1911-7)
Before KING, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Convicted for conspiracy to possess with intent to distribute
cocaine, Sammy Gonzalez claims: evidence was admitted erroneously;
and the evidence was insufficient to support venue and the jury
verdict. AFFIRMED.
I.
A confidential informant (CI), who was a tractor-trailer
driver, advised Drug Enforcement Administration (DEA) Agents of a
drug-trafficking conspiracy in which he had twice obtained cocaine
*
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this opinion should not be published and is not precedent except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.
from co-conspirator Memo (in El Paso, Texas, and Phoenix, Arizona);
delivered it to Chicago, Illinois; and received a cash payment for
it. Accordingly, the Agents engaged the CI’s assistance in a
controlled delivery of cocaine at the same site as the CI’s two
earlier deliveries.
Co-conspirator Garcia arrived at the delivery site, followed
by Gonzalez. Garcia paid the CI and left with the cocaine, again
followed by Gonzalez. Shortly thereafter, DEA Agents and police,
who had been conducting surveillance of the delivery, stopped
Gonzalez’ vehicle and arrested him.
Gonzalez was charged with, inter alia, conspiracy to possess
with intent to distribute five kilograms or more of a mixture or
substance containing a detectable amount of cocaine, in violation
of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846 (conspiracy count). At
trial, the jury found him guilty of the conspiracy count, but not
of a related possession count. He was sentenced, inter alia, to
120 months’ imprisonment.
II.
A.
Gonzalez contests the admission of evidence related to his
gang affiliation. Two different standards of review apply,
depending on whether a timely objection was made.
Gonzalez objected only to the admission of pictures of his
gang-related tattoo and testimony regarding the name of a high-
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ranking gang member. The admission of this objected-to evidence is
reviewed for abuse of discretion, affirming unless its admission
affected Gonzalez’ substantial rights. E.g., United States v.
Harms, 442 F.3d 367, 377 (5th Cir. 2006), cert. denied, 2007 WL
142534 (29 May 2007). Regarding that evidence, Gonzalez did not
object, however, to other testimony establishing both: his
admitting, upon arrest, to gang affiliation; and his having a gang-
related tattoo.
Gonzalez’ remaining evidentiary challenges, including
asserting an Agent and a police Officer were not properly qualified
to testify regarding gang affiliation, are reviewed only for plain
error, because, as noted, he did not preserve the error in district
court. E.g., United States v. Thompson, 454 F.3d 459, 464 (5th
Cir.), cert. denied, 127 S. Ct. 602 (2006). Under such review,
Gonzalez must show, inter alia, a “clear” or “obvious” error. Id.The testifying Agent and Officer, one of whom Gonzalez cross-
examined regarding the now-challenged testimony, had relevant gang-
related experience.
In sum, Gonzalez fails to show admission of the contested
evidence constitutes error. See Harms, 442 F.3d at 377; United
States v. Green, 324 F.3d 375, 381 (5th Cir. 2003). Accordingly,
for each applicable standard of review, his challenges fail.
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B.
Regarding Gonzalez’ sufficiency-of-the-evidence challenge to
venue, the relevant inquiry is whether, viewing the evidence in the
light most favorable to the verdict, the Government established
venue by a preponderance of the evidence, which can be entirely
circumstantial. See United States v. Solis, 299 F.3d 420, 444-45
(5th Cir. 2002). Along that line, “venue in conspiracy cases is
proper in any district where the agreement was formed or where an
overt act in furtherance of the conspiracy was performed”. United
States v. Pomranz, 43 F.3d 156, 158-59 (5th Cir. 1995).
The evidence established the CI’s initial delivery originated
within the Western District of Texas, Memo’s having given him the
initial load of cocaine in El Paso. Particularly in the light of
the similar delivery patterns for all three loads of cocaine, the
jury could reasonably have found a conspiracy (as discussed infra
in part II.C.) existed at the time of the conduct in El Paso. See
Solis, 299 F.3d at 445; Pomranz, 43 F.3d at 158-59.
C.
Gonzalez’ having properly moved at trial for judgment of
acquittal, his sufficiency challenge to the jury verdict is
reviewed in the light most favorable to the verdict, inquiring only
whether a rational juror could find the elements of the offense
established beyond a reasonable doubt. E.g., United States v.
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Cuellar, 478 F.3d 282, 287 (5th Cir. 2007) (en banc). Such review
does not include weight or credibility of the evidence. E.g., id.For the charged conspiracy, the Government had to prove beyond
a reasonable doubt: (1) an agreement existed to violate federal
narcotics laws; (2) Gonzalez knew of its existence; and (3) he
voluntarily participated in it. E.g., United States v. Gonzales,
121 F.3d 928, 935 (5th Cir. 1997). Each element may be inferred
from circumstantial evidence. E.g., United States v. Espinoza-
Seanez, 862 F.2d 526, 537 (5th Cir. 1988). Along that line, a jury
may rely on presence, association, and “evasive and erratic
behavior”. United States v. White, 219 F.3d 442, 445 (5th Cir.
2000) (citation and quotation marks omitted).
The evidence was sufficient for a rational juror to find each
element of the offense beyond a reasonable doubt. The Government
presented adequate evidence of a drug-trafficking conspiracy
between Memo, Garcia, and Ceballos (who, inter alia, accompanied
Memo when he gave the CI the second load of cocaine in Phoenix),
the existence of which Gonzalez does not dispute. Regarding his
knowledge and participation, there was testimony establishing,
inter alia: before the controlled delivery, Gonzalez drove slowly
around the site and appeared to be conducting counter-surveillance;
Gonzalez’ cell phone reflected calls either made to, or received
from, Garcia shortly before the delivery; Gonzalez followed
Garcia’s vehicle both to, and from, the delivery site, parking
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behind it during the delivery; upon law-enforcement engaging their
emergency lights and sirens to effectuate a stop and arrest,
Gonzalez did not stop, but entered the lane of a pursuing Agent to
either slow him down or force him off the road; Gonzalez’ vehicle
contained, inter alia, a checkbook in Ceballos’ name and bags of
rubber bands resembling those used to bundle the money given to the
CI; and, upon their arrest, Gonzalez, Garcia, and Ceballos admitted
to being affiliated with the same gang.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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