United States v. Ramirez ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40860
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
MODESTO RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-98-CR-620-3
October 31, 2000
Before REAVLEY, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
Modesto Ramirez appeals his conviction on one count of
conspiracy to possess in excess of 1000 kilograms of marijuana
with intent to distribute in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A), and on one count of possession with
intent to distribute 416 pounds of marijuana in violation of 21
U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2.
Ramirez argues that the evidence was insufficient to support his
conviction on either count. We disagree and AFFIRM his
*
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this opinion should not be published and is not precedent except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.
conviction.
This Court reviews a claim of insufficient evidence to
determine whether a rational trier of fact could have found that
the evidence proved the essential elements of the crime beyond a
reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62
S.Ct. 457 (1942); United States v. Ramirez, 145 F.3d 345, 350
(5th Cir. 1998). The evidence, both direct and circumstantial,
and all inferences reasonably drawn from it, is viewed in the
light most favorable to the jury’s verdict. United States v.
Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).
To prove a drug conspiracy, the Government must establish
“1) the existence of an agreement between two or more persons to
violate federal narcotics laws; 2) the defendant’s knowledge of
the agreement; and 3) the defendant’s voluntary participation in
the agreement.” United States v. Gonzales, 79 F.3d 413, 423 (5th
Cir. 1996). The Government produced ample evidence, through the
testimony of Osvaldo Serrano Martinez and Georgi Kirilov, of a
conspiracy to distribute illegal narcotics. Each testified that
they had transported drugs for Roberto Ramirez and Frank
Hernandez, two charged conspirators. Martinez further testified
to conversations regarding drug shipments that he overheard while
working construction at the home of charged conspirator Jose
Ramirez.
Mere presence or association with conspirators alone will
not support an inference of participation in the conspiracy,
2
United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992), there
must be some further evidence from which the jury could infer the
defendant’s knowledge and participation. Id. at 748. In this
case, Esmeraldo Guerra testified that Ramirez, during a
conversation with other truck drivers following the arrest of
Georgi Kirilov, had stated that “they had set up Georgi . . .
[and] something else had gone through.” The government then
called Agent Butler to impeach Guerra’s testimony that the
remarks were merely idle conversation, or gossip, between
drivers. Regardless of the context in which the statements were
made, they are consistent with the government’s theory at trial
that the conspirators would “set up” an individual transporting a
relatively small load of marijuana, so a larger load could pass
through undetected. It would not have been unreasonable for the
jury to infer that the statements described by Guerra evinced
Ramirez’s involvement in and knowledge of the conspiracy.
Count Three of the indictment charged that Jose and Modesto
Ramirez, “aiding and abetting each other,” possessed with intent
to distribute 416 pounds of marijuana. On September 14, 1993,
outside the home of Juan Gerardo Sanchez, police seized a
tractor-trailer containing seven duffel bags filled with
marijuana. Sanchez had been hired to drive the trailer to
California. The government presented significant circumstantial
evidence placing Modesto at the scene when the marijuana was
loaded into the trailer. First, Modesto had delivered the
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trailer to Sanchez’s home. After which, a witness reported
seeing several men in a white Cadillac and a white El Camino
loading something into the trailer. A later government witness
testified to seeing Modesto driving a white El Camino on several
occasions. Modesto’s brother-in-law, Valentine Espinoza, owned a
white Cadillac. Espinoza’s wife, Modesto’s sister, testified
that on the night in question Valentine and Modesto were supposed
to be together. Modesto also turned in a false log book showing
that he was supposedly between Eloy, Arizona and Buckeye, Arizona
on the night the loading took place. Fuel records, however,
showed that he was in fact in Laredo, Texas. This false
assertion is probative of Modesto’s guilty knowledge. See United
States v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984) (stating that
“[f]alse exculpatory statements may be used . . . as substantive
evidence tending to prove guilt”). The evidence is sufficient to
show Modesto’s constructive possession of the marijuana, see
United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998), and
the large quantity of marijuana involved in this case is
sufficient to establish the intent to distribute. United States
v. Sanchez, 961 F.2d 1169, 1176 (5th Cir. 1992). We, therefore,
AFFIRM the conviction in its entirety.1
1
Believing the evidence is insufficient to support Ramirez’s
conspiracy conviction, Judge Dennis would reverse the conviction
under Count 2 of the indictment. As to the substantive count,
Judge Dennis joins the opinion of the Court.
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