United States v. Diaz

Case: 20-40339 Document: 00515824294 Page: 1 Date Filed: 04/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 16, 2021
No. 20-40339 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Heriberto Diaz,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1088-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
A jury convicted Heriberto Diaz of conspiring to possess with intent
to distribute 100 kilograms or more of marijuana. Although he has already
been released from prison, Diaz’s appeal is not moot because he challenges
his conviction, which carries collateral consequences. See Spencer v. Kemma,
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-40339
523 U.S. 1, 7–8 (1998). Diaz argues that the trial evidence was insufficient to
convict him of the charged offense. He also argues that his due process rights
were violated because the prosecution lost or destroyed evidence.
The sufficiency challenge fails. According to from Diaz’s co-
conspirator, Diaz—rather than merely being present during the offense or
associating with those involved—originated a plan to steal marijuana for later
distribution, joined in an agreement to execute that plan, and participated in
the agreement. See Terrell, 700 F.3d at 760; United States v. Patino-Prado, 533
F.3d 304, 309 (5th Cir. 2008). That testimony alone was sufficient to allow
the jury to find Diaz guilty. See United States v. Rasco, 123 F.3d 222, 229 (5th
Cir. 1997); United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
Diaz attacks the credibility of prosecution witnesses and argues that
his testimony, which suggested that he was not a knowing participant in the
conspiracy, was not properly credited. Diaz thus is asking this court to
reexamine the jury’s credibility determinations. That we cannot do. See
United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992) (“The
assessment of the weight of the evidence and the determination of the
credibility of the witnesses is solely within the province of the jury.”). His
claims that he could not be convicted because he did not know all the
participants or parts of the plan and did not possess marijuana ignore basic
tenets of conspiracy law. See United States v. Scott, 892 F.3d 791, 797 (5th
Cir. 2018); United States v. Posada-Rios, 158 F.3d 832, 858 (5th Cir. 1998).
Likewise, Diaz has not shown a due process violation. He asserts that
the prosecution lost or destroyed an audio recording of a discussion between
him and his-co-conspirator that allegedly reflected that he did not knowingly
participate in the charged conspiracy. We review his claim de novo. United
States v. Valas, 822 F.3d 228, 236 (5th Cir. 2016).
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Case: 20-40339 Document: 00515824294 Page: 3 Date Filed: 04/16/2021
No. 20-40339
Diaz, who does not allege what was said during the discussion or offer
details as to the substance of the conversation despite participating in it, has
not established that the exculpatory value of the audio recording was evident
before it was lost or destroyed or argue or show that it is reasonably probable
that the outcome of his trial would have been different if the recording were
available. See United States v. Bagley, 473 U.S. 667, 682 (1985); California v.
Trombetta, 467 U.S. 479, 489 (1984). Also, even if the recording were only
potentially useful to the defense, Diaz has not alleged or established that the
prosecution acted with bad faith in not preserving the recording. See Arizona
v. Youngblood, 488 U.S. 51, 58 (1988); Trombetta, 467 U.S. at 488. While the
recording may have been handled negligently, Diaz may not prove a due
process violation on that basis. See Youngblood, 488 U.S. at 58; United States
v. Glenn, 935 F.3d 313, 20 (5th Cir. 2019).
The judgment of the district court is AFFIRMED.
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