United States v. Alvarez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-11437 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIPE ALVAREZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:96-CR-229-3-T - - - - - - - - - - July 15, 1997 Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

Felipe Alvarez appeals from his conviction and sentence for

conspiracy to possess with intent to distribute heroin and aiding

and abetting the possession of heroin with intent to distribute.

Alvarez argues that the evidence was insufficient to support his

conviction.

Alvarez argues that the evidence was insufficient to support

his conspiracy conviction because the evidence showed that Gomez

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 96-11437 - 2 -

repeatedly denied she had an agreement with Alvarez. The

evidence shows that Gomez was given Alvarez’s number by a drug

supplier in Mexico. Further, on two occasions, Alvarez met with

Gomez to purchase heroin. Thus, from the “development and

collocation of the circumstances,” it was be reasonable for the

jury to determine that an agreement to possess and distribute

heroin did exist. See United States v. Maltos, 985 F. 2d 743,

746 (5th Cir. 1992).

Alvarez argues that there is insufficient evidence to

support his aiding and abetting conviction because he was a

spectator and did not exercise control, inspect, move or attempt

to move the heroin. The evidence showed that Alvarez met with

Gomez twice to discuss the purchase of heroin. At the latter of

those meetings, Alvarez participated in a discussion with Soto

and Gomez to determine when and where the next transaction would

take place. The evidence also showed that Alvarez and Soto

determined when the drugs and the money would be exchanged and

that Gomez, who was in actual possession of the drugs, should go

to another hotel in the morning to complete the transaction.

Further, the jury could infer Alvarez’s intent to distribute from

the fact that the heroin had a street value of $500,000. See

United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1994).

Therefore, it was reasonable for the jury to conclude that

Alvarez shared Gomez’s and Soto’s criminal intent and

affirmatively participated in the venture. See United States v. No. 96-11437 - 3 -

Jaramillo, 42 F.3d 920, 922-23 (5th Cir.), cert. denied, 115 S.

Ct. 2014 (1995).

Alvarez argues that the court should consider that the

accuracy of the translation of the audio tape was insufficient to

constitute credible evidence because the Government’s translator

was not present when the conversation was recorded and the

translator’s credentials were never established. Further,

Alvarez contends that although Gomez checked the transcript, she

was incompetent to do so since she needed an interpreter to

translate English into Spanish during the course of the trial and

there was no evidence proffered that she could translate Spanish

to English. Because Alvarez had the opportunity to provide his

own version of the transcript but failed to do so, “[h]e cannot

be heard to complain on appeal because [he] failed to take

advantage of [his] trial opportunity." See United States v.

Wilson, 578 F.2d 67, 70 (5th Cir. 1978); see also United States

v. Llinas, 603 F.2d 506, 509 (5th Cir. 1980).

AFFIRMED.