United States v. Aponte

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 1, 2001
• Docket: 00-30663
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30663 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NO FIRST NAME LAST NAME UNKNOWN, also known as Pablo Garay Aponte,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana (99-CR-228-2-D)

February 26, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellant appeals his convictions for conspiracy to possess and

possession with intent to distribute more than five kilograms of

cocaine, and for making a false material statement as to his identity

to the Drug Enforcement Administration. He maintains: the evidence

was insufficient to convict him of the drug charges because he was

unaware that the automobile in which he was a passenger had a hidden

compartment containing the cocaine; and the district court violated

his right to confrontation by admitting into evidence documents which

had not been properly authenticated.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Appellant moved for a judgment of acquittal at the close of the

Government’s evidence and did not present any evidence. Therefore,

in evaluating the sufficiency challenge, we must determine “whether

any reasonable trier of fact could have found that the evidence

established the essential elements of the crime beyond a reasonable

doubt”. United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.

1998). In doing so, we consider the evidence in the light most

favorable to the verdict. Id.

Upon our review of the record, there was sufficient evidence

from which the jury could infer that Appellant knowingly conspired to

possess, and knowingly possessed, the cocaine. Among other things,

the evidence of Appellant’s guilty knowledge included: testimony that

the vehicle, in which Appellant traveled for approximately five

hours, smelled “overwhelming[ly] sweet”; Appellant’s possession of a

remote-control device that, when used in conjunction with the

defroster switch, activated the lock on the hidden compartment; and

Appellant’s use of false identification. See, e.g., United States v.

Olivier-Becerril, 861 F.2d 424, 427 (5th Cir. 1988) (coffee and

garlic placed in trunk to mask narcotics odor permitted inference of

knowledge of narcotics presence in vehicle); United States v. Kalish,

690 F.2d 1144, 1155 (5th Cir. 1982) (defendant’s attempt to conceal

identity from arresting officer by use of alias relevant as proof of

consciousness of guilt), cert. denied, 459 U.S. 1108 (1983).

Concerning the second issue, the admission of evidence is

reviewed for abuse of discretion. FED. R. EVID. 103; United States v.

2 Skipper, 74 F.3d 608, 612 (5th Cir. 1996). Appellant challenges the

admission of documents and photographs from Puerto Rico and an FBI

fingerprint card that supported the false identification charge.

Appellant failed, however, to include the challenged documents in the

record on appeal. Therefore, we will not consider the issue. See,

e.g., Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.), cert. denied,

506 U.S. 1025 (1992). In the alternative, the evidentiary challenges

lack merit.

First, the district court found the copy of the Puerto Rican

police report was certified, and the photographs were appended to it.

Even if the document is not self-authenticating under Federal Rule of

Evidence 902(4), the court did not abuse its discretion in admitting

it; testimony as to the chain of custody of the document, combined

with its internal indicia of reliability, justified admission. See

United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989).

Second, Appellant did not object to the admission of the FBI

fingerprint card; therefore, we review only for plain error. E.g.,

United States v. Johnston, 127 F.3d 380, 392 (5th Cir. 1997), cert.

denied, 522 U.S. 1152 (1998). There was sufficient circumstantial

evidence of the card’s authenticity. See Jimenez Lopez, 873 F.2d at

772. Accordingly, Appellant has shown no error, plain or otherwise.

In short, Appellant was not denied his Sixth Amendment right to

confrontation. See Butts v. Wainwright, 575 F.2d 576, 578 (5th Cir.

1978).

AFFIRMED