UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-40080
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO ARRIAGA-GARCIA; JOSE ARRIAGA-GARCIA,
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Texas (L-99-CR-494-2)
June 4, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
PER CURIAM:2
Eduardo and Jose Arriaga-Garcia appeal their drug-related
convictions, maintaining the district court abused its discretion
by denying their motions for a mistrial because of the Government’s
alleged suppression of evidence. Eduardo Arriaga-Garcia also
claims: the evidence was insufficient to sustain his convictions;
and the district court erred in denying his motions for judgment of
acquittal or a new trial. AFFIRMED.
1 Circuit Judge of the Ninth Circuit, sitting by designation. 2 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.
In September 1999, a jury found Eduardo Arriaga-Garcia guilty
of: conspiracy to possess with intent to distribute marijuana in
excess of 1,000 kilograms (2,200 pounds) (count 1); and possession
with intent to distribute a quantity in excess of 1,436 pounds of
marijuana on 5 November 1998 (count 2). The same jury found Jose
Arriaga-Garcia guilty of: conspiracy to possess with intent to
distribute marijuana in excess of 1,000 kilograms (count 1);
possession with intent to distribute approximately 1,495 pounds of
marijuana on 1 June 1999 (count 3); and possession with intent to
distribute approximately 297 pounds of marijuana on 9 May 1999
(count 4).
II.
Eduardo Arriaga-Garcia’s sufficiency claims are addressed
first; then, both Appellants’ suppression claim.
A.
Appellants moved for judgment of acquittal at the conclusion
of the Government’s case, reurged their motions at the conclusion
of all the evidence, and, following the verdict, moved for judgment
of acquittal and, in the alternative, for a new trial. See FED. R.
CRIM. P. 29(a) (motion for judgment of acquittal before submission
to jury); FED. R. CRIM. P. 29(c) (motion for judgment of acquittal
after discharge of jury). Each motion was denied. Based upon
Eduardo Arriaga-Garcia’s challenges to the sufficiency of the
2 evidence as to both counts on which he was convicted, he contests
the denial of his motions for judgment of acquittal and for a new
trial.
Eduardo Arriaga-Garcia was employed as a truck driver for
Advanced Distribution Systems (A.D.S.). On 5 November 1998, the
A.D.S. terminal manager contacted Eduardo Arriaga-Garcia to haul a
load for Proausa from Laredo, Texas, to Cable-Com in East Chicago,
Indiana. Both companies were fictitious.
Eduardo Arriaga-Garcia picked up the load at a warehouse
rented under the name of Proausa. Later that day, United States
Border Patrol Agents arrested Eduardo Arriaga-Garcia 15 miles north
of Laredo because the tractor-trailer he drove carried 653.17
kilograms (1,440.25 pounds) gross weight of marijuana hidden inside
the hollow centers of five wooden spools. The spools had been
covered by tarp, concealing the marijuana.
The initial criminal complaint against Eduardo Arriaga-Garcia
was dismissed; however, in June 1999, Eduardo Arriaga-Garcia was
reindicted after confidential informant Zambrano provided
information that Eduardo Arriaga-Garcia had helped pack and load
the marijuana. At trial in September 1999, Eduardo Arriaga-Garcia
testified he did not know the load contained marijuana.
Zambrano became a confidential source after the Illinois
Police Force stopped him on 5 May 1999. On that occasion, the
3 pick-up truck he drove contained $123,000 hidden below its bed.
Zambrano was recruited to assist DEA Special Agent Peterson.
Zambrano was one of the Government’s main witnesses at the
Arriaga-Garcia trial; his credibility was very much at issue. In
addition to admitting to being stopped in Illinois carrying
$123,000, Zambrano testified to the following. He had a pending
arrest in Zapata County, where he had been found in possession of
591.25 pounds of marijuana. In 1996, he had spent 11 months in a
Mexican jail, but was released after he was acquitted of the
charges. He had also been stopped in February 1998 in the Rio
Grande Valley, and his vehicle had been seized because it had been
used to transport marijuana. Zambrano used his birth name in
Mexico and another name in the United States. The only
consideration he received in exchange for his cooperation was that
he was not charged in the Arriaga-Garcia conspiracy.
Zambrano testified that, on 31 October 1998, Eduardo Arriaga-
Garcia assisted him in transporting marijuana from Zambrano’s home
to the Proausa warehouse. On that and the next two days, Zambrano,
Appellants Eduardo and Jose Arriaga-Garcia, and two others had
packaged the marijuana in the wooden spools, using grease and rug
deodorant to impede the smell and covering the marijuana in
transparent plastic. (In mid-January 1999, when DEA Agents
searched the warehouse pursuant to the owner’s consent, they found
disassembled wooden spools, similar to the ones Eduardo Arriaga-
4 Garcia hauled the previous November, as well as pieces of black
duct tape wrapped around the spools and pieces of clear cellophane
wrapping paper.)
On 5 November 1998, Zambrano loaded the spools onto the
flatbed of Eduardo Arriaga-Garcia’s truck with a forklift. Jose
Arriaga-Garcia had notified him that Eduardo Arriaga-Garcia would
pick up the spools, and Eduardo Arriaga-Garcia helped him chain the
spools down.
After being provided information by Zambrano, the DEA
conducted surveillance from 9 through 31 May 1999. The
surveillance included Jose Arriaga-Garcia’s residence at 208 Idaho
Street and a house he rented at 321 South Dakota Street. Beginning
11 May, Jose Arriaga-Garcia rented the 321 South Dakota home under
the alias Jose Salazar, purportedly on behalf of Rodrigo Salazar.
On that same day, Eduardo Arriaga-Garcia was observed twice at the
realtor’s, once with Jose Arriaga-Garcia.
On 31 May 1999, Zambrano drove a pick-up truck loaded with
marijuana to the house at 321 South Dakota. Jose Arriaga-Garcia
and two others joined him in unloading and weighing the marijuana
and then stacking it in a closet. When arrested later that day,
Jose Arriaga-Garcia had a receipt showing the total weight to be
between 1,400 and 1,500 pounds. Early on 1 June 1999, DEA Agents
executed search warrants at the two houses. At 321 South Dakota,
they seized over 100 bundles of marijuana with a gross weight of
5 676.32 kilograms (1,495 pounds). At 208 Idaho, they seized torn
pieces of paper with handwritten drawings of wooden spools similar
to the spools on the 5 November 1998 load driven by Eduardo
Arriaga-Garcia; documents regarding rental of the warehouse Proausa
had used; a bill of lading matching the load driven by Eduardo
Arriaga-Garcia on 5 November; several receipts for payment of rent;
a receipt dated 30 October 1998 from Builder’s Square for packing
material, such as tape and staples; receipts from Gutierrez Mini-
Storage; and a receipt for a forklift rental, dated 4 November
1998.
The next day the Agents executed a search warrant on a pick-up
truck Jose Arriaga-Garcia and his alleged co-conspirators had used.
It was parked at Gutierrez Mini-Storage. The Agents recovered
approximately 135.46 kilograms (300 pounds) of marijuana, hidden in
a compartment in the bed of the truck.
1.
Eduardo Arriaga-Garcia asserts the evidence was insufficient
because the Government presented no credible testimony or evidence
upon which the jury could find him guilty. He contends that the
Government’s main witness, Zambrano, was tainted by his admitted
drug trafficking and was impeached by prior arrests. He also
highlights: Zambrano’s testimony that, to his knowledge, Eduardo
Arriaga-Garcia was not involved in the May 1999 transaction; and
Agent Peterson’s agreement with Zambrano’s statement.
6 Because Eduardo Arriaga-Garcia moved for judgment of
acquittal, “we review the evidence in the light most favorable to
the verdict, to determine whether any reasonable trier of fact
could have found that the evidence established guilt beyond a
reasonable doubt”. United States v. Edwards, 231 F.3d 933, 935
(5th Cir. 2000).
The evidence was sufficient to support the conviction for
intent to distribute 1,436 pounds of marijuana on 5 November 1998.
Testimony was given that Eduardo Arriaga-Garcia knowingly possessed
the marijuana by wrapping, packing, and securing it to the flatbed;
and the jury could infer, from the quantity of marijuana involved
(over 1,400 pounds), his intent to distribute it. See United
States v. Cartwright, 6 F.3d 294, 299 (5th Cir. 1993) (possession
with intent to distribute requires proof of (1) possession of
illegal substance, (2) knowledge, and (3) requisite intent to
distribute), cert. denied, 513 U.S. 1060 (1994); United States v.
Romero-Reyna, 867 F.2d 834, 836 (5th Cir. 1989) (generally may
infer intent to distribute controlled substance solely from
possession of large amount), cert. denied, 494 U.S. 1084 (1990).
Eduardo Arriaga-Garcia’s no-credible-testimony-assertion
fails. First, “non-credibility is generally not a sound basis for
alleging insufficiency of the evidence on appeal; it is the jury’s
function to determine credibility”. United States v. Polk, 56 F.3d
7 613, 620 (5th Cir. 1995) (emphasis added). Second, Zambrano’s
testimony was fully corroborated by the evidence obtained through
the consent search of the warehouse, the documents seized at Jose
Arriaga-Garcia’s residence and the rented house, and the details to
which other witnesses testified. Cf. United States v. Bermea, 30
F.3d 1539, 1552 (5th Cir. 1994) (“[A] guilty verdict may be
sustained if supported only by the uncorroborated testimony of a
coconspirator, even if the witness is interested due to a plea
bargain or promise of leniency, unless the testimony is incredible
or insubstantial on its face.”), cert. denied, 514 U.S. 1097
(1995).
b.
As for the conspiracy count, Eduardo Arriaga-Garcia does not
specify which element was not proven at trial. A rational jury
could have found, beyond a reasonable doubt, the existence of an
agreement between Eduardo Arriaga-Garcia, Jose Arriaga-Garcia,
Zambrano, and other alleged co-conspirators to violate the
narcotics laws; Eduardo Arriaga-Garcia’s knowledge of the
conspiracy and intent to join it; and his voluntary participation
in the conspiracy. See United States v. White, 219 F.3d 442, 445
(5th Cir. 2000). The jury could have inferred that Eduardo
Arriaga-Garcia assisted his brother Jose Arriaga-Garcia in renting
the house, because he was seen twice at the realtor’s.
Furthermore, the evidence was sufficient to support a finding that
8 Jose Arriaga-Garcia possessed and distributed 1,495 pounds of
marijuana on 1 June 1999. Regardless of whether Eduardo Arriaga-
Garcia personally participated in that specific transaction, he was
liable for crimes committed by his co-conspirators in furtherance
of the conspiracy. See United States v. Payne, 99 F.3d 1273, 1278
(5th Cir. 1996).
Aggregating the 1,436 pounds of marijuana seized in November
1998 with the 1,495 pounds seized in June 1999 yields a total of
2,931 pounds. Therefore, viewing the evidence in the light most
favorable to the verdict, the jury could have found, beyond a
reasonable doubt, that Eduardo Arriaga-Garcia was guilty of
conspiracy to possess with intent to distribute over 2,200 pounds
(1,000 kilograms) of marijuana, as the indictment charged.
2.
In addition to Eduardo Arriaga-Garcia’s post-verdict motion
for judgment of acquittal, he moved, in the alternative, for a new
trial. As noted, the sole basis for the motions was insufficiency
of the evidence. We review the denial of a motion for a new trial
for an abuse of discretion. E.g., United States v. Pankhurst, 118
F.3d 345, 353 (5th Cir.), cert. denied, 522 U.S. 1030 (1997).
In the light of our previous conclusions about the sufficiency
of the evidence, we likewise find no error in the denial of the new
trial motion.
9 B.
Both Jose and Eduardo Arriaga-Garcia assert the district court
erred in denying their motions for a mistrial on the basis of the
Government’s failure to produce the DEA confidential source report
detailing Zambrano’s arrest by Illinois State Police with not only
$123,000, but also 4.4 pounds of marijuana, in his possession.
They maintain the failure to produce this report deprived them of
their right to cross-examine Zambrano regarding that drug
possession and of their right to a fair trial. They also maintain
that, because of the Government’s claimed negligence or bad faith
in not producing the material, a new trial is warranted. The
denial of a mistrial motion is reviewed only for abuse of
discretion. United States v. Wyly, 193 F.3d 289, 298 (5th Cir.
1999); see FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity
or variance which does not affect substantial rights shall be
disregarded.” (emphasis added)).
During cross-examination of DEA Agent Peterson, Eduardo
Arriaga-Garcia’s counsel inquired about various reports the Agent
had written about the case. The United States Attorney advised the
court that various reports had not been provided because they dealt
with ongoing investigations that resulted from information Zambrano
provided. Eduardo Arriaga-Garcia’s counsel requested that any
reports not given him be submitted to the court.
10 When questioned about why Zambrano’s criminal history was not
in his reports, Agent Peterson explained that Zambrano’s criminal
history was detailed in his personnel file, which, for purposes of
the informant’s personal safety, was a confidential file separate
from the files of ongoing investigations. Following additional
discussion, the court requested that the documents be provided to
it in camera by the end of the day.
Later that afternoon, the parties rested. They then presented
closing arguments.
The DEA reports the Government submitted to the court in
camera revealed that, when Zambrano was stopped in Illinois, not
only $123,000, but also 4.4 pounds of marijuana, were found in the
bed of the pick-up truck. The next morning (the day after closing
arguments), the court and counsel met to discuss motions prior to
submission of the case to the jury. (The court pointed out, “in
fairness to the Government”, that “inquiry was made by counsel for
the Government as to what was told Agent Peterson by the Illinois
law enforcement officer. An objection was made by defense counsel
that that was hearsay, and [the court] sustained the objection”.)
Eduardo and Jose Arriaga-Garcia moved for a mistrial on the grounds
that the Government had suppressed evidence, the defense was unable
to cross-examine Zambrano, and the information was material and
relevant to Zambrano’s character for truthfulness. (Counsel for
the defendants did not move to reopen the evidence, nor had they
11 requested a continuance until the court conducted its in camera
inspection of the reports.) The Government responded that it had
only a duty to disclose prior convictions, and the defense knew of
the pending case in Zapata County and the case in Mexico. The
Government added it had no objection to instructing the jury on the
matter.
Outside the presence of the jury, the court recalled Agent
Peterson, who acknowledged that the report he had received from the
Illinois Police Force stated that Zambrano had marijuana in his
truck. When questioned by Eduardo Arriaga-Garcia’s counsel, the
Agent stated he could not recall if he had told the United States
Attorney about the marijuana, although he believed the United
States Attorney was aware that a report of the Illinois arrest
existed. Agent Peterson stated that he did not provide the United
States Attorney with a copy of the report. When asked why he did
not tell the defense about the marijuana, he replied that he was
never asked.
The United States Attorney again distinguished his case file
from the confidential informant file kept by the DEA, saying the
report was in the DEA’s file. He asserted that the United States
Attorney’s Office could not review those files without a court
order.
12 The court conditionally denied the mistrial motion and
submitted the case to the jury. In charging the jury, the court
stated:
I wish to call to your particular attention [the following:]
I think the jury is aware that the Court was to review a confidential file produced by the Government. I did review that file last night in my chambers. The Court’s review of the confidential Government file on its witness, Mr. Zambrano, revealed that when he was arrested in Illinois, he was in possession of approximately 4.4 pounds of marihuana. Although this arrest was previously disclosed, the presence of marihuana was not previously revealed, either by the Government or by Mr. Zambrano.
This is an additional fact that the jury may wish to consider in determining what weight, if any, to give Mr. Zambrano’s testimony....
(Emphasis added.)
“[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or punishment”. Brady v. Maryland, 373
U.S. 83, 87 (1963) (emphasis added). The Brady rule includes both
exculpatory and impeachment evidence. United States v. Bagley, 473
U.S. 667, 676 (1985). Pre-trial, Eduardo Arriaga-Garcia requested
material known to the Government or that might be learned from
investigation officers or witnesses that was exculpatory in nature
or favorable to the defendants. Pre-trial, Jose Arriaga-Garcia
13 made a Brady request and, among other things, asked for arrest or
conviction records of any witness.
“[A] successful Brady doctrine claim must establish three
factors: (1) the prosecution’s suppression of evidence; (2) the
favorable character of the suppressed evidence for the defense; (3)
the materiality of the suppressed evidence”. United States v.
Anderson, 574 F.2d 1347, 1353 (5th Cir. 1978). “The evidence is
material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different”. Bagley, 473 U.S. at 682
(opinion of Blackmun, J.).
Appellants’ briefs on this issue are almost identical. The
claimed deprivation of the right to fully cross-examine Zambrano is
best articulated, however, by Jose Arriaga-Garcia. He asserts
that, had his counsel “been able to argue to the jury that the sole
incriminating witness (as opposed to those testifying to
circumstantial matters) was a major drug dealer caught in the act
and whose only escape from a lengthy jail sentence was to
incriminate [Jose Arriaga-Garcia]”, it was reasonably probable the
jury would not have convicted him. (Again, prior to its
deliberations, the jury was given this information.) But, there is
no reason counsel could not have made this argument, even in the
absence of the evidence of the 4.4 pounds of marijuana.
14 Along this line, Zambrano had admitted his involvement in the
conspiracy to possess with intent to distribute the nearly 3,000
pounds of marijuana. Moreover, when asked if he had ever
transported marijuana, he answered “yes”; and when asked how many
times, he replied, “[a] lot of times”. And, the jury could have
inferred that the large amount of currency hidden in the pick-up
truck’s false compartment was drug proceeds. Showing, while
Zambrano testified, that he had possessed an additional 4.4 pounds
of marijuana, of which he claimed no knowledge, would not have
enhanced defense counsels’ ability to impeach Zambrano or enabled
them to make arguments they otherwise could not have made. The
impeachment value was merely cumulative.
Because the evidence was not material, we need not reach
whether the Government had a duty to disclose the contents of the
DEA’s confidential report. Accordingly, we reject Appellants’
assertion that a new trial is warranted because of the Government’s
negligence or bad faith.
Therefore, the district court did not abuse its discretion in
denying the mistrial motions.
III.
For the foregoing reasons, the judgment is
AFFIRMED.