United States v. Covarrubia

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 25, 2001
• Docket: 00-50578
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-50578 _____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JESSICA COVARRUBIA

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas No. DR-99-CR-757-2 _________________________________________________________________ July 24, 2001 Before KING, Chief Judge, BARKSDALE, Circuit Judge, and NOWLIN, District Judge.*

PER CURIAM:**

Defendant-Appellant Jessica Covarrubia appeals her

conviction on one count of conspiracy to import marijuana,

* Chief Judge of the Western District of Texas, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. challenging the sufficiency of the evidence. For the following

reasons, we AFFIRM.

“We review the sufficiency of the evidence by examining all

the evidence in the light most favorable to the verdict.” United

States v. Guerrero, 234 F.3d 259, 261-62 (5th Cir. 2000). “We

will affirm if the evidence is such that a rational trier of fact

could have found the requisite elements of the offense beyond a

reasonable doubt.” Id. at 262.

Covarrubia was convicted of conspiracy to import marijuana

in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), (b)(4). 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 (e.g., to import marijuana); (2) the

defendant’s knowledge of the agreement; and (3) the defendant’s

voluntary participation in the agreement. See United States v.

Paul, 142 F.3d 836, 839-40 (5th Cir. 1998); United States v.

Brito, 136 F.3d 397, 409 (5th Cir. 1998); United States v.

Pofahl, 990 F.2d 1456, 1467-68 (5th Cir. 1993). These elements

need not be proven by direct evidence. United States v. Maltos,

985 F.2d 743, 746 (5th Cir. 1992). The agreement and the

defendant’s knowledge and participation in the conspiracy may be

inferred from the “development and collocation of circumstances.”

Id. (internal quotations and citation omitted). Although mere

association or presence by themselves are insufficient to prove

knowing participation in the agreement, see id.; United States v.

2 Vergara, 687 F.2d 57, 61 (5th Cir. 1982), when combined with

other relevant circumstantial evidence, these factors may

constitute sufficient evidence to support a conspiracy

conviction. See United States v. Williams-Hendricks, 805 F.2d

496, 503 (5th Cir. 1986). Inconsistent statements and

implausible explanations may constitute circumstantial evidence

of a defendant’s guilty knowledge. See United States v. Cano-

Guel, 167 F.3d 900, 905 (5th Cir. 1999); see also United States

v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir. 1999).

A rational trier of fact could have found that the evidence

established the existence of an agreement to import marijuana,

Covarrubia’s knowledge of that agreement, and her voluntary

participation in that agreement. On November 6, 1999, Covarrubia

was a passenger in a 1993 Buick LeSabre driven by Alex Gallegos,

which was stopped at the Eagle Pass Port of Entry in Texas. Upon

inspection, forty-seven pounds of marijuana were found concealed

in the gas tank of the LeSabre.

When originally stopped at the Port of Entry, prior to the

discovery of the marijuana, Gallegos and Covarrubia both stated

that they had driven from San Antonio, Texas to Piedras Negras,

Mexico that morning to do some shopping; that they had not

purchased anything; and that they were headed back to San

Antonio. However, after the marijuana was discovered, United

States Special Agent Enemencio Torres interviewed Covarrubia.

During this interview, she stated that Gallegos had asked her to

3 go cruising with him that morning1 and that she had agreed

without knowing where they were going, but that they had

eventually arrived in Piedras Negras. Regarding their visit to

Mexico, Covarrubia claimed that they stayed in Mexico about

fifteen to twenty minutes, during which time she never left the

car. She stated further that, in Piedras Negras, Gallegos saw

someone he recognized, that Gallegos stepped out of the car to

speak to this individual, and that the conversation lasted for

about ten minutes. Finally, she stated that when Gallegos got

back into the car, they returned to Eagle Pass, intending to

continue on to San Antonio. Based on Covarrubia’s statements

that she went to Piedras Negras to shop, but spent only fifteen

minutes in the country, did not leave the car, and did not

purchase anything, a jury could reasonably infer that her

statements were inconsistent and implausible.

Furthermore, although Covarrubia stated that she never left

the car while it was in Mexico, the inspectors noted that the

straps which held in the gas tank were bolted to the car with

very shiny bolts and that an eight-by-ten-inch rectangular trap

door had been cut into the top of the gas tank. The trap door

was covered with a black substance that, at the time of the

inspection, was still “very moist [and] very sticky.” Because it

1 Additionally, an agriculture inspector testified that he saw Covarrubia at the Eagle Pass Port of Entry on November 5, 1999, the day before Covarrubia stated she left San Antonio.

4 is extremely unlikely that anyone would have driven a car loaded

with forty-seven pounds of marijuana from San Antonio to Piedras

Negras and back, a jury could reasonably infer that the marijuana

had been placed in the car in Mexico. In addition, because

Covarrubia stated that she never left the car, it is reasonable

to assume that she would have noticed the concerted activity

involved in placing the marijuana in the gas tank.

Finally, in addition to the marijuana discovered in the

LeSabre, the customs agents also discovered a license plate in

the trunk of the car which did not belong to the LeSabre. It, in

fact, belonged to a 1992 Honda Prelude. Notably, Covarrubia’s

husband, Arturo Sanchez,2 was also seen by a customs inspector at

the Eagle Pass Port of Entry on November 6, 1999, driving a 1992

Honda Prelude. Furthermore, although no press releases regarding

the seizure had been issued and no one outside the customs office

had been informed that the seizure had occurred, Special Agent

Torres received two phone calls from individuals inquiring about

Covarrubia while Covarrubia was being detained, one claiming to

be a female friend of Covarrubia and the other claiming to be

Covarrubia’s husband. A jury could reasonably infer that this

evidence further supported the existence of an importation

2 We refer to Sanchez as Covarrubia’s husband because he was referred to as such during the trial and in Covarrubia’s statement; however, we note that the Presentence Investigation Report states that Covarrubia and Sanchez have never been legally married but have “been together” for five years and have one child together.

5 conspiracy and Covarrubia’s knowledge of and voluntary

participation in the conspiracy.

Covarrubia’s conviction and sentence are AFFIRMED.