United States v. Frausto-Duran

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 4, 2001
• Docket: 00-50551
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50551 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

FERNANDO FRAUSTO-DURAN, Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas USDC No. EP-99-CR-185-2-H

April 4, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Fernando Frausto-Duran (Frausto) was convicted of aiding and

abetting the illegal importation of marijuana, in violation of 21

U.S.C. §§ 952 and 960, and 18 U.S.C. § 2. He contends that the

evidence was insufficient to support his conviction, arguing that

the district court erred in denying his motion for judgment of

acquittal. We are unpersuaded and now affirm.

"The standard of review for sufficiency of evidence is whether

any reasonable trier of fact could have found that the evidence

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. established guilt beyond a reasonable doubt."1 "In evaluating the

sufficiency of the evidence, we consider the evidence in the light

most favorable to the government with all reasonable inferences and

credibility choices made in support of the verdict."2

Frausto contends that the evidence is insufficient to

establish that he aided and abetted his son, Gregorio, and their

co-conspirator in the commission of the offense. To establish guilt

as an aider and abettor under 18 U.S.C. § 2, the government must

prove that the defendant: "(1) associated with a criminal venture,

(2) participated in the venture, and (3) sought by action to make

the venture successful."3 He argues that the evidence was

insufficient to support a reasonable inference that he knew that

marijuana was concealed in the camper of the truck in which he was

a passenger.4 However, Frausto testified at trial that he knew the

marijuana was in the camper. Although he subsequently attempted to

1 United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). 2 United States v. Ivy, 973 F.2d 1184, 1188 (5th Cir. 1992). 3 United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994). 4 See 21 U.S.C. § 960(a) (2001) (penalizing the knowing and intentional importation of a controlled substance); United States v. Valencia, 907 F.2d 671, 680 (7th Cir. 1990) ("The state of mind required for conviction as an aider and abettor is the same state of mind as required for the principal offense."); United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir. 1985) (stating that, for purposes of an aiding and abetting offense, "[a]ssociation means that the defendant shared in the criminal intent of the principal.").

2 retract this statement, a jury was entitled to credit this and

other government evidence tending to prove that Frausto possessed

the requisite guilty knowledge.5

The jury could also have reasonably concluded that Frausto

"participated" in the criminal venture. A jury could have found

that Frausto told the customs inspector that the truck belonged to

him. Moreover, Frausto testified that Gregario told him, "You look

older, and you're a grown man, and, so, the inspectors aren't going

to think that you are in a loaded truck." Frausto also had worked

as a guard at ports of entry in the El Paso area; in fact, one of

the supervisors recognized him on the day he was arrested. It is

therefore a fair inference that Frausto, Gregario, and their co-

conspirator expected that Frausto's presence in the truck, in

addition to his statement that the truck belonged to him, would

reduce the likelihood of a thorough inspection. As the evidence was

accordingly sufficient to support Frausto's conviction, we AFFIRM

the district court's denial of his motion for judgment of

acquittal.

AFFIRMED.

5 See United States v. Merida, 765 F.2d 1205, 1220 (5th Cir. 1985) ("[A] jury may choose to believe part of what a witness says without believing all of that witness's testimony.").