United States v. Garza

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40059 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MANUEL GARZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (M-99-CR-417-1) -------------------- September 6, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jesus Manuel Garza appeals his jury

conviction for conspiracy to possess with intent to distribute

cocaine. Garza argues that although the evidence shows that he did

things that furthered the conspiracy, there is no evidence that

Garza was ever shown cocaine and no evidence that the word cocaine

was ever used in any conversations he had with Santana. He

contends that there is insufficient evidence to prove that he knew

that Santana intended to possess or distribute drugs or that he

(Garza) was a knowing participant in the conspiracy.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. “While an individual’s mere presence around a drug deal does

not make that individual a member of the conspiracy, a jury may

find knowledgeable, voluntary participation from presence when the

presence is such that it would be unreasonable for anyone other

than a knowledgeable participant to be present.” United States v.

White, ___ F.3d ___ (5th Cir. Jul. 17, 2000, No. 98-40956), 2000 WL

987011 at * 5. It is extremely unlikely that the other

conspirators would have trusted Garza to be the contact person in

Rosenberg and to have the responsibility of guiding the shipments

of cocaine to their final destination without the assurance that

Garza was part of the conspiracy. His “presence and association

are coupled with a total absence of rational, non-inculpatory

explanations of the facts.” United States v. Valdiosera-Godinez,

932 F.2d 1093, 1096 (5th Cir. 1991). Garza’s knowledgeable

participation in the conspiracy is an obvious and reasonable

inference from his role alone. All that, plus the evidence of

Garza’s lies to the agents and his attempts to get Santana to

change his statement, leads us to the unavoidable conclusion that

the evidence was more than sufficient to sustain Garza’s

conviction.

AFFIRMED.