United States v. Gonzalez

339 F. App'x 400
Court of Appeals for the Fifth Circuit·Decided July 27, 2009·No. 08-40839·Unpublished·Cited by 2 cases

Opinion

PER CURIAM: *

Richard Gonzalez appeals his conviction for conspiracy to possess with intent to *402 distribute fifty grams or more of actual methamphetamine. Gonzalez contends that there was insufficient evidence to support his conviction, that venue was not properly established in the Eastern District of Texas, that a potential juror was erroneously excused for cause, that his base offense level was improperly increased based on the district court’s finding that he was responsible for the sale of seven pounds of methamphetamine, and that his sentence was unreasonable. For the reasons set forth below, we AFFIRM.

In August 2006, Brandi Johnson was arrested for possession of methamphetamine. She claimed to have purchased the drugs from a tattoo and smoke parlor Gonzalez owned in Houston. Johnson agreed to serve as a confidential informant. She began working with officials from the Drug Enforcement Administration to target her suppliers.

The evidence against Gonzalez at trial consisted of Johnson’s testimony and corroborating testimony from his co-defendant, Cesar Duran. Johnson testified that she began purchasing methamphetamine at Gonzalez’s business in April 2006. The sellers there were Gonzalez, his two co-defendants, Duran and Milton Adam Lir-ette, and David Ashlock. She explained that two or three times per week she would travel from Beaumont to Gonzalez’s shop in Houston to purchase methamphetamine. Upon her arrival, Ashlock would call Duran, who would then arrive with as much as four ounces of methamphetamine. She claimed that Gonzalez was present at these sales and provided scales, baggies, and cans with hidden compartments with which to transport the drugs back to Beaumont for resale. Gonzalez also taught her to dilute the methamphetamine with other substances to increase her profits on resale.

After agreeing to act as a confidential informant, Johnson helped law enforcement officials obtain a recording of a September 19, 2006 sale by Gonzalez of methamphetamine. 1 On September 11, Johnson recorded a phone conversation with Gonzalez setting up the sale. According to the taped conversation, the sale occurred on September 19 at Gonzalez’s Houston shop. Upon her arrival, Johnson waited with Gonzalez for the later arriving Duran and Lirette. Lirette waited in the car while Duran handed Gonzalez the methamphetamine. Gonzalez weighed it and gave 31.5 grams of actual methamphetamine (52.5 grams at 60% purity) to Johnson. Law enforcement officials confiscated the drugs after the sale.

Gonzalez argues that this evidence was insufficient to support his conspiracy conviction. “In a conspiracy prosecution under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt (1) the existence of an agreement between two or more persons to violate the narcotics laws, and that (2) each conspirator knew of the conspiracy, (3) intended to join it, and (4) did participate in the conspiracy.” United States v. Espinoza-Seanez, 862 F.2d 526, 536 (5th Cir.1988). Gonzalez contests the sufficiency of the evidence with respect to each of these elements. He maintains that the evidence established merely an association among himself, Johnson, and his co-defendants, not an agreement to violate the law. He further asserts that he did not share a common purpose with these individuals, that he did not knowingly participate, and that his conduct and that of his alleged co-conspirators was not interdependent.

*403 Upon a challenge to the sufficiency of the evidence supporting a conviction, “we view the evidence and the inferences drawn therefrom in the light most favorable to the verdict, and we determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Mitchell, 484 F.3d 762, 768 (5th Cir.2007). “It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc).

The evidence supporting the conviction included Gonzalez’s presence during a number of drug transactions involving Johnson and Gonzalez’s co-defendants. Johnson’s testimony made Gonzalez an active participant in the transactions. Gonzalez was said to have provided scales, baggies, and hidden-compartment containers for the transportation and distribution of the drugs. Gonzalez explained how to “cut” the methamphetamine for more profitable resale. This evidence supports Gonzalez’s knowledge of the conspiracy and its objectives and shows his willing participation in the operation.

Additional evidence comes from the frequency and similarity of the transactions. Those facts suggest an agreement between the parties to violate the narcotics laws. Finally, the recorded transaction between Johnson and Gonzalez is direct evidence of Gonzalez’s knowing and voluntary participation in the conspiracy. There was sufficient evidence for a rational jury to find Gonzalez guilty beyond a reasonable doubt.

Gonzalez also challenges the sufficiency of the evidence establishing venue in the Eastern District of Texas. He alleges that no overt act in furtherance of the conspiracy occurred within the Eastern District. By statute, though, “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). Venue may be proven by “a preponderance of the evidence showing the commission of any single act that was part of the beginning, continuation, or completion of the crime.” United States v. Solis, 299 F.3d 420, 445 (5th Cir.2002) (internal quotation marks and citation omitted).

Here, Johnson testified that she sold the methamphetamine she purchased from Gonzalez and his co-conspirators in Beaumont, which is in the Eastern District of Texas. The jury was also charged on venue and found by a preponderance of the evidence that an overt act in furtherance of the conspiracy was performed in the Eastern District. Accordingly, the Eastern District of Texas was a proper venue for the prosecution of this case.

Gonzalez next maintains that the district court deprived him of his right to a fair trial by an impartial jury when it excused a potential juror for cause, despite the fact that the juror had stated that she was “99.999 percent sure” she could be impartial. Gonzalez does not, however, challenge the impartiality of the panel that actually decided his case.

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United States v. Gonzalez, 339 F. App'x 400 (5th Cir. 2009).

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