United States v. Malena

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2003
• Docket: 02-50678
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 1, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50678 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBIN DWAIN MALENA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas (P-01-CR-98-1) --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Robin Dwain Malena appeals his conviction,

following a guilty verdict by a jury, for possession with intent to

distribute 50 kilograms or more of marijuana, in violation of 21

U.S.C. § 841(a)(1). He argues that the district court erred when

it admitted a taped telephone conversation into evidence and

allowed a Drug Enforcement Agency (DEA) agent to testify regarding

the net weight of the seized marijuana. He also contends that the

evidence is insufficient to sustain his conviction.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The taped conversation in question occurred between a DEA

agent, Malena, and Malena’s brother, Terry, who was apprehended at

the border while in possession of the marijuana in question.

Malena argues that the government failed to prove that Terry

consented to the interception of the telephone conversation and

that, because consent was thus not established, the district court

erred when it admitted the tape of the conversation into evidence.

As this issue is raised for the first time on appeal, our review is

limited to plain error. See Douglass v. United Servs. Automobile

Ass’n, 79 F.3d 1415, 1422-23 (5th Cir. 1996) (en banc); United

States v. Martinez, 962 F.2d 1161, 1165-66 (5th Cir, 1992). The

evidence indicates that Terry initiated the telephone call to

Malena with knowledge that the phone call would be recorded. As

such, Terry’s consent may be inferred; so it was not error, plain

or otherwise, for the district court to admit the tape of the

conversation into evidence. See United States v. Gomez, 947 F.2d

737, 738 (5th Cir. 1991) (deeming consent to exist when an

informant placed a telephone call knowing that it would be

recorded).

Malena also asserts that the district court erred when it

allowed the DEA agent to testify regarding the net weight of the

seized marijuana. Malena concedes, however, that he is uncertain

whether the testimony should be characterized as lay testimony or

expert testimony. As with the preceding issue, Malena raises this

issue for the first time on appeal, limiting our review to plain

2 error. See, supra, Douglass; Martinez. The record shows that the

district court adequately assessed the reliability of the testimony

by ascertaining that the DEA agent was testifying from his personal

observations regarding the facts of Malena’s case and from the

agent’s knowledge and experience gained while serving with the DEA.

See Skidmore v. Precision Printing and Pkg., Inc., 188 F.3d 606,

618 (5th Cir. 1999) (explaining that extent to which indicia of

reliability set forth in Daubert v. Merrell Dow Pharmaceuticals,

Inc. 509 U.S. 579 (1993) apply to any given testimony depends on

the nature of the issue at hand, the witness’s particular

expertise, and the subject of the testimony.). We therefore reject

Malena’s contention on this issue as constituting plain error, if

any error at all.

Finally, Malena urges that the evidence is insufficient to

establish the intent element of his conviction. A possession

conviction requires proof that a defendant had knowing possession

with the intent to distribute. United States v. Heranandez-

Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988). Possession may be

actual or constructive, and may be proved by circumstantial

evidence. Id. Even though the government offered only

circumstantial evidence to establish Malena’s knowledge and intent,

when we construe all reasonable inferences from the evidence in

favor of the verdict, see United States v. Jaramillo, 42 F.3d 920,

923 (5th Cir. 1995), we are satisfied that the evidence is

sufficient to sustain Malena’s conviction.

3 The judgment of the district court is, in all respects,

AFFIRMED.