United States v. Mendoza

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-50556 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSÉ ANGEL MENDOZA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas _________________________

August 29, 2000

Before JOLLY, SMITH, and BARKSDALE, I. Circuit Judges. Border Patrol Agent Andrew Graham spot- ted a Nissan Maxima traveling northbound on JERRY E. SMITH, Circuit Judge: Highway 118 approximately thirty-five miles south of Alpine, Texas; about one mile behind was a Ford Thunderbird with two occupants. José Mendoza challenges the sufficiency of Because the occupants of the Thunderbird ap- the evidence supporting his convictions of peared surprised when he passed, Graham conspiracy to possess marihuana with intent to turned around to follow the vehicle. The distribute, in violation of 21 U.S.C. § 846, and Thunderbird braked and swerved to the side of possession of marihuana with intent to distrib- the road, then slowed its speed; the Maxima ute, in violation of 21 U.S.C. § 841(a)(1). We continued northbound toward the Border Pa- affirm. trol checkpoint located about fifteen miles south of Alpine. Graham continued to follow the Thunder- Graham believed that the Maxima and bird, which pulled into a rest area approxi- Thunderbird had been traveling as a “lead- mately two miles south of the checkpoint, car/load-car” team, the “lead car” being used whereupon the driver and passenger exited and to scout ahead of the “load car” carrying the paced nervously around the front of the vehi- contraband. Lopez and Agent Neal Thames cle, then a minute or two later returned to their agreed that the circumstances were suspicious. car and continued traveling northbound. A When Thames asked Mendoza and Salazar small distance south of the checkpoint, Gra- whether they knew the occupants of the Thun- ham passed the Thunderbird to arrive at the derbird, they responded in the negative. checkpoint first. Thames collected driver’s licenses from The Maxima reached the checkpoint before Mendoza, Salazar, Gomez, and Martinez, and Graham. Mendoza was driving, and his girl- compared them. He noticed that Salazar and friend, Hermila Salazar-Benavidez (“Salazar”) Martinez (the passengers) lived in the same was in the passenger’s seat. After advising city and that Mendoza and Gomez (the driv- Agent Frank Lopez that they were United ers) lived in adjacent towns a few miles apart. States citizens returning from Mexico, they Graham found a receipt in the Thunderbird were directed to a secondary inspection, at signed by “Hermila Hernandez.” After com- which Mendoza consented to a canine search paring the signature on the receipt with the of the car. one on Salazar’s driver’s license, Thames pre- sented the receipt to Salazar, who admitted The dog alerted to the trunk area. In the that it was her receipt and her signature. The trunk, Lopez found what he believed to be a registration form taken from the Thunderbird marihuana “twig,” but a field test came back established that the car was registered to Ser- negative. Lopez testified that, based on his ex- gio Salazar, whom Salazar identified as her ex- perience and the dog’s alerting aggressively on husband. the car, he was certain that the twig was mari- huana residue but that the quantity was too After first denying she knew Martinez, Sal- small to yield a positive test result. Lopez azar then “admitted” that she knew a relative searched for a hidden compartment but found of hers. The two men denied knowing each none. other or the other women. The agents none- theless believed the two cars had acted in con- When the Thunderbird reached the check- junction and therefore placed Mendoza and point, Graham asked the occupants about their Salazar under arrest. immigration status. The male driver, Ambro- cio Gomez, appeared nervous, and the female After they were advised of their rights, passenger, Modesta Martinez, avoided eye Mendoza, Salazar, Gomez, and Martinez told contact. When asked whether he had been conflicting stories. Gomez told an agent that traveling with the Maxima, Gomez responded he and his girlfriend, Martinez, had traveled in the negative. A canine search of the Thun- from Plainview, Texas, in the Thunderbird and derbird uncovered several hidden bundles of had dropped off a friend in Lajitas, Texas, marihuana totaling 119.34 pounds, and Gomez where they had stayed for several hours. Go- and Martinez were arrested. mez could not, however, provide the name or

2 a description of the friend he had dropped off. that she informed El Compadre that the vehicle Gomez admitted that he knew Mendoza, as was for sale when Salazar was selling the they worked at the same meat-packing plant. Thunderbird. According to Martinez, none of her companions knew about the drugs in the Mendoza told agents that he had no knowl- car, and Mendoza was not scouting ahead to edge of the marihuana in the Thunderbird but warn of law enforcement. Gomez also testi- admitted that he knew Gomez and Martinez fied, stating that the four traveled to Mexico in through his girlfriend Salazar. He stated that the Maxima, that Martinez had obtained the he and Salazar had gone to Ojinaga, Mexico, Thunderbird, and that it was merely coinci- to drop off his brother. According to Mendo- dence that Mendoza and Salazar drove ahead za, after they did so, he and Salazar spent the of them to the checkpoint. night in Ojinaga, then went to Lajitas to visit a friend. Mendoza could not, however, identify II. where this friend lived. In Lajitas, they ran in- A. to Gomez and Martinez at a gas station, and Mendoza argues that the evidence is insuffi- all proceeded to return to Plainview. cient to support his conspiracy conviction. Al- though he admits he was not truthful regarding Salazar told agents that she and Mendoza his relationship with Gomez and Martinez, traveled to Ojinaga to drop off a friend of Mendoza argues that there is no evidence of a Mendoza’s (as opposed to Mendoza’s account lead-car/load-car arrangement and no other in which they dropped off his brother). She evidence connecting him with the drugs. first denied knowing Gomez and Martinez be- yond having seen them before, but later admit- Mendoza made motions for judgment of ac- ted that she was Martinez’s aunt. Salazar told quittal at the close of the government’s case agents that she had previously sold the Thun- and at the close of all of the evidence, so the derbird to an unknown person. Despite these standard of review in assessing his sufficiency statements, Gomez, Martinez, and Salazar challenge is whether, considering all the evi- gave the same home address. dence in the light most favorable to the ver- dict, a reasonable trier of fact could have Mendoza, Salazar, and Gomez were tried found that the evidence established guilt be- together. Martinez testified for the defense yond a reasonable doubt. See United States v. but gave a very different account from those Gonzales, 79 F.3d 413, 423 (5th Cir. 1996); offered at the time of arrest. She testified that United States v. Bell, 678 F.2d 547, 549 (5th she traveled to Mexico in the Maxima with Cir. Unit B 1982) (en banc), aff'd, 462 U.S. Gomez, Salazar, and Mendoza. According to 356 (1983). “Direct and circumstantial evi- Martinez, she alone picked up the Thunderbird dence are given equal weight, and the evidence with its load of marihuana from a man named need not exclude every reasonable hypothesis “El Compadre” while Gomez, Salazar, and of innocence.” Gonzales, 79 F.3d at 423. Mendoza were out shopping and eating. El Compadre was to pay her $100 per pound to “To establish a drug conspiracy under transport the marihuana. As to how El Com- § 846, the government must prove beyond a padre happened to possess a vehicle registered reasonable doubt (1) an agreement between to Salazar’s ex-husband, Martinez testified two or more persons to violate the narcotics

3 laws, (2) that each alleged conspirator knew of The officer followed the now erratically- the conspiracy and intended to join it, and driven Mercury for a distance, during which (3) that each alleged conspirator did partici- time the MG varied its speed to maintain a pate voluntarily in the conspiracy.” United constant distance between it and the Mercury. States v. Inocencio, 40 F.3d 716, 725 (5th Cir. See id. When the officer stopped the Mercury, 1994). The elements of the conspiracy may be the MG accelerated out of sight. See id. The established by circumstantial evidence and Mercury’s trunk contained eighty-four pounds “may be inferred from the development and of marihuana. See id. collocation of circumstances.” Gonzales, 79 F.3d at 423 (internal quotation marks omit- We found the evidence sufficient to support ted). The government must, however, “do Barnard’s conspiracy conviction, considering more than pile inference upon inference upon the evidence of concerted action already dis- which to base a conspiracy charge.” United cussed and the following additional evidence: States v. Williams-Hendricks, 805 F.2d 496, (1) Barnard’s passenger in the MG was the 502 (5th Cir. 1986) (internal quotation marks son of the owner of the Mercury; (2) that pas- omitted). Likewise, “the government may not senger’s wallet was found in the glove com- prove up a conspiracy merely by presenting partment of the Mercury, including his driver's evidence placing the defendant in a climate of license and business card; (3) a shaving kit activity that reeks of something foul.” United with the inscription “C. E. Barnard” was found States v. Maltos, 985 F.2d 743, 746 (5th Cir. in the front seat of the Mercury; and (4) hang- 1992) (internal quotation marks omitted). ing in the back seat of the Mercury was a sweater with a laundry tag marked “E. Bar- We have previously considered sufficiency nard.” See id. at 393. challenges in lead-car/load-car scenarios. In United States v. Barnard, 553 F.2d 389 (5th Mendoza stresses that, unlike in Barnard, Cir. 1977), we upheld conspiracy and posses- there is no evidence of concerted driving re- sion convictions of Barnard, the lead-car driv- sponses between Mendoza and the Thunder- er. A Border Patrol officer was passed by two bird, except that Mendoza’s vehicle was, at vehicles proceeding northbound approximately one point in time, approximately one mile one mile apart. The lead vehicle was an MG ahead of the Thunderbird. Rather than con- sports car with two occupants that had a forming to the erratic behavior of the Thunder- citizen's band (CB) radio antenna, the driver of bird, Mendoza continued driving toward the which appeared to be talking into a micro- checkpoint. Also unlike the situation in Bar- phone as the MG passed. See id. at 391. The nard, in which the vehicles were equipped with second vehicle was a white Mercury that also and in which Barnard was seen using, compati- carried a CB antenna. See id. The two vehi- ble communications devices, no communica- cles had the same three-letter prefix on their tions device was found in the Maxima or license plates, indicating that both automobiles Thunderbird or on the person of Mendoza or were registered in the same county. See id. any of his co-defendants. The driver of the Mercury appeared nervous, looking repeatedly at the officer, and the rear As in Barnard, however, there is a connec- end of his car appeared to be riding low. See tion between Mendoza’s passenger and the id. load car. In Barnard, the load car belonged to

4 the passenger’s father, and the passenger’s ness when questioned about the two-way ra- wallet was found in the load car. In the case dio; papers in the lead car containing business sub judice, the load car was registered to the and pager numbers for the driver of the load passenger’s ex-husband, and a receipt signed car; a photograph in the lead car picturing the by the passenger was found in the load car. driver of the lead and load cars together; and Although there were no personal items con- evidence of cell phone calls between the driver necting the driver, Mendoza, to the load car, of the lead car and the pivotal figure of the there was testimony that Mendoza, Salazar, conspiracy. See id. at 720-21, 726. Gomez, and Martinez had traveled to Mexico together and that Mendoza gave materially Mendoza is correct that Villarreal and Ino- false statements to officers regarding his recent cencio contained more evidence of a lead- actions and his associations with Gomez and car/load-car scenario than does the case sub Martinez. judice, most notably because the Maxima and Thunderbird did not contain electronic means In United States v. Villarreal, 565 F.2d 932 of communication. Such communication is (5th Cir. 1978), we again affirmed the conspir- not, however, essential to facilitate a lead- acy conviction of a lead-car driver. The evi- car/load-car transport. Absent communication dence demonstrated that the lead and load cars devices, the lead car could travel first to the had traveled together from the border for over checkpoint, and either turn around (or not turn an hour; both vehicles were equipped with CB around, depending on the agreement) if the radios; when the lead car approached the checkpoint is active, thus warning-off the load checkpoint, the passenger ducked beneath the car. Here, the load car may have felt com- dashboard in a manner that suggested that he pelled to continue toward the checkpoint was making a furtive call to the load car; the because Graham followed it to the rest area load car made a U-turn and turned into a rest and waited for it to continue. stop; the load car had been lent to the passen- ger of the lead car; and both occupants of the Moreover, to affirm a conviction we need lead car left footprints at the site where the not find evidence so overwhelming that it marihuana had been delivered and loaded into matches that contained in all our precedent. the load car. See id. at 934-35, 938. Instead, we need only conclude that, viewed in the light most favorable to the government, the In United States v. Inocencio, 40 F.3d 716 evidence is sufficient to allow a reasonable tri- (5th Cir. 1994), we upheld conspiracy and er of fact to find guilt beyond a reasonable possession convictions in a lead-car/load-car doubt. The government proved a link between scenario. The following evidence supported the two vehicles through Salazar’s receipt and the existence of a conspiracy: coconspirator the registration of the Thunderbird to Salazar's testimony linking the drivers of the lead and ex-husband. Martinez and Gomez testified load cars to the pivotal figure of the conspir- that all four defendants traveled to Mexico in acy; two-way radios in the lead and load cars the Maxima. programmed to the same frequency; agent tes- timony that the lead car circled not far from Mendoza admits these connections between the checkpoint, as if waiting for the load car; the two vehicles but denies they were function- the lead car driver’s nervousness and evasive- ing as a lead-car and load-car. Given his ma-

5 terially false statements to the police, however, change of drivers. The jury could rationally and given the connections between the Max- conclude that [defendant] knowingly pos- ima and Thunderbird, a reasonable juror could sessed the cocaine . . . .” Id. conclude that Mendoza had knowledge of the marihuana and that the cars were indeed en- Here, to the same effect, the jury could in- gaged in a lead-car/load-car transport. fer that Mendoza constructively but knowingly possessed the marihuana because of his obvi- B. ous involvement in the conspiracy and the con- To prove possession with intent to distrib- flicting stories he gave. All this is sufficient to ute under § 841(a)(1), the government must establish the requisite guilty knowledge. establish, beyond a reasonable doubt, knowing possession of contraband with intent to distrib- AFFIRMED. ute. See id. at 724. Possession may be actual or constructive. See id. In a hidden-compart- ment case such as this, “[p]ossession of or control over a vehicle does not, standing alone, suffice to prove guilty knowledge.” United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990). Nervous- ness, conflicting statements, and implausible stories can be sufficient to demonstrate guilty knowledge, however. See Inocencio, 40 F.3d at 725.

The government concedes that Mendoza did not actually possess the marihuana but ar- gues that he constructively possessed it as driver of the lead car in a lead-car/load-car scheme. Indeed, in United States v. Quiroz- Hernandez, 48 F.3d 858, 868 (5th Cir. 1995), we held that “[c]o-conspirators may also be li- able for the substantive offenses committed by other members of the conspiracy in furtherance of the common plan” (quoting United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992)). “Therefore, a defendant can be liable for a pos- session conviction on the basis of both his con- structive possession over the contraband and his status as a co-conspirator.” Id. (citing Lo- pez, 979 F.2d at 1031). “[T]he jury could in- fer [the defendant’s] joint control over the contraband from his presence at the scene and all the events leading to the . . . van’s ex-