United States v. Montano

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 21, 1995
• Docket: 94-20861
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-20861

Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN CARLOS MONTANO,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (94 CR 123 4) _________________________________________________________________ September 18, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Juan Carlos Montano appeals his conviction for aiding and

abetting possession with intent to distribute cocaine and

conspiracy to possess with intent to distribute cocaine. He was

sentenced to serve concurrent terms of 151 months in prison and

five years supervised release on each count. His only argument

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. on appeal is that the evidence is insufficient to support his

convictions. We affirm.

When the sufficiency of the evidence is challenged, this

court reviews the evidence in the light most favorable to the

Government, making all reasonable inferences and credibility

choices in favor of the verdict. Glasser v. United States, 315

U.S. 60, 80 (1942). The conviction must be affirmed if any

rational trier of fact could have found that the evidence

established guilt beyond a reasonable doubt. United States v.

Smith, 930 F.2d 1081, 1085 (5th Cir. 1991).

The jury is in a unique position to determine the

credibility of the various witnesses. United States v. Layne, 43

F.3d 127, 130 (5th Cir.), cert. denied, 115 S. Ct. 1722 (1995).

This court defers to the jury's resolutions of conflicts in the

evidence. Id.

To convict Montano of conspiring to distribute cocaine, the

Government must prove an agreement between two or more persons to

violate the narcotics laws, that Montano knew of the conspiracy,

and that he voluntarily participated in it. United States v.

Sanchez-Sotelo, 8 F.3d 202, 208 (5th Cir. 1993), cert. denied,

114 S. Ct. 1410 (1994). The existence of the conspiracy may be

established by circumstantial evidence. Discrete circumstances

that, standing alone, would be inconclusive may prove a

conspiracy when taken together and corroborated by moral

coincidences. United States v. Rodriguez-Mireles, 896 F.2d 890,

892 (5th Cir. 1990).

2 "Although mere presence at the scene of the crime or a close

association with a co-conspirator alone cannot establish

voluntary participation in a conspiracy, . . . presence or

association is a factor that, along with other evidence, may be

relied upon to find conspiratorial activity by the defendant."

United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)

(citations omitted), cert. denied, 114 S. Ct. 2150 (1994).

Further, knowledge may be inferred from the circumstances. Id.

Once the Government establishes an illegal conspiracy, "only

slight evidence is needed to connect [Montano to the]

conspiracy." United States v. Thomas, 12 F.3d 1350, 1359 (5th

Cir.) (internal quotation and citation omitted), cert. denied,

114 S. Ct. 1861 and 2119 (1994).

To convict a defendant of possession with intent to

distribute cocaine the Government must show that he knowingly had

actual possession of the cocaine, United States v. Ivy, 973 F.2d

1184, 1188 (5th Cir. 1992), cert. denied, 113 S. Ct. 1826 (1993),

or that he knowingly had constructive possession of the cocaine.

Constructive possession includes ownership, dominion, or control

over the cocaine. See United States v. Shabazz, 993 F.2d 431,

441 (5th Cir. 1993). Possession of an amount larger than could

be personally consumed will support a finding of intent to

distribute. United States v. Inocencio, 40 F.3d 716, 725 (5th

Cir. 1994).

Aiding and abetting requires proof that the defendant

associated with a criminal venture, participated in the venture,

3 and sought by action to make the venture successful. United

States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994), cert. denied,

115 S. Ct. 1431 (1995). Association with the venture means the

defendant shared the principal's criminal intent; participation

means "the defendant acted in some affirmative manner designed to

aid the venture." United States v. Jaramillo, 42 F.3d 920, 923

(5th Cir.), cert. denied, 115 S. Ct. 2014 (1995).

We turn now to the record of Montano's trial. Police

conducting surveillance on April 26 and 27, 1994, followed

narcotics suspects to the Parqueview Apartments where the police

later seized over 100 kilograms of cocaine. Officer Fern

testified that Ledesma and Tellez, two of Montano's co-

conspirators, drove in a blue van to a shopping mall where

Ledesma used the pay telephone. From there, the police followed

Ledesma and Tellez as they drove to a hospital and a restaurant.

Finally, Ledesma and Tellez drove to the Parqueview Apartments,

exited the van, and entered apartment 905. Shortly afterward,

Ledesma and Obando, another co-conspirator, left apartment 905 in

the blue van. They drove to a mall where they made multiple

telephone calls. Ledesma and Obando left the mall travelling in

an indirect route to a Chevron Station where Ledesma made more

phone calls. From the Chevron Station, Ledesma walked across the

street to a Price Buster Store where Ledesma again used the

telephone. When the officer next saw Ledesma and Obando, they

were travelling in separate vehicles; Ledesma drove the blue van

4 and Obando drove a white Blazer. They drove directly back to the

Parqueview Apartments.

Montano was waiting in the parking lot of the Parqueview

Apartments. After Obando parked the Blazer, Montano conversed

with Obando, looked back and forth down the parking lot, and then

walked to the back of the vehicle. Montano removed a large,

green, Army-type duffel bag from the back of the Blazer and

carried it toward apartment 905 of the complex. The bag appeared

to be full and heavy. Officer Hammons testified that the duffel

bag appeared to be full of kilo-sized packages. Shortly

afterward, Montano was seen coming out of apartment 905 and

walking back in the direction of the S-10 Blazer. When Montano

saw a person who was apparently an undercover police officer

putting his telephone back into his pocket, he was startled. The

officer described Montano's eyes as "really big." Montano was

then seen leaving the area in a small car. A police officer was

informed that suspects were leaving the scene. The police

apprehended Montano and Obando in a Honda shortly afterward. The

police seized cocaine and duffel bags from apartment 905. A

canine handler testified that his dog "alerted" at the tailgate

of the Blazer, indicating that the odor of narcotics could be

detected there. Testimony indicated that cocaine was found

inside a duffel bag in the Blazer as well.

Turning to Montano's argument, Montano contends that the

Government did not produce evidence that he knew or had any

contact with the co-conspirators prior to the time when he was

5 seen conversing with Ledesma near the Blazer and when he was seen

carrying the duffel bag from the Blazer to apartment 905.

Montano asserts, therefore, that the Government failed to prove

an agreement between him and the co-conspirators. He suggests

that the jury had to infer that he made an agreement in the small

amount of time that he was seen conversing with Ledesma. Montano

further asserts that the Government failed to prove that he had

knowledge, intent, or even possession of the cocaine. Montano

maintains that carrying a bag from a vehicle to an apartment does

not indicate knowledge of, or participation in, a drug

conspiracy.

Montano moved for judgment of acquittal at the close of the

Government's case, and he rested without presenting any

additional evidence after the Government closed its case. The

court denied Montano's motion.

Montano's actual involvement in the alleged conspiracy

consists of conversing with Ledesma in the parking lot, carrying

a duffel bag in the direction of apartment 905, appearing

startled when he confronted an apparent police officer near

apartment 905, and leaving the area shortly after he met the

police officer near apartment 905. Although sparse, this

evidence is sufficient to sustain Montano's convictions. Montano

was seen carrying the duffel bag that appeared to be full of

square, kilo-sized packages toward apartment 905. Cocaine and

duffel bags were later found in the apartment and in the Blazer.

Approximately 119.06 kilograms of cocaine was seized. The

6 quantity of drugs involved establishes the requisite intent to

distribute. See United States v. Sanchez, 961 F.2d 1169, 1176

(5th Cir.) ("Intent to distribute is typically inferred from the

fact that an amount is too large for any purpose other than

distribution."), cert. denied, 113 S. Ct. 330 (1992).

Montano contends that the Government did not produce

evidence that he knew of, or agreed to become a part of, the drug

conspiracy. He asserts that the jury had to infer from the

evidence that in that small time frame when Montano conversed

with Ledesma at the back of the Blazer, he agreed to join a drug

Montano's assertions ignore the fact that "[a]n agreement

may be inferred from concert of action, participation from a

collocation of circumstances, and knowledge from surrounding

circumstances." Sanchez, 961 F.2d at 1174 (internal quotation

omitted). Contrary to Montano's position, testimony indicated

that he was waiting for the Blazer when it arrived in the

Parqueview Apartments parking lot. Montano conversed with

Ledesma and seemed to be following Ledesma's instructions to

carry the duffel bag toward apartment 905. Montano concedes on

brief that he was following Ledesma's instructions to carry the

bag. Montano was seen looking "back and forth down the parking

lot" while conversing with Ledesma. Montano exited the apartment

and walked back toward the Blazer. When Montano rounded a corner

and met a person who appeared to be a police officer, he became

noticeably apprehensive. Thirty to forty-five seconds later,

7 Montano was seen leaving the parking lot. One duffel bag with

cocaine remained in the Blazer. These facts combined with

Montano's hasty departure from the area provided sufficient

evidence from which the jury could infer that Montano knew of the

drug activity and agreed to participate in the conspiracy.

Viewing the evidence in the light most favorable to the

Government and drawing all reasonable inferences in favor of the

verdict, the evidence is sufficient to support the convictions.

Montano's convictions are AFFIRMED.