United States v. Moreno-Garcia

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 11, 2000
• Docket: 99-40159
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-40159 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EUFEMIO MORENO-GARCIA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Southern District of Texas (L-98-CR-380-2) _________________________ August 9, 2000

Before SMITH and DENNIS, Circuit JERRY E. SMITH, Circuit Judge:** Judges, and ROETTGER, District Judge.* Eufemio Moreno-Garcia appeals, on grounds of insufficient evidence, his conviction

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published * District Judge of the Southern District of Florida, and is not precedent except under the limited sitting by designation. circumstances set forth in 5TH CIR. R. 47.5.4. of conspiracy and possession with intent to Serna then changed his story, distribute marihuana. Because he did not re- acknowledging that he knew there was new his motion for acquittal at the close of all marihuana in the truck and stating that he was evidence, we review only for plain error. being paid $1500 to deliver it to Rogelio in Finding none, we AFFIRM. Dallas and then drive back to Nuevo Laredo with an unknown amount of currency. When I. he arrived in Dallas, he was to call Rogelio at Moreno-Garcia (“Moreno”), Juan Serna- the number on the paper. Arrambide (“Serna”), and Carlos Rios were charged in a two-count indictment with The agents and Serna proceeded to Dallas conspiracy and possession with intent to with the truck and attempted a controlled de- distribute marijuana, in violation of 21 U.S.C. livery. Before noon on April 4, the agents § 841(a)(1), 21 U.S.C. § 841(b)(1)(D), and parked the loaded truck outside of Grandy’s 18 U.S.C. § 2. Serna and Rios pleaded guilty Restaurant, and Serna called the number for to the possession count, and the government Rogelio, saying that he had arrived in Dallas dismissed the conspiracy count as to them. A and needed someone to pick him up because jury found Moreno guilty on both counts. he did not know his way around Dallas. They agreed to meet at Grandy’s. On April 3, 1998, Serna was attempting to enter the United States from Nuevo Laredo, Meanwhile, agents conducted surveillance Mexico, when Customs agents discovered ap- of a residence at 702 Ely Street, Dallas, to proximately fifty pounds of marihuana secreted which the phone number on the slip of paper in a hidden compartment under the driver’s was assigned. Shortly after Serna’s phone call, seat of the truck he was driving. The three Hispanic males left 702 Ely Street in a inspectors had noticed a zipper in the seat that white car with yellow license plates. The opened from the driver’s side. The seat was group included Moreno, a 20-year-old man, hard as a rock and unusually high. They and a 40-year-old man who drove the car. opened the zipper on the seat and found a tray containing foam, baby powder, and vacuum- Rios had met Rogelio at the bus stop in Nu- sealed plastic packages of marihuana. evo Laredo, in December 1997. At about 2:30 p.m. on April 4, he received a call on his Serna indicated his desire to cooperate and cellular telephone from Rogelio, who offered gave the inspectors a slip of paper with the to pay him $500 to deliver marihuana to name “Rogelio” and “331-0438” written on it. another person. Rogelio told Rios to meet him Serna said that he had been approached by a at a gas station, where Rios would pick up man he did not know, who gave him $177 to someone who would know whom to contact at cover expenses and asked him to drive the Grandy’s Restaurant. truck to Dallas and to call the phone number upon arrival. Serna told Special Agents Dami- Rios drove a gold car to a gas station near en Vega and Eric Wilson that he did not know Grandy’s. Rogelio arrived, driving a white car what was in the truck, but that he was being with yellow license plates, which Rios paid $250 to drive it either just across the previously had seen Rogelio driving in Nuevo border or to Dallas. Laredo. Moreno exited Rogelio’s car and entered Rios’s car.

2 Rios drove Moreno to Grandy’s. Rios tes- driver’s seat of the load truck. tified that when they arrived in the Grandy’s parking lot, Moreno said, “That’s the pickup.” The agents testified that there were twenty Moreno entered the restaurant and came out a people inside the garage but that only the three short time later with Serna. Rios testified that defendants were arrested. Agents spoke to ev- he had not seen the truck or Serna before. eryone inside the garage, and apparently no one had information about the transfer of the Rios told the pair to follow him. Serna marihuana or about Moreno’s actions inside drove the load vehicle, and Moreno rode as a the garage. passenger. Rios drove on Highway 35, then exited and pulled into the parking lot of the Vega testified that he believed Moreno’s Elms Apartments. He waited there for a call role in the conspiracy was that of a middleman from Rogelio, who instructed him to go to an between Rogelio and Serna and as a “lookout” auto shop at 200 North Marcella Street. Ac- at the garage. Vega stated that it is unusual cording to Rios’s testimony, Moreno walked for participants in a drug conspiracy to up to Rios’s car but said nothing. Rios told associate with persons not participating in the Moreno to follow him. conspiracy when they are doing acts in furtherance of the conspiracy. Another agent Vega testified that Rios first told him that testified that Moreno’s actions were Moreno had gotten into his car at the characteristic of an individual involved as a apartments and that Moreno called Rogelio. lookout. Rios changed his story and told Vega that Rogelio had called Rios and that Moreno had Rios testified that he did not know More- merely asked why they had stopped. no’s role in the conspiracy, but only that Mo- reno would know the person at the restaurant. Serna and Moreno then followed Rios to Rios testified that only he, Serna, and Rogelio 200 North Marcella Street. The car and truck knew that marihuana was being transferred pulled into the garage of an auto tint shop. from the truck to his car at the auto shop. Rios testified that when the truck got near his car inside the garage, Moreno was no longer in Moreno testified that he worked as a the truck. The last time he saw Moreno, Mo- mechanic’s assistant making about $40 to $50 reno had been close to the front door. Rios a week. He had known Serna, who lived testified that Serna placed the marihuana into around the corner from him, for about five the trunk of Rios’s car. years. He saw Serna on April 2, 1998, driving the brown truck that was the load truck. After about five to ten minutes, as the Serna offered to pay Moreno $100 to drive a agents prepared to enter the garage and arrest truck to Nuevo Laredo that Serna was going the participants, the gold car exited. An agent to buy in Dallas. pulled in behind the car and blocked it, and other agents secured the garage. Agents re- Serna planned to leave for Dallas on April 3 covered nine bundles of marihuana from Rios’s and said that someone was going to come get trunk, the same marihuana that had been in the Moreno. On April 3, Rogelio, whom Moreno load truck and seized by Customs the previous had not met before, arrived at Moreno’s day. Moreno was arrested while seated in the house, said that Serna had sent him, and asked

3 whether Moreno was going to Dallas to help told him to get back into the truck because drive the pickup. they were going to keep going.

Moreno rode with Rogelio and Rogelio’s When they arrived at the auto tint shop, wife and son to the bridge at the border. Ro- Serna told Moreno to wait for him near the gelio told Moreno to cross into the United door, and Serna proceeded inside the garage States and wait for him at the H.E.B. grocery with the truck. Moreno testified that he was in store in downtown Laredo. Rogelio, his wife, the driver’s seat of the truck when he was ar- and son picked Moreno up from the store at rested, because Serna said he was tired and about noon, and they traveled to Dallas in the asked whether Moreno would drive the truck same car that later delivered Moreno to the out of the garage. Moreno testified that he did gas station near Grandy’s. not know who transferred the marihuana from the pickup to Rios’s car, did not use marihua- They arrived in Dallas at about 8 p.m. and na, had never participated in the distribution of spent the night at the Ely Street home of peo- marihuana or other drugs, and did not know ple Moreno did not know. Moreno testified that Serna was taking marihuana to Dallas. that he did not ask when he was going to meet up with Serna and that he did not have a phone II. number or any way to contact Serna. Moreno argues that the evidence was insuf- ficient to support his convictions and that the The next morning, after Rogelio received a court erroneously denied his motion for phone call, Moreno, Rogelio, and his son left judgment of acquittal. He argues that the the house and drove to the gas station. Roge- government did not prove that he was a willing lio told Moreno to get into a gold car with Ri- and knowing conspirator doing his part to os and that Rios would take him to meet Serna further the conspiracy. He contends that the at a restaurant. Moreno testified that this was evidence showed only that he associated with the first time he met Rios. individuals who were engaged in the transportation of marihuana and that he was Rios drove Moreno to Grandy’s but did not merely present during the transportation of the tell Moreno anything. Moreno recognized the drugs from Grandy’s to Marcella Street. brown truck in the parking lot as the one he had seen Serna driving in Nuevo Laredo. Mo- Only “[p]lain errors or defects affecting reno found Serna inside Grandy’s and told substantial rights may be noticed although they Serna, “They’re looking for you outside.” were not brought to the attention of the They exited the restaurant, and Moreno got court.” FED. R. CRIM. P. 52(b). Because Mo- into the passenger side of the truck with Serna. reno failed to renew his motion for judgment Moreno stated that he did not know where of acquittal after the close of all the evidence, Serna was going. we are limited to a review for plain error. See United States v. McCarty, 36 F.3d 1349, 1358 Moreno testified that he did not know why (5th Cir. 1994). Rios stopped at the apartments. Moreno asserted that he got out of the truck at the It is not enough, therefore, for us merely to apartments to look for a place to get a drink of find that the district court would have erred water. When he walked up to Rios’s car, Rios had it denied a motion for judgment of

4 acquittal at the close of evidence. See United be proved by direct evidence. Moreover, States v. Olano, 507 U.S. 725, 732 (1993). “[o]nly slight evidence is needed to connect an Rather, the error is reversible “only if it is individual to an illegal conspiracy once the ‘plain’ and ‘affect[s] substantial rights.’” Id. United States has produced evidence of that “‘Plain’ is synonymous with ‘clear’ or, conspiracy.” United States v. Vaquero, 997 equivalently, ‘obvious.’” Id. at 734 (citations F.2d 78, 82 (5th Cir. 1993). omitted). Thus, while mere presence and association Rule 52(b) was intended to afford a with conspirators, alone, will not support an means for the prompt redress of inference of participation in the conspiracy, see miscarriages of justice. By its terms, Maltos, 985 F.2d at 746, evidence of concert- recourse may be had to the Rule only on ed action can indicate both agreement and vol- appeal from a trial infected with error so untary participation in the conspiracy. See “plain” the trial judge and prosecutor United States v. Quiroz-Hernandez, 48 F.3d were derelict in countenancing it, even 858, 866 (5th Cir. 1995). A jury may infer absent the defendant’s timely assistance participation and membership in a conspiracy in detecting it. The Rule thus reflects a when the facts make it unlikely that careful balancing of our need to conspirators would permit an innocent person encourage all trial participants to seek a to be present or act. See United States v. fair and accurate trial the first time Martinez-Moncivais, 14 F.3d 1030, 1034-35 around against our insistence that (5th Cir. 1994). obvious injustice be promptly redressed. While Moreno’s plea of innocence and ig- norant acquiescence is not wholly lacking in United States v. Frady, 456 U.S. 152, 163 plausibility, it is not sufficiently supported in (1982). the record to call for plain error reversal. He was not only present and associating with the Thus, for Moreno to prevail, he must do co-conspirators, but played an active role in more than show t hat the evidence was effecting the goals of the established insufficient; he must also show that conspiracy. While it is not impossible that insufficiency was “so ‘plain’ the trial judge and Moreno did so blindly, without knowledge that prosecutor were derelict in countenancing it.” he was participating in criminal activity, it was Id. Moreno cannot meet that high standard not plain error to al low the jury to conclude with respect to either count. otherwise.

A. B. A defendant is guilty of conspiracy if “Conviction for possession with intent to (1) there is agreement between two or more distribute requires proof of (1) knowing persons to commit a crime and the defendant (2) possession (3) with intent to distribute.” (2) knew of the agreement, and (3) voluntarily United States v. Anchondo-Sandoval, 910 participated in the agreement. See United F.2d 1234, 1236 (5th Cir. 1990). Possession States v. Bermea, 30 F.3d 1539, 1551 (5th Cir. of contraband may be either “actual or 1994); United States v. Maltos, 985 F.2d 743, constructive and may be joint among several 746 (5th Cir. 1992). These elements need not defendants. This court has defined

5 ‘constructive possession’ as ‘the knowing exercise of, or the knowing power or right to exercise dominion and control over the proscribed substance.’” United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993) (citations omitted).

When the contraband is hidden in a compartment within a vehicle, “[p]ossession of or control over a vehicle does not, standing alone, suffice to prove guilty knowledge.” An- chondo-Sandoval, 910 F.2d at 1236. But, “knowing possession can be inferred from the defendant’s control over the vehicle in which the illicit substance is contained if there exists other circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.” Id.

For the same reasons that Moreno’s conspiracy conviction survives plain error review, there is sufficient circumstantial evidence to support an inference of knowing possession of marihuana. The suspicious surrounding circumstances supporting Moreno’s knowing participation in the conspiracy can serve double duty and establish his constructive possession of the seized contraband.

Possession of an amount of marihuana larg- er than is necessary for personal consumption supports a finding that the defendant intended to distribute the drug. See United States v. Williams-Hendricks, 805 F.2d 496, 501-02 (5th Cir. 1986). The fifty-one pounds seized here falls squarely within that inference. It therefore was not plain error to allow the jury to convict Moreno for possession with intent to distribute marihuana.

AFFIRMED.