United States v. Reymundo Montoya-Ortiz, and Ruben Montoya

7 F.3d 1171
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 13, 1993
Docket92-8204
StatusPublished
Cited by99 cases

This text of 7 F.3d 1171 (United States v. Reymundo Montoya-Ortiz, and Ruben Montoya) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Reymundo Montoya-Ortiz, and Ruben Montoya, 7 F.3d 1171 (5th Cir. 1993).

Opinions

BARKSDALE, Circuit Judge:

The challenges by Reymundo Montoya-Ortiz and Ruben Montoya-Lujan to their convictions and sentences for cocaine conspiracy and possession turn in large part on the use that can be made of evidence of prior similar acts. They contend, inter alia, that the evidence is insufficient to sustain their convictions. We AFFIRM.

I.

Montoya-Ortiz and Montoya-Lujan are first cousins. They were convicted for conspiracy to possess with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1).1 Each was sentenced to life in prison.

II.

A.

Montoya-Ortiz and Montoya-Lujan contest the sufficiency of the evidence. Our [1173]*1173standard of review for such a contention is well established:

When a challenge is made to the sufficiency of the evidence supporting a conviction, this court must decide whether a rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. We must view the evidence in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury. The standard is the same whether the evidence is direct or circumstantial.

United States v. Gardea-Carrasco, 830 F.2d 41, 43-44 (5th Cir.1987) (footnotes omitted). It is equally well established that “[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.... A jury is free to choose among reasonable constructions of the evidence.” United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

“To establish a conspiracy under 21 U.S.C. § 846, the government must prove ‘that a conspiracy existed, that each co-defendant knew of the conspiracy, and that each co-defendant voluntarily joined in it.’ ” United States v. Simmons, 918 F.2d 476, 483-84 (5th Cir.1990) (quoting United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.1989)). Proof of a formal agreement is not necessary; all that is required is proof beyond a reasonable doubt “[t]hat two or more persons in some way or manner, positively, or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan”. Id. at 484 (quoting United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.1986)). “An agreement may be inferred from concert of action, participation from a ‘collocation of circumstances’ and knowledge from ‘surrounding circumstances’”. United States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir.1993).

For the substantive possession count, the Government is required to prove that a defendant knowingly possessed cocaine with the intent to distribute it. E.g., id. at 1175. “[Pjossession may be either actual or eon-structive”. United States v. Smith, 930 F.2d 1081, 1085 (5th Cir.1991). “‘Constructive possession’ has been defined as ownership, dominion, or control over the contraband itself, or dominion or control over the premises in which the contraband is concealed”. Id. (emphasis in original).

The vehicles used for the offenses in issue departed from Presidio, Texas. Montoya-Lujan contends that the Government failed to prove beyond a reasonable doubt that he knowingly and intentionally joined the conspiracy, maintaining that the evidence showed only that he was present in Presidio at the time of those offenses. He contends, further, that there is no evidence to show that he constructively possessed the cocaine. Montoya-Ortiz similarly contends that the evidence was insufficient to establish the requisite knowledge and intent for conspiracy and possession with the intent to distribute. The evidence, viewed in the light most favorable to the verdict, was as follows.

On the afternoon of October 17, 1990, a pickup truck, pulling a flat-bed trailer loaded with bales of hay, entered the primary inspection area of the United States Border Patrol checkpoint south of Marfa, Texas. It was driven by Montoya-Ortiz; Jesus Ramos-Calderon (a/k/a Chuy) was a passenger.2 Ramos-Calderon was known to Border Patrol agents to be involved in narcotics trafficking. The truck was referred to the secondary inspection area and a canine inspection was conducted. Although the dog showed interest in the bales of hay, no contraband was found. Montoya-Ortiz and Ramos-Calderon were taken inside the checkpoint trailer and interviewed. Montoya-Ortiz stated that they had come to Presidio to get hay at the Mario Pando Farm, downriver from Presidio, for his race horses, and that he leased the farm. There was evidence that, in the Presidio area, there is a Pando Farm that grows and sells alfalfa hay (the type on Montoya-Ortiz’s trailer). Other testimony established that quality hay could be purchased in New Mexico, less than an hour’s drive from Montoya-Ortiz’s home in Andrews, Texas. On the other hand, Presi-[1174]*1174dio is about a three-hour drive from Andrews.

About 15 or 20 minutes after the truck driven by Montoya-Ortiz entered the checkpoint, and while he and Ramos-Calderon were still inside the checkpoint trailer, a second pickup truck loaded with bales of hay entered the primary inspection area. The truck was driven by Edmundo Calixto Moreno; it, too, was referred to the secondary inspection area. During a canine inspection, the dog alerted, indicating narcotics on the truck. Border Patrol Agent Casteneda advised Moreno of his rights and told him that he was being placed under arrest. As Ramos-Calderon had instructed him to do, Moreno indicated that he did not know anything about any narcotics. He appeared to be very nervous, licking his lips and wiping his hands on his pants.

Moreno was taken to the checkpoint trailer, where Montoya-Ortiz and Ramos-Calderon were being interviewed. Although, in a space about 10 by 20 feet, Moreno had to pass within two feet of Ramos-Calderon and Montoya-Ortiz, they gave no indication that they recognized Moreno, and appeared to deliberately ignore him. Agent Casteneda testified that Moreno and Ramos-Calderon looked at each other, and Moreno then turned away from Ramos-Calderon so quickly he “thought he was going to snap his head off at his shoulders”.3

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Cite This Page — Counsel Stack

Bluebook (online)
7 F.3d 1171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reymundo-montoya-ortiz-and-ruben-montoya-ca5-1993.