UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-40346
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
IGNACIO LOPEZ VILLAREAL; ISRAEL ALVAREZ; EVELYN JONES; BILLY WAYNE SESSIONS, also known as Billy Jones; BALTAZAR CANTU, also known as La Corcha, also known as Bobby,
Defendants-Appellants.
Appeal from the United States District Court For the Southern District of Texas (M-95-CR-227-15) August 28, 2001 Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Ignacio Lopez Villareal, Israel Alvarez,
Evelyn Jones, Billy Wayne Sessions, and Baltazar Cantu appeal their
convictions and sentences for various drug crimes.
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 government alleged that Cantu and others operated a drug-
trafficking organization that transported large amounts of
marijuana and cocaine to places outside Texas. Moreover, the
government argued that Sessions and Jones ran a trucking business
that the drug-trafficking organization utilized to transport the
contraband. According to the government, Alvarez and Villarreal
assisted the organization by loading and driving the vehicles that
transported the drugs.
The jury convicted the defendants of numerous crimes, ranging
from conspiracy to possess with intent to distribute to money
laundering. On appeal, each defendant raises various points of
error. We note them below.
Cantu makes three main arguments. First, he contends that his
conviction for violating the continuing criminal enterprise (“CCE”)
statute should be vacated because the jury only convicted him of
two, and not three, substantive acts of possession with intent to
distribute. Second, Cantu challenges the sufficiency of the
evidence to support the CCE count, the substantive count of
possession with intent to distribute cocaine, the substantive count
of possession with intent to distribute marijuana, and the
substantive count of money laundering. Third, he believes that the
district court abused its discretion by refusing to provide the
jury with written jury instructions.
Sessions generally argues that there was insufficient evidence
2 to support his convictions. In addition, he concurs with Cantu’s
assessment that the district court’s failure to include written
jury instructions was improper.
Jones raises four points of error. First, she challenges the
sufficiency of the evidence with respect to her convictions for 1)
conspiracy to possess with intent to distribute marijuana, 2)
possession with intent to distribute marijuana, 3) conspiracy to
commit money laundering, and 4) substantive acts of money
laundering. Second, Jones contends that the district court
violated Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), in
calculating the drug amounts and laundered money attributable to
her. Third, she charges that the district court erred in admitting
certain allegedly 404(b) material at trial. Finally, Jones
maintains that the district court erred in upwardly adjusting her
sentence for obstruction of justice, based upon her testimony at
trial.
Alvarez contends that the evidence did not support his
convictions for conspiracy to possess with intent to distribute
marijuana and possession with intent to distribute marijuana.
Additionally, he believes that the district court abused its
discretion in failing to provide written jury instructions.
Like the others, Villarreal questions the sufficiency of the
evidence with respect to his conviction for conspiracy to possess
with intent to distribute marijuana. Furthermore, he also
3 challenges the district court’s decision not to give written jury
instructions.
After having reviewed the briefs, the applicable law, and
pertinent portions of the record, we reject the vast majority of
the defendants’ points of error. As a result, we affirm the
district court’s determinations in every case, but one. That
exception relates to the sufficiency of the evidence with respect
to Cantu’s conviction for Count 9. Our review of the record
suggests that the government failed to establish beyond a
reasonable doubt that Cantu possessed with intent to distribute
cocaine.
In reviewing a challenge to the sufficiency of the evidence,
we must determine whether a rational trier of fact could have found
that the evidence established guilt beyond a reasonable doubt.
United States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993). All
reasonable inferences drawn from the evidence and all credibility
determinations are viewed in the light most favorable to the
verdict. United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir.
1997). But “[i]f the evidence viewed in the light most favorable
to the prosecution gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence of the crime
charged, this court must reverse the conviction[].” United States
v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992) (internal quotation
4 marks and citations omitted).
To prove possession with intent to distribute, the government
must show that the defendant knowingly possessed a controlled
substance with intent to distribute. United States v. Torres, 114
F.3d 520, 524 (5th Cir. 1997). Proof may consist of direct or
circumstantial evidence demonstrating actual or constructive
possession, which is “defined as ownership, dominion, or control
over illegal drugs or dominion over the premises where drugs are
found.” Id. Cantu’s conviction for Count 9 involved the discovery
of approximately 45 kilograms of cocaine in a Dodge Ram Charger
driven by Priscilla Valadez on September 30, 1992. The government
presented testimony that Valadez’s boyfriend Zeferino Martinez and
Cantu transacted drugs with each other, that Valadez attended a
meeting in which Martinez and Cantu talked about transporting drugs
to Houston, and that Martinez induced Valadez to drive the Charger,
with cocaine inside, from the McAllen area to Houston. There was
no direct testimony, however, that the cocaine was Cantu’s, nor did
the evidence reveal that Cantu owned the vehicle. The mere fact
that Cantu and Martinez had previously done drug transactions
together does not establish Cantu’s possession of the cocaine. If
the meeting about transporting drugs to Houston had occurred within
a short period of time from the date of Valadez’s attempted
transport, a jury could reasonably have inferred that Cantu was
somehow involved. But Valadez further testified that the meeting
5 occurred in June or July, more than two months before the date of
the attempted transport. Without more, that time differential
amounts to a disconnect that does not allow for a reasonable
inference that Cantu possessed the cocaine, which Valadez attempted
to transport, with the intent to distribute. Therefore, we find
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-40346
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
IGNACIO LOPEZ VILLAREAL; ISRAEL ALVAREZ; EVELYN JONES; BILLY WAYNE SESSIONS, also known as Billy Jones; BALTAZAR CANTU, also known as La Corcha, also known as Bobby,
Defendants-Appellants.
Appeal from the United States District Court For the Southern District of Texas (M-95-CR-227-15) August 28, 2001 Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Ignacio Lopez Villareal, Israel Alvarez,
Evelyn Jones, Billy Wayne Sessions, and Baltazar Cantu appeal their
convictions and sentences for various drug crimes.
* 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 government alleged that Cantu and others operated a drug-
trafficking organization that transported large amounts of
marijuana and cocaine to places outside Texas. Moreover, the
government argued that Sessions and Jones ran a trucking business
that the drug-trafficking organization utilized to transport the
contraband. According to the government, Alvarez and Villarreal
assisted the organization by loading and driving the vehicles that
transported the drugs.
The jury convicted the defendants of numerous crimes, ranging
from conspiracy to possess with intent to distribute to money
laundering. On appeal, each defendant raises various points of
error. We note them below.
Cantu makes three main arguments. First, he contends that his
conviction for violating the continuing criminal enterprise (“CCE”)
statute should be vacated because the jury only convicted him of
two, and not three, substantive acts of possession with intent to
distribute. Second, Cantu challenges the sufficiency of the
evidence to support the CCE count, the substantive count of
possession with intent to distribute cocaine, the substantive count
of possession with intent to distribute marijuana, and the
substantive count of money laundering. Third, he believes that the
district court abused its discretion by refusing to provide the
jury with written jury instructions.
Sessions generally argues that there was insufficient evidence
2 to support his convictions. In addition, he concurs with Cantu’s
assessment that the district court’s failure to include written
jury instructions was improper.
Jones raises four points of error. First, she challenges the
sufficiency of the evidence with respect to her convictions for 1)
conspiracy to possess with intent to distribute marijuana, 2)
possession with intent to distribute marijuana, 3) conspiracy to
commit money laundering, and 4) substantive acts of money
laundering. Second, Jones contends that the district court
violated Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), in
calculating the drug amounts and laundered money attributable to
her. Third, she charges that the district court erred in admitting
certain allegedly 404(b) material at trial. Finally, Jones
maintains that the district court erred in upwardly adjusting her
sentence for obstruction of justice, based upon her testimony at
trial.
Alvarez contends that the evidence did not support his
convictions for conspiracy to possess with intent to distribute
marijuana and possession with intent to distribute marijuana.
Additionally, he believes that the district court abused its
discretion in failing to provide written jury instructions.
Like the others, Villarreal questions the sufficiency of the
evidence with respect to his conviction for conspiracy to possess
with intent to distribute marijuana. Furthermore, he also
3 challenges the district court’s decision not to give written jury
instructions.
After having reviewed the briefs, the applicable law, and
pertinent portions of the record, we reject the vast majority of
the defendants’ points of error. As a result, we affirm the
district court’s determinations in every case, but one. That
exception relates to the sufficiency of the evidence with respect
to Cantu’s conviction for Count 9. Our review of the record
suggests that the government failed to establish beyond a
reasonable doubt that Cantu possessed with intent to distribute
cocaine.
In reviewing a challenge to the sufficiency of the evidence,
we must determine whether a rational trier of fact could have found
that the evidence established guilt beyond a reasonable doubt.
United States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993). All
reasonable inferences drawn from the evidence and all credibility
determinations are viewed in the light most favorable to the
verdict. United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir.
1997). But “[i]f the evidence viewed in the light most favorable
to the prosecution gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence of the crime
charged, this court must reverse the conviction[].” United States
v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992) (internal quotation
4 marks and citations omitted).
To prove possession with intent to distribute, the government
must show that the defendant knowingly possessed a controlled
substance with intent to distribute. United States v. Torres, 114
F.3d 520, 524 (5th Cir. 1997). Proof may consist of direct or
circumstantial evidence demonstrating actual or constructive
possession, which is “defined as ownership, dominion, or control
over illegal drugs or dominion over the premises where drugs are
found.” Id. Cantu’s conviction for Count 9 involved the discovery
of approximately 45 kilograms of cocaine in a Dodge Ram Charger
driven by Priscilla Valadez on September 30, 1992. The government
presented testimony that Valadez’s boyfriend Zeferino Martinez and
Cantu transacted drugs with each other, that Valadez attended a
meeting in which Martinez and Cantu talked about transporting drugs
to Houston, and that Martinez induced Valadez to drive the Charger,
with cocaine inside, from the McAllen area to Houston. There was
no direct testimony, however, that the cocaine was Cantu’s, nor did
the evidence reveal that Cantu owned the vehicle. The mere fact
that Cantu and Martinez had previously done drug transactions
together does not establish Cantu’s possession of the cocaine. If
the meeting about transporting drugs to Houston had occurred within
a short period of time from the date of Valadez’s attempted
transport, a jury could reasonably have inferred that Cantu was
somehow involved. But Valadez further testified that the meeting
5 occurred in June or July, more than two months before the date of
the attempted transport. Without more, that time differential
amounts to a disconnect that does not allow for a reasonable
inference that Cantu possessed the cocaine, which Valadez attempted
to transport, with the intent to distribute. Therefore, we find
the evidence insufficient to convict Cantu of Count 9.2
Accordingly, we vacate Cantu’s conviction and sentence for
Count 9 and remand for proceedings consistent with this opinion.
As for the remaining defendants, we affirm their convictions and
sentences.
2 We note that there was no Pinkerton instruction as to this count. In Pinkerton v. United States, 328 U.S. 640 (1946), “the Supreme Court held that ‘a party to a conspiracy may be held responsible for a substantive offense committed by a coconspirator in furtherance of a conspiracy, even if that party does not participate in or have any knowledge of the substantive offense.’” United States v. Gobert, 139 F.3d 436, 439 n.22 (5th Cir. 1998) (quoting United States v. Jensen, 41 F.3d 946, 955-56 (5th Cir. 1994)).