United States v. Viscarra

494 F.3d 490, 2007 U.S. App. LEXIS 17614, 2007 WL 2120013
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 25, 2007
Docket05-31078
StatusPublished
Cited by4 cases

This text of 494 F.3d 490 (United States v. Viscarra) 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. Viscarra, 494 F.3d 490, 2007 U.S. App. LEXIS 17614, 2007 WL 2120013 (5th Cir. 2007).

Opinion

BENAVIDES, Circuit Judge:

Felipe Viscarra was convicted of conspiracy to distribute 50 grams or more of methamphetamine or 500 grams or more of a mixed substance containing detectable amounts of methamphetamine. 21 U.S.C. §§ 841(a)(1), 846. It is undisputed that Viscarra drove from Atlanta, Georgia to Monroe, Louisiana to assist Salvador Arai-za. Araiza was transporting methamphetamine and cocaine in his car, and told Viscarra his car had broken down near Monroe. On appeal, Viscarra argues that the evidence was insufficient to prove that he knew narcotics were in Araiza’s car. After a thorough review of the record, we are satisfied that the evidence at trial was sufficient and we AFFIRM Viscarra’s conviction.

/. FACTS AND STANDARD OF REVIEW

To overturn a conviction for insufficient evidence, we must be satisfied that no rational jury could have found that the government proved the essential elements of each charge beyond a reasonable doubt. United States v. Anderson, 174. F.3d 515, 522 (5th Cir.1999). This analysis requires us to further detail the underlying facts.

Salvador Araiza was pulled over by Sergeant Stan Felts just outside of Monroe, Louisiana on December 13, 2004. He was en route from Dallas, Texas to Atlanta, Georgia. Araiza consented to a search of the car, which revealed thirteen bundles of narcotics containing approximately ten kilograms of methamphetamine and five kilograms of cocaine. After the drugs were discovered, Araiza agreed to cooperate in additional investigation into the source and recipient of the drugs.

Araiza then made recorded phone calls to “Güero” and Felipe Ayala and told them that his car had broken down in Monroe and he needed somebody to come and tow it to a mechanic. Güero, the apparent recipient of the shipment in Atlanta, quickly called Araiza back and indicated that somebody was coming to help him with the car. He then received a phone call from Viscarra, who indicated he was on the way and would meet him at the Best Western where Araiza was staying for the night. The following day, December 14, Viscarra arrived in the late afternoon.

When Viscarra arrived at the hotel room, agents were waiting in the bathroom and recording his conversation with Arai-za. That transcribed conversation — which was translated from Spanish, often unintelligible (“ui”) due to recording problems, and full of typographical errors — follows:

Viscarra: Well, it that dammit
Araiza: You e coming by yourself?
Viscarra: Yes.
Araiza: What up? What did that buddy tell you?
*492 Viscarra: No that (ui)
Araiza: Well, that where the problem is. It didn work. It a bitch. The damn You don have any tools to work with?
Viscarra: No.
Araiza: Well, son-of-a-bitch, how are we going to do it? Or what?
Viscarra: (ui)
Araiza: You want, you want me to leave the ifts there, or what the story?
Viscarra: Did you lock the damn doors?
Araiza: Yes, here there are people constantly coming or leaving. You want me to leave the gifts there, or How are you going to do it with that shit?
Viscarra: We’re going to have to arrange it in my car.
Araiza: We have to fix it. I thought that you were going to bring something else, another car to throw in to throw in that luggage.
Viscarra: They haven told me anything. Araiza: No? Well, how are we going to do it?
Viscarra: We bring a damn tow-truck.
Araiza: You know this area?
Viscarra: No.
Araiza: Son-of-a-bitch. You don’t have any tools, nothing to (ui)?
Viscarra: No, I don know how, my friend (ui).
Araiza: Yeah. Yeah, but what did that (guy) tell you? Will he want you to take this shit with you? Eh? Didn he tell you?
Viscarra: He didn tell me.

At that point, Araiza repeatedly said “Bingo,” which he testified was a code word to indicate Viscarra was heading into the bathroom, where the agents were hiding. Araiza also testified that “luggage,” “gifts” and “shit” were all code words used for “drugs,” and that Viscarra knew what they meant. The agents immediately arrested Viscarra after he entered the bathroom.

After he was arrested, agents found his vehicle about one-third of a mile away at a nearby restaurant. Receipts in the car indicated that Viscarra had been in Monroe approximately two hours before he reached the hotel room, which the government argued was time he used to survey the area for police.

Additionally, Araiza testified that he met Viscarra on one prior occasion: In November 2004, just weeks before the incident at bar, he was offered $5,000 to drive another shipment from Dallas to Atlanta. Araiza was told he was transporting paperwork and license plates, but he did not believe that. When he arrived in Atlanta, he called Güero to let him know of his arrival. Shortly thereafter, Viscarra met him at a hotel room, took the car and returned it a couple of hours later. Viscarra verified this account, but testified that he did not know if drugs were involved in that exchange.

II. DISCUSSION

Under the applicable statutes, the government must have proved beyond a reasonable doubt that Viscarra “knowingly or intentionally” agreed to assist in the distribution of a controlled substance. 21 U.S.C. §§ 841(a)(1), 846; see also United States v. Reveles, 190 F.3d 678, 686 (5th Cir.1999). The judge also gave a “deliberate indifference” instruction, in which he informed the jurors that they “may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious.” The instruction was proper, as it is established that a defendant’s “charade of ignorance” can be taken “as circumstantial proof of guilty knowledge.” United States v. Threadgill, 172 F.3d 357, 368 (5th Cir.1999).

*493

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Bluebook (online)
494 F.3d 490, 2007 U.S. App. LEXIS 17614, 2007 WL 2120013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-viscarra-ca5-2007.