UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 92-7150
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ISAI ISAURO GARZA, a/k/a JESUS ISAURO GARZA,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas (April 20, 1993)
Before WISDOM, DUHÉ, Circuit Judges, and DOHERTY*, District Judge.
WISDOM, Circuit Judge.
In this case, the defendant, Isai Isauro Garza, appeals his
conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(A) for possession
of 447 kilograms cocaine with the intent to distribute. He
contends that the evidence was insufficient to sustain his
conviction. Additionally, he contends that the trial court's
admission of testimony concerning the computer listings of the Drug
Enforcement Administration (DEA) constitutes reversible error.
* District Judge of the Western District of Louisiana, sitting by designation. Finally, he contends that he was denied effective assistance of
counsel based on his lawyer's failure to object to the admission of
the allegedly inadmissible testimony. We hold that the evidence
was sufficient to support the jury's verdict and we find no
reversible error. We affirm.
I.
In August 1991, a United States Boarder Patrol agent stopped
Garza at the Falfurrias Checkpoint in Texas for a routine
inspection. Garza was driving his tractor trailer. In response to
questioning, Garza told the agent that he had come from Edinburg,
Texas with a load of limes he was taking to Los Angeles. The agent
then asked to see a copy of Garza's bill of lading. The bill of
lading listed Los Angeles as the destination of the load. The
agent testified that Garza seemed nervous, his voice trembled, and
his hand shook as he handed over the document. Based on these
observations, the agent asked Garza for permission to search his
trailer. Garza immediately granted permission.
The agent looked through a small ventilation hatch located
behind the driver's door and spotted several burlap sacks on top of
the lime boxes. He asked Garza to move his truck to the secondary
inspection area and to open the rear doors of the trailer. Garza
complied. As the agent crawled forward in the trailer on top of
the lime boxes, he discovered additional burlap sacks stacked in
between the boxes. Cocaine was inside the sacks in the form of
bricks. Over the next half hour, with the help of a second boarder
agent and a forklift, the two agents unloaded 447 kilograms of cocaine from the truck, worth approximately fifteen million
dollars.
A search of the cab of the truck turned up a package of blank
bills of lading hidden beneath the carpeting on the floor of the
cab and a second handwritten bill of lading giving the name of a
non-existent buyer and falsely listing Houston as Garza's
destination. The defendant admitted that he had purchased the
package of bills of lading and that he had prepared the second,
false bill of lading. In addition, Garza admitted to falsifying
his logbook to reflect an inaccurate departure time.2
Garza was charged under 21 U.S.C. § 841(a)(1) and (b)(1)(A)
with one count of possession of 447 kilograms of cocaine with
intent to distribute. The case was tried to a jury for two days in
December 1991. At trial Garza's counsel called a DEA special agent
and asked him to identify any of the government witnesses whose
names were listed in the DEA computer system.3 The agent named one
government witness and went on to name London Fruit, the lime
supplier, and B & R Trucking, the company that provided Garza with
the lime shipping job. On cross-examination, the government asked
the agent if any additional persons involved in the Garza case
appeared in the system. The agent testified that Garza's name
appeared in the system in connection with a 5200 pound seizure of
2 Garza's log book listed his departure from the loading dock as 10:30 p.m. He admitted at trial that he departed from the loading dock at 9:00 p.m. 3 The DEA system includes the names of all persons or entities that have been, or are suspected of having been, involved in prior drug trafficking schemes.
3 marijuana in 1990. He also testified that approximately twenty of
the names in Garza's address book, seized from his truck, also
appeared in the system. Garza's counsel did not object to the
admission of the agent's testimony.4 The court, however, twice
cautioned the jury that Garza was not on trial for the 1990
marijuana seizure.
The district court denied Garza's motion for a directed
verdict at the close of the government's case and again at the
close of evidence. The jury returned a guilty verdict. In March
1992, Garza was sentenced to 235 months confinement to be followed
by a five year term of supervised release. He also received a
$1,000 fine and a $50 special assessment.
Garza appeals his conviction on three grounds. First, he
contends that the evidence was insufficient to support the jury's
guilty verdict. Next, he argues that the DEA agent's testimony on
cross examination was improperly admitted and constitutes
reversible error. Finally, he argues that his trial counsel was
constitutionally ineffective in failing to object to the agent's
allegedly inadmissible testimony.
II.
"The standard for review for sufficiency of evidence is
whether any reasonable trier of fact could have found that the
4 At oral argument on appeal, Garza's counsel suggested, without citing the record, that trial counsel had made some form of objection to the admissibility of this evidence. After reviewing the record carefully, we conclude that he is mistaken. There is no such objection in the record.
4 evidence established guilt beyond a reasonable doubt."5 In
reviewing a case for sufficiency of the evidence, reasonable
inferences from the evidence will be construed in favor of the jury
verdict.6 In addition, "determining the weight and credibility of
the evidence is within the sole province of the jury".7 We "will
not supplant the jury's determination of credibility with that of
[our] own."8
Under 21 U.S.C. § 841(a)(1) and (b)(1)(A), the government must
prove three elements beyond a reasonable doubt in order to convict
Garza: (1) knowledge, (2) possession, and (3) intent to
distribute.9 Garza contests only the knowledge element.
The knowledge element in a possession case can rarely be
established by direct evidence. Knowledge can be inferred from
control of the vehicle in some cases; however, when the drugs are
hidden, control over the vehicle alone is not sufficient to prove
knowledge.10 The general rule in this Circuit is that knowledge can
5 United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1346 (1993) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). 6 Id. at 161 (citing Glasser v. United States, 315 U.S. 60, 80 (1942)). 7 Id. 8 Id. (citations omitted). 9 United States v. Richards, 638 F.2d 765, 768 (5th Cir.), cert. denied, 454 U.S. 1097 (1981). 10 Control will suffice on its own if the drugs are clearly visible or readily accessible. United Sates v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988). In this case however, the drugs were in burlap sacks partially concealed in the trailer of the truck between the lime boxes and not readily accessible.
5 be inferred from control over the vehicle in which the drugs are
hidden "if there exists other circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge".11
Garza argues that because the drugs were hidden,12 the
government was required to show more than control of the vehicle.
We agree. In addition, he contends that the government failed to
bring forward sufficient "other circumstantial evidence" and
consequently his conviction should not be sustained. We disagree.
At trial the government offered several pieces of evidence to
support Garza's guilt. Specifically, this evidence includes
Garza's nervousness, his control and ownership of the truck
containing the cocaine, the large amount of cocaine, the false bill
of lading, the falsified log book, the package of blank bills of
lading, the gap in time between when Garza left the loading station
with the truck and his actual departure time, and finally, the fact
that Garza admittedly left his loaded truck unlocked and unattended
for over an hour at a dark truck stop before departing for Los
Angeles. For reasons discussed below, we do not consider the DEA
Agent's testimony regarding the contents of its computer files in
analyzing the sufficiency of the evidence.
First, Garza maintains that his alleged nervousness was
11 United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990)). 12 This is a close case. Although the drugs were not secreted in a hidden compartment, they were not in "plain view" or "readily accessible". Instead, the drugs were concealed in burlap sacks stacked in and behind the lime boxes.
6 improperly considered as evidence of guilty knowledge.13 In United
States v. Diaz-Carreon, this Court held that nervousness, "[i]n the
absence of facts which suggest that [the nervousness] ... derives
from an underlying consciousness of criminal behavior ... is
insufficient to support a finding of guilty knowledge".14 Applying
this rule, in Diaz-Carreon, this Court held that inconsistent
statements made to custom officials in addition to an implausible
story constituted persuasive evidence of the defendant's
consciousness of guilt; thus, the Court allowed nervousness to be
considered as evidence of guilty knowledge. Although the
facts in the instant case are not identical with those in Diaz-
Carreon, they do share some similarities. Both cases contain
evidence of an implausible explanation for suspicious
circumstances. When the false bill of lading was discovered hidden
in Garza's truck, Garza stated that he had completed it to provide
a substitute bill of lading for his trip when he realized he would
be unable to acquire the form from the shipper. According to
Garza, he filled out the second bill of lading as practice. He
maintains that he had planned to telephone the shipper to determine
if he had filled out the bill correctly and to see if the shipper
wanted him to fill out the substitute because he had been unable to
acquire one before he departed. He maintains that he listed
13 Garza contends that he was not nervous and backs this contention with the fact that he did not hesitate to consent to the search of his truck. We are not retrying the case, however. The agent testified that Garza was nervous and it was up to the jury to weigh his credibility against Garza's. 14 915 F.2d 951, 954 (5th Cir. 1990).
7 Houston as the final destination because that was the destination
on the last delivery he had made. He offered no explanation for
listing a non-existent buyer.
At trial, a representative for Amerifresh testified that he
had placed an order for the limes with London Fruit. London Fruit
was listed as the supplier on the first, original bill of lading.
He stated that it was the policy of Amerifresh to substitute its
name as supplier for fear its customers would deal directly with
the real supplier, cutting Amerifresh out of future deals. The
fruit shipping company's agents testimony corroborates Garza's
belief that they wanted to alter the name of the fruit supplier on
the bill for business reasons. Yet, his contention that he was
"practicing" does not explain why the bill listed Houston and not
Los Angeles as his destination or indeed why the bill of lading
listed a non-existent buyer. Thus, his explanation is arguably
implausible.
Although Garza made no inconsistent statements to the boarder
agent, his arguably implausible explanation of the bill of lading
in combination with his admission that he had falsified his log
books opens the door to allowing his nervousness to be considered
as evidence of guilty knowledge under the Diaz-Carreon standard.
Next, Garza contends that the presence of the second false
bill of lading listing Houston and not Los Angeles as the final
destination of the cargo does not constitute "other circumstantial
evidence" sufficient to support the jury's finding of guilty
knowledge. According to Garza, because he characterizes his
8 explanation of the second bill as "plausible", it cannot be used to
infer guilty knowledge. This contention is unfounded.
At trial, the government argued that Garza had created the
Houston bill of lading so that if stopped en route to Houston to
deliver the drugs, he could offer a Houston bill of lading to avoid
suspicion. The jury is the ultimate arbiter of witnesses'
credibility and is free to choose among reasonable constructions of
evidence.15 The jury, therefore, was free to reject Garza's
explanation and accept the government's version. The false bill of
lading was correctly allowed as evidence of Garza's guilty
knowledge.
Garza's arguments place each individual piece of evidence in
a vacuum. We do not consider each piece of potential evidence
separately, rather we review the evidence as a whole to determine
its sufficiency. In so doing, we conclude that the government
offered ample evidence of Garza's guilty knowledge to support his
conviction.
Further, Garza fails even to address the remaining evidence
against him offered at trial by the government. First, this Court
has considered the fact that the amount of drugs was exceedingly
large as evidence of guilty knowledge.16 Second, Garza ignores his
15 United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir. 1989), cert. denied, 496 U.S. 926 (1990); United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982), affirmed on other grounds, 462 U.S. 356 (1983).. 16 In United Sates v. Williams-Hendricks, 805 F.2d 496, 501 (5th Cir. 1986). This Court sustained a jury's finding of guilty knowledge based on little more than is present in this case. In Williams-Hendricks, the evidence against the defendant included
9 own admission that he falsified his log book to reflect a
significantly later departure time that actually existed. And
third, Garza overlooks the damaging evidence concerning his leaving
his rig unlocked and unattended for over an hour at a dark truck
stop. Although he testified that he did so because he thought that
the shipper would place the substitute bill of lading in the truck
while he was gone, the jury was not bound to believe him. The
record clearly reflects that the defendant admitted that he drove
his truck, after it was loaded, to the Union 76 Truck Stop, left it
unlocked with the keys in the ignition, hitchhiked home, and then
waited an hour before returning to depart on his journey to Los
Angeles.
Convictions based on such evidence as the United States
presented in this case are not uncommon. In United States v.
Gonzalez-Lira,17 we upheld a finding of guilty knowledge based on
the same amount of if not less evidence than is present in this
case. In Gonzalez-Lira, the only evidence presented to show the
defendant's guilty knowledge was the large amount of drugs present,
discrepancies in the bill of lading, an implausible story, and the
fact that the defendant had been aware that his truck had been used
in a prior drug smuggling attempt before he purchased it. Here,
only the large amount of drugs present (Thirty-eight pounds of marijuana), the defendant's nervousness at the inspection station, his lack of credibility on the stand, and the fact that his son, who was present in the vehicle when the drugs were seized confessed to the charges in spite of the fact that he maintained that his father had no knowledge of the drugs. 17 936 F.2d 184 (5th Cir. 1991).
10 the defendant was nervous and trembling; a false bill of lading was
discovered hidden in the truck; the defendant admitted to
falsifying his log book, for which he offered an implausible story;
an enormous quantity of drugs was discovered in the truck; and
ample evidence of suspicious circumstances pertaining to the
defendant's delayed departure and abandonment of his truck prior to
that departure was presented at trial.
III.
Next, Garza contends that the trial court's admission of the
DEA agent's testimony regarding the presence of Garza's name in the
NADDIS computer constitutes grounds for reversal. At trial Garza's
counsel called a DEA agent to testify. In response to questioning
by Garza's counsel, the agent testified that the supplier and the
trucking company involved in this case, in addition to one of the
government's witnesses, were listed in their system. On cross-
examination, the government asked if any of the other people
involved in this case were listed in this same computer system.
The agent testified that Garza's name appeared in the system in
connection with an earlier drug smuggling case. In addition, he
reported that 20 names found in Garza's address book, including the
names of some of Garza's family members, were also in the system.
Garza's counsel did not object.
Because no objection to the evidence was made, "this Court may
reverse ... only if the district court committed plain error" in
11 allowing the evidence to reach the jury18 and such admission
prejudiced the defendant. Plain error is "so obvious that our
failure to notice it would seriously affect the fairness,
integrity, or public reputation of [the] judicial proceedings and
result in a miscarriage of justice".19
Under this analysis we must first determine if it was error to
admit the complained of evidence. We conclude that it was indeed
error. Evidence of an extrinsic offense is never admissible purely
to show the defendant's bad character.20 In United States v.
Beechum21, we set forth the test for when evidence of a defendant's
extrinsic offenses may be admitted for some other purpose such as
proving intent. The Beechum test requires the evidence to be
logically relevant and that its probative value outweigh its
prejudicial effect.22
Garza contends that the evidence in question fails both parts
of the test for admissibility. First, Garza argues that the
government failed to show that the evidence was logically relevant.
In Beechum, this Court held that the evidence of an extrinsic
offense is relevant "only if an offense was in fact committed and
18 United States v. Marrero, 904 F.2d 251, 259 (5th Cir. 1990), cert. denied, 498 U.S. 1000 (1990). 19 United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1333 (1991). 20 Fed. R. Civ. P. 404(b). 21 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979). 22 Id. at 911.
12 the defendant in fact committed it".23 Without such proof, the
evidence fails to reveal anything about Garza.24 The government was
therefore required to offer proof "demonstrating that the defendant
committed the offense".25 As Garza points out, the government made
no such offer of proof. Rather, it merely asked the witness if
Garza's name appeared in the computer. By his own testimony, the
agent conceded that the presence of a name in the system did not
prove that the individual committed the offense he was for which he
was listed. Rather, the presence of the name in the system merely
proved that he was suspected by the DEA of involvement in an
offense.26 Thus, the government failed to show that the evidence
was logically relevant.
We could end our discussion of admissibility at this juncture;
however, we also hold that the evidence fails the second part of
the Beechum test as well. Obviously linking the defendant to a
similar crime is prejudicial. The only possible probative value of
this evidence is the possibility that if the defendant had guilty
knowledge in the extrinsic offense, this might tend to show he had
guilty knowledge in this case. For the same reason that we hold
23 Id. at 912. 24 United States v. Lemaire, 712 F.2d 944, 947 (5th Cir. 1983), cert. denied, 464 U.S. 1012 (1983). 25 Id. at 913. 26 A different man was stopped at the same checkpoint at which Garza was stopped carrying 500 pounds of marijuana. In some unknown way, the DEA found a connection between the man stopped and Garza's brother and possibly Garza himself. Basically, the DEA has nothing on Garza concerning the marijuana bust.
13 that the evidence is not logically relevant, we also hold that it
had little to no probative value. The government failed to show
that Garza had guilty knowledge concerning the extrinsic offense,
so it cannot use this offense to show guilty knowledge in this
case. Due to the lack of probative value, it is clear that any
such value is outweighed by the prejudicial effect of this
evidence. Thus the evidence was inadmissible under 404 (b) and
Beechum.
Our analysis of this issue does not end with our determination
that the evidence was inadmissible. Because Garza's counsel did
not object to admission of this evidence, a finding of plain error
is required for reversal. In United States v. Fortenberry, this
Court held that plain error is an error "so obvious that our
integrity, or public reputation of [the] judicial proceedings and
result in a miscarriage of justice".27 In Fortenberry, the Court
held that the admission of evidence of the defendant's previous
bomb threat did not constitute plain error.28 The Court noted the
fact that this evidence constituted "only a tiny part" of the
Government's case against the defendant.29 In addition it noted the
absence of emphasis of this evidence by the prosecutor before the
27 914 F.2d at 673 (quoting United States v. Graves, 669 F.2d 964, 971 (5th Cir. 1982)). 28 Id. 29 Id. The defendant was convicted with conspiracy to commit arson, possession of an unregistered firearm, and transportation of the firearm on a commercial airliner.
14 jury.
Although this case is very different, we hold that admission
of the evidence did not constitute plain error for similar reasons.
The presence of Garza's name in the computer system was not only a
"tiny part" of the Government's case, it was not even a part of the
Government's case-in-chief. The Government did not present this
testimony as part of its attempt to prove the defendant's guilty
knowledge--it extracted the evidence on cross examination in an
attempt to rebut the defendant's implication that the other parties
in the case were responsible for the drugs' presence in his truck.
Further, the government did not emphasize this evidence in its
remarks to the jury. Finally, the trial court explicitly
instructed the jury that Garza was not on trial for the marijuana
seizure mentioned by the agent. As the Court in Fortenberry
decided, so we decide, "[a]fter a careful review of the record, we
concluded that admission of the ... testimony does not rise to such
an egregious level" as to constitute plain error.30 Reversal is not
appropriate in this case.31
Because we find that the admission of the DEA agent's
testimony was not reversible error we do not reach the government's
alternate argument that the testimony was the consequence of
invited error.
30 Id. at 673. 31 We note United States v. Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991), where this Court held that the admission of irrelevant facts that have a prejudicial effect reqires a reversal. We find this case to be inapplicable. In Anderson, the Court was not bound by the plain error standard.
15 IV.
In his final point of appeal, Garza contends that he was
denied effective assistance of counsel because of his lawyer's
failure to object to the DEA Agent's testimony concerning Garza's
involvement in the prior drug deal. "In this circuit the general
rule is that a claim of ineffective assistance of counsel cannot be
resolved on direct appeal unless it has first been raised before
the district court."32 Exception to this general rule is made only
where the record is sufficiently developed with respect to the
merits of the claim.33 The record has not been developed with
respect to this claim. Therefore, we decline to resolve it on
appeal.
V.
The judgment of conviction is affirmed. The appellant remains
free to pursue his claim for ineffective assistance of counsel in
accordance with 28 U.S.C. § 2255.
32 United States v. Kinsey, 917 F.2d 181, 182 (5th Cir. 1990). 33 Id.