IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 90-8739 ___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FILEMON SOTELO SANCHEZ, JOSE ANGEL NAEGELE, and REBECA PORTILLO BRITO,
Defendants-Appellants.
_____________________
No. 91-8023 ______________________
Plaintiff-Appellant,
RICARDO PORTILLO BRITO,
Defendant-Appellee.
___________________________________________________
Appeals from the United States District Court for the Western District of Texas ___________________________________________________
Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit Judges:
GARZA, REYNALDO G., Circuit Judge:
1 This is a consolidated appeal from a rather large
marijuana conspiracy trial. Appellants Rebeca Portillo
Brito (Rebeca), Filemon Sotelo Sanchez (Filemon), and Jose
Angel Naegele (Naegele), and appellee Ricardo Portillo Brito
(Ricardo)1, were all named in a 27 count indictment
alleging, inter alia, violations of 21 U.S.C. §§ 841(a)(1)
and 846, possession with intent to distribute and conspiracy
to possess with intent to distribute more than 100 kilograms
of marijuana, and 21 U.S.C. § 843, use of a telephone to
facilitate the commission of a felony. After a jury trial,
Filemon was convicted of the conspiracy, possession and
telephone counts and Naegele, Rebeca and Ricardo were each
convicted of one conspiracy count.2 Ricardo's post-verdict
motion for acquittal was granted by the district court.
Filemon, Rebeca and Naegele all appeal their convictions,
while the United States appeals the post-verdict judgment of
acquittal granted to Ricardo.
I. FACTS
1 Appellee Ricardo Portillo Brito is the brother of appellant Rebeca Portillo Brito.
2 Naegele was named only as a defendant in Count One of the indictment, the central conspiracy count, while Rebeca and Ricardo were named in Count One as well as Count Twenty-Seven, an illegal use of the telephone count. The district court granted a judgment of acquittal as to Count Twenty-Seven, finding that because the conversation occurred after the overt acts of the conspiracy, it was not a conversation in furtherance of the conspiracy.
2 On December 7, 1988, Naegele was arrested in New Mexico
as he drove a pickup laden with approximately 100 pounds of
marijuana. Accompanying Naegele was Juan Aron Sotelo
Sanchez (Juan), a named co-conspirator and brother of
Filemon, who drove a Pontiac Fiero with a CB radio identical
to that in Naegele's truck and tuned to the same channel.3
Naegele told police he had transported marijuana on one
other occasion. He stated he had known Juan Sanchez for
three months. Naegele pled guilty to state charges under
New Mexico law; charges were never formally brought against
Juan.
On June 1, 1989, Border Patrol agents at the Sierra
Blanca check point near El Paso, Texas, found 94 pounds of
marijuana in a pickup truck they had pulled over for
secondary inspection. The name "Juan Sanchez" was found
next to two phone numbers, one for "Sanchez Brothers
Builders, Inc." at 492 Mockingbird, the El Paso residence of
Filemon, and the other for the El Paso residence of Rebeca
and her common law husband Juan Aron Sotelo Sanchez.
Wiretaps of the two phones were authorized. During the
60 days the phones were tapped, the FBI intercepted
3 Juan Sanchez was named in the 27 count indictment along with the appellants and appellee in this appeal. His separate convictions for conspiracy and illegal use of the telephone were challenged in this court on sufficiency of the evidence grounds. In an unpublished opinion on the summary calendar, a panel of this court affirmed his convictions. See United States v. Juan Sotelo Sanchez, 953 F.2d 642 (5th Cir. 1992) (unpublished).
3 approximately 5000 phone calls.4 Numerous calls concerned
conversations in which elaborate codes were used to conceal
drug related matters. Rebeca was recorded making plane
reservations for her husband Juan and co-defendant Rafael
Ramirez Valdez (Ramirez), for a trip to Midland-Odessa in
Texas. Named co-conspirator Bivian Madrid Villalobos phoned
Juan at his residence and discussed a marijuana deal in
code. Filemon, two days after the Villalobos conversation
with Juan, spoke with the Flores brothers5 in Dallas and
stated he had "340 wooden boards." Two days later, the
Flores brothers arrived in El Paso. The day after their
arrival, a pinata6 party was held for the child of Rebeca
and Juan. Numerous defendants were present at the party as
well as friends and family members of Rebeca and Juan.7 On
September 11, 1989, the day after the party, Ivan Flores was
arrested outside El Paso on Interstate Highway 10. He was
4 This figure includes wrong numbers and busy signals.
5 The Flores brothers, Ivan and Abel, were named co-conspirators who resided in Dallas, Texas.
6 A pinata is a decorated clay jar filled with candy and struck with a stick by children to release the candy. It is a traditional aspect of Mexican celebrations of childrens' birthdays and is common at Christmas. See Webster's Third New International Dictionary 1717 (3rd ed. 1981).
7 The record indicates witnesses for the government admitted they had no knowledge that any drug related activities were discussed at the pinata party.
4 driving a semi-truck with trailer, the gas tank of which was
found to contain 330.5 pounds of marijuana. Intercepted
phone calls involving Filemon and Juan indicated their
extensive knowledge of and participation in this particular
seized shipment. Inside the driver's wallet was found a
business card for Sanchez Brothers Builders, Inc., with the
same phone number on it, and another card with the name
"Chico"8 and the notation "Home 858-8528", the home phone of
Rebeca and Juan. The day after this seizure, a coded phone
conversation between Ramirez and Juan relating the fact of
the bust was intercepted. Later the same day, a
conversation between Rebeca and her brother, Ricardo, was
intercepted in which Rebeca related the facts of the Flores
brothers' bust and in which both she and Ricardo expressed
remorse and concern over the seizure.9
Six days after this last phone call, the FBI
intercepted a call from Ramirez to Juan in which a 10 pound
load of marijuana was discussed. The next day, the Border
Patrol at the Sierra Blanca checkpoint intercepted a car
with 10 pounds of marijuana in the gas tank.
II. DISCUSSION
A. FILEMON SOTELO SANCHEZ
8 "Chico" was an alias determined to belong to Juan Aron Sotelo Sanchez.
9 The fact that this conversation concerned the marijuana seizure involving the Flores brother was admitted to by Rebeca.
5 1. Sufficiency of the Evidence
In his first point of error, Filemon contends the
evidence was insufficient to support his convictions. He
claims the government failed to establish that he joined the
conspiracy, had knowledge of the conspiracy, and that he
voluntarily participated in the conspiracy. The sole basis
of this claim is that the testimony of the government's main
witness, F.B.I. case agent William J. May (agent May), as to
the meaning of certain code words could just as easily have
been disbelieved as believed by the jury. Because the
testimony of agent May was the sole inculpatory evidence
against Filemon, its susceptibility to equally different
interpretations requires the reversal of the possession and
telephone use convictions as well.
The well established standard in this circuit for
reviewing a conviction allegedly based on insufficient
evidence is whether a reasonable jury could find that the
evidence establishes the guilt of the defendant beyond a
reasonable doubt. United States v. Gonzales, 886 F.2d 781,
783 (5th Cir.), cert. denied, 490 U.s. 1093 (1989). The
evidence adduced at trial, whether it be direct or
circumstantial, together with all inferences reasonably
drawn from it, is viewed in the light most favorable to the
verdict. United States v. Pigrum, 922 F.2d 249, 253 (5th
Cir.), cert. denied, 111 S.Ct. 2064 (1991). The assessment
of the weight of the evidence and the determination of the
credibility of the witnesses is solely within the province
6 of the jury. United States v. Martin, 790 F.2d 1215, 1219
(5th Cir.), cert. denied, 479 U.S. 868 (1986). If 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 convictions.
Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985)
(quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir.
1982) (as quoted in United States v. Fortenberry, 919 F.2d
923, 926 (5th Cir. 1990)). This is so because, as was
observed by the late Judge Alvin B. Rubin, where an equal or
nearly equal theory of guilt and a theory of innocence is
supported by the evidence viewed in the light most favorable
to the verdict, "a reasonable jury must necessarily
entertain a reasonable doubt. Id. (quoting Cosby at id.).
With the scope of our review thus defined, we proceed to the
merits of Filemon's claims on appeal.
To establish guilt of a drug conspiracy, it must be
proven that an agreement with intent to distribute existed,
that the defendant had knowledge of the agreement, and that
the defendant voluntarily participated in the conspiracy.
United Sates v. Lewis, 902 F.2d 1176, 1180 (5th Cir. 1990).
An agreement may be inferred from concert of action,
participation from a "collocation of circumstances," and
knowledge from surrounding circumstances. United States v.
Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988). Mere
presence at the scene and close association with those
7 involved are insufficient factors alone; nevertheless, they
are relevant factors for the jury. United States v. Simmons,
918 F.2d 476, 484 (5th Cir. 1990).
The United States introduced into evidence several
taped phone conversations involving Filemon and other named
co-conspirators. The substance of the conversations and the
meaning thereof was elaborated upon by agent May. Agent May
testified that Filemon's use of certain terminology, in the
context of the conversations, demonstrated Filemon's role as
a principal in a large marijuana conspiracy. This testimony
was predicated on agent May's characterization of specific
terminology as coded terminology. These coded terms,
testified agent May, represented variously marijuana,
methods of transportation, the receipt of large quantities
of marijuana and money to be paid for marijuana. For
example, the government introduced a phone conversation
between Filemon and named co-conspirator Abel Flores,
intercepted on September 7, 1989. During the conversation,
Filemon informs Abel Flores "I've got 340 wooden boards."
Two hours later, another phone conversation was intercepted
between Filemon and named co-conspirator Victor Manuel
Ramirez (Victor). This conversation, in part, was as
follows:
Filemon: ...pick up [a van] because I am going to need it. It already rained...it already rained on me.
Victor: Already?
8 Filemon: Yes, a lot.
Victor: That's good.
Filemon: A lot.
Victor: Don't leave me out.
Filemon: No.
Victor: OK.
Filemon: Three forty...
Victor: Uyyy.
Filemon: ...fell on me.
Victor: Yeah?
Filemon: Yeah.
Victor: That's good. And it is already here?
Filemon: Already...I already have it in my hands.
On September 9, 1989, two days after Filemon's
conversation with Victor, Ivan Flores phoned Juan to inform
Juan that Ivan and his brother, Abel Flores, were in El Paso
at the Comfort Inn. Later that same day, Ivan Flores phoned
Filemon to inform him of the presence of the Flores brothers
at the Comfort Inn. On September 11, 1989, Ivan Flores was
arrested at the Sierra Blanca checkpoint driving a semi-
truck laden with 330.5 pounds of marijuana. On September
14, 1989, Filemon spoke with Ivan Flores' father who had
called Filemon to seek assistance in the selection of an
attorney for Ivan. During this conversation, Filemon
mentioned that Ivan Flores was with Filemon in El Paso.
That same day, a conversation between Filemon and an
9 unidentified woman named Omega10 revealed Filemon's
frustration with the arrest of Ivan Flores at the "mountain"
and his surprise that the Border Patrol agents appeared to
have been waiting for him. This conversation, in part, was
as follows:
Filemon: A really bad incident (percance) that happened to us, "PRIMA."
Omega: Yeah. Oh, my God.
Filemon: Yes, can you believe that? What I sent over there....
Omega: Eh?
Filemon: ...what I sent over there.
Omega: Uh huh.
Filemon: ...to hell.
Omega: Oh, my God.
.....
Filemon: And the worst part of it is that they were already waiting for him.
Omega: And was it when he was just leaving?
Filemon: No, over there in ... in uh... you know where.
Omega: Yeah?
Filemon: Over there on the mountain.
10 Omega was also referred to by Filemon as "Prima", the Spanish word for "cousin". See Vox Compact Spanish and English Dictionary 200 (Softcover ed. 1989)
10 Filemon appears to argue that because he was involved
in the construction business, the reference to "340 wooden
boards" was just that, a reference to 340 actual wooden
boards. Agent May testified that Filemon's use of the
phrase "340 wooden boards" was a reference to 340 pounds of
marijuana. Additionally, he testified that Filemon's use of
the phrase "it rained on me" was a reference to the receipt
of marijuana and that the phrase "three forty...fell on me"
was a further reference to receipt of the specific amount of
340 pounds of marijuana. Further evidence, as noted above,
disclosed the seizure of 330.5 pounds of marijuana being
transported by Ivan Flores. Government witnesses testified
that it is not uncommon for amounts of marijuana to vary by
as much as 10-20 pounds, thus explaining the discrepancy of
the weight of the marijuana actually seized from that
discussed in the Filemon/Victor phone conversation of
September 7, 1989.11 Moreover, the "Sanchez Brother's
11 At oral argument, it was brought to our attention that the weight of the marijuana seized on September 11, 1989, when finally weighed by government chemists, was actually 285 pounds. This is indeed supported by the record. Appellants in this case suggested that this discrepancy tended to undermine the credibility of agent May's assertion that the reference to "340 wooden boards" was a code for 340 pounds of marijuana. Additional testimony as to the weight of the marijuana, however, indicated that as much as a 10 pound discrepancy could be attributable to the drying of the marijuana and a discrepancy of between 10 to 20 pounds of weight was attributable to the packaging of the marijuana. These amounts, coupled with the testimony regarding the frequent variations in weights of shipments of between 10 to 20 pounds, provided the jury with more than an adequate basis to accept agent May's interpretation of the phraseology.
11 Builders. Inc., F. S. Sanchez, President" business card was
found in Ivan Flores wallet. The term "mountain" was
identified as a term commonly used to describe the area
where the Sierra Blanca checkpoint was located. Finally,
testimony at trial revealed that the semi-trailer pulled by
the truck driven by Ivan Flores was a refrigerator trailer,
not the type of trailer normally used for the transportation
of construction materials; no evidence of the presence of
any construction materials on the trailer was presented at
trial.
We find the above recited facts would permit a
reasonable jury to find Filemon guilty beyond a reasonable
doubt of the conspiracy charges against him. It appears the
jury in this case simply chose to believe the testimony of
agent May. Moreover, the opposing theory of innocence put
forth on appeal by Filemon does not fall into the realm of
what an appellate court could reasonably conclude is a
theory of innocence equally or nearly equally supported by
the evidence as the theory of guilt. Because agent May's
testimony regarding the code words was believed by the jury,
Filemon's challenge to the conviction for the violation of
21 U.S.C. §843, illegal use of the telephone, must also
fail. In addition, his challenge to the possession charge
lacks merit because the essential elements thereof were
proven at trial. The necessary elements to sustain a
conviction for possession of marijuana with intent to
distribute are that the defendant (1) knowingly (2)
12 possessed the marijuana (3) with intent to distribute it.
United States v. Villasenor, 894 F.2d 1422, 1426 (5th Cir.
1990). Accepting agent May's testimony, the only colorable
issues available to Filemon would be that of possession and
intent to distribute. Possession may be constructive12 if
evidence indicates the defendant's ownership, dominion and
control over the marijuana. United States v. Richardson, 848
F.2d 509, 512 (5th Cir. 1988). Here, the evidence shows
Filemon's assertion that the marijuana belongs to him,
either individually or as a member of the conspiracy.
Intent to distribute is typically inferred from the fact
that an amount is too large for any purpose other than
distribution. United States v. Romero-Reyna, 867 F.2d 834,
836 (5th Cir. 1989). Again, here the amount was in excess
of 300 pounds. The jury could easily have determined this
amount was not for personal use and thus that Filemon
intended to distribute it. Even were the issues of
Filemon's constructive possession and intention to
distribute not so clearly present, we would nevertheless
affirm. A conspirator is liable for the substantive
offenses of his co-conspirators while he is a member of the
conspiracy. United States v. Garcia, 917 F.2d 1370, 1377
(5th Cir. 1990) (quoting United States v. Basey, 816 F.2d
980, 997 (5th Cir. 1987)); See also United States v.
12 United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982).
13 Sullivan, 578 F.2d 121, 122-23 (5th Cir. 1978) (once
conspiracy and knowing participation therein established,
conspirator deemed guilty of crimes committed in furtherance
of conspiracy by other conspirators). Nothing in the record
indicates that the guilt of Ivan Flores for the substantive
offense of possession with intent to distribute or his
membership in the conspiracy was ever questioned.
2. Improper Prosecutorial Argument
In his second point of error, Filemon suggests that
allegedly improper prosecutorial argumentation requires
reversal of his convictions. In closing argument, the
prosecutor argued to the jury:
No, there is another attack by Mr. Ramos [Filemon's defense counsel] on the big bad Government, the agent, the FBI agent. Well, ladies and gentlemen, you are the sole judges of the credibility of the witnesses here. If you think Bill May is a liar, then you go ahead and cut all those people loose. Okay?
This argumentation was objected to by defense counsel and
the trial court sustained the objection. The record
indicates counsel did not request that the district court
give a curative instruction to the jury.
Courts will not lightly reverse a criminal conviction
on the basis of a prosecutor's arguments standing alone.
United States v. Young, 470 U.S. 1, 9 (1985). Reversible
error will result only where it is shown that the jury
argument is both improper and harmful. United States v.
Iredia, 866 F. 2d 114, 117 (5th Cir.), cert. denied 492 U.S.
14 921 (1989) (citing United States v. Lowenberg, 853 F.2d 295,
301 (5th Cir. 1988)). "The determinative question is
whether the prosecutor's remarks cast serious doubt on the
correctness of the jury's verdict." Id. (citing United
States v. Jones, 839 F.2d 1041, 1049 (5th Cir. 1988)). The
test that is employed in this circuit requires us to
consider "1) the magnitude of the prejudicial effect of the
statements; 2) the efficacy of any cautionary instruction;
and 3) the strength of the evidence of the defendant's
guilt." Id. (citing Lowenberg, 853 F.2d at 302).
We cannot say, viewing the record as a whole, that the
comments of the prosecutor in this case were "so pronounced
and persistent that [they] permeate[d] the entire atmosphere
of the trial." Iredia, 866 F.2d at 117 (quoting United
States v. Williams, 809 F.2d 1072, 1096 (5th Cir.), rev'd on
other grounds, 828 F.2d 1, cert. denied, 108 S.Ct. 228
(1987)). Thus, the argument did not carry the magnitude of
prejudicial effect necessary for the first element of the
test to weigh in Filemon's favor. As to the second element
of the test, it is clear there was no curative instruction
given by the district court. It is also clear, however,
that none was requested. Thus, the second element of our
test weighs neither in favor of nor against Filemon.
Finally, as we have extensively related, there was more than
adequate evidence of Filemon's guilt and thus, the third
element of the test weighs against him. Having conducted
our analysis, we conclude Filemon has failed to demonstrate
15 the requisite inappropriateness and harm necessary for
reversal of his conviction solely on the grounds of improper
prosecutorial commentary.
B. JOSE ANGEL NAEGELE
In his sole point of error, Naegele asserts the
district court erred in finding sufficient evidence existed
to support his conviction because there is a fatal variance
between the indictment and the proof adduced at trial.
Naegele does not contend the evidence is insufficient to
establish any one or more of the elements necessary to prove
the conspiracy. Rather, he contends the government proved
the existence of multiple conspiracies while the indictment
alleged only a single conspiracy. He asserts that his
membership in a single conspiracy is undermined because 1)
there is a six month lapse in time between his arrest in New
Mexico in 1988 and the next seizure of drugs at the Sierra
Blanca checkpoint in 1989, 2) the alleged acts of the
conspiracy took place in different states, and 3) there is
no evidence of his continued participation in the conspiracy
after his arrest in 1988. Naegele candidly recognizes that
a single conspiracy is not transformed into multiple
conspiracies simply by lapse of time, change in membership,
or change in geographical emphasis.13 United States v. De
13 Naegele's candid presentation is refreshing; his brief is well written and concise. Unfortunately, it would appear that no amount of legal reasoning could save the day for Naegele as the
16 Varona, 872 F. 2d 114, 119 (5th Cir. 1989).
Were the principles of conspiracy law not weighed so
heavily in favor of the affirmance of Naegele's conviction,
we would be inclined to reject his contention nevertheless.
In order for Naegele to succeed on his variance theory, he
must demonstrate that his substantial rights have been
prejudiced. United States v. Guerra-Marez, 928 F.2d 665, 671
(5th Cir.), cert. denied, 112 S.Ct. 322 and 112 S.Ct. 443
(1991) (quoting United States v. Richardson, 883 F.2d 1147,
1154-55 (5th Cir. 1987)). It is by now a well established
principle in this circuit that if the government proves the
existence of multiple conspiracies "and the defendant's
involvement in at least one of them, then clearly there is
no variance affecting the defendant's substantial rights."
Id. at 671-72 (quoting United States v. L'Hoste, 609 F.2d
796, 801 (5th Cir.), cert. denied, 449 U.S. 833 (1980));
United States v. Martino, 648 F.2d 367, 382 (5th Cir. 1981),
cert. denied, 456 U.S. 943 (1982) (citations omitted).
Viewing the evidence in the light most favorable to the
verdict and assuming arguendo multiple conspiracies were
proven by the evidence, Naegele's participation in at least
one conspiracy is amply supported. Testimony of the
arresting officers in New Mexico indicated Naegele stated he
was operating with Juan Aron Sotelo Sanchez and had done so
record bears out that the facts of his conviction are insufficient for reversal under the principles of conspiracy law as enunciated by this circuit.
17 before on at least one occasion.14 Both individuals had
identical C.B. radios in their vehicles and both radios were
tuned to the same channel. A substantial part of the
approximately 100 pounds of marijuana seized from Naegele's
truck was in plain view in the passenger compartment and it
was Naegele's own statements regarding the location of the
remainder of the haul that led the New Mexico officers to
remove it from concealed compartments in the truck.
Moreover, Naegele informed the New Mexico authorities that
Juan Sanchez had placed the marijuana in the pickup in the
country of Mexico, that he met Juan Sanchez north of the
U.S.-Mexico border, and that he had driven the truck from
that point until the time of the arrest. With these facts
in evidence, Naegele's rights were not substantially
prejudiced even if there is a variance because these facts
are sufficient to support a finding that Naegele was guilty
of at least one conspiracy involving himself and Juan
Sanchez.
C. REBECA PORTILLO BRITO
1) Sufficiency of the Evidence
Rebeca argues there was insufficient evidence to
14 Naegele gave authorities in New Mexico at least two different versions of his activities, one tending to be exculpatory and the other inculpatory. Because our standard of review requires us to view the evidence in the light most favorable to the verdict, we accept, as apparently did the jury, the version of Naegele's story tending to show his involvement in the conspiracy.
18 convict her as a co-conspirator. As indicated earlier,
Rebeca does not challenge her knowledge of the existence of
the conspiracy. This knowledge is plainly indicated from an
intercepted call between Rebeca and her brother, Ricardo,
placed the day after the arrest of Ivan Flores. Although
the district court ruled the conversation did not support
the substantive offense of use of a telephone in furtherance
of a conspiracy,15 the conversation was admissible as
relevant to Rebeca's role in the conspiracy.16 In the
conversation, Rebeca discussed the arrest of Ivan Flores and
expressed dismay and sadness over the loss of the "system",
later identified at trial as a code word for the method of
transporting the marijuana. Significantly, agent May agreed
with the characterization of Ms. Kurita, Rebeca's defense
counsel, that the conversation was nothing more than "two
individuals [] lamenting or discussing the occurrences of
the day before...." Record on Appeal, Vol. V, p. 405. Were
this the only evidence the jury could consider regarding
15 The district court made this ruling because the conversation occurred after the substantive acts constituting the conspiracy had transpired. The government has not challenged this decision on appeal.
16 Rebeca contends the district court erred in admitting the conversation because it was inadmissible hearsay. This contention is without merit. See United States v. Jones, 839 F.2d 1041, 1051-52 (5th Cir.), cert. denied, 486 U.S. 1024 (1988).(recorded telephone conversation between two defendants not hearsay in conspiracy trial where used to show awareness of, and participation in, conspiracy).
19 Rebeca's status as a co-conspirator, we would be loathe to
affirm her conviction. Indeed, we are somewhat skeptical of
the remaining evidence against her but find, after careful
review, that it is sufficient to permit a reasonable jury to
reach a verdict of guilty.
At the trial, the government introduced two intercepted
conversations of Rebeca making plane reservations for her
husband Juan, the principal conspirator, and named co-
conspirator Rafael Ramirez Valdez. In both conversations,
reservations were made for each individual on the same
flight to Midland, Texas. Furthermore, in the conversation
regarding reservations for Ramirez, Rebeca used an alias,
"Anna", to conceal her true identity. Testimony later
revealed the trip to Midland by Juan and Ramirez entailed a
rather lengthy visit with an unknown individual driving a
vehicle registered to named co-conspirator Bivian
Villalobos. The jury could infer from these facts, coupled
with the facts of Rebeca's knowledge of the conspiracy and
the fact that she lived in the same home with the principal
conspirator, Juan Sanchez, that her phone calls to Southwest
Airlines were voluntary acts on her part in furtherance of
the conspiracy. While we find this evidence to be far from
the quantity of evidence against Filemon and other
conspirators in this case, we conclude it is sufficient to
permit the jury to have reached its decision.
2. Wiretap Minimization
In her second point of error, Rebeca argues the
20 government violated 18 U.S.C. § 2501 et seq., which requires
the government to minimize its wiretapping activities. The
statute requires the government to make reasonable efforts
to reduce the possibility of intercepting non-criminally
related phone conversations.
At trial, counsel for appellant argued that because all
of the named interceptees in the wiretapping order were
male, the government should have ceased listening to the
conversation as soon as it realized appellant was a female.
This position is untenable. The court order authorizing the
interception of the calls indicated that the named
individuals as well as others not named were the basis for
the request. Those not named in the order included persons
who, through the interception of calls involving named
individuals, were determined to be part of the conspiracy.
In addition, this case is replete with the use of coded
drug terminology. Where drug jargon is used over the phone,
the government may engage in more extensive wiretapping and
the interception of innocent calls may be a more reasonable
activity. United States v. Macklin, 902 F.2d 1320, 1328 (8th
Cir. 1990), cert. denied, 111 S.Ct. 689 (1991). In Macklin,
the Eighth Circuit recognized that the government
essentially can listen long enough to determine the call is
not relevant to the investigation. See id. (government must
limit calls to pertinent investigation as much as possible).
Here, government witnesses testified that calls were
initially listened to in order to determine the scope of the
21 conspiracy. Upon reaching the conclusion that a particular
call did not or would not lead to information pertaining to
the scope of the conspiracy, the interception ceased. This
testimony, combined with Rebeca's use of code words, leads
us to conclude her second point of error is without merit.
3. Ineffective Assistance of Counsel
In her third and final point of error, Rebeca argues
her conviction must be overturned because her counsel was
ineffective at trial. She contends that her counsel failed
to file any pre-trial motions, failed to file a written
motion to suppress the recorded conversations pursuant to
the wiretapping statute, failed to limit the evidence of the
recorded conversation with her brother, failed to request
the identity of the confidential FBI informants who
allegedly could have provided her with exculpatory
testimony, and failed to subpoena the same informants.
We do not reach the merits of this point of error and
express no opinion thereon. An appellant's failure to
present the issue of ineffective assistance of counsel in
the district court precludes our review. United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert. denied, 484
U.S. 1075 (1988) (general rule is that claim of ineffective
assistance of counsel should not be heard on direct appeal
where claim not first raised in district court). Because
Rebeca did not raise the claim below, we decline to hear the
22 issue, but do so without impairing her future rights.17
D. RICARDO PORTILLO BRITO
After the jury returned a verdict of guilty against
Ricardo, he moved for a post-verdict judgment of acquittal.
The district court granted the motion, reasoning that
although the evidence demonstrated Ricardo's knowledge of
the conspiracy, it was insufficient to establish beyond a
reasonable doubt that he intended to join or participate in
the conspiracy. In the words of Judge Hudspeth, "It is
possible that Ricardo Portillo Brito participated in the
conspiracy, but it is equally possible that he was merely a
knowing spectator. Considered as a whole, the evidence
fails to establish beyond a reasonable doubt that he was the
former rather than the latter."
The duty of a district court in ruling on a post-
verdict motion for acquittal is to determine, viewing the
evidence in the light most favorable to the government,
whether the evidence could be accepted by a jury as adequate
and sufficient to support the conclusion of the defendant's
guilt beyond a reasonable doubt. United States v. Varkonyi,
17 Rebeca additionally argues that the trial court should have granted her a new trial based on the judgment of acquittal granted to her brother. This issue is not briefed at all and thus has been abandoned. See United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989), cert. denied, 110 S.Ct. 2621 (1990) (citing F.R.App.P. 28(a)(4)). Even were this issue not abandoned, we would reject it for, after an exhaustive search of the record, we are unable to find any indication that Rebeca ever filed a motion for new trial.
23 611 F.2d 84, 85 (5th Cir.), cert. denied, 446 U.S. 945
(1980). An appellate court reviews the trial court's
granting of a motion for acquittal de novo, applying the
same standard as the court below. Id. at 85-6. A court may
not simply substitute its own views of justice for those of
the jury. Id. at 86. Finally, the jury alone can assess the
weight of the evidence and the credibility of the witnesses.
United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th
Cir. 1989).
The sum of the evidence in this case is that Juan and
Filemon Sanchez were the principals of a conspiracy. They
lived in El Paso, Juan with his common law wife Rebeca. At
all times, Ricardo lived in Austin. On September 10, 1989,
Ricardo went to El Paso to attend his nephew's first
birthday party, a party which was attended by roughly 30
people. In addition to family members and friends, several
persons later identified as co-conspirators in this case
attended the party. Ricardo was driven by his cousin (a
student not implicated in any of the alleged wrongdoing
involved in this case) to the El Paso airport in the early
evening and he departed for Austin. He appeared at work in
Austin on the morning of September 12, 1989, a Monday.
In the latter part of September 12, 1989, a phone call,
discussed above, between Rebeca and Ricardo was intercepted
in which the two discussed the arrest of Ivan Flores and
commiserated over the same.
The United States contends the evidence is sufficient
24 to convict Ricardo. It points to a reference to the City of
Austin, along with references to other Texas cities, and
reasons "Austin" was a code word for Ricardo. It also
suggests that because Ricardo travelled to his nephew's
birthday party in El Paso, he can be viewed as having a
close family relationship with his sister and thus the
conspiracy.18 Finally, the government refers us to
statements made in the Rebeca/Ricardo phone conversation.
Initially, we note that Ricardo readily admits to
knowledge of the conspiracy. We have additionally discussed
agent May's agreement with the characterization of the
Rebeca/Ricardo phone conversation. Moreover, all of agent
May's testimony regarding the allegedly incriminating
aspects of the Rebeca/Ricardo conversation were directed at
establishing the conversation as being in furtherance of the
conspiracy. The district court rejected this analysis when
it granted a judgment of acquittal as to the illegal use of
the telephone charges against Rebeca and Ricardo. Thus, as
discussed previously, the jury could have used the
conversation only as evidence of knowledge of or
participation in the conspiracy. Again, however, agent
May's testimony regarding statements in the conversation
concerned acts in the future. Specifically, agent May
18 This reasoning we find particularly disturbing. No evidence suggests that Ricardo should have anything other than a close relationship with his sister who, as far as the record reflects, is his only sibling.
25 interpreted statements made by Rebeca as indicating that a
shipment of marijuana would be going to Ricardo in Austin.
Moreover, his interpretation of Ricardo's lamentations was
that Ricardo would not be able to use the "system" in the
future. As to the pinata party, testimony from government
agents revealed that there was no basis upon which the jury
could conclude that Ricardo participated in any conspiracy
related activities while present. Quite simply, there was
no evidence presented upon which a reasonable jury could
conclude beyond a reasonable doubt that Ricardo participated
in the conspiracy. Finally, we note the uncontroverted
evidence that Ricardo has been employed as a supervisor of a
sealant business in Austin for approximately four years, has
an excellent work record, pays his bills regularly, and
lives a modest life in a modest home. As to Ricardo, the
evidence supports equally or nearly equally a theory of
guilt as a theory of innocence.19 See Clark, 755 F.2d at
396.
CONCLUSION
We have reviewed all of the contentions by the parties
who appear in the posture of appellants in this case and
deem them to be without merit. Therefore, finding no merit
19 We observe, although our analysis does not turn upon, the fact that Judge Hudspeth, the district court judge in this case, has much more than his fair share of experience with the adjudication of criminal drug conspiracies, sitting as he does in El Paso in the Western District of Texas and on the border of Mexico.
26 to the complaints on appeal, the convictions of Filemon
Sotelo Sanchez, Jose Angel Naegele and Rebeca Portillo Brito
are in all respects AFFIRMED. Additionally, the post-
verdict judgment of acquittal granted as to appellee Ricardo
Portillo Brito is in all respects AFFIRMED.