UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-40857
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERMIN GONZALEZ-RIVAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(M-93-CR-208-01)
October 18, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Fermin Gonzalez-Rivas (“Gonzalez”) appeals his convictions for
conspiracy to possess marijuana with intent to distribute, in
violation of 21 U.S.C. § 846, and aiding and abetting possession of
marijuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. We affirm.
The arrest of Gonzalez and his alleged co-conspirators, Jaime
Chapa-Barrera (“Chapa”), Victor Lopez-Davila, and Ruben Vela-
Mascoro (“Vela”), arose out of an undercover operation in which
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
police negotiated with Chapa for the purchase of 1000 pounds of
marijuana. On the day of the arrest, Chapa met with police in a
restaurant in Mission, Texas, to discuss delivery of the drugs and
later led police to the home of Lopez-Davila where the marijuana
was located. Police arrested Chapa and Lopez-Davila at the house,
and soon thereafter arrested Gonzalez and Vela who had been
circling the neighborhood in Gonzalez’s truck. A grand jury
indicted each with conspiracy to possess marijuana with intent to
distribute, and aiding and abetting possession of marijuana with
intent to distribute. Gonzalez was tried alone, and convicted on
both counts.
On appeal, Gonzalez contends that the evidence presented by
the prosecution was insufficient to support the inference that he
knew of the conspiracy or voluntarily participated in it. Gonzalez
additionally contends that the district court erred in allowing the
prosecution to introduce evidence of his prior state conviction for
possession of marijuana because the prosecution failed to give
reasonable notice to the defense under Rule 404(b) of the Federal
Rules of Evidence and because the prior conviction bears solely on
his character.
When determining the sufficiency of the evidence after
conviction by a jury, the scope of our review is narrow. We must
affirm if, viewing the evidence in the light most favorable to the
government, a reasonable trier of fact could have found that the
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evidence established guilt beyond a reasonable doubt. United
States v. Burmea, 30 F.3d 1539, 1551 (5th Cir.), reh’g and
suggestion for reh’g en banc denied, 39 F.3d 322 (5th Cir. 1994),
and cert. denied, ___ U.S. ___, 115 S. Ct. 1113, 130 L. Ed. 2d 1077
(1995), and ___ U.S. ___, 115 S. Ct. 1825, 131 L. Ed. 2d 746
(1995). The evidence need not exclude every reasonable hypothesis
of innocence, and the jury is free to choose among reasonable
constructions of the evidence. United States v. Pigrum, 922 F.2d
249, 254 (5th Cir.), cert. denied, 500 U.S. 936, 111 S. Ct. 2064,
114 L. Ed. 2d 468 (1991).
In order to sustain a conviction for conspiracy, the
prosecution must show that the defendant knew of the conspiracy and
intended to participate in it. United States v. Puig-Infante, 19
F.3d 929, 936 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct.
180, 130 L. Ed. 2d 115 (1994). A conviction for aiding and
abetting requires proof that the defendant associated with and
participated in the criminal venture and sought to make the venture
succeed. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.),
cert. denied, ___ U.S. ___, 115 S. Ct. 2014, 131 L. Ed. 2d 1013
(1995). Gonzalez concedes that a conspiracy to distribute
marijuana existed between Chapa and Lopez-Davila, but asserts that
from the evidence presented, a jury could not have found beyond a
reasonable doubt that Gonzalez knowingly participated in that
conspiracy. The record, however, clearly refutes this assertion.
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On the day of his arrest, Gonzalez drove Chapa to the
restaurant in Mission and waited outside in his truck while
negotiations for the sale of the drugs took place. Later,
surveillance teams witnessed Gonzalez and Vela cruising back and
forth past Lopez-Davila’s house while Chapa, Lopez-Davila, and
police consummated the transaction. Moreover, phone records showed
numerous telephone calls to and from the co-conspirators during the
period of the investigation, one of which was placed from
Gonzalez’s home phone in Rio Grande City to the pager of an
undercover agent, and another of which was placed from Gonzalez’s
cellular phone to Lopez-Davila’s house while Chapa was inside the
restaurant negotiating with police.
Viewing this evidence in the light most favorable to the
prosecution, we find that a reasonable jury could have concluded
beyond a reasonable doubt that Gonzalez knew of and actively
participated in the conspiracy, and that he aided and abetted his
co-conspirators to possess marijuana with intent to distribute.
See Jaramillo, 42 F.3d at 923 (holding circumstantial evidence
sufficient to establish aider and abettor liability where defendant
did not “merely stand and watch the transaction”).
Next, Gonzalez argues that the district court violated Rule
404(b) of the Federal Rules of Evidence when it allowed the
prosecution to introduce evidence of his prior state conviction
without reasonable notice to the defense. Gonzalez also contends
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that the prior conviction should have been excluded from evidence
because it bears solely on his character.
We apply a highly deferential standard of review to the trial
court’s evidentiary rulings and will reverse only for an abuse of
discretion. United States v. Buchanan, 70 F.3d 818, 831 (5th Cir.
1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1340, 134 L. Ed. 2d
490 (1996), and ___ U.S. ___, 116 S. Ct. 1366, 134 L. Ed. 2d 532
(1996); United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir.
1991). What constitutes “reasonable notice” under Rule 404(b)
depends largely on the circumstances of each case. FED. R. EVID.
404(b) advisory committee note. Although the government did not
inform Gonzalez that it intended to introduce his prior conviction
for Rule 404(b) purposes until two days prior to trial, it informed
defense counsel six weeks before trial that it would use the
conviction in order to seek an enhanced punishment. Gonzalez does
not assert that he was in any way prejudiced by a lack of notice.
We therefore hold that the district court did not abuse its
discretion in admitting the prior conviction into evidence. We
also hold that the district court did not abuse its discretion in
finding that the prior conviction was both relevant to the issue of
Gonzalez’s intent to participate in the conspiracy, and that its
probative value outweighed its prejudicial effect. See Buchanan,
70 F.3d at 831-32 (holding that prior conviction was properly
admitted as probative of intent and not unduly prejudicial where it
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tended to refute defendant’s story that he was merely “in the wrong
place at the wrong time”).
For the foregoing reasons, we AFFIRM.
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