UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-11126
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT ARROYO,
ALBERTO RENDON and TOMAS VASQUEZ,
Defendants-Appellants.
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Appeal from the United States District Court
For the Northern District of Texas
(4:95-CR-057-E)
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December 13, 1996
Before GARWOOD, DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Appellants challenge their convictions and sentences on drug
trafficking charges. Finding no reversible error, we affirm.
I.
In March of 1995, an employee of Southwest Motor Transport
notified Dallas area police officers that he was delivering a
*
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this opinion should not be published and is not precedent except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.
1
suspicious crate to Southwest Motor’s Dallas terminal. The crate
was addressed to “Arroyo’s Body Shop.” Upon its arrival in Dallas,
police officers on the scene arranged to have a narcotics detection
dog sniff the crate. After the dog alerted on the crate, the Drug
Enforcement Agency (“DEA”) was notified, and the officers began
obtaining a search warrant. During this waiting period, appellants
Rendon and Arroyo arrived to pick up the crate and they were
detained and questioned. When the officers opened the crate they
found approximately 200 pounds of marijuana. The officers then
questioned Arroyo and Rendon further. Arroyo told Agent Lugo and
Officer Ross that Vasquez, an acquaintance of his, offered him $400
to pick up a crate containing “dope.” Similarly, Rendon admitted
that he was hired by Vasquez for $300 to assist Arroyo in picking
up a crate of marijuana and delivering it to Vasquez’s house in
Fort Worth to be “cut up.” Arroyo and Rendon also told the
officers that Vasquez led them to Southwest Motor Transport, but
had remained a block away during the attempted pick up. The
officers then obtained a search warrant for Vasquez’s residence in
Fort Worth. At Vasquez’s residence, the officers questioned
Vasquez on his role in the crime, and searched his home. Vasquez
admitted that he knew the crate contained marijuana. During the
search, the officers discovered handwritten notes evidencing
earlier drug transactions.
A grand jury indicted Arroyo, Rendon and Vasquez on three
counts: conspiracy to distribute marijuana (count 1); possession
2
with intent to distribute marijuana (count 2); maintaining a place
to distribute marijuana (count 3).
At trial, the issue of whether the appellants knew the crate
contained drugs was hotly contested. The defendants all testified
in their defense. Their testimony was essentially the same; each
defendant testified he believed the crate contained auto parts, not
marijuana, and he never told the police otherwise. Vasquez
testified that he asked Arroyo and Rendon to assist him because,
“El Negro”, to whom Vasquez owed a favor, had offered Vasquez $700
to pick up a crate containing auto parts being delivered to Dallas,
and that he could not carry out the job without Arroyo and Rendon’s
help. Arroyo and Rendon testified they accepted Vasquez’s offer
without questioning the contents of the crate.
After a three day trial, Arroyo and Rendon each were convicted
on counts 1 and 2, and acquitted on Count 3. Vasquez was convicted
on all three counts. This appeal followed.
II.
On appeal, the appellants raise several arguments which we
will discuss below.
A.
Vasquez and Arroyo both argue that the government produced
insufficient evidence to support their convictions. Arroyo
contends that the evidence was insufficient to prove that he had
the requisite knowledge or intent to sustain his convictions on
3
counts 11 and 2.2 Vasquez argues that the prosecution failed to
prove the knowledge element of the three counts for which he was
convicted.3
We review the sufficiency of the evidence in a light most
favorable to the verdict. United States v. McCord, 33 F.3d 1434
(5th Cir. 1994), cert. denied, Haley v. United States, 115 S.Ct.
2558 (1995). The conviction should be upheld if a rational trier
of fact could have found the defendant guilty beyond a reasonable
doubt. Id.
1.
We consider first Arroyo and Vasquez’s argument that the
credible testimony and evidence is insufficient to support their
conspiracy conviction because the evidence failed to show that they
knew that the substance in the crate was marijuana.
With respect to Vasquez, he admitted his knowledge of the
1
To establish a drug conspiracy, the government must prove: “(1)
the existence of an agreement between two or more persons to
violate federal narcotics laws; (2) that the defendant knew of the
agreement; and (3) that the defendant voluntarily participated in
the agreement.” United States v. Broussard, 80 F.3d 1025, 1031
(5th Cir. 1996), cert. denied, Merritt v. United States, 117 S.Ct.
264 (1996).
2
"A conviction for the offense of possession of marijuana with
the intent to distribute requires proof that the defendant (1)
knowingly (2) possessed marijuana (3) with the intent to distribute
it.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996),
cert. denied, 116 S.Ct. 1867 (1996).
3
The judge instructed the jury that it could only find the
defendant guilty of maintaining a residence for the purpose of
distributing marijuana if the defendant acted knowingly.
4
crate's contents to Agent Lugo. Vasquez also told Lugo that he
hired Arroyo and Rendon to keep himself out of trouble. Even if
the jury did not believe this testimony, they knew that Vasquez had
agreed to pay Arroyo and Rendon $700 to pick up a crate in Dallas
and transport it to Fort Worth. The jury was entitled to infer
that this was an inordinate sum for this service. The jury also
heard testimony that Vasquez led Arroyo and Rendon to the freight
terminal, but remained approximately a block away from the pick up
site. The jury also knew that the crate was addressed to a non-
existent company and the identity of the shipper was unknown. The
government produced ample evidence to support the jury's conclusion
that Vasquez knew the substance he hired Arroyo and Rendon to pick
up and transport to his home was marijuana.
With respect to Arroyo, when Ross interviewed him, Arroyo
stated that he believed the crate contained some type of illegal
drug. Arroyo later told Special Agent Lugo that Vasquez offered
him $400 for a few hour's work to pick up a box that contained
"dope". Arroyo stated that he and Rendon followed Vasquez's blue
Mitsubishi automobile to the warehouse in Dallas where Arroyo was
instructed to go into the warehouse and ask for a delivery for
"Arroyo’s Body Shop" and use a number he was given to pick up the
crate. The evidence outlined above is sufficient to establish that
Arroyo knew that the crate contained marijuana.
2.
Vasquez next argues that the evidence was insufficient to
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sustain his conviction for possession of marijuana and maintaining
a place for the purpose of distributing marijuana.
As outlined above, the evidence demonstrated Vasquez's
personal participation in retrieving the marijuana from the freight
company. Furthermore, Vasquez's guilt for the substantive offense
may be established by evidence of offenses committed by his co-
conspirators, Arroyo and Rendon, during the course of the
conspiracy. See Pinkerton v. United States, 328 U.S. 640 (1946);
United States v. Garcia, 917 F.2d 1370, 1377 (5th Cir. 1980). The
evidence demonstrated that the substantive offenses of which
Vasquez was convicted were committed in furtherance of the
conspiracy while Vasquez was a member.
Vasquez argues that nothing was found in his house to
incriminate him and therefore the evidence is insufficient to
support his conviction for maintaining a place for the purpose of
manufacturing marijuana. We disagree. The evidence was sufficient
to demonstrate that Vasquez instructed Arroyo and Rendon to deliver
the crate of marijuana to his Richmond Avenue home in Fort Worth.
Also, evidence of records of marijuana prices and poundages were
found in his home.
For the reasons stated above, appellants’ challenges to the
sufficiency of the evidence are meritless.
B.
Rendon, Vasquez and Arroyo argue next that the district court
abused its discretion by giving the jury a deliberate indifference
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instruction.4 The standard of review for challenges to jury
instructions is “whether the court’s charge, as a whole, is a
correct statement of the law and whether it clearly instructs
jurors as to the principles of law applicable to the factual issues
confronting them.” United States v. Lara-Verasquez, 919 F.2d 946,
950 (5th Cir. 1990). The court’s charge must be both legally
accurate and factually supportable. Id. Thus, the district court
“‘may not instruct the jury on a charge that is not supported by
evidence.’” Id.(quoting United States v. Ortega, 859 F.2d 327, 330
(5th Cir. 1988)).
The deliberate ignorance instruction is appropriate only if
the evidence raises two inferences: “(1) the defendant was
subjectively aware of a high probability of the existence of the
illegal conduct; and (2) the defendant purposely contrived to avoid
learning of the illegal conduct.” Lara-Verasquez, 919 F.2d at 952.
Arroyo, Rendon and Vasquez argue that the evidence failed to
raise the required inferences.
Ross and Lugo's testimony that Arroyo, Rendon and Vasquez
admitted knowing the crate contained drugs is sufficient to raise
4
The district court instructed the jury that:
You may find that the defendant had knowledge of a fact if you
find that the defendant deliberately closed his eyes to what
would otherwise have been obvious to him. While knowledge on
the part of the defendant cannot be established merely by
demonstrating that the defendant was negligent, careless or
foolish, knowledge can be inferred if the defendant
deliberately blinded himself to the existence of a fact.
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an inference that each was “subjectively aware of the high
probability of the existence of illegal activity.” See Lara-
Verasquez,919 F.2d at953(holding that prong one of the deliberate
ignorance test ordinarily will be satisfied by the “same evidence
that will raise an inference that the defendant had actual
knowledge of the illegal conduct. . . .”). The evidence presented
at trial is also sufficient to raise an inference that each
defendant “purposefully contrived to avoid learning of the illegal
conduct.” First, with regard to Arroyo and Rendon, the evidence
revealed the following relevant facts: both were asked by Vasquez,
who was not in the auto parts business, to pick up a package
allegedly containing auto parts; the package was addressed to
“Arroyo’s Body Shop,” a fictitious company; the money Vasquez
agreed to pay these men equaled their weekly salary even though the
assigned pick up was at most a one day job; Vasquez led them to the
pick up site, but instead of accompanying them to pick up the
package, watched safely from the street. Despite these suspicious
circumstances, both Arroyo and Rendon testified that they did not
question Vasquez's assertions that the crate contained auto parts.
The circumstances of Arroyo and Rendon’s involvement were
sufficiently suspicious that their failure to question these
circumstances raised an inference that they purposefully contrived
to avoid guilty knowledge.
The evidence also supports the charge as to Vasquez. First,
Vasquez contended he did not question the suspicious circumstances
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presented by a visit from a man he had met only once asking him to
pick up a package of auto parts. The jury was entitled to infer
that Vasquez sought to avoid knowledge of the illegal conduct by
hiring Arroyo and Rendon to retrieve the package while he watched
safely from the street. Moreover, Agent Lugo testified Vasquez
told him he hired Arroyo and Rendon to “stay out of trouble.” This
evidence was sufficient to support the instruction.
C.
Arroyo and Rendon argue next that the district court erred in
refusing to give the requested limiting instruction they requested
concerning the “dope notes”5 found at Vasquez’s residence.
We review the district court’s refusal to include the
requested instruction for abuse of discretion; the court is
afforded substantial latitude in formulating its instructions.
United States v. Storm, 36 F.3d 1289, 1294 (5th Cir. 1994), cert.
denied, 115 S.Ct. 1798(1995). The district court’s refusal to
include the requested limiting instruction will constitute
reversible error only if: (1) the requested instruction is
substantially correct; (2) the actual charge given to the jury did
not substantially cover the content of the proposed instruction;
and (3) the omission of the instruction would seriously impair the
defendant’s ability to present his defense. Id. at 1294.
5
The “dope notes” were exhibits 7, 8, and 9 at trial. These
exhibits are handwritten notes found at Vasquez’s residence
evidencing earlier drug transactions.
9
At trial, Arroyo and Rendon both objected to the introduction
of the “dope notes”. Their objection was overruled, but the court
stated it would give the jury a limiting instruction regarding the
notes as part of the jury charge.
The court then included the following instruction in its
charge:
A separate crime is charged against one or more of the
defendants in each count of the indictment. Each count and
the evidence pertaining to it should be considered separately
and individually. In this regard, you consider against each
defendant only that evidence which has been shown to have some
connection with that defendant.
Arroyo and Rendon requested their own instruction6 and objected to
the court's failure to give it.
The instruction the court gave adequately instructed the jury
to consider only the evidence related to Arroyo and Rendon. The
district court did not err in refusing to give appellants'
proffered instruction.
D.
Arroyo argues next that the district court committed
reversible error by overruling his objection to a portion of
Rendon’s closing argument. Rendon’s counsel analogized Officer
6
The defendants submitted the following instruction:
You are instructed that the Government’s Exhibits 7, 8, and 9
were admitted only against the defendant Thomas Vasquez, and
you may not consider Government’s Exhibits 7, 8, nor 9 against
the defendants Robert Arroyo or Alberto Rendon for any
purpose.
10
Ross and Agent Lugo to an umpire who makes a bad call but refuses
to admit his mistake even after viewing replays that establish he
was wrong because, right or wrong, the call was made and the game
is over. Arroyo objected to this statement because he contends the
statement was inconsistent with the central argument of his
defense--that the officers' testimony regarding his confession is
not credible and must be disregarded. This argument, although
different from Arroyo's argument that the officers were liars,
nonetheless asks the jury to reach the conclusion sought by Arroyo-
-that the officers' testimony is not credible and should be
disregarded. The district court did not abuse its discretion in
allowing this argument.
E.
We have also considered Arroyo's argument that the district
court committed reversible error by refusing to grant a motion for
new trial after the court was informed that a juror inadvertently
saw Arroyo being escorted by deputy U.S. Marshals out of the
restroom. The defendant was not in hand cuffs and the district
court did not err in concluding that this incident did not operate
to defendant's prejudice. Moreover, the court's charge effectively
removed any possibility of bias from this event. The district
court therefore did not err in denying Arroyo's motion for
mistrial.
F.
We also conclude that the district court did not abuse its
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discretion in refusing to admit prior statements of Officer Ross
which were offered by Rendon following his cross-examination of
this officer. The district court was entitled to find that the
officer's earlier statement was not inconsistent in any significant
respect. Additionally, the officer did not deny making the
statements.
G.
Vasquez argues finally that the district court erred in
finding that he was a leader or an organizer in the offense of
conviction pursuant to U.S.S.G. S 3B1.1(c). This finding resulted
in a two-level increase under the sentencing guidelines. The
evidence established that Vasquez was in charge of the receipt of
200 pounds of marijuana; that he hired others to pick up the
marijuana and that he was responsible for instructing and paying
those who helped him. The evidence therefore supports the district
court's finding which is not clearly erroneous.
III.
For the above reasons, the district court's judgment and
sentence as to each defendant is affirmed.
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