IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11437
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:96-CR-229-3-T
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July 15, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Felipe Alvarez appeals from his conviction and sentence for
conspiracy to possess with intent to distribute heroin and aiding
and abetting the possession of heroin with intent to distribute.
Alvarez argues that the evidence was insufficient to support his
conviction.
Alvarez argues that the evidence was insufficient to support
his conspiracy conviction because the evidence showed that Gomez
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
No. 96-11437
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repeatedly denied she had an agreement with Alvarez. The
evidence shows that Gomez was given Alvarez’s number by a drug
supplier in Mexico. Further, on two occasions, Alvarez met with
Gomez to purchase heroin. Thus, from the “development and
collocation of the circumstances,” it was be reasonable for the
jury to determine that an agreement to possess and distribute
heroin did exist. See United States v. Maltos, 985 F. 2d 743,
746 (5th Cir. 1992).
Alvarez argues that there is insufficient evidence to
support his aiding and abetting conviction because he was a
spectator and did not exercise control, inspect, move or attempt
to move the heroin. The evidence showed that Alvarez met with
Gomez twice to discuss the purchase of heroin. At the latter of
those meetings, Alvarez participated in a discussion with Soto
and Gomez to determine when and where the next transaction would
take place. The evidence also showed that Alvarez and Soto
determined when the drugs and the money would be exchanged and
that Gomez, who was in actual possession of the drugs, should go
to another hotel in the morning to complete the transaction.
Further, the jury could infer Alvarez’s intent to distribute from
the fact that the heroin had a street value of $500,000. See
United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1994).
Therefore, it was reasonable for the jury to conclude that
Alvarez shared Gomez’s and Soto’s criminal intent and
affirmatively participated in the venture. See United States v.
No. 96-11437
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Jaramillo, 42 F.3d 920, 922-23 (5th Cir.), cert. denied, 115 S.
Ct. 2014 (1995).
Alvarez argues that the court should consider that the
accuracy of the translation of the audio tape was insufficient to
constitute credible evidence because the Government’s translator
was not present when the conversation was recorded and the
translator’s credentials were never established. Further,
Alvarez contends that although Gomez checked the transcript, she
was incompetent to do so since she needed an interpreter to
translate English into Spanish during the course of the trial and
there was no evidence proffered that she could translate Spanish
to English. Because Alvarez had the opportunity to provide his
own version of the transcript but failed to do so, “[h]e cannot
be heard to complain on appeal because [he] failed to take
advantage of [his] trial opportunity." See United States v.
Wilson, 578 F.2d 67, 70 (5th Cir. 1978); see also United States
v. Llinas, 603 F.2d 506, 509 (5th Cir. 1980).
AFFIRMED.
United States v. Alvarez
Combined Opinion