UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40692
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCOS ANTONIO SALINAS-GRIMALDO,
Defendant-Appellant.
_____________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(M-94-CR-212-02)
_____________________________________________
November 20, 1997
Before REYNALDO G. GARZA, KING, and BENAVIDES, CIRCUIT JUDGES
PER CURIAM:1
This is an appeal from a decision of the United States
District Court for the Southern District of Texas, Judge Ricardo
Hinojosa, presiding. In this case, the Defendant-Appellant,
Marcos Antonio Salinas-Grimaldo (“Salinas”), was convicted on a
charge of conspiracy to possess 150 kilos of marijuana, with
intent to distribute. Upon review of the oral arguments,
pleadings, briefs, and record on file, we AFFIRM the decision of
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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this opinion should not be published and is not precedent except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.
the district court.
Background
Defendant-Appellant Salinas was indicted on November 8,
1994, in the McAllen Division of the Southern District of Texas,
in a 3 count indictment. His brother, Luis Salinas (“Luis”) and
Jose Botello (“Botello”) were also included in this indictment.
Count 1 charged the defendants with conspiring to possess 4 kilos
of cocaine with intent to distribute. Count 2 charged them with
conspiring to possess 150 kilos of marijuana, with intent to
distribute. Count 3 charged them with possessing 44 kilos of
marijuana with intent to distribute. Luis and Botello made plea
agreements, and pled guilty to some of the charges against them.
Salinas went to trial. At that trial, Salinas moved for a
judgment of acquittal on all counts. Judge Ricardo Hinojosa
granted the motion as to counts 1 and 3. The case went to the
jury, and on February 21, 1995, after only a few hours of
deliberation, Salinas was convicted on count 2. On August 10,
1995, Judge Hinojosa sentenced Salinas to 41 months in prison, to
be followed by a three-year term of supervised release, and a $50
special assessment.
Luis Salinas, brother of the Defendant-Appellant, was
arrested in May of 1994, when he was found in possession of 694
pounds of marijuana, after an investigation by the DEA, in which
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Agent Marvin Winham (“Agent Winham”) was a participant. After
this arrest, Luis was held in the Hidalgo and Starr County jails.
However, Luis, a persistent fellow, still continued to manage his
drug operations from the jailhouse.
Agent Winham continued his investigation of Luis. He joined
with other members of the DEA and Agents Johnny Murad (“Agent
Murad”) and Joey Davidson (“Agent Davidson”), officers of the
Lincoln Parish Sheriff’s Department in Louisiana, to organize a
joint investigation and sting against Luis. A fictitious
character, “Johnny Davidson,” was created by the undercover
operatives in this sting, and Agent Winham instructed a jailhouse
informant, David Recio (“Recio”), to tell Luis that Johnny
Davidson was a ready buyer of drugs in Louisiana, and would
accept collect calls from Luis.
On September 22, 1994, Agents Murad and Davidson received a
package addressed to “John Davidson,” containing 44 kilos of
marijuana hidden inside an air compressor. The shipment was
arranged by Luis Salinas. The payment for this marijuana was
$55,000, $46,000 of which was payable in cash, and the balance
with the title for a 1988 Ford pickup truck. The first payment
of this was a $1500 payment to be given to a woman later to be
known as “Ana,” who was said to be Luis’ wife. On September 30,
1994, Agent Tony Santos (“Agent Santos”) gave the money to the
woman in the parking lot of a McAllen store. The woman sped off
before Agent Santos could speak with her. No one has ever quite
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figured out who Ana was, or what happened to the $1500.
Over the following weeks, Luis and the agents had various
conversations regarding payment of the balance for the previous
transaction, and plans for future dealings. Various negotiations
ensued for further shipments. During these conversations, plans
for shipment of 119 pounds of marijuana and 3 to 4 kilos of
cocaine were made. A meeting was arranged between the agents and
associates of Luis at the Doubletree Hotel in McAllen, a location
the agents had staked out, for October 25, 1994.
On that date, Luis called the agents at the Doubletree. He
said he was having problems finding someone to pick up the money,
and that someone would be there in a couple of hours. About 30
minutes after that call, Botello showed up at the appointed room.
Botello had consumed a few quarts of beer, and appeared
intoxicated to the agents. Botello and the agents discussed
payment for the original transaction, and plans for the cocaine
deal. When the money was given to Botello, agents in the next
room, who were monitoring the meeting on video, burst in and
arrested him.
Shortly after Botello’s arrest, Agent Murad told Luis that
he had spoken to one of his men in McAllen, and that this man had
given the money to someone named “Joe” who had come to the hotel
room. Luis said he’d sent his friend “Marcos” to get the money.
This was the first and only mention of a “Marcos” in some 15 to
20 conversations Agent Murad had with Luis over several weeks.
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Luis asked if the money had been picked up, and he was told that
it was.
During this time, surveillance agents were monitoring the
Doubletree Hotel. These agents observed Botello walk from nearby
Archer Park to the Doubletree, and they attempted to locate the
vehicle in which he arrived. Officer Art Lopez (“Officer Lopez”)
noticed a red Cougar which had been seen in two different
locations. He saw it park, a man get inside of it, and then
proceed south towards the city of Mission, Texas. The car was
stopped, and the passengers were the Defendant-Appellant Salinas,
his wife, and their child. A DEA agent who arrived to assist
noticed that Salinas was the same suspicious person he noticed
standing by a park bench in Archer Park at the time of Botello’s
arrest.
Upon questioning, Salinas acknowledged that Luis was his
brother, and that he had given Botello a ride to McAllen.
Salinas was asked what he was doing in Archer Park, and he
replied that he was at the park walking for exercise. The
officers noticed that he was wearing sandals, and questioned his
choice of exercise footwear. Salinas said he always wore
sandals, including when walking for exercise. He was then
arrested.
Botello testified at the trial that on the date in question
he went to an auto shop where he saw his friend Salinas. He said
Salinas asked him to help bring a broken-down car to the shop,
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and Botello agreed. Botello says that on the way to McAllen, the
plans changed. Salinas said they were going to the Doubletree
Hotel, and that he wanted Botello to get $46,500 from a man named
“Chris” (“Chris” was the undercover name of one of the
operatives). Salinas repeated these instructions as Botello
drank his quarts of beer. Salinas also reportedly told Botello
to say that Luis sent him, and that Botello would get $200-300
for this.
Botello testified that he never met Luis, and that he never
asked Salinas why he was being asked to get the money. He did
say that because of the amount of money involved, he figured it
was for marijuana, though he never asked. The government states
in its brief that he seemed knowledgeable about the details of
the marijuana and cocaine deliveries in the videotaped meeting
with the undercover agents at the Doubletree. Botello testified
that when they arrived in McAllen, they stopped at Archer Park,
where Salinas repeated the instructions. Botello then went to
the room, and as stated previously, was arrested.
Standard of Review and Elements of Proof
The standard for review for reviewing the sufficiency of
evidence supporting a jury’s verdict in this Circuit is as
follows:
In our review of the sufficiency of the evidence
supporting a jury’s verdict, we determine whether,
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viewing the evidence and the inferences that may be
drawn from it in the light most favorable to the
verdict, a rational jury could have found the essential
elements of the offenses beyond a reasonable doubt. We
recognize that the jury was free to choose among all
reasonable constructions of the evidence, and accept
all credibility choices that tend to support the jury’s
verdict. We view the evidence, though direct and
circumstantial, as well as all reasonable inferences
from that evidence, in the light most favorable to the
verdict. Moreover, we determine only whether the jury
made a rational decision, not whether its verdict was
correct on the issue of guilt or innocence. However,
we must reverse a conviction if evidence construed in
favor of the verdict gives equal or nearly equal
circumstantial support to a theory of guilt and a
theory of innocence of the crime charged.
United States v. Dean, 59 F.3d 1479, 1484 (5th Cir.
1995)(citations and quotation marks omitted), cert. denied, 116
S.Ct. 748 (1996); see also U.S. v. Broussard, 80 F.3d 1025, 1030-
1031 (5th Cir. 1996), cert. denied, 117 S.Ct. 264 (1996); U.S. v.
Jamarillo, 42 F.3d 920, 922-923 (1994), cert. denied, 514 U.S.
1134 (1995).
The elements of a drug conspiracy are: (1) the existence of
an agreement between two or more persons to violate narcotics
law; (2) the defendant’s knowledge of the agreement; (3) the
defendant’s voluntary participation in the agreement. U.S. v.
Pena-Rodriguez, 110 F.3d 1120, 1122 (5th Cir. 1997), cert.
denied, WL 562076 (1997); see also U.S. v. Gonzalez, 76 F.3d
1339, 1346 (5th Cir. 1996). Mere presence at a crime scene is
not enough alone to support an inference of participation in a
conspiracy, but presence is one factor the jury may rely on.
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U.S. v. Maltos, 985 F.2d 743, 747 (5th Cir. 1992). On a related
note, while a conviction cannot be based solely on the existence
of a familial relationship between the defendant and a criminal,
inferences from such a fact may be combined with other
circumstantial evidence to support a conspiracy conviction.
Broussard, 80 F.3d at 1031. Also, because secrecy is the norm in
an illicit conspiracy, the elements of the offense may be proven
by circumstantial evidence. U.S. v. Greenwood, 974 F.2d 1449,
1457 (5th Cir. 1992). However, the court will not lightly infer
a defendant’s knowledge or participation in a conspiracy, and the
government may not prove up a conspiracy merely by placing the
defendant in “a climate of activity that reeks of something
foul.” Maltos, 985 U.S. at 746.
Further, one may be guilty as a co-conspirator even if he
plays a minor role, and that person need not know all the details
of the illicit enterprise. Greenwood, 974 F.2d at 1457. An
explicit agreement to join the conspiracy is not needed, tacit
agreement will suffice. Id. Also, so long as it is not facially
insubstantial or incredible, the uncooborated testimony of a co-
conspirator, even one who has chosen to cooperate with the
prosecution in return for leniency, may be constitutionally
sufficient evidence to convict. Id. Testimony is incredible as
a matter of law only if it relates to facts that the witness
could not possibly have observed or to events which could not
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have occurred under the laws of nature. Pena-Rodriguez, 110 F.3d
at 1123; see also U.S. v. Bermea, 30 F.3d 1539, 1552 (5th Cir.
1994), cert. denied, 115 S.Ct. 1825 (1995).
Discussion and Analysis
It was rational for the jury to convict Salinas. While it
is true that guilt-by-association is not an acceptable reason for
conviction, the prosecution had far more evidence than a “mere
presence” argument. The jury apparently believed that it was
more than just a coincidence that: (1) Salinas (by his own
admission) drove Botello to a hotel, (2) where a known drug
dealer (Salinas’ brother) had arranged a meeting between a minion
named “Marcos” (Salinas’ first name) and undercover agents who
were posing as drug dealers, (3) that Salinas told Botello
(according to Botello’s testimony, which is not incredible as a
matter of law) all along the way that he was to retrieve a large
sum of money (which Botello thought to be consistent with a drug
deal), and (4) that it was no coincidence that these people and
events crossed paths with each other in space and time at the
Doubletree Hotel in McAllen.
On the issue of the sum of money and Botello’s involvement,
this Circuit has previously held that “drug traffickers are
unlikely to entrust a large portion of the proceeds from their
illicit trade to an outsider, especially when the outsider is
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aware of the valuable nature of the merchandise he is carrying.”
U.S. v. Gallo, 927 F.2d 815, 821 (5th Cir. 1991). Further,
regarding the use of Botello as a courier, this Circuit has held
that the payment of a large sum of money for a simple errand may
be considered suspicious. U.S. v. Quiroz-Hernandez, 48 F.3d 858,
865 (5th Cir. 1995); U.S. v. Martinez-Mercado, 888 F.2d 1484,
1491 (5th Cir. 1989). Also, the recruitment of another to do an
illegal act does not relieve the recruiter from criminal
liability. U.S. v. Gonzalez-Rodriguez, 966 F.2d 918, 921 (5th
Cir. 1992). It would be a reasonable inference for the jury to
think that Salinas did not want to take the risk of retrieving
the drug money himself, so he brought Botello along. While any
of these things alone would not have been enough to convict
Salinas, the weight of the events, all stacked together, would
allow a reasonable jury to convict him, and such inferences pass
muster under the precedents set by this Circuit.
As previously stated, under the standard of review of this
Circuit, we are to affirm the decision of the jury as long as it
is rational. The only caveat is if the evidence gives equal or
near-equal evidence of innocence. The evidence does not do so in
this case. The alternate story is that Salinas was simply going
for a walk in Archer Park, by chance gave Botello a ride to where
a drug deal (arranged, again by chance, by Salinas’ brother) was
going on, which Salinas was unaware of, and that Botello was
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lying about their conversation they had on the ride to McAllen.
This seems far less credible than the story supporting
conviction, and does not rise to the level of equal or near-equal
evidence of innocence. Therefore, we will not disturb the
verdict of the jury or the sentence imposed.
Conclusion
The prosecution met its burden in providing evidence linking
Salinas to the drug conspiracy. The jury’s decision was
rational, and was not based on improper inferences or prejudices.
Therefore, the decision of the district court and the conviction
of Salinas is AFFIRMED.
AFFIRMED.
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