IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20562
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS RANGEL JASSO; JOSE JASSO, JR.;
LEONEL SALVADOR TIJERINA; EDUARDO ESCOBEDO,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-96-CR-241-1
June 17, 1998
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Jesus Rangel Jasso, Leonel Salvador Tijerina, and Eduardo
Escobedo appeal their convictions for conspiracy to possess with
intent to distribute cocaine and for such possession. Jose
Jasso, Jr. appeals his conviction on the conspiracy count; the
jury acquitted him on the possession count. We AFFIRM.
*
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that this opinion should not be published and is not precedent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.
First, Tijerina, Jasso and Escobedo contend that the
district court abused its discretion by refusing to give a
requested jury instruction concerning the quantity and quality of
proof necessary to establish “knowing possession” of contraband
hidden in a vehicle. We find that the district court adequately
instructed the jury on the element of guilty knowledge. The
district court defined the term “knowingly” and also admonished
the jury that it could not convict a defendant for merely having
been present at the scene.
In addition, defendants’ argument lacks merit because there
is no evidentiary basis to require the court to give the
requested instruction since it is erroneously based upon the
premise that the cocaine was “hidden in a vehicle.” Before the
drug transaction was terminated by the police raid team, the two
duffle bags containing cocaine were removed from the car by
Tijerina and Escobedo and carried into the house. Once in the
house, Jasso removed some cocaine from one of the packages so
that undercover police officer Green could “test” the cocaine and
pronounce it acceptable and Tijerina then asked Green to call his
“money man.” This constituted uncontradicted evidence that
Tijerina, Escobedo and Jasso possessed the requisite guilty
knowledge. Therefore, the district court did not abuse its
discretion in refusing to give the instruction requested by the
defendants regarding “knowing possession” of contraband “hidden
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in a vehicle.” See United States v. Box, 50 F.3d 345, 353 (5th
Cir. 1995).
Second, there is sufficient evidence to support the
conspiracy convictions of Jasso, Jr., Tijerina, and Escobedo.
The evidence is also sufficient to support the convictions of
Tijerina and Escobedo on the possession count. See United States
v. Ivy, 973 F.2d 1184, 1188 (5th Cir. 1992).
Finally, the district court did not abuse its discretion by
denying Escobedo’s amended motion to sever his trial from that of
Tijerina. As the district court noted, Tijerina’s affidavit in
support of the motion did not adequately state what exculpatory
testimony Tijerina would give. See United States v. Jobe, 101
F.3d 1046, 1060 (5th Cir. 1996), cert. denied, 118 S.Ct. 81
(1997). Moreover, neither the district court nor the Government
is required to grant use immunity to Tijerina. See United States
v. Bustamante, 45 F.3d 933, 943 (5th Cir. 1995). Tijerina stated
in his affidavit that he would invoke his Fifth Amendment
privilege not to testify, unless the court granted Escobedo’s
request for severance. In other words, he would not have
testified for Escobedo unless he received use immunity. Thus,
the district court did not abuse its discretion in denying
Escobedo’s motion to sever.
AFFIRMED.
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