IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50913
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN VEGA-BENAVIDES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 96-CR-217-1
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September 30, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:1
Martin Vega-Benavides appeals his conviction for conspiracy
to possess with intent to distribute marijuana and possession
with intent to distribute marijuana. He argues that: (1) the
evidence is not sufficient to support his conviction; (2) the
court’s questioning of a key defense witness was improper and
constituted a denial of a fair trial; (3) the court’s revocation
of his bond after the first day of trial was prejudicial and
constituted a denial of a fair trial; and (4) the exclusion of
evidence of a co-defendant’s flight and the court’s refusal to
1
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that this opinion should not be published and is not precedent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. 97-50913
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instruct the jury concerning this flight were improper. We
reject these contentions and affirm the conviction.
Vega-Benavides first contests the sufficiency of the
evidence to support his conviction. When considering a challenge
to the sufficiency of the evidence if a motion for acquittal is
made at the close of the evidence, this court will affirm the
conviction if a reasonable trier of fact could have found that
the evidence established guilt beyond a reasonable doubt after
considering the evidence in the light most favorable to the
jury’s verdict. See United States v. Bermea, 30 F.3d 1539, 1551
(5th Cir. 1994). Determining the weight and credibility of the
evidence is the jury’s responsibility. United States v.
Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). This court will
not substitute its own determination of credibility for that of
the jury. Id.
To establish guilt of a drug conspiracy, the Government must
prove beyond a reasonable doubt the existence of an agreement to
possess with intent to distribute an illicit substance, the
defendant’s knowledge of the agreement, and his voluntary
participation in it. United States v. Lewis, 902 F.2d 1176,
1180-81 (5th Cir. 1990). The jury may infer a conspiracy from
circumstantial evidence and may rely upon presence and
association, along with other evidence. United States v. Polk,
56 F.3d 613, 619 (5th Cir. 1995). Although presence at the crime
scene alone is insufficient to support an inference of
participation in a conspiracy, “the jury may consider presence
and association, along with other evidence, in finding
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conspiratorial activity by the defendant.” United States v.
Chavez, 947 F.2d 742, 745 (5th Cir. 1991).
The evidence was sufficient to support Vega-Benavides’s
conviction for conspiracy to possess with the intent to
distribute marijuana. Vega-Benavides was observed by agents
coming back and forth across the Mexican-United States border.
He requested the key for the room that had been rented by Aurelio
Jaimes-Tavera, who was subsequently found to have been driving a
red Geo, which contained a distributable amount of marijuana.
Vega-Benavides also rode in the Geo. He admitted that he stayed
in the hotel room with Jaimes-Tavera. He also was seen leading
and tailing the red Geo. Vega-Benavides went to a house where
agents found additional marijuana. The border patrol agent
testified that when he stopped Vega-Benavides, he was nervous and
was in possession of a cellular phone that was alerted to by a
narcotics dog.
To convict Vega-Benavides of the possession charge, the
Government must show beyond a reasonable doubt that he possessed
marijuana, that he intended to distribute it, and that he did
these two things knowingly. See United States v. Moreno-
Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986). Possession may be
actual or constructive, joint among several people, and proved by
circumstantial evidence. Id. Constructive possession exists
when the defendant has ownership, dominion, and control over the
contraband itself, or the area where it is located. United
States v. Sacerio, 952 F.2d 860, 866 (5th Cir. 1992).
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The court gave a Pinkerton2 instruction to the jury. “A
party to a conspiracy . . . may be held responsible for a
substantive offense committed in furtherance of the conspiracy,
even if that party has no knowledge of the substantive offense.”
Sacerio, 952 F.2d at 866 (5th Cir. 1992). In light of the
Pinkerton instruction and the sufficient evidence on the
conspiracy count, the evidence is sufficient to support Vega-
Benavides’s conviction on the substantive count of possession.
Sacerio, 952 F.2d at 866 (insufficient evidence on conspiracy
count prevents use of coconspirator liability to decide
sufficiency issue on substantive count).
“The general rule is that ‘an accused may not be convicted
on his own uncorroborated confession.’” United States v. Garth,
773 F.2d 1469, 1479 (5th Cir. 1985)(quoting Smith v. United
States, 348 U.S. 147, 152 (1954)). The Government must
introduce evidence to corroborate a confession or extra-judicial
statement. United States v. Abigando, 439 F.2d 827, 832 (5th
Cir. 1971). Corroborative evidence need not be sufficient,
independent of the defendant’s confession or admission, to
establish every element of the charged offense. Id. at 833.
Some elements of the offense may be proved by the confession
alone. Id.
The evidence was sufficient to corroborate Vega-Benavides’s
confession. Vega-Benavides confessed that he was paid to load
the marijuana and take the marijuana to a stash house in Austin.
He stated that he was hired for the job because he was familiar
2
Pinkerton v. United States, 328 U.S. 640 (1946).
No. 97-50913
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with Austin. He was seen by agents at 1232 Montemayor where a
distributable amount of marijuana was subsequently found, was
seen in the presence of Jaimes-Tavera, and was observed tailing
and leading the red GEO, which also contained a distributable
amount of marijuana. Because the evidence must provide only
corroboration rather than independent proof of guilt, the
evidence need only be enough the make the confession reliable and
to allow the jury to infer that it is the truth. The evidence
met this requirement.
Vega-Benavides argues that the district court gave the
appearance of partiality toward the prosecution so as to deny him
a fair trial by questioning a key defense witness. Jeanette
Hunt, a board certified forensic documents examiner, gave her
expert opinion that the signature on Vega’s purported confession
was not genuine; she suspected that the signature had been
traced. The court proceeded to question Ms. Hunt in a manner
which Vega-Benavides argues was prejudicial.
Because Vega-Benavides did not object to the trial court’s
questioning of Hunt, this court’s review is limited to plain
error. Under Fed.R.Crim.P. 52(b), this court may correct
forfeited errors only when an appellant shows: (1) there is an
error, (2) that is clear or obvious, and (3) that affects his
substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S. 725, 731-36 (1993)). If these factors are established,
the decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
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discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 736.
We find that the court’s questioning of Hunt did not
demonstrate any bias in favor of the prosecution and did not rise
to the level of plain error. The court’s first line of
questioning was an attempt to clarify whether Hunt considered the
signatures on the written confession and the consent-to-search
form to be forgeries. The court did not err in asking these
questions. See United States v. Bartlett, 633 F.2d 1184, 1188
(5th Cir. 1981) (the court may elicit testimony in an effort to
clarify ambiguities). The court then presented a hypothetical to
determine how “comfortable” Hunt was in her analysis. This line
of questioning was arguably favorable to Vega-Benavides. Hunt
was able to testify that she was comfortable in her analysis,
that she believed that her analysis could be more accurate than
eyewitness testimony, and that her analysis had been critical in
a murder trial. The district judge’s questioning, viewed as a
whole, did not amount to an intervention that could have led the
jury to a predisposition of guilty by improperly confusing the
functions of judge and prosecutor. Bermea, 30 F.3d at 1569.
Vega-Benavides also argues that the revocation of his bond
after one day of trial added to the perception that the court
favored the prosecution. He contends that his appearance before
the jury in prison clothes, with a prison bracelet, unshaven, and
surrounded by marshals after the first day of trial suggested to
the jury that the evidence presented on the first day of trial
No. 97-50913
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was sufficient for a conviction and that he had been imprisoned
because he was guilty. We reject this claim. The court told
Vega-Benavides that his wife could bring him a change of clothes.
There is no indication that the jury could see the prison
bracelet or that the marshals’ presence was sufficient to suggest
to the jury that he was guilty. The district judge's actions,
viewed as a whole, did not deprive Vega-Benavides of a fair
trial.
Lastly, Vega-Benavides contends that the district court
erred in excluding evidence of a codefendant’s absence or flight
and erred in failing to give an instruction regarding a
codefendant’s flight. The evidence of the codefendant’s flight
did not tend to make the determination of Vega-Benavides’s guilt
less probable than it would have been without the evidence. Even
if the evidence had been admitted, the jury simply could have
concluded that Vega-Benavides had the unfortunate luck of getting
caught, while Jaimes-Tavera was able to elude law enforcement
officers. The district court did not err in excluding the
evidence. See United States v. Skipper, 74 F.3d 608, 612 (5th
Cir. 1996)(this court reviews the admission of evidence only for
abuse of discretion; even if there is an abuse of discretion,
the error is reviewed under the harmless error doctrine).
Accordingly, the district court was not required to give the
requested flight instruction.
For the foregoing reasons, we AFFIRM the district court’s
judgment of conviction.