UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40197
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO VILLEGAS-RODRIGUEZ,
RAMON VILLEGAS-RODRIGUEZ,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
March 24, 1999
Before KING, Chief Judge, POLITZ and BENAVIDES, Circuit Judges.
POLITZ, Circuit Judge:
Roberto and Ramon Villegas-Rodriguez appeal their convictions for
conspiracy to possess with intent to distribute marihuana and possession with intent
to distribute in excess of 100 kilograms of marihuana. For the reasons assigned, we
affirm their convictions and sentences.
BACKGROUND
On July 30, 1996, drug enforcement agents received information that
marihuana was being stored at 1403 South Meadow in Laredo, Texas.1 The agents
began surveillance of the residence shortly before 3:00 p.m. that day. At
approximately 4:00 p.m., Agent Jeff Newland observed a gray Monte Carlo
automobile at the residence and identified Roberto Villegas as the driver. At 4:25
p.m., Newland observed a black Chevrolet Impala arrive at the residence. He
identified the driver of that vehicle as Ramon Villegas.
Roberto Villegas then left the residence in the gray Monte Carlo
approximately 30-40 minutes after arriving. The agents conducting surveillance
of the house instructed a Laredo police officer, Sergeant Hector Garcia, to stop the
vehicle. After Roberto Villegas ran a stop sign, Garcia stopped the Monte Carlo
and issued a citation at 4:50 p.m. Roberto Villegas returned to the 1403 South
Meadow residence around 6:17 p.m.
At approximately 6:30 p.m., Roberto Villegas backed the Monte Carlo out
of the driveway and a blue BMW, driven by a Hispanic male, backed into the
driveway. Roberto Villegas then drove the Monte Carlo back into the driveway.
1
1403 South Meadow was the home of Guadalupe Villegas, the mother of the
defendants.
2
A man walked to the end of the driveway and stood there, looking up and down the
street. Five minutes later, at 6:35 p.m., the Monte Carlo pulled out of the driveway
and parked on the street as the BMW drove away.
Sergeant Garcia was instructed to pursue and stop the BMW. When Garcia
activated his flashing lights the BMW “just took off” and led the police car in a
chase that ended a short time later when the speeding BMW collided with a
telephone pole. The driver of the BMW was identified as Ricardo Cardenas. As
Garcia approached the BMW, he saw bundles, wrapped in clear cellophane and
secured with brown packing tape. The contents were visible through the clear wrap
and Garcia recognized the substance inside as marihuana. He also detected a strong
odor of marihuana.2 The police seized 326 pounds of marihuana from the BMW. 3
Agent Nicolas Nanez then returned to the residence and obtained permission
from Ramon Villegas to search a utility room. Nanez and Laredo police officer
Andres Maldonado testified that they smelled a strong odor of marihuana.
Maldonado added that marihuana had been in the room “in the recent past.”
2
In oral argument a question was raised whether the bundles were wrapped in
transparent cellophane. The testimony of Officer Garcia and pictures of the bundles, which
were filed in evidence, clearly reflect a transparent cellophane wrapping secured by brown
packaging tape.
3
Small bundles were wrapped together to make 15 large bundles.
3
Maldonado’s drug dog alerted to several locations in the room and the officers
found clear cellophane wrap and brown wrapping tape as was used on the bundles
of marihuana.
Cardenas entered into a plea agreement under which he would provide
testimony and in turn receive a sentencing recommendation. He testified that one
month prior to the date of his arrest, Ramon Villegas asked him to find someone
to transport marihuana from Laredo to San Antonio. On July 30, 1996, the date of
the arrest, Ramon Villegas again called Cardenas seeking a driver. When Cardenas
was unable to find a driver, he decided to use the blue BMW to transport the
marihuana. He agreed to move the marihuana a short distance that day for $500.
At approximately 6:00 p.m., Cardenas met Ramon and Roberto Villegas at
the 1403 South Meadow residence. Cardenas spoke only with Ramon Villegas; he
had not met Roberto Villegas before and did not talk to him that day. According
to Ramon Villegas’ instructions, Cardenas then backed the BMW close to the house
so they could load the marihuana into the car without being seen from the street.
Ramon, Roberto, and Cardenas loaded the marihuana from the utility room into the
BMW in about three minutes. After their arrest and while in jail, Cardenas refused
Ramon Villegas’ offer of $20,000 if Cardenas would accept responsibility for the
events. Both Roberto and Ramon Villegas were charged with conspiracy to possess
4
with the intent to distribute marihuana in violation of 21 U.S.C. § 846 and with
possession with the intent to distribute in excess of 100 kilograms of marihuana in
violation of 21 U.S.C. § 841(b)(1)(B). The trial court denied motions for judgment
of acquittal and the jury convicted the defendants on both counts. Ramon Villegas
was sentenced to 97 months imprisonment and Roberto Villegas was sentenced to
63 months in prison. Both timely appealed.
ANALYSIS
Ramon and Roberto Villegas both challenge the sufficiency of the evidence
supporting their convictions. Ramon Villegas also contends that he received
ineffective assistance of counsel because his attorney failed to object to Cardenas’
testimony as violative of the federal bribery statute.
We review a claim of insufficiency of the evidence narrowly and affirm if
a rational trier of fact could have found the evidence established the essential
elements of guilt beyond a reasonable doubt.4 The evidence is viewed in the light
most favorable to the jury’s verdict, accepting all reasonable inferences supportive
of that verdict.5
4
United States v. Mmahat, 106 F.3d 89 (5th Cir. 1997), cert. denied, 118 S. Ct. 200
(1998).
5
Id.
5
The conviction for possession of marihuana with intent to distribute requires
the knowing possession of the controlled substance with the intent to distribute.6
Possession of a controlled substance may be actual or constructive, or joint among
several defendants, and may be proved by direct or circumstantial evidence. 7
A conviction for conspiracy requires proof: (1) of an agreement between two
or more persons to violate the narcotics laws, (2) that each defendant knew of the
conspiracy and intended to join it and, (3) that each defendant participated in the
conspiracy.8 A conspiracy may be inferred from circumstantial evidence and the
government need not prove that each defendant knew of every detail of the
conspiracy, only that each knew of its essentials.9 Further, a defendant may be
convicted on the uncorroborated testimony of a coconspirator who has accepted a
plea bargain unless the coconspirator’s testimony is incredible.10 Mere presence
at the crime scene or close association with the coconspirators, however, is not
6
United States v. Brown, 29 F.3d 953 (5th Cir. 1994).
7
United States v. Rodriguez, 15 F.3d 408 (5th Cir. 1994).
8
United States v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).
9
United States v. Gardea Carrasco, 830 F.2d 41 (5th Cir. 1987).
10
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994) (holding that
“[t]estimony 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 have occurred under the laws of
nature”).
6
sufficient to support an inference of participation in the conspiracy. 11
We find that the evidence was sufficient to support the possession with intent
to distribute and conspiracy convictions of Ramon Villegas. Cardenas testified that
Ramon Villegas contacted him to arrange the transportation of the marihuana,
instructed him regarding the load and delivery of the drugs, and helped him load
the marihuana into the BMW. Ramon Villegas also had the key to the utility room
where the marijuana was stored. Based on this evidence, we find that Cardenas’
testimony is not incredible and that, considering the testimony of the law
enforcement officers, there was sufficient evidence in support of Ramon Villegas’
conspiracy and possession with intent to distribute convictions.
As noted, Roberto Villegas also challenges the sufficiency of the evidence,
contending that, at most, Cardenas’ testimony proves that he was present at the
scene of the crime and loaded the packages into the BMW. He maintains that
Cardenas’ testimony does not demonstrate that he knew the packages contained
contraband or that he voluntarily participated in a drug conspiracy or transaction,
especially considering Cardenas’ statement that he did not know Roberto or have
a conversation with him and only saw him for three minutes while loading the
packages. Roberto further alleges that the evidence is not sufficient to support an
11
United States v. Maltos, 985 F.2d 743 (5th Cir. 1992).
7
aiding and abetting conviction12 and that his conduct is far less culpable than the
conduct of the defendant in United States v. Gardea Carrasco,13 a case in which
we reversed a drug conspiracy conviction for insufficiency of the evidence.
In Gardea Carrasco, defendant Jesus Carrasco Valdez accompanied other
defendants to the airport on two separate days where conversations about the
transportation of marihuana occurred. Valdez, however, did not hear the
conversations take place. On the second day, Valdez and a codefendant arrived at
the airport. A witness testified that “they” told her to radio a pilot who was to
transport the marihuana, but did not specify which defendant made the statement.
Valdez and a codefendant then carried three suitcases containing the marihuana
from a truck to a plane.14
The evidence also indicated that one of the primary organizers of the
conspiracy had been at Valdez’s home at various times on the two days in question
and that 25 days earlier a codefendant took three suitcases into Valdez’s house.
Those suitcases, however, were not shown to be the same suitcases used to
12
To prove aiding and abetting, the government must prove that the defendant
became associated with, participated in, and in some way acted to further the possession and
distribution of the drugs. United States v. Chavez, 947 F.2d 742 (5th Cir. 1991).
13
830 F.2d 41 (5th Cir. 1987).
14
Id. at 42-43.
8
transport the marihuana.15 We reversed the convictions for conspiracy and
possession with intent to distribute because there was no proof that Valdez was
aware of the substance of the critical conversations, knew what was inside the
suitcase, or knew why they were being transported.16
In response, the government contends that the facts in this case are more akin
to those in United States v. Pruneda-Gonzalez,17 in which we found the evidence
sufficient to support the conviction of defendant Pruneda for conspiracy and
possession with intent to distribute. Therein, Pruneda met with defendants
Hernandez, Pena, and Salazar at Salazar’s house in the afternoon. The conspiracy
to possess marihuana was formed between Salazar and Hernandez in the morning
of that same day. While Salazar and Hernandez talked, Pruneda and Pena loaded
empty boxes into a van and then departed. Pruneda and another man returned the
van to Salazar’s house four hours later and Pruneda admitted to Salazar that the
van was loaded with 500 pounds of marihuana. After payment for the drugs,
Pruneda and the three codefendants left together in the same vehicle, following the
15
Id.
16
Id. at 45.
17
953 F.2d 190 (5th Cir. 1992).
9
van containing the drugs.18
We found that the evidence established that Pruneda had knowledge of the
contents of the van and of the approximate quantity of marihuana, knowledge
which the defendant in Gardea Carrasco did not possess, and we distinguished
Gardea Carrasco because the events in that case took place over two separate
days, rather than in a single day of activity. We also found that a reasonable
inference could be drawn that the three defendants would not have permitted
Pruneda to accompany them and perform tasks vital to the success of the crimes
within so close a time frame if Pruneda did not have knowledge of and intentionally
participate in the criminal venture.19
Similarly, the government maintains that the evidence is sufficient in the
instant case to support the conviction of Roberto Villegas because Cardenas and
Ramon Villegas would not have allowed an innocent bystander to participate in an
act vital to the successful completion of the conspiracy and because the criminal
activities took place in a concentrated period of time. Moreover, the government
contends that the evidence that the bundles in the BMW emanated a strong odor of
marihuana, that the utility room contained a strong odor of marihuana, and that
18
Id. at 196.
19
Id. at 196-97.
10
Officer Maldonado concluded that marihuana had been in the room “in the recent
past” could lead a reasonable jury to believe that Roberto Villegas would have been
able to detect the odor himself and know that he was helping to load contraband
into the BMW. The government also asserts that the quick and surreptitious
loading of the aromatic bundles into the BMW, rather than into a garbage truck,
provides further support for the inference that Roberto Villegas knew the bundles
contained contraband.
Although causative of this panel’s measured and thoughtful consideration,
we must finally find and conclude that the evidence in the record sufficiently
supports the jury’s verdict. Roberto Villegas met his brother at their mother’s
house, moved a vehicle to permit Cardenas’ BMW to back into the driveway,
returned the vehicle to block the driveway, aided in loading 15 odoriferous bundles
into the BMW, bundles which contained readily identifiable marihuana wrapped
in a transparent cellophane, from a room apparently smelling heavily of marihuana,
and then immediately moved the vehicle again to allow the BMW to leave
promptly after the loading was completed. That Cardenas and Roberto did not
discuss the contents of the packages, and that the loading was quickly done does
not suffice to render naught the jury’s verdict. We are not prepared to conclude
that the jury reversibly erred in finding Roberto Villegas guilty as charged.
11
Finally, Ramon Villegas contends that his attorney provided ineffective
assistance of counsel because he did not move to suppress Cardenas’ testimony as
being in violation of 18 U.S.C. § 201(c) and United States v. Singleton.20 In
Singleton, a panel opinion which now has been reversed by the en banc court, the
panel found that a plea agreement offering a witness leniency in exchange for
testimony violated 18 U.S.C. § 201(c), the federal bribery statute. Recently, we
rejected the Singleton panel’s rationale and ruled that a plea agreement promising
leniency in exchange for testimony did not violate § 201(c).21
We do not review a claim of ineffective assistance of counsel on direct
appeal unless the district court has first addressed it22 or unless the record is
sufficiently developed to allow us to evaluate the claim on its merits.23 Ramon
Villegas’ claim of ineffective assistance of counsel is raised for the first time on
appeal, there was no hearing thereon this claim in the district court, and therefore
no findings of fact as to counsel’s failure to object to the testimony at trial.
20
144 F.3d 1343 (10th Cir. 1998), overruled by United States v. Singleton, 165 F.3d
1297(10th Cir. 1999) (en banc).
21
United States v. Haese, 162 F.3d 359 (5th Cir. 1998); United States v. Webster,
162 F.3d 308 (5th Cir. 1998).
22
United States v. Rosalez-Orozco, 8 F.3d 198 (5th Cir. 1993).
23
United States v. Bounds, 943 F.2d 541 (5th Cir. 1991).
12
Normally, the appropriate mechanism for raising this claim would be a
habeas corpus proceeding pursuant to 28 U.S.C. § 2255.24 In this instance,
however, the record is sufficiently developed as to the merits of the claim and no
further fact finding is necessary. Our recent decisions make manifest that the
testimony of a witness who has entered into a plea agreement does not violate §
201(c). That counsel did not object to this testimony does not constitute ineffective
assistance of counsel.
CONCLUSION
We conclude and hold that the evidence is sufficient to support the
convictions of both defendants on both charges and, accordingly, the convictions
and sentences of Roberto Villegas-Rodriguez and Ramon Villegas-Rodriguez are
AFFIRMED.
24
See United States v. Ugalde, 861 F.2d 802 (5th Cir. 1988).
13