UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20574
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
MARIO FLORES-DIAZ; GILBERTO ROBLEDO-ROBLEDO,
Defendants - Appellants.
Appeals from the United States District Court
for the Southern District of Texas
(H-96-CR-227-2)
March 11, 1999
Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.
DUHÉ, Circuit Judge:1
Gilberto Robledo-Robledo and Mario Flores-Diaz were convicted
of conspiracy to possess with intent to distribute cocaine and
aiding and abetting possession with intent to distribute cocaine.
Both challenge the sufficiency of the evidence to support their
convictions. In addition, Robledo-Robledo challenges two
admissibility rulings by the district court, and challenges the
district court’s refusal to reduce his offense level as a minimal
or minor participant. We affirm.
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 R. 47.5, the Court has determined that this opinion should not be published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.
BACKGROUND
Robert Navarro contacted Norberto Castillo, a confidential
informant (“CI”) for the DEA, to help him locate a buyer for
fifteen kilograms of cocaine. Navarro, the CI, Robledo-Robledo,
Flores-Diaz and others participated in the sale of 18.4 kilograms
of cocaine to undercover officers. The CI identified Juan
Rodriguez as the boss of the sale side of the deal.
DISCUSSION
Robledo-Robledo
Robledo-Robledo contends that the evidence was insufficient to
sustain the guilty verdicts against him; that the court abused its
discretion by refusing to admit into evidence examples of Robledo-
Robledo’s handwriting and by admitting into evidence the CI’s
testimony concerning Robledo-Robledo’s involvement in the drug
transaction. Finally, Robledo-Robledo contends that the district
court abused its discretion by refusing to reduce his offense level
under U.S.S.G. § 3B1.2 as a minimal or minor participant.
1. Sufficiency of the Evidence
Robledo-Robledo moved for acquittal at the end of the
government’s evidence; the district court denied the motion.
Robledo-Robledo failed to renew the motion at the close of all
evidence. Therefore, we review his sufficiency of the evidence
claims for a manifest miscarriage of justice. See United States v.
Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994). “Such a miscarriage
would exist only if the record is devoid of evidence pointing to
2
guilt, or . . . [if] the evidence on a key element of the offense
was so tenuous that a conviction would be shocking.” Id. (citing
United States v. Galvan, 949 F.2d 777, 782 (5th Cir. 1991)). We
must view all evidence and any inferences therefrom in the light
most favorable to the government. See id. “It is not necessary
that the evidence exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of
guilt.” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.
1995) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.
1982) (en banc), aff’d on other grounds, 462 U.S. 356, (1983)). In
addition, “[i]t is the sole province of the jury, and not within
the power of this Court, to weigh conflicting evidence and evaluate
the credibility of witnesses.” United States v. Ivey, 949 F.2d
759, 767 (5th Cir. 1991).
For conspiracy to possess with intent to distribute, the
government must prove: (1) existence of an agreement to possess
with the intent to distribute; (2) knowledge of the agreement; and
(3) voluntary participation in the agreement. See United States v.
Gonzales, 121 F.3d 928, 935 (5th Cir. 1997). For aiding and
abetting, the government must prove that the underlying offense
occurred,2 and the defendant: “(1) associated with a criminal
venture, (2) participated in the venture, and (3) sought by action
to make the venture successful.” United States v. Lombardi, 138
F.3d 559, 561 (5th Cir. 1998). The defendant must “share in the
2
Nobody contests that the government proved that the
underlying offense of possession with intent to distribute
occurred.
3
intent to commit the offense” and “play an active role in its
commission.” Id.
The evidence is sufficient to support Robledo-Robledo’s
convictions. Robledo-Robledo arrived at Taqueria Arandas, the
prearranged location for the drug transaction, and informed Navarro
and the CI that the new location would be at the Fiesta. Navarro
asked Robledo-Robledo where he was going to put “it.” Robledo-
Robledo responded “under the cushions.” When Robledo-Robledo drove
the van away from the restaurant, the hidden compartment in the van
was empty.3 Robledo-Robledo stopped at two houses, one on Longview
and one on Westmont Drive, before delivering the van to the Fiesta.
Police later searched the Longview house, uncovering a kilo of
cocaine wrapped in the exact same manner as the cocaine recovered
from the van Robledo-Robledo was driving. Juan Rodriguez, whom the
CI identified as the boss of the sale side of the transaction,
lived at the Westmont house. While waiting at the Fiesta for
Robledo-Robledo and the van to arrive, Flores-Diaz called the
Longview house on the CI’s cell phone; both he and Navarro spoke.
Afterwards, Navarro said “it” was ready, the driver had “it,” and
he was close by. Soon after, Robledo-Robledo arrived at the Fiesta
with the van, gave the keys to the CI, and said “they” were inside
the box of toys. The CI checked under the cushions in the van, and
3
The evidence establishes that the van’s hidden compartment
contained no cocaine when Navarro left the Clarion Hotel.
Surveillance, which followed Navarro to the Exxon Station and then
to Taqueria Arandas, detected no cocaine placed in the van at
either location. When Robledo-Robledo rejoined the coconspirators
at the Fiesta, 20 kilograms of cocaine was in the hidden
compartment.
4
found a toy box loaded with approximately 20 kilograms of cocaine.
Finally, when Robledo-Robledo was arrested, he had a business card
with Rodriguez’s phone number on it.
Although Robledo-Robledo offers an explanation for his conduct
other than involvement in the drug transaction,4 the jury rejected
that explanation. Viewing the evidence and the inferences
therefrom in the light most favorable to the government, Robledo-
Robledo’s convictions for conspiracy to possess with intent to
distribute and aiding and abetting are not a manifest miscarriage
of justice. Therefore, we affirm.
2. Admissibility of Evidence
Robledo-Robledo challenges two of the district court’s
admissibility rulings. We review a district court’s evidentiary
rulings for an abuse of discretion. See United States v. Haese,
162 F.3d 359, 364 (5th Cir. 1998). If we find that the district
court abused its discretion, we review the error under the harmless
error doctrine. See id. We affirm the ruling unless it affects a
substantial right of the complaining party. See id. An error
affects “a criminal defendant’s substantial rights if it had
4
Robledo-Robledo contends as follows. He met with Navarro to
arrange using Navarro’s van for Robledo-Robledo’s painting
business. Robledo-Robledo picked up the van from Navarro at the
Taqueria Arandas to take it to be inspected for mechanical
problems. He went to the Longview and Westmont because Navarro had
told him he would find mechanics to inspect the van at those
addresses. When Robledo-Robledo said that he would put “it” under
the cushions and that “they” were in the toy box, he was talking
about mechanical devices to check pressure. He did not know
cocaine was in the van.
5
substantial and injurious effect or influence in determining the
jury’s verdict.” United States v. Hall, 152 F.3d 381, 402 (5th
Cir. 1998) (internal quotes omitted). The complaining party has
the burden of proving that the ruling affects a substantial right.
See McDonald v. Steward, 132 F.3d 225, 232 (5th Cir. 1998).
First, Robledo-Robledo contends that the district court
improperly excluded his handwriting sample. A business card with
Rodriguez’s phone number handwritten on the back was among Robledo-
Robledo’s possessions when arrested. The government offered this
card as evidence of a connection between Robledo-Robledo and the
drug transaction. Robledo-Robledo, while under redirect
examination, wrote out the phone number ten times in his own
handwriting. His counsel attempted to admit Robledo-Robledo’s
writing sample in evidence. The government objected because they
had not received notice of Robledo-Robledo’s intent to introduce
the exhibit prior to the evidence being offered. The district
court sustained the government’s objection based on Robledo-
Robledo’s failure to comply with reciprocal discovery.5
Robledo-Robledo contends that the exclusion harmed him because
his handwriting sample would have helped the jury discern whether
5
The parties cite to discovery cases in outlining the standard
of review. We need not resolve whether the discovery standard or
evidence admissibility standard applies, since the proper standard
in both cases is abuse of discretion. Compare United States v.
Deisch, 20 F.3d 139, 154 (5th Cir. 1994) (stating that abuse of
discretion is the standard of review for discovery rulings, and
noting that the complaining party must prove prejudice to his
substantial rights) with McDonald v. Steward, 132 F.3d 225, 232
(5th Cir. 1998). (stating that abuse of discretion is the standard
of review for admissibility rulings, and noting that the
complaining party must prove prejudice to his substantial rights).
6
he testified truthfully that he did not write Rodriguez’s number on
the back of the business card. We need not decide whether the
district court abused its discretion. Even assuming such abuse,
Robledo-Robledo did not prove that the exclusion affected a
substantial right. Although Robledo-Robledo’s possession of the
card may have influenced the jury’s verdict, whether or not
Robledo-Robledo wrote Rodriguez number was irrelevant. The
government never contended that Robledo-Robledo wrote the number;
it simply urged that Robledo-Robledo’s possession of a business
card with the boss’s number on it connected Robledo-Robledo to the
drug transaction. Because Robledo-Robledo did not prove
substantial adverse affects from exclusion of the handwriting
sample, we affirm.
Second, Robledo-Robledo contends that the district court
improperly admitted testimony by the CI. The government asked the
CI if he thought Flores and Robledo were involved in the drug
transaction. Defense counsel objected, stating that the question
invaded the province of the jury. The district court overruled the
objection. The government rephrased the question, asking the CI
if, based on his observations and conversations with Flores and
Robledo, he thought they were involved in the drug transaction.
The CI answered “yes.”
Under Federal Rule of Evidence 704, “testimony in the form of
an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of
fact.” Fed. R. Evid. 704. The CI’s opinion based on observations
7
and conversations did not tell the jury what verdict it should
reach or state legal conclusions. See Owen v. Kerr-McGee Corp.,
698 F.2d 236, 240 (5th Cir. 1983). Because the district court did
not abuse its discretion in admitting the testimony, we affirm.
3. Reduction in Offense Level
Robledo-Robledo contends that the district court should have
reduced his offense level based on the role he played in the
criminal venture. We uphold a sentence under the Sentencing
Guidelines that correctly applies the Guidelines to factual
findings that are not clearly erroneous. See United States v.
Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). We review legal
determinations de novo, and factual findings for clear error. See
id. A factual finding is not clearly erroneous if it is plausible
in light of the record as a whole. See id. The determination of
the defendant’s role in an offense is a factual finding subject to
clearly erroneous review. See id.
Section 3B1.2(a) of the Sentencing Guidelines permits a four
level decrease in the offense level if the defendant was a “minimal
participant.” 1997 U.S.S.G. § 3B1.2(a). This downward adjustment
“will be used infrequently,” mainly when the defendant “lack[s]
knowledge or understanding of the scope and structure of the
enterprise and of the activities of others . . . .” 1997 U.S.S.G.
§ 3B1.2 commentary n.1, n.2. Section 3B1.2(b) of the Sentencing
Guidelines permits a two level decrease in the offense level if the
defendant was a “minor participant.” 1997 U.S.S.G. § 3B1.2(a).
A minor participant is someone “who is less culpable than most
8
other participants, but whose role could not be described as
minimal.” 1997 U.S.S.G. § 3B1.2 commentary n.3. The evidence of
Robledo-Robledo’s involvement in the transaction supports the
district court’s finding that Robledo-Robledo was neither a minimal
nor minor participant. We affirm.
Flores-Diaz
Flores-Diaz contends that the evidence was insufficient to
sustain the guilty verdicts against him for conspiracy with intent
to distribute cocaine and aiding and abetting possession with
intent to distribute cocaine. Flores-Diaz moved for acquittal at
the end of the government’s evidence; the district court denied the
motion. Flores-Diaz again moved for acquittal at the close of all
of the evidence; the district court again denied the motion.
Flores-Diaz appeals this denial.
Since Flores-Diaz renewed his motion for acquittal, we review
his challenge to the sufficiency of the evidence to “determine
whether a rational trier of fact could have found that the evidence
established guilt beyond a reasonable doubt.” United States v.
Millsaps, 157 F.3d 989, 994 (5th Cir. 1998). We view all evidence
and any inferences therefrom in the light most favorable to the
government. See United States v. Gonzalez, 163 F.3d 255, 260 (5th
Cir. 1998). “It is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt.” United States v. Resio-
Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (quoting United States v.
9
Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff’d on other
grounds, 462 U.S. 356, (1983)). In addition, “[i]t is the sole
province of the jury, and not within the power of this Court, to
weigh conflicting evidence and evaluate the credibility of
witnesses.” United States v. Ivey, 949 F.2d 759, 767 (5th Cir.
1991).
For conspiracy to possess with intent to distribute, the
government must prove: (1) existence of an agreement to possess
with the intent to distribute; (2) knowledge of the agreement; and
(3) voluntary participation in the agreement. See United States v.
Gonzales, 121 F.3d 928, 935 (5th Cir. 1997). For aiding and
abetting, the government must prove that the underlying offense
occurred,6 and the defendant: “(1) associated with a criminal
venture, (2) participated in the venture, and (3) sought by action
to make the venture successful.” United States v. Lombardi, 138
F.3d 559, 561 (5th Cir. 1998). The defendant must “share in the
intent to commit the offense” and “play an active role in its
commission.” Id.
The evidence is sufficient to support Flores-Diaz’s
convictions. When Robledo-Robledo told Navarro and the CI that the
Fiesta would be the new location for the transaction, he also told
them that his “compadre” would be along soon to drive them to the
Fiesta. After Robledo-Robledo left, Flores-Diaz arrived, and
confirmed to the pair that he would take them to the Fiesta. In
6
Nobody contests that the government proved that the
underlying offense of possession with intent to distribute
occurred.
10
casual conversation, the CI mentioned being worn out from all the
running he had been doing that day; Flores-Diaz responded “that is
the way it is, this life, running and running. We are also in the
painting.” Flores-Diaz drove the CI and Navarro to the Fiesta, and
all three went inside. During the hour or so they waited at the
Fiesta, Flores-Diaz repeatedly went in and out of the store.
Eventually, Navarro handed Flores-Diaz the CI’s cell phone.
Flores-Diaz called the Longview house: Robledo-Robledo had stopped
at the residence before arriving at the Fiesta, and a later search
of the house uncovered cocaine packaged in the same manner as the
cocaine hidden in Robledo-Robledo’s van. Flores-Diaz spoke with
someone, but the CI did not overhear the conversation. Then,
Flores-Diaz passed the phone to Navarro. After Navarro hung up,
Flores-Diaz asked “is he coming?” Navarro responded “he is close
by, to give a minute.” When Rodriguez arrived at the Fiesta,
Flores-Diaz immediately identified him, and said, “here comes the
man.” Rodriguez instructed Flores-Diaz to get the keys to the van
when it arrived and to give them to the CI.
Viewing this evidence and the inferences therefrom in the
light most favorable to the government, a rational juror could have
found that the evidence established beyond a reasonable doubt all
of the elements of conspiracy to possess with intent to distribute
more than five kilograms of cocaine, and all of the elements of
aiding and abetting. Flores-Diaz contends that mere presence with
no knowing participation in the conspiracy is not sufficient to
convict. Viewing the evidence and the inferences therefrom in the
11
light most favorable to the government, a rational juror could have
found that the evidence established beyond a reasonable doubt that
Flores-Diaz knowingly participated in the drug transaction.
Therefore, we affirm.
AFFIRMED.
12