United States v. Marco Marchan

Case: 14-40493 Document: 00513197999 Page: 1 Date Filed: 09/17/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40493 FILED
Summary Calendar September 17, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCO ANTONIO MARCHAN,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-512

Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Marco Antonio Marchan was sentenced to concurrent terms of 210
months of imprisonment and concurrent five-year terms of supervised release
after a jury convicted him of conspiracy to possess with intent to distribute
more than 1,000 kilograms of marijuana and possession with intent to
distribute more than 1,000 kilograms of marijuana. Marchan challenges the
jury’s verdict in this matter, asserting that the Government failed to establish

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-40493

the quantity and substance of the bundles seized by agents in their
investigation of Marchan.
When analyzing the sufficiency of the evidence, we view “all evidence,
whether circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of the jury’s
verdict.” United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (internal
brackets, quotation marks, and citation omitted). The Government may prove
its case through direct or circumstantial evidence, and “the jury is free to
choose among reasonable constructions of the evidence.” United States v.
Mitchell, 484 F.3d 762, 768 (5th Cir. 2007) (internal quotation marks and
citation omitted). We will uphold the jury’s verdict if “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir.) (en banc)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)), cert. denied, 135 S. Ct.
170 (2014).
Because the quantity of drugs involved increases the possible penalty in
this case under 21 U.S.C. § 841(b)(1)(A)(vii), it must be established by the
Government beyond a reasonable doubt. United States v. Daniels, 723 F.3d
562, 570 (5th Cir. 2013) (citation omitted). The Government satisfied its
burden in this matter. See Daniels, 723 F.3d at 570. The confidential
informant (CI) corroborated testimony by Marchan’s co-defendant that the co-
defendant would supply 3,000 pounds of marijuana to Marchan by delivering
it to the CI’s driver. The CI’s driver would transport the marijuana to Marchan
for distribution. Recorded conversations also corroborated the agreement
between Marchan and the co-defendant. A federal agent testified that the
bundles were secured, processed, and weighed upon their seizure, and that the
bundles weighed more than 4,000 kilograms. The jury reasonably rejected any

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No. 14-40493

suggestion by Marchan that subtracting the weight of the wrapping would
bring the total weight of the bundles below 1,000 kilograms. See Mitchell, 484
F.3d at 768. Finally, the protocol utilized by the agents, in which they obtained
and tested 22 random samples from different bundles, sufficiently established
that all of the bundles seized from the van and the house contained marijuana.
See United States v. Fitzgerald, 89 F.3d 218, 223 n.5 (5th Cir. 1996); see also
United States v. Garza, 222 F. App’x 433, 437-38 (5th Cir. 2007).
Marchan also argues that the district court erred in admitting as
intrinsic evidence testimony about his kidnapping by the Los Zetas drug cartel.
He contends that the evidence was irrelevant and highly prejudicial. However,
the district court did not abuse its discretion in admitting the evidence. See
United States v. Franklin, 561 F.3d 398, 404 (5th Cir. 2009); United States v.
Royal, 972 F.2d 643, 647 (5th Cir. 1992). The Government alleged that
Marchan had a previous affiliation with the cartel and had been kidnapped by
the group over a drug debt. It also believed that the Zetas were the source of
the marijuana seized in this case. Testimony about the kidnapping completed
the narrative surrounding Marchan’s drug trafficking and provided context as
to why Marchan enlisted his co-defendant and the CI to act as intermediaries
between himself and the cartel. See United States v. Coleman, 78 F.3d 154,
156 (5th Cir. 1996).
AFFIRMED.

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