United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-31153
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMAR TOOKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-50-3
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Lamar Tooks argues that the evidence introduced at his jury
trial was insufficient to support his conviction for conspiracy
to import into the United States and to possess on board a vessel
arriving in the United States, more than five kilograms of
cocaine in violation of 21 U.S.C. §§ 952, 955, and 963. The
sufficiency of the evidence is reviewed to determine whether any
rational trier of fact could have found that the evidence
*
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this opinion should not be published and is not precedent except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. 04-31153
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established guilt beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318 (1979).
To establish a conspiracy to import cocaine or to possess
cocaine on a vessel arriving in the United States, the Government
had to prove beyond a reasonable doubt (1) an agreement between
two or more persons to violate the narcotics laws, (2) that each
alleged conspirator knew of the conspiracy and intended to join
it, and (3) that each alleged conspirator did participate
voluntarily in the conspiracy. See 21 U.S.C. § 963; United
States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir. 1994) “The
jury may infer any element of this offense from circumstantial
evidence.” United States v. Lechuga, 888 F.2d 1472, 1476 (5th
Cir. 1989). Thus, “[a]n agreement may be inferred from concert
of action, [v]oluntary participation may be inferred from a
collocation of circumstances, and [k]nowledge may be inferred
from surrounding circumstances.” Id. at 1476-77. A conspiracy
can also be inferred from a combination of close relationships or
knowing presence and other supporting circumstantial evidence.
United States v. Brito, 136 F.3d 397, 409 (5th Cir. 1998).
There is no dispute in this case that a conspiracy existed
to import more than five kilograms into the United States on the
M/S CONQUEST in January 2004. Tooks argues that, like the facts
presented in United States v. DeSimone, 660 F.2d 532, 535-36,
537-38 (5th Cir. 1981), there was no evidence that he had
No. 04-31153
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knowledge of the conspiracy or that he participated in the
conspiracy.
The evidence established that Paul Wilson conspired with
others to import drugs into the United States on the M/S
CONQUEST. The plan involved certain conspirators boarding the
cruise ship in New Orleans and importing drugs onto the ship when
it was docked in Jamaica. The drugs would then be given to a
crewman on the ship, who would deliver the drugs to other
conspirators who boarded the next cruise in New Orleans, and
those conspirators would leave the ship and deliver the drugs to
Wilson in New Orleans before the ship sailed again for Jamaica.
In January 2004, Wilson organized a group of people to
smuggle drugs onto the ship in Jamaica and to then import the
drugs into the United States; however, he had to replace at least
one of the original participants who was not available to carry
out the plan. Patricia Mitchell, a member of this January 2004
conspiracy, testified that Tooks was the replacement. The
evidence also indicated that Wilson paid for Tooks’s ticket onto
the ship and that Tooks was in telephone contact with Wilson on
the day that he flew into New Orleans and boarded the ship, where
he was introduced to Mitchell. When Mitchell told Tooks she was
on business for Wilson, Tooks replied “[m]e too” and stated that
he had also been on business in November 2003. On both the
November 2003 and January 2004 trips, Tooks got on and off the
ship three times in Jamaica, which a Customs officer testified
No. 04-31153
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constituted suspicious behavior. Tooks was present when another
conspirator on the ship explained that one of the members of the
conspiracy would not be taking the drugs off of the ship. A
canine alerted to Tooks when he disembarked the ship in New
Orleans. Tooks then went to a local shopping area, called Wilson
several times, and, according to a surveilling officer, looked
around to see if he was being followed.
After reviewing the record, we conclude that the foregoing
evidence, albeit circumstantial, is stronger than that presented
in DeSimone and other cases in which we have determined that
there was no evidence from which the jury could infer that the
defendant knew of and participated in the conspiracy. See
DeSimone, 660 F.2d at 535-36; see also United States v. Maltos,
985 F.2d 743, 746-49 (5th Cir. 1992); United States v. Espinoza-
Seanez, 862 F.2d 526, 538 (5th Cir. 1988); United States v.
Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987). Accordingly,
Tooks’s conspiracy conviction is AFFIRMED.