United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 20, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-30881
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MANUEL PEÑALOZA-DUARTE,
also known as Miguel Peñaloza-Duarte,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
USDC No. 2:04-CR-273-2
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Manuel Peñaloza-Duarte (“Peñaloza”) was convicted by a jury of
aiding and abetting the possession of methamphetamine with the
intent to distribute. On appeal, he argues that the evidence is
insufficient to convict him beyond a reasonable doubt because it
fails to show that he had any criminal intent to advance the crime.
Indeed, he contends, the evidence showed hardly more than that he
was a passenger in the vehicle with the knowledge that contraband
was present. Furthermore, he argues, evidence of criminal intent
is especially lacking when considered in the light that he had no
criminal record and that he was a confidential informant for local
California police. We agree and hold that there is insufficient
evidence to support the verdict. We therefore REVERSE and VACATE
Peñaloza’s conviction and RENDER a judgment of acquittal.
I
On Tuesday, August 24, 2004, Louisiana State Police (LSP)
Trooper Ryan Midkiff stopped a white Crown Victoria with California
license plates for failing to signal a lane change. The driver was
later identified as Jesus Bermudez-Pineda (“Bermudez”). Peñaloza
was seated in the passenger seat of the vehicle. Bermudez told
Midkiff that the passenger was his cousin. When asked where he was
going, Peñaloza said that he and his brother (Bermudez) were going
to Florida to visit family.
Bermudez gave Midkiff consent to search the car. During the
search, Midkiff discovered seven tape-wrapped packages containing
methamphetamine hidden under the glove compartment. At trial it
was stipulated that the methamphetamine weighed 876.8 grams with a
purity level of 92 percent and that one kilogram of methamphetamine
was worth approximately $40,000. No clothes, luggage, or weapons
were in the vehicle.
Peñaloza and Bermudez were placed under arrest, read their
Miranda1 rights, placed in the backseat of the same car, and
transported to the police substation. At the substation, after
being placed in a different interview room from Bermudez, Peñaloza
first told an LSP Trooper that he was working for the police.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Peñaloza showed Trooper Thomas Noto, who specializes in Narcotics
Trafficking, the business cards of Detective Mario Garcia of the
Costa Mesa (California) Police Department and of Drug Enforcement
Administration (DEA) Task Force Officer Dana Potts. He indicated
in English2 that he was working for Detective Garcia.
Peñaloza told Noto that while en route to Orlando, Florida,
Bermudez told him that there were drugs in the car. Peñaloza
stated that Garcia did not know about the drugs, but that he had
planned to call Garcia at the next opportunity. Noto then
contacted the local DEA office and was told that they knew nothing
about the situation; Noto, however, did not call either Garcia or
Potts. He later acknowledged that the two business cards Peñaloza
provided proved to be legitimate.
While Peñaloza was still at the substation, DEA Special Agent
David Drasutis arrived to assist in the investigation. He took
custody of the suspects’ personal effects, including their pay
stubs, which showed that Peñaloza and Bermudez worked for the same
employer. Drasutis then interviewed Peñaloza, who stated that he
worked for the DEA in California and that Garcia was his control
officer.3 Peñaloza told Drasutis that he intended to contact
2
Trooper Noto testified that he does not speak Spanish; the
evidence at trial was that Peñaloza speaks Spanish and has only a
“very poor understanding” of English.
3
This conversation appears to have been conducted using a
mixture of English and Spanish. Agent Drasutis testified that
Peñaloza appeared to have “a very poor understanding of English”
and that he himself spoke Spanish “very poorly. I would say
3
Garcia to inform him about the drugs and repeatedly asked to be
permitted to contact Garcia, but was not allowed to do so.
Drasutis contacted Garcia and confirmed that Peñaloza was a
documented confidential informant (“CI”) for the Costa Mesa Police.
Drasutis, who had confiscated Peñaloza’s cell phone, reviewed the
call list and determined that Peñaloza had recently placed a call
to Garcia.
At some point, Senior Special Agent Robert Donald Reidell, who
was with the United States Department of Homeland Security,
Immigration and Customs Enforcement, arrived at the substation and
then transported Peñaloza from the substation to the jail in Amite,
Louisiana. During the trip, Peñaloza told Reidell that he had
worked on and off for a police officer in Costa Mesa, California
named Mario.4 Reidell reminded him of his Miranda rights.
Peñaloza then told Reidell that he knew the drugs had been placed
in the car in Santa Ana, California, that he knew the people who
placed the drugs in the car, and that the drugs were destined for
Orlando. He stated that he did not know who was to receive the
methamphetamine, but that Bermudez did. He told Reidell that he
believed that the drugs came across the border in San Ysidro,
California, in trucks.
tourist level.”
4
Agent Reidell testified that they spoke in both Spanish and
English, that he is “proficient in the Spanish language” and that
he often acts as a translator during interrogations.
4
II
In due course Peñaloza was indicted, pleaded not guilty and
went to trial. His defense was that he was a CI, that he had no
intent to violate the drug laws at any time and that the government
had failed to prove that he possessed the methamphetamine with the
intent to distribute.
At trial, Detective Garcia confirmed that Peñaloza was a CI
and had been so for two years. Garcia testified that he used CIs
to gather information and evidence of narcotics traffickers and to
make controlled buys and deliveries of narcotics. Garcia said that
before a purchase or delivery was contemplated, the control officer
always spoke with his CI.
Garcia stated that he had instructed Peñaloza that during the
course of any undercover operation, he (Peñaloza) should give him
any information "right away," be truthful, and remain in constant
contact. Garcia and Peñaloza had exchanged cellular telephone
numbers. Garcia and Peñaloza also discussed procedures to be
employed when a controlled purchase was contemplated. Peñaloza was
instructed that such purchases were always done in conjunction with
police supervision and that he was not to conduct such purchases by
himself. Garcia testified that Peñaloza understood these
procedures and that he had made at least five purchases prior to
August 2004. Garcia testified that although he and Peñaloza
conducted undercover purchases in other states, such purchases were
5
done “only by phone.” Garcia also stated that he “never sent
[Peñaloza] out of state to make purchases.”
Garcia testified that he spoke with Peñaloza on the night of
Saturday, August 21. At that time, Peñaloza told Garcia that there
were "some people coming up from Mexico and that he was providing
them with a ride up north." Peñaloza stated that "once up north
they were going to meet a guy" and discuss business. Peñaloza told
Garcia that he would drive back after the meeting and tell Garcia
what had occurred. Garcia asked Peñaloza if the meeting involved
any drugs or money. Peñaloza told Garcia "no" and that it was a
meeting only. Garcia instructed Peñaloza to call him when he
returned. Garcia did not speak with Peñaloza again. However,
phone records showed that Peñaloza called Garcia at 3:15 p.m. on
Sunday, August 22. Garcia did not answer and Peñaloza did not
leave a voice message.
Garcia further testified that Peñaloza never mentioned
transporting methamphetamine to Florida with Bermudez. Nor did
Garcia authorize Peñaloza to become involved in such a transaction.
Garcia stated that Peñaloza "came highly recommended from the
detective who had handled him before" and that Peñaloza had proven
himself to be dependable and reliable. Garcia’s testimony was that
Peñaloza had provided approximately a hundred tips and leads
regarding drug trafficking and that Peñaloza knew "a lot of people
in Southern California." Typically, when Peñaloza came to Garcia
with a lead that someone was "in on a drug trade," Garcia would
6
tell Peñaloza "to get in good" with that person, "[t]ake a ride
with that person, go out to eat with that person, do whatever it
[took] to glean the information." Garcia told the jury that
although Peñaloza was not a DEA informant at the time of his
arrest, he (Garcia) had contacted DEA Agent Potts and filled out
various forms early in 2004 in order to start the process of having
Peñaloza confirmed as an official DEA informant.
Peñaloza was sentenced to 121 months in prison. He then filed
this timely appeal.
III
Peñaloza challenges the sufficiency of the evidence to uphold
his conviction. The sufficiency of the evidence is reviewed to
determine whether any rational trier of fact could have found that
the evidence established guilt beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979). Because Peñaloza properly
preserved this issue by moving for a judgment of acquittal at the
close of the Government's case and at the close of all evidence,
this issue is reviewed de novo. See United States v. Izydore, 167
F.3d 213, 219 (5th Cir. 1999). In evaluating the sufficiency of
the evidence, we view all evidence and all reasonable inferences
drawn from it in the light most favorable to the Government.
United States v. Gourley, 168 F.3d 165, 168-69 (5th Cir. 1999).
Review of the sufficiency does not include review of the weight of
the evidence or of the credibility of the witnesses. United States
v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993).
7
As we have noted, Peñaloza’s conviction was for aiding and
abetting the possession of methamphetamine with the intent to
distribute. To convict a defendant for possession of
methamphetamine with intent to distribute, the Government must
prove that the defendant (1) knowingly (2) possessed
methamphetamine (3) with the intent to distribute it. United
States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). To prove that
a defendant aided and abetted, the Government must prove that the
three elements of the substantive offense occurred and that the
defendant associated with the criminal venture, purposefully
participated in the criminal activity, and sought by his actions to
make the venture succeed. See United States v. Delagarza-
Villareal, 141 F.3d 133, 140 (5th Cir. 1997); 18 U.S.C. § 2.
“Association” means that the defendant shared in the principal’s
criminal intent. United States v. Jaramillo, 42 F.3d 920, 923 (5th
Cir. 1995). “Participation” means that the defendant engaged in
some affirmative conduct designed to aid the venture or to assist
the perpetrator of the crime. Id. Thus, “to aid and abet, a
defendant must share in the intent to commit the offense as well as
play an active role in its commission.” United States v. Lombardi,
138 F.3d 559, 561 (5th Cir. 1998). It is not enough to show that
he engaged in otherwise innocent activities that just happened to
further the criminal enterprise. United States v. Beckner, 134
F.3d 714, 718-19 (5th Cir. 1998).
8
Turning to the instant case, the jury could reasonably have
concluded that a knowing possession occurred because
methamphetamine was found in Bermudez’s car, in which Peñaloza was
a passenger.5 The jury could have also reasonably inferred, due to
the large quantity of methamphetamine seized, that the
methamphetamine was intended for distribution. See United States
v. Quiroz-Hernandez, 48 F.3d 858, 868 (5th Cir. 1995). Thus,
Peñaloza’s conviction for aiding and abetting must be upheld if he
knowingly associated himself with and engaged in some affirmative
conduct designed to aid the criminal venture.
The Government contends that circumstantial evidence leads to
inferences sufficient to satisfy these elements because (1)
Peñaloza was familiar with the drug trade; (2) Peñaloza told Garcia
he was headed “up north” from California instead of due east toward
Florida and failed to contact him while en route to Florida; (3)
Peñaloza failed to inform Trooper Midkiff promptly of the existence
and location of the methamphetamine; (4) Peñaloza was acting
contrary to procedures established with Detective Garcia and his
trip to Florida was not authorized; and (5) Peñaloza told different
stories about his involvement before admitting to Agent Reidell he
had known the drugs were in the car.
5
As long as a knowing possession occurred, a defendant charged
with aiding and abetting may be convicted of the offense of
possession with intent to distribute a controlled substance even if
he did not have actual or constructive possession of the substance.
See United States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997).
9
The difficulty in concluding that this evidence establishes
Peñaloza’s guilt beyond a reasonable doubt is that all of the
Government’s proof is equally consistent with Peñaloza’s credible
defense that he was a longstanding CI who did not want to reveal
himself to the driver and the lack of evidence that he knew where
the car was destined when it left California. There was no
evidence that showed Peñaloza loaded or witnessed loading of the
drugs into the car, nor that he drove the car or otherwise advanced
the criminal enterprise. See Jaramillo, 42 F.3d at 924 (holding
that the defendant had participated by driving with the principal
to the site of the drug transaction and carrying a large empty
purse, presumably to stash money); United States v. Hernandez-
Beltran, 867 F.2d 224, 227 (5th Cir. 1989) (finding that a
defendant who drove an individual possessing cocaine to the border,
let him cross on foot, met him on the other side, and drove him to
a meeting had indeed aided and abetted). Close association with
suspected drug traffickers, standing alone, is insufficient to
sustain a conviction for aiding and abetting. See Hernandez-
Beltran, 867 F.2d at 226. This principle is especially compelling
when the defendant operates as a CI and has no criminal
convictions.
Moreover, as we have indicated, the fact that Peñaloza failed
to tell the LSP Troopers immediately that there was methamphetamine
in the car is not necessarily affirmative conduct designed to
further the criminal enterprise. It equally reflects Peñaloza’s
10
consistently-offered defense that he would expose himself as a CI
if he said anything before he was separated from Bermudez. In
addition, Peñaloza’s statements at the time of the stop raise
questions related to linguistic difficulties. The evidence at
trial indicated that the LSP Troopers spoke very little Spanish and
that Peñaloza had a very poor understanding of English. The first
officer Peñaloza met who spoke Spanish was DEA Agent Reidell.
During their ride to the jail in Amite, Peñaloza was able to get
across his full story regarding his work for Detective Garcia and
his knowledge of the Florida trip.
While the Government argues that Peñaloza’s story changed, it
is also true that his story became clearer and more developed the
easier it became for him to communicate with the police, both
linguistically and because the driver Bermudez was not present.
Furthermore, there is no inherent contradiction between the stories
Peñaloza told Noto (the first officer with whom he spoke outside of
Bermudez’s presence) and Reidell (the first officer with whom he
shared a common language). Although he communicated additional
details to Reidell about the drugs being placed in the car in Santa
Ana, no evidence indicates that he assisted in or witnessed any of
this activity. We note further that the information Peñaloza
provided to Reidell appears to have been the same type he regularly
provided to Detective Garcia when in California.
We are required to reverse a conviction “if the evidence
construed in favor of the verdict gives equal or nearly equal
11
circumstantial support to a theory of guilt and a theory of
innocence of the crime charged.” Jaramillo, 42 F.3d at 923
(quotation marks and citation omitted).6 It appears clear in this
case that the circumstantial evidence on which the government
relies gives equal support to the theory offered by Peñaloza,
namely that he was a trusted CI, with no criminal convictions, who
wanted to protect his cover and who found himself a passenger in an
automobile very far from home with no affirmative association in
the criminal venture.
Thus, because the circumstantial evidence equally supports a
theory of innocence of the crime charged, we find that it is
insufficient to sustain the jury’s verdict of guilt.
IV
For the foregoing reasons, the conviction is REVERSED and
VACATED and a judgment of acquittal is RENDERED.
REVERSED, VACATED, and RENDERED.
6
Peñaloza argues one theory of innocence: the evidence is
insufficient for a reasonable jury to believe beyond a reasonable
doubt that he is guilty. In addressing this single theory urged,
we have evaluated the evidence in a light most favorable to the
Government. That evidence is, at best, in equal balance and on
that basis no reasonable jury could have found Peñaloza guilty. We
therefore see no tension between this case and our holding in
United States v. Bell, which reminds that “[i]t is not necessary
that the evidence exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of
guilt, provided a reasonable trier of fact could find that the
evidence establishes guilt beyond a reasonable doubt.” 678 F.2d
547, 549 (5th Cir. 1982) (en banc).
12