United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 25, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-31078
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FELIPE CIQUEIROS VISCARRA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
BENAVIDES, Circuit Judge:
Felipe Viscarra was convicted of conspiracy to distribute 50
grams or more of methamphetamine or 500 grams or more of a mixed
substance containing detectable amounts of methamphetamine. 21
U.S.C. §§ 841(a)(1), 846. It is undisputed that Viscarra drove
from Atlanta, Georgia to Monroe, Louisiana to assist Salvador
Araiza. Araiza was transporting methamphetamine and cocaine in
his car, and told Viscarra his car had broken down near Monroe. On
appeal, Viscarra argues that the evidence was insufficient to prove
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that he knew narcotics were in Araiza’s car. After a thorough
review of the record, we are satisfied that the evidence at trial
was sufficient and we AFFIRM Viscarra’s conviction.
I. FACTS AND STANDARD OF REVIEW
To overturn a conviction for insufficient evidence, we must be
satisfied that no rational jury could have found that the
government proved the essential elements of each charge beyond a
reasonable doubt. United States v. Anderson, 174 F.3d 515, 522
(5th Cir. 1999). This analysis requires us to further detail the
underlying facts.
Salvador Araiza was pulled over by Sergeant Stan Felts just
outside of Monroe, Louisiana on December 13, 2004. He was en route
from Dallas, Texas to Atlanta, Georgia. Araiza consented to a
search of the car, which revealed thirteen bundles of narcotics
containing approximately ten kilograms of methamphetamine and five
kilograms of cocaine. After the drugs were discovered, Araiza
agreed to cooperate in additional investigation into the source and
recipient of the drugs.
Araiza then made recorded phone calls to “Guero” and Felipe
Ayala and told them that his car had broken down in Monroe and he
needed somebody to come and tow it to a mechanic. Guero, the
apparent recipient of the shipment in Atlanta, quickly called
Araiza back and indicated that somebody was coming to help him with
the car. He then received a phone call from Viscarra, who
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indicated he was on the way and would meet him at the Best Western
where Araiza was staying for the night. The following day,
December 14, Viscarra arrived in the late afternoon.
When Viscarra arrived at the hotel room, agents were waiting
in the bathroom and recording his conversation with Araiza. That
transcribed conversation—which was translated from Spanish, often
unintelligible (“ui”) due to recording problems, and full of
typographical errors—follows:
Viscarra: Well, it that dammit
Araiza: You e coming by yourself?
Viscarra: Yes.
Araiza: What up? What did that buddy tell you?
Viscarra: No that (ui)
Araiza: Well, that where the problem is. It didn work.
It a bitch. The damn You don have any tools to work
with?
Viscarra: No.
Araiza: Well, son-of-a-bitch, how are we going to do it?
Or what?
Viscarra: (ui)
Araiza: You want, you want me to leave the ifts there, or
what the story?
Viscarra: Did you lock the damn doors?
Araiza: Yes, here there are people constantly coming or
leaving. You want me to leave the gifts there, or How
are you going to do it with that shit?
Viscarra: We’re going to have to arrange it in my car.
Araiza: We have to fix it. I thought that you were going
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to bring something else, another car to throw in to throw
in that luggage.
Viscarra: They haven told me anything.
Araiza: No? Well, how are we going to do it?
Viscarra: We bring a damn tow-truck.
Araiza: You know this area?
Viscarra: No.
Araiza: Son-of-a-bitch. You don’t have any tools,
nothing to (ui)?
Viscarra: No, I don know how, my friend (ui).
Araiza: Yeah. Yeah, but what did that (guy) tell you?
Will he want you to take this shit with you? Eh? Didn
he tell you?
Viscarra: He didn tell me.
At that point, Araiza repeatedly said “Bingo,” which he testified
was a code word to indicate Viscarra was heading into the bathroom,
where the agents were hiding. Araiza also testified that
“luggage,” “gifts” and “shit” were all code words used for “drugs,”
and that Viscarra knew what they meant. The agents immediately
arrested Viscarra after he entered the bathroom.
After he was arrested, agents found his vehicle about one-
third of a mile away at a nearby restaurant. Receipts in the car
indicated that Viscarra had been in Monroe approximately two hours
before he reached the hotel room, which the government argued was
time he used to survey the area for police.
Additionally, Araiza testified that he met Viscarra on one
prior occasion: In November 2004, just weeks before the incident at
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bar, he was offered $5,000 to drive another shipment from Dallas to
Atlanta. Araiza was told he was transporting paperwork and license
plates, but he did not believe that. When he arrived in Atlanta,
he called Guero to let him know of his arrival. Shortly
thereafter, Viscarra met him at a hotel room, took the car and
returned it a couple of hours later. Viscarra verified this
account, but testified that he did not know if drugs were involved
in that exchange.
II. DISCUSSION
Under the applicable statutes, the government must have proved
beyond a reasonable doubt that Viscarra “knowingly or
intentionally” agreed to assist in the distribution of a controlled
substance. 21 U.S.C. §§ 841(a)(1), 846; see also United States v.
Reveles, 190 F.3d 678, 686 (5th Cir. 1999). The judge also gave a
“deliberate indifference” instruction, in which he informed the
jurors that they “may find that a defendant had knowledge of a fact
if you find that the defendant deliberately closed his eyes to what
would otherwise have been obvious.” The instruction was proper, as
it is established that a defendant’s “charade of ignorance” can be
taken “as circumstantial proof of guilty knowledge.” United States
v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999).
Viscarra argues that the evidence as to his knowledge was
insufficient because, at most, it proved that he knew he was
involved in some illegal activity, but not necessarily drug
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trafficking. He admits that the jury could have concluded beyond
a reasonable doubt that he suspected drugs were involved, but he
urges that under our precedent this is insufficient to support a
conviction. We have held that “suspicion—even if focused on
narcotics—is not enough; it does not tie [a defendant] to knowledge
that drugs were involved beyond a reasonable doubt.” Reveles, 190
F.3d at 687 (emphasis added).
Viscarra relies almost entirely on United States v. Reveles,
190 F.3d 678. There are critical differences between the facts of
that case and those here. In Reveles, there was a significant
amount of exonerating evidence of a type not presented here. As
that panel summarized:
First, it is uncontroverted evidence that Luis left his
name, address, and phone number on an unattended shipment
containing hundreds of pounds of marijuana. Second, the
shipments bore no outward indication that they contained
marijuana, i.e., they had no odor and the packaging
suggested nothing untoward; indeed, the shipments were
packaged in industrial cellophane so as to discourage any
investigation into their contents. Third, Luis did not
attempt to avoid the presence of several customs
officials and accompanying drug-detecting canines.
Fourth, the government presented no convincing evidence
that Luis knew his brother was involved in narcotics.
Fifth, Luis provided the police with a full statement-the
facts of which the government has never contested-of his
involvement with his brother's business. Finally, Willie
paid Luis only fifty dollars per delivery, a sum lacking
in disproportion to the task at hand by which Luis might
have become suspicious of the true nature of his
assignment.
Id. at 686–87.
Beside Viscarra’s own testimony that he did not know drugs
were involved at any point, Viscarra does not point to any similar
exonerating evidence. But the government pointed to numerous facts
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suggesting that Viscarra knew drugs were involved: (1) during his
conversation with Araiza, he seemed to understand that several code
words meant “drugs”; (2) also during that conversation, he referred
to arranging it in his car1; (3) he parked his car at a distance
from the hotel room and took a couple of hours to reach the room;
(4) he had engaged in a similar exchange just months earlier.
While Viscarra attempts to explain all of this evidence away
through various arguments, we are bound to review the record “in
the light most favorable to the prosecution.” See Jackson v.
Virginia, 443 U.S. 307, 324 (1979). With that in mind, the
government presented evidence that Viscarra was a repeat player in
an operation that was accepting drug shipments, understood code
words for “drugs,” intended to arrange the drugs in his car, and
quickly drove a great distance from Georgia to Louisiana to help a
man he met only once before with a broken down vehicle.
Taken together, this evidence supports the inference that
1
Viscarra disputed the translation of this portion of the
transcript, arguing that the portion reading “[w]e’re going to have
to arrange it in my car,” was properly translated as, “[w]e’re
going to have to fix the car.” This was due to some dispute over
how to translate the Spanish verb “arreglar” given the context of
the conversation. Viscarra’s counsel brought this dispute to the
jury’s attention when questioning Araiza and Viscarra, and there is
no indication that he sought a further limiting instruction. See
United States v. Rena, 981 F.2d 765, 768 (5th Cir. 1993) (“Upon a
party’s request, the court should also provide limiting
instructions to inform the jury that the transcript is ‘just
another piece of evidence subject to objections, that it may have
to be evaluated for accuracy, and that the jury need not accept any
proffered transcript as accurate.”).
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Viscarra knew he was assisting in the transportation of a
controlled substance. A rational factfinder could have found
beyond a reasonable doubt that Viscarra knew he was assisting in
the shipment of narcotics, or that his willful blindness was just
a “charade of ignorance” pointing toward his guilty knowledge.
Threadgill, 172 F.3d at 368. “[A] rational factfinder could
readily have found [Viscarra] guilty beyond a reasonable doubt.”
Jackson, 443 U.S. at 324.
III. CONCLUSION
The evidence was sufficient for a reasonable juror to conclude
that Viscarra knew he was involved in the distribution of
narcotics, and we AFFIRM his conviction.
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