IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-40382 September 11, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ERNESTO CARREON
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
Ernesto Carreon appeals his conviction for conspiracy to possess with
intent to distribute more than 1000 kilograms of marijuana, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846, and possession with intent to
distribute more than 1000 kilograms of marijuana, in violation of §§ 841(a)(1),
841(b)(1)(A) and 18 U.S.C. § 2. Finding no error, we AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40382
I.
The police investigation that would ultimately lead to Ernesto Carreon’s
arrest began with an August 2004 conversation between Norberto Lopez and
Hector Garcia. Lopez, acting on behalf of co-defendant Jose Lopez-Aparicio,
asked Garcia to transport some narcotics in a tractor-trailer from Weslaco to
Houston. Garcia provided this information to the Texas Department of Public
Safety (DPS) and agreed to become a confidential informant with respect to the
drug transportation plan.
After Lopez and Garcia had discussed the details of meeting with Lopez-
Aparicio several times, Lopez took Garcia to Lopez’s home in Weslaco on August
27, 2004 to meet Lopez-Aparicio. DPS began surveillance of Lopez’s home and
observed Lopez-Aparicio’s arrival. Lopez introduced Lopez-Aparicio to Garcia,
and Garcia eventually left with Lopez-Aparicio in Lopez-Aparicio’s truck. While
driving, Lopez-Aparicio explained the details of the drug transportation plan to
Garcia, including the amount Garcia would be paid and that they were going to
pick up other persons to accompany them on the trip to Houston. They
subsequently arrived at the ranch of Lopez-Aparicio’s cousin, the appellant
Carreon.
After picking up Carreon, Lopez-Aparicio returned to the highway and,
following Carreon’s directions, traveled to a Wal-Mart parking lot. Before
Carreon had given directions to Lopez-Aparicio, Garcia had not known they were
traveling to a Wal-Mart. Carreon and Lopez-Aparicio left Garcia at the parking
lot and told him they would be back in 15 minutes with the tractor-trailer. DPS
continued their surveillance of Lopez-Aparicio and Carreon when they left the
Wal-Mart. DPS observed the two men stop at a residence and speak to men
gathered outside before traveling to a second location where the tractor-trailer
was parked. Both men inspected the outside of the tractor-trailer, and Lopez-
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No. 06-40382
Aparicio then left driving the tractor-trailer while Carreon followed in Lopez-
Aparicio’s truck.
Soon after, DPS conducted a traffic stop of the tractor-trailer because of
an obscured license plate. During the course of the stop, Lopez-Aparicio offered
the DPS officer an unsigned bill of lading, partially computer-generated,
partially typewritten, declaring cottonseed as the contents of the tractor-trailer.
Lopez-Aparicio eventually consented to a search of the tractor-trailer, in which
DPS ultimately found approximately 3,000 kilograms of marijuana hidden
among the cottonseed. Lopez-Aparicio was immediately arrested and his cell
phone confiscated.
Meanwhile, Carreon had continued past the stopped tractor-trailer,
leaning to one side in his vehicle to get a better view of the patrol car. Carreon
drove in a large loop, going first back to the Wal-Mart, then to the residence he
and Lopez-Aparicio had visited, and finally to the location where the tractor-
trailer had been pulled over. Carreon was then pulled over and arrested by DPS.
His cell phone and two more found in Lopez-Aparicio’s truck were confiscated.
Carreon was taken to the local DPS office and questioned there. When asked
how much marijuana was in the trailer, Carreon answered “I don’t want to say
anything. I don’t want to get in any more trouble.”
Later investigation by DPS showed that the bill of lading produced by
Lopez-Aparicio at his arrest was counterfeit. Glynda Johnson, an employee of
the cooperative from which the cottonseed was purchased, confirmed that Lopez-
Aparicio’s bill of lading was doctored and produced the bill of lading with the
same ticket number as that of the counterfeit. It showed that the cottonseed had
been purchased with cash several days before the arrest, contrary to the
counterfeit bill which gave the date of purchase as the date Lopez-Aparicio and
Carreon had picked up the tractor-trailer. Johnson was not able to identify
Lopez-Aparicio and Carreon as the men who had purchased the cottonseed, but
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No. 06-40382
another employee was ultimately able to identify both defendants as the men
who brought the tractor-trailer to the cooperative to be loaded with the
cottonseed. Carreon had been the driver at that time.
DPS also conducted an investigation of the phone records for the cell
phones taken from Lopez-Aparicio and Carreon, and one of the phones found in
Lopez-Aparicio’s truck, which had a number matching the number that Garcia
had for Norberto Lopez. DPS found that 29 calls had been placed between
Carreon and Lopez-Aparicio in a five-day span from August 23 to August 27th.
During the same five-day period, 23 calls were placed between Lopez and Lopez-
Aparicio, and 15 calls were placed between Garcia and Lopez. The phone records
also showed a call on August 25 from Carreon’s phone to the cottonseed
cooperative, occurring about an hour before the true bill of lading showed the
cottonseed to have been picked up.
Further investigation of Carreon’s background revealed three prior drug
convictions. The first was a 1991 federal conviction for possession with intent
to distribute 100 pounds of marijuana. The second was a 1996 state conviction
for possession of 79 pounds of marijuana and the last was a 1999 state conviction
for possession of 108 pounds of marijuana.
II.
Lopez-Aparicio and Carreon were charged with possession with intent to
distribute more than 1000 kilograms of marijuana, in violation of 21 U.S.C. §§
841(a)(1) (2006), 841(b)(1)(A) and 846, and possession with intent to distribute
more than 1000 kilograms of marijuana, in violation of §§ 841(a)(1), 841(b)(1)(A)
and 18 U.S.C. § 2 (2006). Their first trial by jury ended in mistrial. At the close
of the government’s evidence in a second trial, Carreon filed a motion for
judgment of acquittal, alleging that the government had failed to carry its
burden of proof. The district court denied this motion. Both defendants were
found guilty of the two counts charged against them. The district court
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No. 06-40382
sentenced Carreon to 360 months of imprisonment on each count, to be served
concurrently and to be followed by 10 years of supervised release, and the court
imposed a special assessment of $200. Carreon filed a timely appeal.
III.
Carreon raises three issues on appeal. Carreon first claims that the
district court abused its discretion in denying the motion for judgment of
acquittal. Carreon asserts that the direct and circumstantial evidence offered
by the government merely showed that Carreon had an association with the
other involved parties, and was not sufficient to support his conviction. Second,
Carreon contends that the district court erred in admitting evidence of his prior
marijuana convictions. Carreon also argues that the district court abused its
discretion in admitting Lopez-Aparicio’s statements against Carreon before
establishing a conspiracy between the involved parties. We address each of
these arguments in turn.
IV.
A.
The proper standard of review for evaluating the sufficiency of the
evidence is disputed by the parties. Carreon contends that his sufficiency
challenge is properly preserved. Where such a challenge is preserved, the
reviewing court determines “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). On the other hand, if the
challenge to the sufficiency of the evidence is not preserved, a stricter standard
is used, that is, our review is limited to determining whether there was a
“manifest miscarriage of justice,” which “would exist only if the record is devoid
of evidence pointing to guilt, or ... because the evidence on a key element of the
offense was so tenuous that a conviction would be shocking.” United States v.
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No. 06-40382
Galvan, 949 F.2d 777, 783 (5th Cir. 1991) (internal quotation marks and
citations omitted). The government argues that Carreon’s failure to make the
same motion for the second count with which he was charged, coupled with his
failure to renew his motions as to either count, subject him to the miscarriage
of justice standard of review. Because the evidence is sufficient to meet both
standards, we need not resolve this dispute.
1.
In order to prove conspiracy to possess with intent to distribute narcotics,
“the government must prove beyond a reasonable doubt that: (1) an agreement
existed to violate the applicable narcotics laws; (2) each defendant knew of the
conspiracy and intended to join it; and (3) the defendant participated voluntarily
in the conspiracy. United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005)
(citing United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998)). These
elements may be shown by circumstantial evidence, United States v. Gonzalez,
121 F.3d 928, 935 (5th Cir. 1997), but that evidence must show more than the
defendant’s presence in “a climate of activity that reeks of something foul.”
United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000) (internal quotation
marks and citations omitted).
Possession with intent to distribute narcotics requires that the
government prove beyond a reasonable doubt “(1) knowing (2) possession (3)
with intent to distribute.” United States v. Anchondo-Sandoval, 910 F.2d 1234,
1236 (5th Cir. 1990) (citing United States v. Martinez-Mercado, 888 F.2d 1484,
1491 (5th Cir. 1989)). “Proof of possession will usually depend on inference and
circumstantial evidence. When evidence is sufficient to establish the defendant’s
participation in a conspiracy to possess narcotics, the defendant will be deemed
to possess the drugs through the co-conspirator’s possession.” United States v.
Gonzalez, 79 F.3d 413, 423 (5th Cir. 1996) (internal citations omitted).
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No. 06-40382
Carreon’s argument regarding the sufficiency of the evidence is, in essence,
that he only happened to be in the wrong place at the wrong time. On his
account of the circumstances, Carreon’s participation in the events of the day on
which he was arrested would not evince any broad agreement, but only narrow
involvement in a limited set of activities that do not establish his guilt. Such an
account is not consistent with the evidence, however.
The government presented evidence that, while Lopez-Aparicio and Garcia
were traveling together, Lopez-Aparicio told Garcia that he was going to pick up
other people who would accompany them on the trip to transport the marijuana.
Lopez-Aparicio then picked up Carreon. What’s more, Carreon appeared to have
prior knowledge of their intended destination, since he directed Lopez-Aparicio
to the Wal-Mart without discussion of that destination.
Once at the Wal-Mart, Carreon and Lopez-Aparicio departed together to
get the tractor-trailer. The government’s evidence shows that Carreon had been
an active participant in the purchase and loading of the cottonseed later used to
hide the marijuana. After Lopez-Aparicio was pulled over in the tractor-trailer,
Carreon demonstrated visible interest in the traffic stop. He then made a large
loop and returned to the site where Lopez had been stopped. After his arrest,
Carreon refused to answer questions about the quantity of marijuana in the
truck and said that he did not want to get into any more trouble. Furthermore,
phone records show that Carreon and Lopez-Aparicio had spoken frequently
during the same time period in which the delivery was being organized. And
finally, Carreon’s three prior convictions for possession of significant quantities
of marijuana are strong evidence that he had the requisite intent for the crimes
charged against him.
When viewed as a whole, the evidence offered by the government is
sufficient to support the jury’s verdict, and would allow a reasonable trier of fact
to conclude that Carreon was guilty of the charges against him.
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No. 06-40382
2.
As noted above, the intent elements of the two crimes with which Carreon
was charged were addressed at trial through introduction of Carreon’s prior drug
convictions. District court decisions to admit evidence of prior convictions under
Fed. R. Evid. 404(b) in a criminal case are reviewed under a heightened abuse
of discretion standard. United States v. Mitchell, 484 F.3d 762, 774 (5th Cir.
2007) (internal citations omitted).
Under Fed. R. Evid. 404(b), prior convictions introduced to prove
knowledge or intent are admissible as long as the probative value of the prior
convictions exceeds their prejudicial effect. See United States v. Harris, 932 F.2d
1529, 1534 (5th Cir. 1991) (citing United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc)). Prior convictions will be considered more probative
of intent where little independent evidence exists to otherwise establish intent.
See Beechum, 582 F.2d at 914. Where intent is well-established by independent
evidence, prior convictions offered to show intent are considered essentially
cumulative evidence and their probative value is diminished accordingly. See
id. Risk of prejudice may also be reduced by limiting instructions. See Mitchell,
484 F.3d at 774 (noting that a limiting instruction can sufficiently minimize the
risk of unfair prejudice).
While the government’s evidence regarding Carreon’s activities is
sufficient to establish Carreon’s participation, that evidence may not be fully
persuasive to a reasonable juror of Carreon’s intent. Carreon’s defense, as
expounded by his attorney, was that he was an innocent participant in the
events surrounding his arrest and that no direct evidence existed to connect him
with the intent necessary for the charged crimes. A reasonable juror might
therefore conclude that Carreon’s involvement was minimal in the sense that he
only facilitated the transaction without personal interest in the outcome.
Because Carreon was advancing his lack of active involvement, the probative
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No. 06-40382
value of Carreon’s prior convictions—all relating to possession of large amounts
of marijuana—is very weighty, certainly when contrasted with any potential
unfair prejudicial effect. Further, the district court issued two limiting
instructions to the jury, thereby ameliorating any potentially prejudicial effect
of the prior drug convictions. The prior drug convictions were therefore properly
introduced and were sufficiently probative to allow a reasonable trier of fact to
conclude that Carreon was no innocent acquaintance but instead was knowingly
involved with the tractor-trailer containing marijuana.
B.
Finally, Carreon contends that the district court erroneously admitted
hearsay statements of alleged co-conspirators without first establishing the
existence of the conspiracy. Admission of a co-conspirator’s statement by a
district court is reviewed for abuse of discretion. Statements made by co-
conspirators are excluded from the general definition of hearsay under Fed. R.
Evid. 801(d)(2)(E). In order to qualify for this exclusion, “[t]here must be
evidence that there was a conspiracy involving the declarant and the nonoffering
party, and that the statement was made during the course and in furtherance
of the conspiracy.” Bourjaily v. United States, 483 U.S. 171, 175 (1987) (internal
quotation marks omitted). This Court has held that, although it is preferable
that the conspiracy be established and the defendant connected to it prior to the
district court admitting declarations from co-conspirators, a district court may
nevertheless carry the defendant’s objection “through trial or at least through
presentation of the government’s case until a determination of the existence of
Fed. R. Evid. 801(d)(2)(E) predicate facts may be appropriately made.” United
States v. Fragaso, 978 F.2d 896, 900 (5th Cir. 1992). This decision is “committed
to the broad discretion of the trial court.” Id.
Here, Garcia was the primary witness testifying to the events leading to
the arrest of Lopez-Aparicio and Carreon. Because of the chronology of these
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No. 06-40382
events, Garcia’s testimony regarding statements made to him by Lopez-Aparicio
was needed early in the case to give context to the other facts of the case. The
close connection between Garcia’s particular role in the drug transportation plan
and the statements made by Lopez-Aparicio as a co-conspirator amply supports
the district court’s decision to admit the testimony. The district court therefore
did not abuse its discretion.
V.
For the foregoing reasons, Carreon’s conviction is
AFFIRMED.
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