UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-7400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ECCEHOMO VELGAR-VIVERO,
JOSE ANTONIO TORRES-TIRADO and
EULICES RIVAS-CORDOVA,
Defendants-Appellants.
Appeals from the United States District Court
For the Southern District of Texas
(November 17, 1993)
Before JOHNSON, WIENER, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
For the second time, Eccehomo Velgar-Vivero, Jose Antonio
Torres-Tirado, and Eulices Rivas-Cordova appeal their convictions
of conspiracy to possess with the intent to distribute cocaine,1
aiding and abetting the importation of cocaine,2 aiding and
abetting the possession of cocaine on a vessel arriving in the
1
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, 952,
960(b)(1), and 963.
2
21 U.S.C. §§ 952(a), 960(b)(1), and 18 U.S.C. § 2.
United States,3 aiding and abetting possession with the intent to
distribute cocaine,4 and use of a firearm during a drug-trafficking
crime.5 In the first appeal, we reversed their convictions because
of noncompliance with the Speedy Trial Act. United States v.
Ortega-Mena, 949 F.2d 156 (5th Cir. 1991). We now affirm the
convictions of Torres-Tirado, affirm the convictions and sentence
of Rivas-Cordova, but reverse the convictions of Velgar-Vivero
because of insufficient evidence.
I. Facts and Procedural History
Customs officials received information that THE SPRING BRIDE,
a cargo ship traveling from the Republic of Colombia to Galveston,
Texas, was being used to transport cocaine into the United States.
As the vessel entered the Port of Galveston, U.S. Customs frogmen
entered the water and approached the rudder hold of the vessel. As
they neared, six men6 bailed out of the hold and attempted to flee.
Five were apprehended immediately, and the sixth, Velgar-Vivero,
hid under the dock and was caught three hours later.
3
21 U.S.C. §§ 955, 960(b)(1), and 18 U.S.C. § 2.
4
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.
5
18 U.S.C. § 924(c)(1).
6
The six men were the three defendants plus Alberto
Ortega-Mena, Denio Miguel Rengifo-Acosta, and a Columbian juvenile
who was later deported before indictments were returned.
2
The rudder hold of the vessel is accessible only from the
water and is approximately 6'x 6'x 10'. In the rudder hold, the
officers discovered 11 canvas bags containing approximately 850
pounds of cocaine, all secured to the wall with an elaborate rope
web. They also discovered personal effects in separate piles,
including food, bottled water, flashlights, and a burlap bag
containing five loaded handguns. The agents also found five lists,
each of which displayed several phone numbers: (1) a list from
Torres-Tirado's wallet; (2) a list from Rengifo-Acosta's wallet;
(3) a list from Ortega-Mena's wallet; (4) a list from Rivas-
Cordova's bag; and (5) a list from an unidentified wallet. The
agents found no wallet or identification for Velgar-Vivero or the
juvenile.7 The list from the unidentified wallet duplicated phone
numbers from the list found in Torres-Tirado's and Rengifo-Acosta's
wallets. The agents ultimately used the phone numbers from
Rengifo-Acosta's and Ortega-Mena's wallets to execute controlled
deliveries of the cocaine shipment.8
When he was retrieved from the water, Rivas-Cordova had a sock
full of bullets in his shirt pocket. The agents placed the sock on
the dock but Rivas-Cordova grabbed the sock and pitched it into
Galveston Bay. Later, inside the Customs office, Rivas-Cordova
7
The three wallets and Rivas-Cordova's bag contained
Columbian identification cards linking them to the defendants.
8
The agents never executed controlled deliveries with the
remaining numbers because the successful interdiction had become
locally newsworthy.
3
somehow regained possession of the list of phone numbers in his bag
and ate it.
The five adult stowaways were indicted on five drug-related
charges. On the eve of the first trial in October 1990, Ortega-
Mena and Rengifo-Acosta pled guilty to four counts of the
indictment. Velgar-Vivero, Torres-Tirado, and Rivas-Cordova were
convicted of all five counts in the indictment. We reversed in
February 1992 under the Speedy Trial Act. The defendants then were
re-indicted on the same five counts, and trial began in October
1992. Velgar-Vivero, who was the only defendant to testify in the
second trial,9 stated that he stowed away on the vessel to come to
the United States to find work. He testified that he had been
working as a longshoreman loading bananas on to THE SPRING BRIDE
when he decided to stow away. He climbed into the dark rudder hold
and fell asleep. When he awoke, the vessel was underway.
The defendants again were convicted on all five counts.
Velgar-Vivero and Torres-Tirado were sentenced to concurrent
235-month sentences on the drug counts and a consecutive 60-month
sentence on the gun count. At sentencing, Rivas-Cordova received
an increase in his offense level for obstruction of justice. He
was sentenced to concurrent 292-month terms on the drug counts and
a consecutive 60-month sentence on the gun count. The defendants
timely appealed, contesting the sufficiency of the evidence to
support their convictions. Rivas-Cordova also contests the
9
None of the defendants testified at the first trial.
Further, the two stowaways who pled guilty did not testify at
either trial.
4
assessment at sentencing of the offense level increase for
obstruction of justice.
II. Discussion
A. Standard of Review
When reviewing the sufficiency of the evidence, we must
determine whether, viewing the evidence and the inferences
therefrom in a light most favorable to the jury's guilty verdicts,
a rational trier of fact could have found these defendants guilty
beyond a reasonable doubt. United States v. Rena, 981 F.2d 765, 771
(5th Cir. 1993); United States v. Roberts, 913 F.2d 211, 217 (5th
Cir. 1990). Accordingly, we need not be persuaded that the
evidence excludes every reasonable hypothesis of innocence. United
States v. Brechtel, 997 F.2d 1108, 1116 (5th Cir. 1993). Instead,
our function is to measure whether any rational jury could conclude
that the government proved beyond a reasonable doubt each element
of the offense. Rena, 981 F.2d at 770.
II. The Conspiracy Count
In a narcotics conspiracy, the government must prove beyond a
reasonable doubt that: (1) an agreement existed between two or more
persons to violate narcotics laws; (2) each alleged conspirator
knew of the conspiracy and intended to join it; and (3) each
alleged conspirator participated in the conspiracy. United States
v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993); United States v.
Guerra-Marez, 928 F.2d 665 (5th Cir. 1991). In meeting its burden,
the government is permitted to use direct or circumstantial
evidence, or both, to prove conspiracy. Rena, 981 F.2d at 770.
5
The jury certainly may consider the defendant's presence at the
crime scene, along with other evidence, in finding a conspiracy,
but presence, by itself, is insufficient to prove conspiracy.
United States v. Chavez, 947 F.2d 742, 745 (5th Cir. 1987).
Granted, one's presence may trigger another's suspicions; but we
have stated on numerous occasions that mere suspicion of
conspiratorial activity cannot support a guilty verdict. See
United States v. Sacerio, 952 F.2d 860, 863 (5th Cir. 1992); United
States v. Jackson, 700 F.2d 181, 185 (5th Cir. 1983).
We find sufficient evidence to support the conspiracy
convictions of Torres-Tirado and Rivas-Cordova.10 A conspiratorial
relationship between Torres-Tirado and the other narcotics
conspirators could have been established from both his presence and
his possession of a phone list that included the same number as the
list of another participant. Although no number on Torres-Tirado's
10
In Ortega-Mena, the defendants' first appeal, we stated
in a footnote that our reversal of the district court did not
preclude the government from re-prosecuting the defendants because
double jeopardy does not attach when a district court is reversed
for noncompliance with the Speedy Trial Act. Ortega-Mena, 949 F.2d
at 160 n.4. Had we reversed for insufficient evidence, then double
jeopardy would have attached. See Burks v. United States, 437 U.S.
1, 15-17, 98 S. Ct. 2141, 2149-50 (1978) (double jeopardy does not
attach when a conviction is reversed unless the reversal is based
on insufficient evidence); United States v. Mize, 820 F.2d 118, 120
(5th Cir. 1987). To emphasize this point, we further indicated
that sufficient evidence existed at the first trial to convict
Velgar-Vivero of the firearms offense. That statement, which was
purely dicta, was intended to sanitize the appellate reversal from
a double jeopardy defense. It was not intended to be the law of
the case, thereby precluding a second appeal from a second
conviction. After all, our reversal for noncompliance with the
Speedy Trial Act essentially nullified the first trial. Thus, for
legal purposes, the instant appeal is the only appeal to date,
unaccompanied by law of the case baggage.
6
list was used to make a controlled delivery of the cocaine, the
agents did use phone numbers on Rengifo-Acosta's list to execute a
delivery. Both lists included a number that matched that on the
unidentified participant's list, thereby implicating all the lists
and their possessors. From these facts, a jury reasonably could
have concluded that Torres-Tirado knowingly entered into an
agreement to violate narcotics laws.
Rivas-Cordova's conduct also is legally sufficient to support
a finding of conspiracy. He possessed ammunition of a caliber
identical to the caliber of the guns found in close proximity to
the drugs. Further, he destroyed the phone list found among his
possessions,11 making it impossible for the agents to use that list
to establish his connection to the drugs or to the other
participants. His attempts to hinder the investigation support a
reasonable inference of guilty knowledge.
Velgar-Vivero's conspiracy conviction is much more troubling.
The government asks us to affirm Velgar-Vivero's conviction with
evidence that shows only that he was present at the crime scene and
subsequently fled from it. We have rejected that argument before,
and we reject it again today. See United States v. DeSimone, 660
11
We reject Rivas-Cordova's argument, with respect to both
the sufficiency and sentencing issues, that the agents' testimony
that he destroyed this evidence was incredible as a matter of law.
"We cannot declare testimony incredible as a matter of law unless
it is 'so unbelievable on its face that it defies physical laws.'"
United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987)
(quoting United States v. McKenzie, 768 F.2d 602, 605 (5th Cir.
1985)). While we concede that it may have been difficult for a
handcuffed Rivas-Cordova to destroy evidence in the manner so
stated, we do not find that it defies the laws of physics.
7
F.2d 532, 537 (5th Cir. 1981); United States v. Lopez-Ortiz, 492
F.2d 109, 115 (5th Cir. 1974). Evidence of presence and flight is
redundant: one necessarily involves the other. The government must
proffer something more, which it failed to do. The government
offered no evidence linking Velgar-Vivero to either the cocaine or
the guns. Further, the government failed to link him with the
phone numbers used to execute controlled deliveries.12
Recognizing the dearth of evidence against Velgar-Vivero, the
government insists that the jury reasonably could infer that both
the unidentified wallet, which contained inculpatory phone numbers,
and the fifth gun belonged to Velgar-Vivero. This inference,
however, is based solely on Velgar-Vivero's presence in and flight
from the rudder hold, which are legally insufficient evidence to
establish guilt. While the jury obviously chose not to believe
Velgar-Vivero's stowaway defense, their disbelief is not tantamount
to proof beyond a reasonable doubt that he agreed to, knew about,
and participated in the conspiracy. The government was required to
meet that burden with more evidence than exists here. The evidence
establishing Velgar-Vivero's presence and flight creates only
suspicion. But "[i]t is not enough that the defendant merely
12
We note that the evidence demonstrated that there were
five guns found in the hold and five sets of phone numbers, leading
us to infer that one of the six persons found in the rudder hold
may not have been a participant in the narcotics offenses. The
government claims that, because the sixth stowaway was a juvenile,
the jury reasonably inferred that the five guns and phone lists
necessarily belonged to the five adults, including Velgar-Vivero.
The inference that today's juveniles are incapable of participating
in gun-related narcotics offenses is unreasonable, not to mention
naive.
8
associated with those participating in a conspiracy, nor is it
enough that the evidence places the defendant in a climate of
activity that reeks of something foul." United States v. Sacerio,
952 F.2d 860, 863 (5th Cir. 1992). The jury's conclusion that the
government proved Velgar-Vivero's guilt beyond a reasonable was
unreasonable as a matter of law and, therefore, is reversed.
II. The Possession and Importation Counts
To convict for possession of cocaine with intent to
distribute, the government must prove beyond a reasonable doubt
that the defendant (1) possessed cocaine, (2) knowingly, and
(3) with the intent to distribute. 21 U.S.C. § 841(a); United
States v. Vasquez, 953 F.2d 176, 183 (5th Cir. 1992). The
defendant's possession may be either actual or constructive, the
latter being defined as "the knowing exercise of, or the knowing
power or right to exercise, dominion and control over the
proscribed substance." United States v. Gardea Carrasco, 830 F.2d
41, 45 (5th Cir. 1987) (quoting United States v. Vergara, 687 F.2d
57, 61-62 (5th Cir. 1982)). A conviction for possession of cocaine
on a vessel requires the government to prove that the cocaine
entered the United States aboard a vessel. 21 U.S.C. § 955.
Finally, to convict for importation of cocaine, the government must
prove that the defendant knowingly participated in bringing cocaine
from a foreign country into the United States. 21 U.S.C. § 952(a);
United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990).
Because we find the government's evidence insufficient to
convict Velgar-Vivero of narcotics conspiracy, we necessarily find
9
the same evidence insufficient evidence to convict him of the
substantive offenses, including the firearms offense. United
States v. Galvan, 693 F.2d 417, 420 (5th Cir. 1982); United States
v. Gutierrez, 559 F.2d 1278, 1282 (5th Cir. 1977). The government
has failed to introduce evidence, circumstantial or otherwise,
linking Velgar-Vivero with either the cocaine or the guns.
Therefore, we reverse all of his convictions of the substantive
offenses.
As to Torres-Tirado and Rivas-Cordova, the government
proffered sufficient evidence to convict them of the possession and
importation counts. The inculpatory phone lists support an
inference of constructive possession, i.e., dominion and control
over the cocaine. Further, their constructive possession of
several hundred pounds of cocaine justifies a conclusion of intent
to distribute. United States v. Prieto-Tejas, 779 F.2d 1098, 1101
(5th Cir. 1986). As to the vessel-related and importation
convictions, the defendants, all Colombian nationals, were found in
possession of the cocaine on a vessel which had just recently left
Colombia and entered the United States.
III. The Firearms Count
To convict for use of a firearm during a drug trafficking
offense, the government must prove that the defendant (1) used or
carried (2) a firearm (3) during or in relation to a
drug-trafficking crime. 18 U.S.C. § 924(c); United States v.
Pigrum, 922 F.2d 249, 255 (5th Cir. 1991). We interpret this
provision broadly. See United States v. Ivy, 973 F.2d 1184, 1189
10
(5th Cir. 1992); United States v. Raborn, 872 F.2d 589, 595 (5th
Cir. 1989). The weapon need not be fired or even brandished; we
require only that the firearm be available to provide protection to
the defendant in the commission of his or her offense.
In this case, the guns were readily "available." They were
loaded and always within the defendant's reach because of the
rudder hold's tight confines. In addition, Rivas-Cordova possessed
additional ammunition for the firearms. The government proffered
sufficient evidence such that a reasonable jury could find Torres-
Tirado and Rivas Cordova guilty of § 924(c). But as the firearms
charge is collateral to the drug charges and thus cannot stand
independently, Velgar-Vivero's firearms conviction necessarily
evaporates with our reversal of his drug count convictions.
IV. Rivas-Cordova's Sentence
The Sentencing Guidelines provide that a district court may
increase a defendant's offense level by two points if "the
defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the investigation,
prosecution, or sentencing of the instant offense." U.S.S.G. §
3C1.1. The increase is not discretionary. If the court finds the
defendant obstructed justice, it must impose the two point
increase. United States v. Roberson, 872 F.2d 597, 609 (5th Cir.
1989). The court's finding is factual, meaning we review it only
for clear error. United States v. Edwards, 911 F.2d 1031, 1033
(5th Cir. 1990). If sufficient evidence exists in the record to
11
support the district court's factual conclusion, we must affirm.
Id.
At sentencing in this case, Rivas-Cordova's offense level was
increased for obstruction of justice based upon the agents'
testimony that he pitched the sock full of bullets into Galveston
Bay and chewed to a pulp the list of phone numbers found among his
possessions. The district court was entitled to credit the
testimony of the customs agents, id., and sufficient evidence
exists in the record to buttress their version of events. We
accordingly find that the district court did not err in increasing
Rivas-Cordova's base offense level by two points.
For the foregoing reasons we AFFIRM the convictions of Jose
Antonio Torres-Tirado and Eulices Rivas-Cordova, AFFIRM the
sentence of Rivas-Cordova, and REVERSE the convictions of Eccehomo
Velgar-Vivero.
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