United States v. Casilla

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 93-7065

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RUBEN CASILLA, MARTHA TORRES,
and LUIS DONALD QUINTERO,

Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of Texas
(April 26, 1994)

Before KING and WIENER, Circuit Judges, and ROSENTHAL, District

Judge.*

ROSENTHAL, District Judge:

Appellants Ruben Casilla, Luis Donald Quintero, and

Martha Torres were convicted for possession of cocaine with intent

to distribute, importation of cocaine into the United States from

Mexico, and for conspiracy to commit the underlying offenses.

Appellants each contend that the evidence was insufficient to

support the guilty verdicts. We AFFIRM.

*
District Judge of the Southern District of Texas, sitting
by designation.
 1. The Legal Standards of Review

In reviewing the sufficiency of the evidence, this court

must determine whether any reasonable trier of fact could have

found that the evidence established guilt beyond a reasonable

doubt. United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.

1992), cert. denied, 113 S. Ct. 1346 (1993). Reasonable inferences

are construed in accordance with the jury's verdict. Id. at 161.

The jury is solely responsible for determining the weight and

credibility of the evidence; this court will not substitute its

own determination of credibility for that of the jury. Id. The

scope of appellate review is the same for both direct and

circumstantial evidence. United States v. Lorence, 706 F.2d 512,

518 (5th Cir. 1983).

The first and third counts of the four-count indictment

alleged a conspiracy to import cocaine and a conspiracy to possess

cocaine with the intent to distribute.1 To prove a conspiracy, the

government must prove that: (1) an agreement existed between two

or more persons to violate the law; (2) the defendant had knowledge

of the agreement; and (3) the defendant voluntarily participated in

the conspiracy. United States v. Pennington, F.3d , 1994

WL 75684, * 3 (5th Cir. Mar. 14, 1994) (pub. page ref. unavail.);

1
The appellants were each charged in a four-count
indictment with conspiring to import cocaine in violation of 21
U.S.C. §§ 963, 952(a), and 960(b)(1); importing cocaine into the
United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(1);
conspiring to possess with intent to distribute cocaine in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); and
possession with intent to distribute in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A).

2
United States v. Sacerio, 952 F.2d 860, 863 (5th Cir. 1992); United

States v. Chavez, 947 F.2d 742, 744-45 (5th Cir. 1991).

Direct evidence of a conspiracy is unnecessary; each

element may be inferred from circumstantial evidence. United

States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993). An

agreement may be inferred from a "concert of action." Id.; United

States v. Natel, 812 F.2d 937, 940 (5th Cir. 1987). Once the

government has produced evidence of a conspiracy, only "slight"

evidence is needed to connect an individual to that conspiracy.

United States v. Duncan, 919 F.2d 981, 991 (5th Cir. 1990), cert.

denied, 111 S. Ct. 2036 (1992). Knowledge of a conspiracy and

voluntary participation in a conspiracy may be inferred from a

"collection of circumstances." Cardenas, 9 F.3d at 1157. Evasive

and erratic behavior may be evidence of guilty knowledge. Id.;

United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988).

Presence and association with other members of a conspiracy, along

with other evidence, may be relied upon to find a conspiracy.

Cardenas, 9 F.3d at 1157.

Count two of the indictment alleged importation of

cocaine. To prove importation, the government must prove that:

(1) the defendant played a role in bringing a quantity of a

controlled substance into the United States from outside the United

States; (2) the defendant knew the substance was a controlled

substance; and (3) the defendant knew the substance would enter the

United States. Cardenas, 9 F.3d at 1158; United States v. Ojebode,

3
957 F.2d 1218, 1227 (5th Cir. 1992), cert. denied, 113 S. Ct. 1291

(1993).

Count four alleged possession of cocaine with the intent

to distribute. "The essential elements of possession with intent

to distribute narcotics consist of: (1) possession; (2) knowledge;

and (3) an intent to distribute the drugs." Chavez, 947 F.2d at

745; see also Pennington, 1994 WL at * 3; United States v. Molinar-

Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989). Possession may be

actual or constructive. Cardenas, 9 F.3d at 1158. Constructive

possession is "the knowing exercise of, or the knowing power or

right to exercise dominion and control over the proscribed

substance." Molinar-Apodaca, 889 F.2d 1423; see also United States

v. Rosas-Fuentes, 970 F.2d 1379, 1382 (5th Cir. 1992). Intent to

distribute may be inferred from the value and quantity of the

substance possessed. United States v. Martinez-Mercado, 888 F.2d

1484, 1491 (5th Cir. 1989).

As to the second and fourth counts, aiding and abetting

is an alternative charge in every indictment. United States v.

Neal, 951 F.2d 630, 633 (5th Cir. 1992). To prove aiding and

abetting in a criminal venture, the prosecution must prove that the

defendant: (1) associated with the criminal enterprise; (2)

participated in the venture; and (3) sought by action to make the

venture succeed. See United States v. Mergerson, 4 F.3d 337, 342

(5th Cir.), cert. denied, 1993 WL 558090 (1994); United States v.

Stone, 960 F.2d 426, 433 (5th Cir. 1992). The evidence supporting

a conspiracy conviction typically supports an aiding and abetting

4
conviction. Mergerson, 4 F.3d at 342; United States v. Chavez, 947

F.2d 742, 746 (5th Cir. 1991).

Each appellant contends that the evidence was

insufficient to show knowledge of the cocaine.

2. The Evidence Presented

On August 11, 1992, at approximately 5:00 a.m., a van

crossed the International Bridge to enter the United States in

Brownsville, Texas. Casilla was driving; Torres sat in the

passenger seat; and Quintero was in the rear. The van was referred

to a secondary inspection station, where United States Customs

Service Officer James Lette was on duty.

Officer Lette testified at trial that the slip referring

the van to the secondary inspection station reflected that Casilla

had stated that he was from Dallas and had gone to Matamoros for a

few drinks. When Officer Lette asked Casilla where he was from,

Casilla started to say "Louisiana," then caught himself and said

"Dallas." Casilla told Officer Lette that he had not been to the

interior of Mexico.

Because of Casilla's hesitant and inconsistent answers,

Officer Lette asked Casilla to remove the baggage and food products

from the van for further inspection. When Officer Lette asked

Casilla for his driver's license, Casilla produced a Massachusetts

license. When Officer Lette checked the interior of the van to

ensure that everything had been removed for inspection, he

discovered a Guatemalan coin and several beverage containers,

including one with a label from the interior of Mexico. Officer

5
Lette also found several bags of coffee in the rear of the van.

While in the van, Officer Lette noticed that the floorboard behind

the front seats was raised to an unusual height.

Lette testified that a number of documents were also

found in the van. They included Quintero's passport, bearing a

stamp from the Consul General for the Republic of Ecuador in New

York dated July 14, 1992, and a stamp from the Consul General for

the Republic of Guatemala in New York dated July 16, 1992; Torres's

passport, with a stamp from the Consul General for the Republic of

Guatemala in New York, dated July 15, 1992; Casilla's passport,

with a stamp from the Consul General for the Republic of Guatemala

in New York dated July 14, 1992; a Special Power granting Casilla

authority to take the van to Central America, dated July 21, 1992;

a document giving Quintero authority to take the van through Mexico

for thirty days; and a temporary import permit for the van from the

Mexican government.

Officer Lette continued his inspection with United States

Custom Inspector Neal Ramsey, who also testified at trial. When

Inspector Ramsey approached the scene, he noticed that the

appellants appeared anxious; were talking among themselves; were

not watching the search; and, unlike most individuals, displayed no

anger or impatience while the van was being dismantled.

Lette and Ramsey agreed that they needed to "vent" the

area where the floor of the van was raised. After attempting to

punch a hole in the floor, Lette and Ramsey drilled a hole in the

floor. Lette observed that Torres had a "frightened look" on her

6
face during the drilling. The drilling revealed a hidden

compartment containing 63.1 kilograms of cocaine bricks, wrapped in

plastic and packed in coffee grounds. The appellants were then

arrested.

United States Customs Service Special Agent Ramona Bauer

interviewed the appellants and testified at trial in the

government's case-in-chief. Agent Bauer introduced herself to each

appellant, informed each appellant that cocaine had been found in

the van, and administered Miranda warnings to each appellant.

Agent Bauer testified that Casilla waived his Miranda

rights and stated that he had borrowed the van from a friend in

Dallas. When asked the name of the Dallas friend, Casilla refused

to answer and requested a lawyer. Agent Bauer then terminated the

interview.

Torres also waived her Miranda rights. In response to

Bauer's questions, Torres said that she and Casilla were friends

and that she was going to "baptize Mr. Quintero's baby girl in New

York." Torres also said that the appellants were going to

California and Texas. They had driven the van from New York to

Dallas, where Torres stayed in an apartment with Quintero and a

female friend of his for several days. The appellants then drove

from Dallas to Brownsville; from there to Vera Cruz; and then on to

Guatemala. During the interview, Torres became agitated and Agent

Bauer terminated the interview.

Quintero also waived his Miranda rights and told Agent

Bauer a different story than either Casilla or Torres had related.

7
Quintero claimed that he began his trip in New York with another

person whose name he could not remember, travelled to Houston with

that person, then went to Brownsville, Texas with a different

person, whose name Quintero also could not remember. Quintero

claimed to have met two other people in Brownsville and to have

travelled with these two individuals to Vera Cruz. Quintero told

Agent Bauer that he went from Vera Cruz to Guatemala by himself,

stayed for approximately one week, happened to meet the people with

whom he had travelled to Vera Cruz, and arranged to return with

them to the United States.

The day after his interview, Quintero called Agent Bauer

and said that he needed to speak with her immediately. Quintero

told Bauer that he was afraid for his wife in New York and that he

had not told the truth the day before. Quintero told Agent Bauer

that another van was travelling with the group and that this other

van was also "loaded." Agent Bauer advised Quintero to talk to his

lawyer and terminated the interview.

Casilla was the only defense witness to testify at trial.

Casilla testified that he was approached by Torres and asked

whether he was willing to drive Torres' friend, Roberto Cruz, and

his family, on a vacation to California. Casilla testified that he

was offered $4,000 for serving as a chauffeur, despite the fact

that his driver's license had expired in 1989. Casilla testified

that he was told to drive to Houston. He did not know that Texas

was in the southern part of the United States and that California

was in the western part of the United States, even though he had

8
completed a tenth grade education in New York. Casilla testified

that he drove to North Carolina and on to Texas. When asked by the

district judge about the California destination, Casilla said that

he just did what he was told. Casilla claimed that he did not know

that they would be going to Guatemala until they reached Mexico.

Casilla testified that a group of 12 to 15 vans and cars

formed a caravan in Mexico and travelled to Guatemala. In

Guatemala, a person named "Douglas" took the van to get the

speedometer fixed and to change the oil. Douglas returned it a few

days later, in the same condition, except for the repairs. Casilla

testified that Cruz and his family left Guatemala a few days before

appellants started the trip back to the United States. Casilla

generally denied making any of the statements recounted by the

government officers and agents.

After the government rested, each appellant requested a

judgment of acquittal. The district court denied Casilla's and

Quintero's motions and deferred ruling on Torres's motion. At the

close of all the evidence, each appellant renewed the motions for

judgment of acquittal. The district court again denied Casilla's

and Quintero's motions and deferred ruling on Torres's motion. The

jury returned a guilty verdict against each appellant on each count

of the indictment. Each appellant claims that there was

insufficient evidence that they knew of the cocaine to sustain the

guilty verdicts.

9
 3. The Sufficiency of the Evidence

a. The Evidence to be Considered

Initially, this court must determine whether it can

examine all the evidence or only that evidence presented during the

government's case-in-chief. Because Casilla testified in his own

behalf after the district court denied his motion for acquittal,

this court may consider the evidence that Casilla presented during

his case-in-chief, as well as in the government's case-in-chief.

See, e.g., United States v. Brechtel, 997 F.2d 1108, 1115 n.31 (5th

Cir.), cert. denied, 114 S. Ct. 605 (1993); United States v.

Cardenas-Alvarado, 806 F.2d 566, 570 n.2 (5th Cir.), cert. denied,

107 S. Ct. 269 (1986).

Because Quintero did not present any evidence after the

district court denied his motion for judgment of acquittal, this

court may only examine the evidence introduced during the

government's case-in-chief. See, e.g., United States v. Belt, 574

F.2d 1234, 1236-37 (5th Cir. 1978); United States v. Thomas, 987

F.2d 697, 702 (11th Cir. 1993).

The sufficiency of the evidence against Torres must also

be determined solely from the evidence presented in the

government's case-in-chief. As this court has previously stated:

[I]f the trial court erroneously defers ruling on the
motion for acquittal and the defendant presents evidence,
the appellate court in reviewing the sufficiency of the
evidence will only consider the evidence presented in the
government's case-in-chief . . . . Even though this
limited review has the effect of undermining the waiver
rule by excluding from appellate review all evidence
presented by the defendant, application of any other rule
would penalize a defendant for a trial court's refusal to

10
 issue a ruling at the time clearly required by our
previous cases.

United States v. Rhodes, 631 F.2d 34, 44-45 (5th Cir. 1980), cert.

denied, 101 S. Ct. 3007 (1981).

b. Sufficient Evidence Supporting the Convictions

Appellants challenge the sufficiency of the evidence that

they knew that there was cocaine hidden in the van. This court has

recognized that "a less than credible explanation" may be part of

the overall circumstantial evidence upon which the jury can infer

guilty knowledge. United States v. Roberson, 6 F.3d 1088, 1093

(5th Cir. 1993), cert denied, 114 S. Ct. 1230 (1994); United States

v. Arzola-Amaya, 867 F.2d 1504, 1512 (5th Cir.), cert. denied, 110

S. Ct. 322 (1989); United States v. Richardson, 848 F.2d 509, 513

(5th Cir. 1988). The appellants told less than credible stories to

account for their presence in the van transporting the cocaine.

The jury was also presented with inconsistencies in the stories

provided to federal officials and, in Casilla's case, during the

trial. Such inconsistencies are well-recognized circumstantial

evidence of guilty knowledge. United States v. Diaz-Carrear, 915

F.2d 951, 954 (5th Cir. 1990); United States v. McDonald, 905 F.2d

871, 874 (5th Cir.), cert. denied, 111 S. Ct. 566 (1990); United

States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir. 1989).

The jury was entitled to reject the explanations of the appellants'

involvement in, and knowledge about, the trip to and from

Guatemala. See Roberson, 6 F.3d at 1093; United States v. Chavez,

947 F.2d 742, 745 (5th Cir. 1991).

11
 Casilla offered an implausible explanation that he was

hired as a chauffeur who lacked a driver's license for a trip to

California by way of Texas, Mexico, and Guatemala. His trial

testimony was also inconsistent with the varying stories that he

had earlier told the customs agents, which were in turn

contradicted by the physical evidence found in the van, including

the passports, the travel documents, and the items from the

interior of Mexico and Central America. The jury could reasonably

conclude that Casilla had knowledge of the purpose of the trip and

of the cocaine in the van.

The evidence introduced during the government's case-in-

chief as to Quintero presented an implausible story that was also

inconsistent. During his first interview with Agent Bauer,

Quintero recounted trips with people he could not name, for

purposes he could not remember. After Quintero's first interview

with Agent Bauer, when he told an implausible story about how he

met the other appellants, Quintero called Agent Bauer's office,

asked for another interview, and changed his story. The

inconsistencies between Quintero's stories, and his inculpatory

statements during the second interview, could be used by the jury

to infer Quintero's knowledge of the cocaine. Quintero's inability

to remember the names of the people with whom he travelled and the

implausibility of the story he told also support a finding that

Quintero knew about the cocaine.

The government also presented evidence in its case-in-

chief as to Torres that was sufficient to support a jury finding of

12
guilty knowledge. Agent Bauer testified about Torres's statement

that she had spent two or three days in Dallas with Quintero and

his friend. Neither Casilla nor Quintero had told Agent Bauer that

they had spent any time in Dallas. In fact, Quintero had told

Agent Bauer that he did not meet either Casilla or Torres until he

arrived in Brownsville, Texas.

Torres told Agent Bauer that she had travelled from New

York with only one other person, Casilla. However, the government

presented evidence that Roberto V. Cruz received a speeding ticket

in South Carolina for driving the van during the trip from New York

to Texas. In addition, photographs developed from film in Torres's

camera and from other film found in the van that showed a number of

people in and around the van and with Torres were introduced into

evidence. The jury could reasonably conclude from these

photographs and from the other evidence that Torres travelled with

more than one other person. The jury could rely on the

inconsistencies in Torres's story to the government witnesses, and

the physical evidence contradicting her story, such as her passport

stamped for entry to Mexico and Central America, to find Torres's

statements implausible and indicative of her knowledge of the

cocaine.2

2
The government argues that Torres waived her appeal of
the district court's refusal to grant her Rule 29 motion because
Torres did not mention the Rule 29 motions for acquittal in her
brief as the basis of appeal. This court has held that an
appellant's brief must be interpreted liberally to identify the
issues on appeal. Carmon v. Lubrizol Corp., F.3d , 1994
WL 81744, *2 (5th Cir. Mar. 31, 1994) (pub. page ref. unavail.);
Kincade v. General Tire & Rubber Co., 635 F.2d 501, 504 (5th Cir.
1981). In light of the court's ruling, the court does not reach the

13
 This court has held that nervous behavior may be

considered as circumstantial evidence of guilty knowledge.

McDonald, 905 F.2d at 874. In this case, all the appellants were

nervous during the inspection of the van. Inspector Ramsey

testified that unlike most people he had observed during similar

searches, the appellants did not watch the extensive search of

their vehicle and did not show anger or impatience when the

officers began dismantling the van interior. Inspector Ramsey

testified that when the officers began focusing their attention on

the compartment in which the cocaine was stored, Torres watched

intently; when the officers broke into the compartment, Torres

turned away with a frightened look on her face. The jury could

infer the appellants' knowledge of the contents of the compartment

from their behavior at the inspection area.

This court has recognized that a long trip and a close

relationship between the defendants may be part of the overall

circumstantial evidence. McDonald, 905 F.2d at 874; United States

v. Williams-Hendricks, 805 F.2d 496, 503 (5th Cir. 1986). Agent

Bauer testified that Torres had described Casilla as a good friend

and had stated that Torres was going to baptize Quintero's baby

girl in New York. Casilla also testified that he considered Torres

"family."

Officer Lette also testified that an average person would

have realized that the flooring in the van had been altered because

it was raised over four inches and the back seats were above the

waiver issue.

14
top of the front seats, stadium-style. See, e.g., United States v.

Olivier-Becerril, 861 F.2d 424, 427 (5th Cir. 1988). The jury

could reasonably rely on this evidence to infer knowledge of the

cocaine's existence.

Appellants cite United States v. Rosas-Fuentes, 970 F.2d

1379, 1381-83 (5th Cir. 1992), in which this court held that

evidence of inconsistent statements to a checkpoint inspector, a

nervous demeanor, and an implausible explanation was insufficient

to show knowledge of the presence of cocaine. The present case

involves facts and events that are both stronger and more numerous

evidence of guilty knowledge than were before the court in Rosas-

Fuentes. The two cases relied upon in the Rosas-Fuentes opinion,

and by appellants in this case, are "mere presence" cases, in which

the only evidence the government presented was that the defendants

were around other people involved in the conspiracy. United States

v. Cardea Carrasco, 830 F.2d 41 (5th Cir. 1987); United States v.

Jackson, 700 F.2d 181 (5th Cir.), cert. denied, 104 S. Ct. 139

(1983). The evidence here goes well beyond "mere presence."

Appellants in essence ask this court to read Rosas-Fuentes so

broadly as to hold that circumstantial evidence cannot support a

finding of guilty knowledge. Such a reading is not justified by

the case and is inconsistent with the clear law of this circuit.

Having examined all the evidence, in the light of our

properly restricted standard of review, this court concludes that

a rational jury could find the appellants guilty beyond a

15
reasonable doubt. This court therefore AFFIRMS the convictions on

all counts.

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