UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-60023
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAUL QUIROZ-HERNANDEZ, ALFONSO HERNANDEZ-LOPEZ and
SERVANDO LOPEZ
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(May 8, 1995)
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion, March 16, 1995, 5th Cir., 1995, _____F3d_____)
Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.
ORDER OF THE COURT:
In his petition for rehearing, Raul Quiroz-Hernandez (Quiroz)
points out that his possession conviction cannot be sustained on
the basis of coconspirator liability given that a Pinkerton1
instruction was not given to the jury. We take note of this fact
and, accordingly, substitute the following in place of Part III, A,
1
Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct.
1180, 1183-84, 90 L.Ed. 1489 (1946).
2 of our opinion:
2.
"Quiroz also contests his possession conviction. As explained
above, to sustain such a conviction the government must prove that
each defendant knowingly possessed the cocaine with the intent to
distribute. Possession can be either actual or constructive, joint
among several defendants, and established by circumstantial
evidence. United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir.
1992), cert. denied, ---U.S.---, 113 S.Ct. 2349, 124 L.Ed.2d 258
(1993). The government proceeded on the theory that Quiroz aided
and abetted in the possession with the intent to distribute the
cocaine.2 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. United States v.
Casilla, 20 F.3d 600, 603 (5th Cir.), cert. denied, ---U.S.---, 115
S.Ct. 240 (1994). The evidence supporting a conspiracy conviction
typically supports an aiding and abetting conviction. Id.
Based on the conspiracy evidence discussed above, a reasonable
jury could find that Quiroz willfully associated with the co-
defendants in this criminal venture. Also, given the evidence
linking Quiroz to the transportation of the cocaine, the jury could
determine that he took affirmative steps to further its possession
and distribution. Furthermore, in light of the large amount of
2
The jury was properly instructed by the district court
regarding 18 U.S.C. §2, the aiding and abetting statute.
2
cocaine involved, the jury could conclude that Quiroz intended to
distribute the drug. Thus, the evidence is sufficient to support
Quiroz' conviction for aiding and abetting in the possession and
distribution of cocaine."
Outside of this substantive change, the panel adheres to its
prior opinion and the Petition for Rehearing is DENIED. No member
of this panel nor Judge in regular active service on the Court
having requested that the Court be polled on rehearing en banc,
(FRAP and Local Rule 35) the Suggestion for Rehearing En Banc is
also DENIED.
3