IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-2559
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTHA JARAMILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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(January 10, 1995)
Before BARKSDALE and PARKER, Circuit Judges, and COBB, District
Judge.1
Cobb, District Judge:
Appellant Martha Jaramillo was convicted for aiding and
abetting others in the possession of cocaine with intent to
distribute in violation of 18 U.S.C. section 2. Jaramillo
contends that the government presented insufficient evidence to
sustain a conviction for aiding and abetting. Jaramillo also
maintains that the trial court should have granted her motion for
a new trial based on newly discovered evidence. Finding that the
trial court committed no error, we AFFIRM.
1
District Judge of the Eastern District of Texas, sitting by
designation.
BACKGROUND Martha Jaramillo appealed
from her conviction for aiding and abetting in the possession of
in excess of five (5) kilograms of cocaine with intent to
distribute in violation of Title 21, United States Code, sections
841(a)(1), 841(b)(1)(A) and Title 18, United States Code, section
2. Martha Jaramillo's associates, Luz Maria Jaramillo and Edison
Ortiz plead guilty to the these same charges listed in the
indictment.
The investigation leading to Martha Jaramillo's arrest and
conviction began in Louisville, Kentucky, where authorities
apprehended a local cocaine dealer. The Louisville cocaine
dealer agreed to act as a confidential informant (CI) for the
Drug Enforcement Administration (DEA) by identifying suppliers
for his cocaine trade. The CI provided names, addresses and
telephone and pager numbers of his suppliers in the Houston area.
The DEA then had the CI contact these suppliers to arrange for
the purchase of a quantity of cocaine. Initially, the DEA
officers monitored several conversations between the CI and Luz
Maria Jaramillo.
After a few weeks of negotiation with his Houston suppliers,
the CI agreed to send his ex-wife Sherryl and a female friend to
Houston to pick up seven kilograms of cocaine. Sherryl flew to
Houston. An undercover agent, Linda Smith, played the role of
Sherryl's companion. DEA agents then set up an undercover
operation at a La Quinta Inn located in southwest Houston.
The DEA had also set up surveillance at the apartment
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complex corresponding to the telephone number that the CI used to
contact Luz Maria. At approximately 12:50pm on the date of the
transaction, DEA agent William Owen watched a silver and black
pickup truck arrive at that address. Two women and a man entered
the apartment.
On the same day, Sherryl called Luz Maria Jaramillo. Luz
Maria agreed to meet with Sherryl at 3:00pm that day at the La
Quinta selected. Shortly after 3:00pm, a silver and black pickup
truck drove to and parked at the La Quinta. Luz Maria left the
truck and walked to the motel room carrying only some keys.
Sherryl and Agent Smith greeted her at the motel room door and
invited her inside. At that time, Luz Maria tried to convince
Sherryl and Agent Smith to conduct the transaction at her
apartment complex. When this attempt failed, she called someone
that she referred to as her cousin to deliver the cocaine to the
La Quinta. The conversation was held in Spanish.
A transcription of this conversation showed that Luz Maria
asked the other party to bring "it" to where she was. She also
told the party to go all the way to the back after entering the
Inn. Luz Maria had to make a second telephone call to give the
party additional directions to the motel. According to Agent
Smith's testimony, Luz Maria explained to Sherryl and Smith that
"they" had gone to the wrong La Quinta Inn, thereby indicating
that more than one person was bringing the cocaine.
While waiting for the cocaine to arrive, Luz Maria asked to
count the purchase money. Agent Smith brought the $147,000 to
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the room and watched Luz Maria count the money. It took Luz
Maria approximately thirty to forty-five minutes to count the
money.
At 4:05pm, a green Chevrolet pickup truck entered the
parking lot of the correct La Quinta. Luz Maria said "they're
here" in English as she let Edison Ortiz and Martha Jaramillo
into the motel room. Ortiz entered the room carrying a duffle
bag. Martha, carrying only a purse, entered the room, greeted
the occupants, and stood by the motel room wall near the door
watching the transaction. Ortiz then removed two kilogram
packages from the duffle bag and handed them to Agent Smith.
After Agent Smith pretended to sample the contents of the
packages, an arrest signal was given.
The agents found Martha's purse empty except for a set of
keys to the silver and black pickup truck and a small light bulb
from the interior light of an automobile. Investigators
determined later that the silver and black pickup truck belonged
to Edison Ortiz. Agents also recovered a pistol and a supply of
ammunition as well as Luz Maria's identification and other papers
in a subsequent search of the silver and black pickup truck.
ANALYSIS
1. Standard of Review
In reviewing an appeal based on insufficient evidence, the
standard is whether any reasonable trier of fact could have found
that the evidence established the appellant's guilt beyond a
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reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Casilla,
20 F.3d 600, 602 (5th Cir.), cert. denied, 115 S. Ct. 240 (1994).
The jury retains sole responsibility for determining the weight
and credibility of the evidence. Casilla, 20 F.3d at 602. As
such, we must construe all reasonable inferences from the
evidence in favor of the verdict. Glasser v. United States, 315
U.S. 60, 80, 62 S. Ct. 457, 469, 86 L.Ed.2d 680 (1942); Casilla,
20 F.3d at 206. A review concentrates on whether the trier of
fact made a rational decision to convict or acquit, not whether
the fact finder correctly determined the defendant's guilt or
innocence. United States v. Ornelas-Rodriguez, 12 F.3d 1339,
1344 (5th Cir.), cert. denied, 114 S. Ct. 2713 (1994). Further,
the evidence need not exclude every reasonable hypothesis of
innocence. United States v. Velgar-Vivero, 8 F.3d 236, 239 (5th
Cir. 1993), cert. denied, 114 S. Ct. 1865 (1994). However, we
must reverse a conviction if the evidence construed in favor of
the verdict "gives equal or nearly equal circumstantial support
to a theory of guilt and a theory of innocence of the crime
charged." United States v. Menesses, 962 F.2d 420, 426 (5th Cir.
1992) (citing Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.
1985) (quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir.
1982))).
2. Sufficient Evidence Existed to Convict Jaramillo
Martha Jaramillo contends that insufficient evidence existed
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to support her conviction for aiding and abetting Luz Maria
Jaramillo and Edison Ortiz in the possession of cocaine with
intent to distribute. The aiding and abetting statute, 18 U.S.C.
section 2, provides in pertinent part that:
(a) Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principle.
To sustain a conviction for aiding and abetting under 18
U.S.C. section 2, the government must show that a defendant
associated with a criminal venture, purposefully participated in
the criminal activity, and sought by her actions to make the
venture succeed.2 United States v. Ledezma, 26 F.3d 636, 641
(5th Cir. 1994); Casilla, 20 F.3d at 603; see also Nye & Nissen
v. United States, 336 U.S. 613, 69 S. Ct. 766, 93 L.Ed.2d 919
(1949). To associate with the criminal venture means that the
defendant shared in the criminal intent of the principal. To
participate in the criminal activity means that the defendant
acted in some affirmative manner designed to aid the venture.
United States v. Murray, 988 F.2d 518, 522 (5th Cir. 1993).
To aid and abet simply means to assist the perpetrator of
a crime while sharing the requisite criminal intent. "A
conviction 'merely requires that [defendants'] association and
participation with the venture were in a way calculated to bring
2
The government must also prove both aspects of the crime,
possession and intent to distribute, to sustain a conviction for
aiding and abetting possession of cocaine with intent to
distribute. See United States v. Longoria, 569 F.2d 422, 425 (5th
Cir. 1978). Proof of these aspects of the crime are not in
dispute.
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about that venture's success.'" United States v. Williams, 985
F.2d 749, 753 (5th Cir.), cert. denied, 114 S. Ct. 148 (1993)
(quoting United States v. Salazar, 958 F.2d 1285, 1292 (5th
Cir.), cert. denied, 113 S. Ct. 185, 121 L.Ed.2d 129 (1992)).
Mere presence and association, however, are not alone enough to
sustain a conviction for aiding and abetting. Williams, 985 F.2d
at 753; United States v. Martiarena, 955 F.2d 363, 366 (5th Cir.
1992).
To sustain this conviction, the evidence and all reasonable
inferences from that evidence must show that Jaramillo knew that
a drug transaction was occurring, that she associated herself
with the actors involved in the transaction, that she
participated in the venture with the desire that the venture
succeed, and that she perform some designed or intended action to
achieve the goal of the crime. Martiarena, 955 F.2d at 366.
We find from the record below that Jaramillo was certainly
involved in this narcotics transaction to a greater degree than
by her mere presence. She drove with Ortiz to the La Quinta to
make the drug delivery and stood in the room while a seven
kilogram sale of cocaine took place. Jaramillo also carried a
large purse that contained only a set of keys and a small light
bulb. This evidence demonstrates that the government has shown
that Jaramillo associated with those involved in the criminal
transaction.
We find that the government also sufficiently demonstrated
that Jaramillo actively participated in the criminal activity in
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an effort to insure its success. The record shows Luz Maria
Jaramillo had taken thirty to forty-five minutes to count the
$147,000 purchase money before she made her call for the cocaine
to be delivered. Luz Maria did not carry anything into the motel
room. Ortiz carried the duffle bag containing the cocaine. A
jury could reasonably believe that Jaramillo's empty purse would
be used to carry some or all of the seventeen bundles of drug
purchase money from the motel to its final destination.3
Additionally, Jaramillo possessed keys to the silver and
black pickup truck. This provided all three persons involved in
the sale with access to an automobile. Ortiz had keys to the
green and white pickup, Luz Maria Jaramillo and Martha Jaramillo
had keys to the silver and black pickup. A jury could reasonably
conclude that, by assuring all three had access to an automobile,
no escape route would be cut off if the transaction went awry.
Keys to the silver and black pickup truck also provided Jaramillo
with access to the pistol and ammunition discovered in the truck,
which are often the tools of the drug trade. Additionally, the
jury could easily believe that the light bulb for the interior
light of a car found in Jaramillo's purse is an item removed by
drug dealers to avoid detection upon entering or leaving their
vehicles.
Jaramillo's actions are distinguishable from those cases
where we reversed aiding and abetting convictions. See e.g.
3
The purse was a rather large expandable carrying case
with a fold-over top.
8
Menesses, 962 F.2d at 427; Murray, 988 F.2d at 522. In this
case, Jaramillo did more than merely stand and watch the
transaction. She carried a large purse that the evidence showed
to be the only carrying container available to Luz Maria, Ortiz
and Martha Jaramillo to remove $147,000 from the motel room.
Jaramillo also had access to an automobile, or escape route, with
a readily available firearm and ammunition supply. The facts of
the present case, taken together, demonstrate that Jaramillo
participated in the criminal action to insure its success. The
government presented sufficient evidence that any reasonable jury
could have found that Jaramillo affirmatively acted to further
the drug transaction.
This court must affirm a conviction for aiding and abetting
when sufficient evidence is tendered that the defendant
affirmatively acted with the intent to make the transaction
succeed. For these reasons, we find that any reasonable trier of
fact could have found that the evidence established the
appellant's guilt beyond a reasonable doubt. Accordingly, we
affirm the conviction below.
3. Motion for New Trial
Jaramillo also contends that the district court should have
granted her motion for a new trial based on newly discovered
evidence. This court reviews the denial of a motion for a new
trial for abuse of discretion. United States v. Sanchez-Sotelo,
8 F.3d 202, 212 (5th Cir. 1993), cert. denied, 114 S. Ct. 1410
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(1994). We disfavor these motions and view them with great
caution. United States v. Pena, 949 F.2d 751, 758 (5th Cir.
1991). In the present case, the district court did not abuse its
discretion in refusing to grant a new trial and we affirm that
decision.
To receive a new trial under Fed. R. Crim. P. 33, for newly
discovered evidence, Jaramillo must prove that: (1) the evidence
is newly discovered and was unknown to the defendant at the time
of trial; (2) failure to detect the evidence was not due to a
lack of diligence by the defendant; (3) the evidence is not
merely cumulative or impeaching; (4) the evidence is material;
and (5) the evidence introduced at a new trial would probably
produce an acquittal. United States v. Time, 21 F.3d 635, 642
(5th Cir. 1994). The motion for new trial must be denied if all
parts of this test are not satisfied. Pena 949 F.2d at 758; see
also United States v. Fowler, 735 F.2d 823, 831 (5th Cir. 1984).
Part one requires that the evidence was newly discovered and
was unknown to the defendant at the time of trial. United States
v. Ugalde, 861 F.2d 802, 808 (5th Cir. 1988), cert. denied, 490
U.S. 1097, 109 S. Ct. 2447 (1989). Part two requires that the
failure to detect the evidence was not due to a lack of due
diligence by defendant. Id. We find that Jaramillo failed to
meet part one and part two.
Jaramillo contends that the transcription of certain video
tapes incorrectly referred to the various forms of the Spanish
verb "decir," meaning "to say," as "they." Jaramillo asserts
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that she could not have anticipated that the government would
offer false transcription of the tapes to the jury and, as such,
her own transcription after trial should be considered newly
discovered evidence.
This argument lacks merit. The video of the drug
transaction had been in Jaramillo's possession for approximately
three months prior to trial. Jaramillo's attorney spoke Spanish
and could have interpreted the relevant portions of the
transcript, or had the interpretation done by someone fluent in
both languages. The law of this circuit provides that evidence
is not considered "newly discovered" where a defendant is in
possession of evidence before trial but does not realize its
relevance. United States v. Loney, 959 F.2d 1332, 1343 (5th Cir.
1992). As such, Jaramillo failed to meet part one.
Even if Jaramillo could show that the evidence was newly
discovered, she failed to exercise due diligence. Due diligence
requires that a defendant exert some effort to discover the
evidence. No plausible explanation exists as to why this alleged
transcription error could have not have been discovered before
trial. Jaramillo knew that the video would be introduced at
trial. She had ample opportunity to have it studied by a Spanish
language expert. Jaramillo allegedly determined after trial that
the translation of the tapes incorrectly referred to the various
forms of the Spanish verb "decir," meaning "to say," as "dey
say." After trial is too late. Consequently, Jaramillo failed
to exercise due diligence in not reviewing the transcription of
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the video tapes and, as a result, failed to meet the second part
of the test. See e.g. Pena, 949 F.2d at 758.
Finally, assuming the telephone conversation could be
interpreted two different ways, we find that the introduction of
such evidence would not probably produce an acquittal. The
evidence fails to raise a reasonable doubt as to Jaramillo's
guilt. United States v. Snoddy, 862 F.2d 1154, 1156 (5th Cir.
1989). Jaramillo arrived with Ortiz and the seven kilograms of
cocaine. She entered the room where the transaction occurred.
She carried a large empty purse which was capable of carrying the
purchase money from the motel room. Luz Maria had no purse or
container for the seventeen bundles of money that she had
laboriously counted earlier. Whether Luz Maria referred to
"decir" instead of "dey say" on the tape in reference to whether
more than one person was bringing the cocaine does not raise a
reasonable doubt as to the guilt of Martha Jaramillo. The jury
also had an opportunity to watch and listen to the video tape.
Any discrepancy in Luz Maria's statements would have been
impeaching at best. Consequently, we find no indication that the
district court abused its discretion in refusing to grant
defendant's motion for new trial.
The judgment of the district court is, in all respects,
AFFIRMED.
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