United States v. Parada-Talamantes

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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NO. 93-8539
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ROGELIO PARADA-TALAMANTES, Defendant-Appellant.

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Appeal from the United States District Court for the
Western District of Texas
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(August 31, 1994)

Before REYNALDO G. GARZA, SMITH and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant Rogelio Parada-Talamantes ("Parada") was

convicted by a jury of importing and possessing marihuana, and

conspiring to import and possess it, in violation of 21 U.S.C. §§

841(a)(3), 846, 952(a), 960(a)(1) and 963. Parada appeals his

conviction on the grounds that the evidence was insufficient to

prove he had knowledge or possession of the marijuana hidden inside

the side panels of the van, and that the introduction of

inadmissible and highly prejudicial evidence that Co-defendant

Huriel Ramirez ("Ramirez") purchased the van from Parada's brother

led to a finding of "guilt by association." We REVERSE.

FACTS AND PROCEDURAL HISTORY

On April 12, 1993, Parada approached the port of entry in Del

Rio, Texas in a taxi cab. According to the Customs Agent, Parada
appeared nervous. His responses to questions were quick and

evasive. A secondary inspection of the luggage Parada carried with

him did not contain contraband. However, believing he might be

involved in something illegal, the Customs Service decided to

follow Parada into Del Rio.

About a mile from the port of entry, Parada got out of the cab

and got into a van owned by Ramirez. The van drove to another

location where a woman and at least one child entered the van. The

van next proceeded to a grocery store parking lot, but no one

exited the van. Then the van drove to another grocery store,

parking in front of the public phones. Two men exited the van.

They took turns entering the store and using the phones. Both men

then looked under the wheels and hood of the van.

The two men got back into the van and drove to a fast food

restaurant. The van pulled into the parking lot and drove through

the drive-thru lane. After the van left the restaurant, it was

stopped by a Department of Public Safety officer. The officer was

joined by several Customs Agents. The driver of the van identified

himself as Ramirez. Parada was in the passenger seat. Also in the

van were Parada's wife and four children.

Ramirez consented to a search of the van. After a cursory

search was conducted of the interior of the van, the agents

requested that a drug detection dog be brought to the scene. The

dog altered to the area in front of the right rear tire of the van.

Ramirez and Parada were arrested. The van was taken to the port of

entry where agents found 114.6 pounds of marijuana secreted in

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false compartments in the walls on both the driver's and

passenger's side of the van.

Parada and Ramirez were tried together before a jury. A jury

found Parada guilty of marijuana conspiracy, importation, and

possession charges in violation of 21 U.S.C. §§ 841(a)(3), 846,

952(a), 960(a)(1) and 963. He was sentenced to 33 months in

prison, three years of supervised release and $200.00 in mandatory

special assessments.

GUILT BY ASSOCIATION

Parada contends that the district court erred by admitting

evidence against him that Parada's brother, Carlos Parada, sold the

van used to smuggle the marijuana to Ramirez. He argues that the

fact that Carlos Parada sold the van containing hidden compartments

for smuggling marijuana to Ramirez bore no logical relationship to

any issue in controversy at Parada's trial. Because no reasonable

inferences could be drawn from this evidence by a reasonable juror,

the evidence is not relevant. Moreover, the admission of the

evidence was improper and highly prejudicial because the Government

used it to try and establish Parada's guilt by showing he was

related to a guilty person. See United States v. Singleterry, 646

F.2d 1014, 1018-20 (5th Cir. 1981), cert. denied, 459 U.S. 1021,

103 S.Ct. 387, 74 L.Ed.2d 518 (1982). Because evidence of "guilt

by association" is typically highly prejudicial, it should be

excluded. See United States v. McAfee, 8 F.3d 1010, 1017 (5th Cir.

1993).

We will reverse a district court's rulings on the

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admissibility of evidence only on finding an abuse of discretion.

United States v. Liu, 960 F.2d 449, 452 (5th Cir.), cert. denied,

___U.S.___, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992). "Evidence in

criminal trials must be 'strictly relevant to the particular

offense charged.'" United States v. Anderson, 933 F.2d 1261, 1267-

68 (5th Cir. 1991) (quoting Williams v. New York, 337 U.S. 241,

247, 69 S.Ct. 1079, 1083, 93 L.Ed.2d 1337 (1949)).

This Court has previously established and upheld the rule that

a defendant's guilt may not be proven by showing that he is related

to an "unsavory" person. Singleterry, 646 F.2d at 1014. In

Singleterry, this Court held that an attempt to show guilt by

association was "plain error." Id. at 1018. We have no doubt that

the Government's introduction of evidence regarding Carlos Parada's

connection with Ramirez's van and his familial relation with Parada

"was a highly prejudicial attempt to taint defendant's character

through 'guilt by association.'" United States v. Romo, 669 F.2d

285 (5th Cir. 1982) (quoting United States v. Labarbera, 581 F.2d

107, 109 (5th Cir. 1978)). Certainly, the fact that the man who

sold the van to Ramirez was also Parada's brother had no relevance

with regard to the offenses charged against Parada. Even less

relevant was the evidence regarding Carlos Parada's alleged

involvement in marihuana smuggling, especially in light of the fact

that Carlos Parada was not charged in this case.

Parada objected to the introduction of the evidence regarding

the sale of the van from Carlos Parada to Ramirez at the time it

was offered. The district court overruled his objection. While we

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recognize that the facts surrounding the purchase of a van

containing secret compartments from someone who had owned other

vans with secret compartments that had been previously seized by

U.S. Customs might have been admissible against Ramirez, it was not

connected to Parada in any way except for the fact that the seller

was his brother. To saddle Parada's defense with the

transgressions of his brother places a sisyphean burden on this

search for the truth effectively foretelling the result.

Therefore, we find that the admission of such highly prejudicial

evidence in the absence of any curative instruction amounts to

reversible error.

SUFFICIENCY OF THE EVIDENCE

Parada also contends that the evidence adduced at trial was

insufficient to support his conviction because the evidence failed

to even show Parada had knowledge that marijuana was hidden in

Ramirez's van. Parada argues that his actions and statements,

viewed in the light most favorable to the Government, only arguably

show he was conscious of some illegality. Without proof that he

knew of the presence of marijuana in the van, Parada could not

properly be convicted of possessing or importing marijuana, or of

conspiracy to possess or import marijuana.

The question raised is whether the evidence is sufficient to

support the jury's conclusion that Parada knowingly and

intentionally possessed the marijuana and that he knowingly

participated in a conspiracy to possess and import it. We must

affirm a jury verdict so long as there is evidence sufficient to

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allow a reasonable jury to find a defendant guilty beyond a

reasonable doubt. United States v. Henry, 849 F.2d 1534 (5th Cir.

1988). We must view the evidence and all inferences from the

evidence in the light most favorable to the verdict. United States

v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd, 462

U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Assuming the jury accepted the version of the evidence

favorable to the verdict, we find that several factors could have

led the jury to conclude that Parada knew the marijuana was hidden

in Ramirez's van and conspired with Ramirez to smuggle the

marijuana into the United States. First, Parada's wife and

children traveled through the port of entry in the marijuana-laden

van with Ramirez. Parada, however, drove across the border in a

separate vehicle with all their luggage. This plan of entry into

the United States is common modus operandi in drug-smuggling

operations. The jurors could have inferred that Ramirez and Parada

planned to enter separately so that the van would not be inspected

by Customs Agents.

Second, Parada acted nervous and answered the Customs Agents'

questions regarding where he was traveling in an evasive manner.

Once he entered the U.S., he quickly joined his family and Ramirez

in the van. The van stopped frequently, and at one stop both

Ramirez and Parada exited the van to use the phone. The jurors

could have inferred that Ramirez and Parada were attempting to set

up a purchase of the marijuana.

Third, Ramirez and Parada inspected the underside of the van.

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The jurors could have inferred that they were looking for marijuana

leaking from the van.

The above facts demonstrate more than merely Parada's

knowledge of the possibility of some illegality. We are satisfied

that a properly instructed jury could have inferred from the

evidence outlined above that Parada knew that the marijuana was

hidden in the van, had constructive possession of the marijuana,

and participated with Ramirez in a conspiracy to smuggle the

marijuana into the United States for distribution.

CONCLUSION

Because the district court erroneously admitted evidence

regarding Carlos Parada based on "guilt by association" and did not

give a curative instruction, we REVERSE Parada's conviction. We

REMAND the case for a new trial with instructions to exclude any

evidence regarding Carlos Parada.

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