IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8363
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
FROILAN ROSALEZ-OROZCO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(November 16, 1993)
Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,*
District Judge.
DUPLANTIER, District Judge:
Defendant Froilan Rosalez-Orozco appeals his convictions for
conspiracy to import marijuana, 21 U.S.C. §§ 952(1), 960(a)(1) &
963, conspiracy to possess marijuana with intent to distribute, 21
U.S.C. §§ 841(a)(1) & 846, and possession of marijuana with intent
to distribute, 21 U.S.C. § 841(a)(1). Rosalez was acquitted of a
fourth count, importation of marijuana. Rosalez's principal
contention is that his trial counsel was ineffective because he
failed to move for a judgment of acquittal at the close of the
evidence. In the alternative, Rosalez argues that even in the
absence of a motion at trial for judgment of acquittal, his
* District Judge of the Eastern District of Louisiana, sitting by
designation.
convictions cannot stand because a rational jury could not have
found that the evidence established guilt beyond a reasonable
doubt. We affirm the convictions.
I. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is ordinarily not
reviewed on direct appeal unless it has been addressed by the
district court. United States v. Armendariz-Mata, 949 F.2d 151,
156 (5th Cir. 1991), cert. denied, 112 S.Ct. 2288 (1992). "Only
when the record is sufficiently developed with respect to such a
claim, will we determine [on direct appeal] the merits of the
claim." United States v. Freeze, 707 F.2d 132, 138 (5th Cir.
1983). In the interest of efficiency, we will review Rosalez's
ineffective assistance of counsel claim on this direct appeal
because the record contains all of the evidence that could be
developed with respect to Rosalez's claim that his trial counsel
was ineffective.
To prevail on his ineffective assistance claim, Rosalez must
establish that (1) his counsel's performance was deficient, and
(2) the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). "If
proof of one element is lacking, the court need not examine the
other." Kirkpatrick v. Blackburn, 777 F.2d 272, 285 (5th Cir.
1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907 (1986). "To
establish prejudice, [Rosalez] must show that 'there is a
2
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'"
United States v. Anderson, 987 F.2d 251, 261 (5th Cir.
1993)(quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068),
cert. denied, 1993 U.S. Lexis 5513, 62 U.S.L.W. 3247 (1993).
In order to establish prejudice, Rosalez must show that it is
a reasonable probability that had counsel moved for a judgment of
acquittal, the motion would have been granted on the basis of
insufficiency of evidence. See Fed. R. Crim. Pro. 29(a)(judgment
of acquittal justified only when evidence insufficient); see also
Burston v. Caldwell, 506 F.2d 24, 28 (5th Cir.)(failure to move for
directed verdict does not render counsel ineffective "where there
was possibly sufficient evidence of guilt to support the verdict
and no reason to believe that such a motion would be granted"),
cert. denied, 421 U.S. 990, 95 S.Ct. 1995 (1975); United States v.
Fruge, 495 F.2d 557, 558 (5th Cir. 1974)(per curiam)(same).
To address the prejudice element of the ineffective counsel
claim, we must evaluate the sufficiency of the evidence as if
counsel had moved for judgment of acquittal at the close of the
evidence. Accordingly, we must determine "whether, viewing the
evidence and the inferences that may be drawn from it in the light
most favorable to the verdict, a rational jury could have found the
essential elements of the offenses beyond a reasonable doubt."
United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.),
cert. denied, 112 S. Ct. 2952 (1992) (citations omitted). The
3
evidence need not "exclude every rational hypothesis of innocence
or be wholly inconsistent with every conclusion except guilt,
provided a reasonable trier of fact could find the evidence
establishes guilt beyond a reasonable doubt." Id. Furthermore,
"[w]e review circumstantial evidence under the same standard as
direct evidence." United States v. Triplett, 922 F.2d 1174, 1180
(5th Cir.), cert. denied, 111 S.Ct. 2245 (1991).
To support each of Rosalez's conspiracy convictions, the
government had to prove beyond a reasonable doubt that a conspiracy
existed and that Rosalez agreed to participate in it. See United
States v. Maceo, 947 F.2d 1191, 1197 (5th Cir. 1991), cert. denied
sub nom. Bauman v. United States, 112 S.Ct. 1510 (1992).
Defendant's conviction on the possession charge required the
government to prove that the defendant knowingly possessed
marijuana with the intent to distribute it. See United States v.
Shabazz, 993 F.2d 431, 441 (5th Cir. 1993).
In support of his challenge to the sufficiency of the
evidence, Rosalez makes a "mere presence" argument. He contends
that the evidence against him proves nothing more than that he was
present at the scene of a crime--not that he actually participated
in the crimes for which he was convicted. Rosalez points out that
no one ever identified him as one of the men carrying a sack of
marijuana across the river and that four of his alleged co-
conspirators testified that they had never seen him before.
Rosalez also argues that the fact that the jury acquitted him on
the substantive count charging importation of marijuana
4
demonstrates that the evidence was insufficient to sustain his
convictions on the remaining counts.
A review of the evidence against Rosalez reveals that it is
clearly sufficient to sustain his convictions. Agent Scott Morris
of the United States Border Patrol detected two groups of
individuals on the Mexican side of the Rio Grande River at Las
Pampas Crossing, a popular point of entry into the United States
for drug smugglers. One group consisted of three men; the second
group contained eight men, seven of whom were carrying large
bundles on their shoulders. Upon crossing into the United States,
the eight-man group headed towards Las Pampas Colonias, a
residential area adjacent to the river, while the three-man group
remained along the bank of the river. When border patrol agents
moved in, the eight-man group scattered into Las Pampas Colonias.
Agents subsequently apprehended seven men in Las Pampas Colonias,
including Rosalez. Agents also seized seven sacks which contained
altogether approximately two hundred and forty-two pounds of
marijuana.
Border patrol agent Fernando Lucero discovered Rosalez inside
an unlit garage-like shed. Lucero also found a burlap bag
containing thirty pounds of marijuana directly outside of this
shed, leaning against the wall beside the only unlocked door.
Lucero discovered two additional marijuana bundles in another shed
approximately ten to fifteen feet away from Rosalez's location.
Rosalez was the only person apprehended in the immediate vicinity
of these three bundles.
5
On the night of his arrest, Rosalez was questioned about his
presence in the shed. At first Rosalez said that he had crossed
the river only a half hour before his arrest. Later, Rosalez
claimed that he had crossed the river four hours prior to his
arrest. Notwithstanding Rosalez's statements as to the length of
time he spent in the shed, Agent Lucero testified that when he
found Rosalez, Rosalez's pants were wet from the knees down. It
was a dry night, and this degree of dampness was comparable to that
of the six other men arrested. The water level indicated by
Rosalez's pants was consistent with the level of the river at the
time of his arrest. Significantly, Agent Morris testified that no
one had either been seen crossing the border or been detected on
the American side of the river by electronic sensor prior to
Morris' sighting of the men with the sacks.
Rosalez initially told agents that he was waiting in the shed
for a girl-friend to arrive from Las Cruces, New Mexico. He later
said she was coming from Mesquite, New Mexico. Rosalez also told
agents that he knew the owner of the shed in which he was found.
However, the shed's owner testified that she had never met Rosalez.
Furthermore, although he did not present it to Agent Lucero,
Rosalez possessed a valid border crossing card at the time of his
arrest. This card could have permitted him to enter the United
States through any official entry port. Rosalez claimed that he
crossed the river illegally at Las Pampas because it was easier for
him to cross there than at an official entry port. Agent Morris
testified that five miles down-river from Las Pampas was a point at
6
which wooden flood-gates would have allowed Rosalez to cross
without getting wet and without wading through a sewage drainage
ditch as he did at Las Pampas.
Rosalez did not testify at trial. The defense called to the
stand four of Rosalez's alleged co-conspirators. All four had
pleaded guilty to importation of marijuana. These men recounted
how they had been recruited by a stranger in Mexico who offered
them $150.00 to carry the marijuana into the United States. All
four testified that while they themselves participated in the
smuggling scheme, they did not know Rosalez and had never met him
before.
It is clear from the evidence that a conspiracy to smuggle
marijuana across the border at Las Pampas did exist. The only
dispute is whether the evidence revealed Rosalez as a knowing
participant in that conspiracy. Evidence of mere presence at the
scene of a crime is never enough to convict. See United States v.
Davis, 666 F.2d 195, 201 (5th Cir. 1982). Nevertheless, the task
of determining the sufficiency of the evidence "requires an
examination of all the proved circumstances, including presence, to
determine whether from them a reasonable jury could infer and find
beyond a reasonable doubt knowing and intentional participation."
United States v. Henry, 849 F.2d 1534, 1537 (5th Cir. 1988)(quoting
United States v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir
1985)(en banc), cert. denied sub nom. Ariza-Fuentas v. United
States, 475 U.S. 1049, 106 S.Ct. 1272 (1986)). We conclude that
Rosalez's presence at the scene of the crime, together with the
7
suspicious circumstances surrounding his presence in the shed and
his implausible explanation,1 entitled the jury to infer that
Rosalez was not only present at the scene, but knowingly
participated in the smuggling of marijuana across the river with
his co-conspirators. The same circumstantial indicia of Rosalez's
participation in the conspiracy support the reasonable inference
that he had knowledge of the marijuana found outside the shed, as
well as the ability to reduce it to actual possession, and
therefore he had constructive possession of it. See United States
v. Posner, 868 F.2d 720, 723 (5th Cir. 1989).
While the government's evidence was rebutted by the testimony
of Rosalez's four alleged co-conspirators, "the appellate court's
role does not extend to weighing the evidence or assessing the
credibility of witnesses[,]" United States v. Casel, 995 F.2d
1299, 1303 (5th Cir. 1993), and "any conflicts in the evidence must
be resolved in favor of the verdict." United States v. Duncan, 919
F.2d 981, 990 (5th Cir. 1990), cert. denied, 111 S.Ct. 2036 (1991).
Finally, the fact that the jury acquitted Rosalez of
importation does not alter our conclusion as to the sufficiency of
the evidence supporting his convictions. Given the evidence, the
jury could have believed that the government failed to prove that
Rosalez was one of the individuals who physically carried a sack of
1
"'[A] less-than-credible explanation' is 'part of the
overall circumstantial evidence'" from which the elements of the
crime can be inferred. United States v. Richardson, 848 F.2d
509, 513 (5th Cir. 1988)(quoting United States v. Phillips, 496
F.2d 1395, 1398 n.6 (5th Cir. 1974)).
8
marijuana across the river on his back.2 This does not change the
fact that the evidence was sufficient as to the remaining counts.
Moreover, even if we were to view the acquittal as inconsistent
with the convictions, "a jury may return inconsistent verdicts in
a criminal case, even where the inconsistency is the result of
mistake or compromise." United States v. Williams, 998 F.2d 258,
262 (5th Cir. 1993).
Because the evidence was amply sufficient to support Rosalez's
convictions, we conclude that Rosalez has not shown that he was
prejudiced by trial counsel's failure to move for a judgment of
acquittal at the close of the evidence.
II. Sufficiency of the Evidence
When counsel fails to move for a judgment of acquittal, "we
may set aside the conviction only if an affirmance would result in
a 'manifest miscarriage of justice.'" United States v. El-Zoubi,
993 F.2d 442, 445 (5th Cir. 1993). This occurs only if the record
is devoid of evidence pointing to guilt. Id. As discussed above,
there was ample evidence supporting Rosalez's convictions.
Therefore, Rosalez's convictions on the basis of the evidence at
trial do not result in a "manifest miscarriage of justice."
2
The jury instructions explained that in order to convict
for importation, the jury had to find that Rosalez "brought"
marijuana into the United States. The jury inquired several
times during deliberations whether the term "brought" involved
the actual physical carrying of the marijuana. The jury was
instructed by the district court to give the term its ordinary
meaning.
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III. Conclusion
We conclude that Rosalez was not deprived of effective
assistance of counsel and that his convictions are supported by
sufficient evidence. Accordingly, his convictions are AFFIRMED.
10