United States v. Soto-Silva

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-50952

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ESTER SOTO-SILVA,

Defendant-Appellant.

Appeal from the United States District Court for the
Western District of Texas

November 12, 1997

Before GARWOOD, DUHÉ and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Ester Soto-Silva (Soto) appeals her

convictions in the United States District Court for the Western

District of Texas, El Paso division, for conspiracy to distribute

and to possess with intent to distribute marihuana in violation of

21 U.S.C. §§ 841(a)(1) and 846 (count I) and for maintaining a

premises for the purpose of distributing marihuana in violation of

21 U.S.C. § 856(a)(1) (count III). Soto challenges her convictions

on the grounds that a juror at her trial was not proficient in

English, that the deliberate ignorance instruction given to the

jury was invalid as a matter of law, and that the evidence was
insufficient to convict her on count III. Finding no reversible

error as to count I, we affirm Soto’s conviction and sentence for

conspiracy; finding that the evidence on count III was sufficient

but that it was reversible error to give the deliberate ignorance

instruction as to that count, we reverse and remand the conviction

on count III.

Facts and Proceedings Below

On September 12, 1996, the jury found Soto guilty on counts I

and III. Over two months later, on November 20, 1996, Soto filed

a Motion for New Trial, on the grounds that one of the jurors in

the case was not proficient in English. The trial court, Judge

Briones, denied her motion, and on November 25, 1996, sentenced

Soto to 78 months’ imprisonment on each count, to be served

concurrently, and imposed a special assessment on each count.

In October of 1995, Soto and her children moved into her

parents’ house, located at 1400 Wyoming in El Paso, Texas, in order

to care for her ailing mother. In early November of 1995, Soto’s

mother passed away and a few days later her father moved to

California. Around this same time, Soto engaged in various drug-

related activities in connection with the Roberto Orozco drug

organization.

The case against Soto arose out of a Drug Enforcement

Administration (DEA) operation where undercover agents infiltrated

the Orozco drug organization by posing as truck drivers willing to

transport large amounts of marihuana to the interior of the United

States. According to the government’s witnesses, Soto’s role in

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the organization included handling money for Orozco’s marihuana

trafficking activity, taking part in the smuggling trips, and

providing the premises where the marihuana was packaged for

distribution to the interior of the United States. The DEA agents

admitted that they never saw Soto with any drugs, but several

witnesses stated that large quantities of drugs were picked up for

shipment from the house where Soto was living.

A search of the house at 1400 Wyoming uncovered a small amount

of marihuana, numerous packaging supplies commonly used to wrap

large quantities of marihuana, and several empty bags that once

contained marijuana. It is this house, in which Soto allegedly

maintained a drug packaging and distribution center, and those

supplies, that formed the core of the charges against her.

On appeal, Soto raises three issues. First, she argues that

the district court should have granted her motion for new trial

because one of the jurors was fundamentally incompetent to serve on

a jury. Second, she argues that the deliberate ignorance jury

instruction was erroneous and warrants reversal and remand for new

trial. Finally, she argues that there was insufficient evidence to

support a conviction under 21 U.S.C. § 856(a)(1) for maintaining

the house at 1400 Wyoming for the purpose of distributing

marihuana. Soto does not challenge the sufficiency of the evidence

on the conspiracy charge (count I).

Discussion

I. Competency of Juror

Soto challenges the district court’s denial of her motion for

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new trial, claiming that a juror in her trial was unable to speak

or understand English, and was therefore fundamentally incompetent

to serve as a juror. Ordinarily, a litigant may challenge the

qualification of a juror under 28 U.S.C. § 1867(a), but such a

challenge must be made before trial begins.1 Since Soto only

challenged the juror’s competency months after her trial, any claim

merely of statutory disqualification is too late. Without a timely

statutory claim, a litigant will be entitled to relief only upon a

showing that the juror was fundamentally incompetent. See United

States v. Gates, 557 F.2d 1086, 1088 (5th Cir. 1977); Ford v.

United States, 201 F.2d 300, 301 (5th Cir. 1953). See also United

States v. Crockett, 514 F.2d 64, 69 (5th Cir. 1975).

We review the denial of a motion for new trial on an abuse of

discretion standard. See United States v. Vergara, 714 F.2d 21, 23

(5th Cir. 1983). A motion for new trial based on a juror’s lack of

statutory qualification (not raised before trial) should be granted

only upon a showing of actual bias or prejudice. United States v.

Crockett, 514 F.2d 64, 69 (5th Cir. 1975). Alternatively, a new

trial may be granted if a juror was fundamentally incompetent.

United States v. Gates, 557 F.2d 1086, 1088 (5th Cir. 1977).

As the movant, Soto bore the burden of proving to the district

1
“In criminal cases, before the voir dire examination begins,
or within seven days after the defendant discovered or could have
discovered, by the exercise of diligence, the grounds therefor,
whichever is earlier, the defendant may move to dismiss the
indictment or stay the proceedings against him on the ground of
substantial failure to comply with the provisions of this title in
selecting the grand or petit jury.” 28 U.S.C. § 1867(a) (emphasis
added).

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court that a new trial was justified. See United States v. Geders,

625 F.2d 31, 33 (5th Cir. 1980) (“[T]he burden of justifying a new

trial is fairly placed upon the defendant.”); 58 Am. Jur. 2d New

Trial § 519 (1989). It was incumbent upon Soto to show that the

juror in question, juror Villalpando, was fundamentally incompetent

to serve on the jury. Cf. United States v. Cashio, 420 F.2d 1132,

1136 (5th Cir. 1970) (holding that when a defendant moves for a new

trial on the grounds that a juror is disqualified because of

prejudice, “prejudice is not presumed . . . . [and the defendant

has] the burden of proving prejudice by a preponderance of the

credible evidence”).

Soto moved for a new trial on the grounds that juror

Villalpando did not speak or understand English, but she never

asked the court to hold an evidentiary hearing in order to

determine the level of Villalpando’s English ability. As it was,

however, Soto’s only evidence tendered concerning the juror’s

alleged incompetence was an excerpt from the transcript of the voir

dire conducted September 30, 1996, in a different criminal case

pending before a different judge of the same court, in which juror

Villalpando was called to serve on the jury panel.

During jury selection in this second case, Villalpando was

questioned by Chief Judge Hudspeth about his understanding of

English. Though Judge Hudspeth ultimately excused Villalpando from

the venire pool because of his difficulty with English, this rather

brief voir dire examination is not conclusive as to whether

Villalpando had sufficient ability to speak and understand English

5
so as to be able to render minimally competent service as a juror.

On the one hand, Villalpando stated several times that he did not

understand or speak “much” English and once stated that a verdict

was not reached in the present case, but on the other hand, he did

appear to understand the court’s questions concerning his education

and past jury service and he gave relatively comprehensible and

responsive answers. After the prosecution challenged Villalpando,

and defense counsel stated they had no objection to the challenge,

Judge Hudspeth excused him, stating “Might be better and safer to

call someone in your place.”

Without an evidentiary hearing in support of her motion for

new trial, Soto’s only tendered proof concerning Villalpando’s

language ability is less than complete and is not wholly

compelling. Because the dialogue between Villalpando and the court

in the second case is not clearly and compellingly dispositive, we

hold that Soto has failed to demonstrate that the trial court

abused its discretion by denying her motion for new trial.

II. Deliberate Ignorance Jury Instruction

Soto next argues that her case should be remanded for new

trial because of the “deliberate ignorance” jury instruction. Over

Soto’s objection, the court instructed the jury that they could

find that the defendant acted “knowingly” if she deliberately

“closed her eyes to what would otherwise be obvious to her. . . .

[and thereby] deliberately blinded herself to the existence of a

fact.”

We review challenges to jury instructions by determining

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“whether the court’s charge, as a whole, is a correct statement of

the law and whether it clearly instructs jurors as to the

principles of law applicable to the factual issues confronting

them.” United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990).

The charge must be both “legally accurate and factually

supportable.” United States v. Cartwright, 6 F.3d 294, 300 (5th

Cir. 1993). This generally means that the “review of a deliberate

ignorance instructions is necessarily a fact-intensive endeavor.”

United States v. Lara-Velasquez, 919 F.2d 946, 952 (5th Cir. 1990).

Thus, a case will not be reversed unless “the instructions taken as

a whole do not correctly reflect the issues and law.” United

States v. McKinney, 53 F.3d 664, 676 (5th Cir. 1995).

A. Maintaining a Place for the Purpose of Distributing a
Controlled Substance

Count III alleged that from on or about November 1, 1995, to

on or about January 21, 1996, Soto “unlawfully, knowingly, and

intentionally maintained a place . . . for the purpose of

distributing marihuana” in violation of 21 U.S.C. § 856(a)(1).

This Court has held that a deliberate ignorance instruction is

inappropriate, and may constitute reversible error, if given as to

an alleged section 856(a)(1) violation. United States v. Chen, 913

F.2d 183, 190 (5th Cir. 1990). In Chen we stated that:

“[W]e conclude that the deliberate ignorance instruction
cannot be used for [§ 856(a)(1)]. One cannot be
deliberately ignorant (in order to convict for the
knowledge element) and still have the purpose of engaging
in illegal drug activities. Therefore the instruction
was inappropriate for an offense which requires a
specific purpose by the defendant.” Id.

While Chen indicates that there was sufficient evidence that the

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defendant was in fact deliberately ignorant, it nevertheless held

that as a matter of law the concept of deliberate ignorance was

inappropriate with respect to section 856(a)(1). Following Chen,

we hold that the deliberate ignorance instruction in Soto’s case

was in error as it related to count III. Nor can we say that this

error was clearly harmless as to count III under the evidence here.

Because of this instructional error, the conviction and sentence

(and assessment) on count III are reversed and that count is

remanded.

B. The Conspiracy Count

The deliberate ignorance instruction was, however, appropriate

for count I. Count I alleged that from on or about November 1,

1995, to on or about January 21, 1996, Soto “knowingly and

intentionally conspired” to possess with intent to distribute a

quantity of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and

846. We have upheld similar deliberate ignorance instructions in

other conspiracy cases where the defendant claimed a lack of guilty

knowledge and the evidence supported a reasonable inference of

deliberate ignorance. See United States v. McKinney, 53 F.3d 664,

676-77 (5th Cir. 1995) (citing United States v. Wisenbaker, 14 F.3d

1022, 1027 (5th Cir. 1994)).

Specifically, the evidence must raise two inferences. First,

the evidence must show (i.e. raise a reasonable inference) that the

“defendant was subjectively aware of a high probability of the

existence of the illegal conduct” and second, the evidence must

show that the “defendant purposely contrived to avoid learning of

8
the illegal conduct.” United States v. Ojebode, 957 F.2d 1218,

1229 (5th Cir. 1992) (citing United States v. Farfan-Careon, 935

F.2d 678, 680 (5th Cir. 1991)); see also United States v. Lara-

Velasquez, 919 F.2d 946, 951 (5th Cir. 1990) (noting that the same

evidence will often give rise to both inferences).

We find that this case meets both prongs of the McKinney test——

Soto has claimed a lack of guilty knowledge and the evidence

presented at trial warrants the inference of deliberate ignorance.

The first prong is satisfied because lack of guilty knowledge was

a recurring theme of the defendant’s case. Both in her counsel’s

opening and closing arguments and in her testimony on the witness

stand, Soto insisted that she had no knowledge of any drug

activities in her house.

The second prong——evidence supporting the inference of guilty

knowledge——is satisfied by the following evidence: (1) Soto was

living in a small house whose basement contained drug packaging

supplies, empty drug bags, and a small amount of marihuana; (2) eye

witness accounts that she socialized with, traveled with, and

handled drug money for Roberto Orozco, a known drug trafficker; (3)

testimony that a large shipment of marihuana was picked up from the

alley behind her house; and (4) testimony by a member of Orozco’s

organization that a van full of drugs was loaded at Soto’s house.

We are not unmindful of the risk inherent in such an

instruction and that it is accordingly one which “should rarely be

given.” United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir.

1992). Nonetheless, this appears to be one such rare instance

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where the instruction was appropriate, and, in any event, under the

evidence here the giving of the instruction was clearly harmless as

to count I. See United States v. Breque, 964 F.2d 381, 388 (5th

Cir. 1992), cert. denied, 113 S.Ct. 1253 (1993). We therefore

affirm Soto’s conviction for conspiracy under count I.

III. Sufficiency of the Evidence on Count III

Finally, Soto appeals the denial of her timely motion for

judgment of acquittal on count III, arguing that the evidence was

insufficient to support her conviction for maintaining a house for

the purpose of distributing marihuana. Count III, alleging a

violation of 21 U.S.C. § 856(a)(1), required that the government

prove three elements, namely that Soto (1) knowingly (2) maintained

the residence at 1400 Wyoming (3) for the purpose of distributing

marihuana. See 21 U.S.C. § 856(a)(1).

This Court will reverse a guilty verdict for insufficiency of

evidence only if a rational trier of fact could not find that the

evidence, viewed in the light most favorable to the government,

establishes each essential element of the crime beyond a reasonable

doubt. United States v. Gibson, 55 F.3d 173, 180 (5th Cir. 1995).

In reviewing the evidence, we make all reasonable inferences and

credibility choices in support of the jury’s verdict. Id.

A. Knowingly

The evidence discussed below, including testimony as to Soto’s

confession to her involvement in the drug organization, was clearly

sufficient to go to the jury on the knowingly element.

B. Maintain

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 Whether a person maintained a premises is a fact-intensive

issue that must be determined on a case-by-case basis. United

States v. Morgan, 117 F.3d 849, 857 (5th Cir. 1997). In this case,

although Soto did not have an ownership or leasehold interest in

the house, she was in charge of the household and exercised

“supervisory control” over the premises. Cf. United States v.

Morgan, 117 F.3d 849, 856 (5th Cir. 1997) (holding that the

defendant maintained an apartment even though his only connection

to it was “supervisory control”).

Although she was leasing her own apartment, Soto came to stay

at her parents’ house at 1400 Wyoming around mid-October 1995. Her

parents were lessees of this house. She came to take care of her

ailing mother, who was incapacitated. As a result, all the chores

and responsibilities of maintaining the household fell upon Soto.

The other residents of the house, including Soto’s father, who

spent much of the day out of the house drinking beer, Soto’s

school-aged children, and various other relatives all appear to

have done far less around the house and had far less control than

Soto. If anybody was maintaining the house it was Soto. Most

telling is that Soto stayed in the house even after her mother died

and her father moved to California in early November 1995, and

eventually signed a lease in her own name in early January 1996.2

Based on all the evidence, we find that a jury could have

concluded that Soto was more than a mere casual visitor and that

2
However, the drug operation was soon thereafter shut down by
the authorities before the term specified in the lease commenced.

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she had a connection to and effective control over the house that

was substantial enough to establish that she maintained it. See

United States v. Verners, 53 F.3d 291, 295 (10th Cir. 1995)

(holding that in order to maintain a premises, a defendant must be

more than a casual visitor and must have some “substantial

connection” to the home).

C. Purpose

The purpose element is perhaps the most difficult to prove.

The purpose to distribute marihuana must be Soto’s; merely

maintaining the premises so that others may engage in distribution

is not a violation of section 856(a)(1). Chen at 190.

The presence of the packaging supplies, empty marihuana bags,

and a small amount of marihuana in the basement allowed a jury to

conclude that someone had the purpose of distributing marihuana

from the house. The evidence sufficiently showed that Soto was a

member of the conspiracy which had as one of its objects the

distribution of marihuana from the house. The jury could

reasonably find that the distribution purpose was at least in part

Soto’s because of this evidence, including the testimony by several

witnesses detailing Soto’s involvement in the drug organization and

Soto’s own confession about her involvement in the organization.3

Additionally, the fact that Soto remained at the house and

signed a lease in her own name after her parents were no longer

3
While she later denied making this confession, that presents
a credibility choice which must be resolved in favor of the jury’s
verdict. See United States v. Gibson, 55 F.3d 173, 180 (5th Cir.
1995).

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there indicates not only that she had some interest in the house

greater than that of a casual visitor, but also that she had some

purpose for being in the house other than merely looking after her

mother. The evidence was sufficient for a jury to conclude that

one of her purposes was drug distribution.4

Taking care of her mother may have been her initial and

primary purpose for maintaining the house, but the evidence

indicates that drug distribution was or became at least a

significant purpose of Soto’s for maintaining the house. We find

there is sufficient evidence to support the jury’s verdict, and

decline to reverse Soto’s count III conviction under 856(a)(1) on

the grounds of insufficient evidence.

Conclusion

For the foregoing reasons, we affirm Soto’s conviction and

sentence on count I,5 but we reverse and remand Soto’s conviction

on count III because of the erroneous jury charge.

AFFIRMED in part; REVERSED and REMANDED in part

4
We note that section 856(a)(1) does not require that drug
distribution be the primary purpose, but only a significant
purpose. See United States v. Roberts, 913 F.2d 211, 220 (5th Cir.
1990).
5
There is no need for resentencing on count I, as the adjusted
guideline range for that offense was unaffected by the count III
conviction, and the count I sentence was the lowest permitted by
its adjusted guideline range.

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