IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20419
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE CASTIO MARTINEZ; MANUEL
SILVESTRE LOISZNER; AND LUIS
ARROCHA,
Defendants-Appellants
Appeals from the United States District Court
for the Southern District of Texas
September 28, 1999
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Luis Arrocha, Manuel Loiszner, and Enrique Martinez appeal
their convictions following jury trial for conspiracy and
possession with intent to distribute cocaine. Appellants Arrocha
and Loiszner argue that there was insufficient evidence to support
their convictions. All three appellants argue that the district
court’s instruction on flight was an abuse of discretion. We
affirm the convictions.
I.
The government based its charges on facts gathered in a sting
operation. In 1995, an undercover agent began negotiating with a
Columbian drug dealer for a shipment of cocaine. In 1997, the
dealer shipped cocaine to the agent, and they made plans to have
the drugs delivered to the dealer’s associate in Houston, Gustavo
Aizpurua.
To arrange delivery, the undercover agent met Aizpurua and
Martinez at a restaurant. Over lunch, the three men discussed the
delivery of 84 kilograms of the cocaine. Martinez told the agent
the location of the delivery site and how the agent should identify
and park the load car. Arrocha had arrived at the restaurant with
Aizpurua but did not meet the agent. After the meeting with the
agent, Aizpurua and Martinez met with Arrocha, Loiszner, and
another suspect in the restaurant’s parking lot.
Arrocha and Loiszner were also present at the pick-up site
when another DEA agent delivered the load car to the appointed
parking lot. The appellants and other suspects drove up and down
the aisles of the lot. Loiszner then entered the load car and
drove to a Houston residence, followed by the other vehicle. The
DEA agents had included a tracking device in one of the boxes of
sham cocaine that would signal when the box was opened, and after
the cars had arrived at the house, the tracking device was
activated.
Several agents, wearing vests and helmets marked “POLICE” and
“DEA,” approached the house as one agent yelled, “Police!” As the
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police approached, Arrocha was showing the tracking device to
Martinez, Loiszner, and others in the living room. When the police
announced their presence, Arrocha and Martinez ran to the rear of
the house. Martinez hid in a garage closet. The agents found
Arrocha, Loiszner, and two other suspects in the living room and
located Martinez in the closet. The house smelled strongly of
acetone, an odor similar to that of cocaine, and some of the
government’s sham cocaine was visible from the living room.
Government agents recovered additional evidence from
Aizpurua’s car and hotel room, including a business card for “Luis
D’Angelo” and airplane tickets issued to Aizpurua and “Luis
D’Angelo” for a recent flight to Houston. Arrocha’s full surname
is Arrocha D’Angelo. Hotel records further linked Aizpurua and
Arrocha: the records showed that Aizpurua had reserved and paid
for the adjoining room for Arrocha, and that Arrocha had given the
hotel the same Miami address Aizpurua used.
II.
Loiszner and Arrocha argue that the evidence was insufficient
to support the jury’s verdict. The sufficiency of the evidence is
reviewed in the light most favorable to the jury verdict. It is
considered sufficient if a rational trier of fact could have found
that the evidence established guilt beyond a reasonable doubt. See
United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995).
In order to prove conspiracy to possess with the intent to
distribute cocaine, the Government must prove three elements: (1)
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the existence of an agreement, (2) knowledge of and intent to join
the agreement, and (3) voluntary participation in the agreement.
See United States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993).
Association or presence can be sufficient to prove knowing
participation in the agreement if combined with other supporting
circumstantial evidence. See United States v. Brito, 136 F.3d 397,
409 (5th Cir. 1998). A jury may find knowledgeable, voluntary
participation from presence when it would be unreasonable for
anyone other than a knowledgeable participant to be present. See
United States v. Paul, 142 F.3d 836, 840 (5th Cir. 1998).
To establish possession with intent to distribute, the
Government must prove that the defendant knowingly possessed the
cocaine with the intent to distribute the drugs. See United States
v. Quiroz-Hernandez, 48 F.3d 858, 868 (5th Cir. 1995). Possession
can be actual or constructive, joint among defendants, and
established by direct or circumstantial evidence. See id.
A.
Arrocha argues that the Government failed to establish the
knowledge element of either charge against him. Specifically,
Arrocha asserts that there was insufficient evidence to demonstrate
his knowledge of the plan to deliver drugs or of the presence of
drugs at the stash house.
Ample evidence supports the jury’s finding that Arrocha knew
of the delivery plan and of the presence of cocaine. First,
Arrocha was present during three significant moments of the
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conspiracy: the restaurant meeting, the pick-up, and the stash
house meeting. Second, evidence found at Arrocha’s hotel room and
in Aizpurua’s possession suggested that Aizpurua and Arrocha were
working together. They had recently traveled together, Aizpurua
arranged and paid for Arrocha’s accommodations during his stay in
Houston, and Arrocha gave the same Miami address that Aizpurua had
used. Third, evidence of cocaine was evident in the living room
where police arrested Arrocha. Moreover, Arrocha showed the others
the tracking device which had been inside one of the boxes of
cocaine.
Taken together, there was sufficient evidence from which a
jury could reasonably infer that Arrocha knew of the conspiracy and
of the presence of drugs at the Carthage residence.
B.
Loiszner argues that the Government failed to show that he had
knowledge of the conspiracy or of the presence of cocaine.
Loiszner testified that other defendants told him that a friend
needed the car taken to his house. Loiszner claimed that he did
not smell any acetone in the car. On appeal, he argues that the
government presented less evidence of knowledge than in United
States v. Gardea Carrasco, 830 F.2d 41 (5th Cir. 1987), in which
the court overturned the appellant’s conviction based on
insufficient evidence.
In Gardea Carrasco, the defendant accompanied two other
defendants on automobile rides to the airport over two days. At
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the airport, the defendant waited in the car while the other
defendants arranged the transport of a shipment of marijuana. On
the day of the transport, the defendant helped load suitcases
containing the marijuana into an airplane. The court held that the
evidence was insufficient to demonstrate the defendant’s knowledge
of the other defendants’ dealings or of the presence of contraband
in the suitcases. See Gardea Carrasco, 830 F.2d at 45.
We recently distinguished Gardea Carrasco in United States v.
Villegas-Rodriguez, 171 F.3d 224 (5th Cir. 1999). In that case,
there was no evidence that the defendant had conversations about
the drug transport. The defendant helped load a car with packages
of marijuana stored in a house. His tasks included moving a
vehicle so that it would block the visibility of the load car and
carrying the drugs, apparently wrapped in transparent cellophane,
from a room in the house that smelled strongly of marijuana. The
court held the evidence was sufficient to support the defendant’s
conviction. Villegas-Rodriguez, 171 F.3d at 229-30.
Loiszner’s case presents facts more akin to Villegas-Rodriguez
than to Gardea Carrasco. Unlike the events in Gardea Carrasco,
where there would have been little risk from having an innocent
person along for the ride, here Aizpurua and the other co-
conspirators trusted Loiszner, alone, to transport cocaine valued
at over $1 million. As in Villegas-Rodriguez, Loiszner was in a
room where one could see and smell the drugs. Loiszner’s presence
at the three crucial moments of the conspiracy gives rise to an
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inference of knowledge similar to that of the participation by the
Villegas-Rodriguez defendant. Considering the collection of
circumstances surrounding Loiszner, a rational trier of fact could
have found that the evidence established guilt beyond a reasonable
doubt.
III.
Martinez, Arrocha, and Loiszner challenge the district court’s
instruction on flight. The district court instructed the jury that
evidence of flight could reflect a consciousness of guilt. We
review a challenge to jury instructions by determining whether the
court's charge, as a whole, correctly states the law and 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).
Evidence of an accused's flight is generally admissible as
tending to establish guilt. See United States v. Williams, 775
F.2d 1295, 1300 (5th Cir. 1985). A flight instruction is proper
when the evidence supports four inferences: 1) the defendant's
conduct constituted flight; 2) the defendant's flight was the
result of consciousness of guilt; 3) the defendant's guilt related
to the crime with which he was charged; and, 4) the defendant felt
guilty about the crime charged because he, in fact, committed the
crime. See United States v. Murphy, 996 F.2d 94, 97 (5th Cir.
1993). Harmless error applies. See United States v. Barnhart, 889
F.2d 1374, 1379 (5th Cir. 1989).
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Martinez challenges the first and second inferences necessary
to support a flight instruction. First, Martinez suggests that
because he hid in a closet, he did not flee. Although hiding in a
closet may not be the standard method of escape, it still can
constitute flight where, as in this case, the cornered defendant
was attempting to elude capture.
Second, Martinez argues that his flight was not the result of
consciousness of guilt. Martinez contends that his flight could
have stemmed from a fear of thugs or of arrest on immigration
charges. The agents, however, wore clothing marked POLICE and DEA
and shouted, “Police!” as they entered the house. That notice
provided an adequate factual basis to infer that Martinez’ flight
stemmed from a consciousness of guilt.
Arrocha argues that his conduct did not constitute flight.
Although Arrocha ran around the house when the agents approached,
by the time they entered the house, Arrocha had returned to the
living room. Given this fact, the district court erred in giving
a flight instruction as to Arrocha. The error was harmless,
however, in light of the other evidence against Arrocha.
As to Loiszner, the government did not ask the jury to draw
any inference of flight. The district court was not required to
advise the jury that the flight instruction did not apply to
Loiszner. As the government presented no evidence of flight by
Loiszner, the jury had no basis on which to draw an improper
inference.
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CONCLUSION
We hold that the evidence is sufficient to support the
convictions of Arrocha and Loiszner on both charges and that the
error in giving a flight instruction as to Arrocha was harmless.
AFFIRMED.
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