UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-40956
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DORIS JEAN WHITE;
JESUS VISOSO RAMIREZ, also known as Gordo;
ANTHONY WAYNE CRINER,
Defendants-Appellants.
Appeals from the United States District Court
For the Southern District of Texas
July 17, 2000
Before POLITZ, SMITH and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This direct criminal appeal arises from the conviction
following jury trial of Appellants Doris Jean White, Anthony Wayne
Criner and Jesus Visoso Ramirez for conspiracy to distribute and
possession with intent to distribute cocaine in violation of 18
U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. For
the reasons assigned, we affirm the convictions and sentences of
1
Appellant White; affirm the convictions and sentences of Appellant
Visoso; affirm the convictions and sentences of Appellant Criner on
two counts; and reverse the conviction and sentence of Appellant
Criner on one count and remand his case to the district court for
further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves allegations of conspiracy and cocaine
distribution. On November 20, 1996, Eduardo Cisneros (Cisneros)
and Sandra Vargas (Vargas) were pulled over by an Oklahoma trooper
for driving a Ford LTD with a defective license tag light. The
trooper received permission to search the vehicle and discovered a
false compartment behind a side vent. A canine search revealed 14
kilograms of cocaine hidden in the interior panels of the LTD.
After his arrest, Cisneros agreed to cooperate with authorities by
performing a controlled delivery of the narcotics to a man he
identified as “Gordo” in Wichita, Kansas.
Prior to the controlled delivery, officers replaced all but 10
grams of the cocaine with sugar, rewrapped the packages and stored
them in the interior panels of the LTD. For surveillance purposes,
the exchange location was changed from the Wichita Inn to the Days
Inn, located across the street. Cisneros drove to Wichita on
November 21 and parked the LTD in front of the Wichita Inn, the
original exchange location. He wrote a note in Spanish indicating
that he was in Room 116 of the Days Inn and placed it under the
2
windshield wiper of the LTD.
Jesus Visoso Ramirez (Visoso), also known as Gordo, had flown
to Wichita from Albuquerque, New Mexico at 2:30 pm that afternoon
where he was met at the airport by Doris Jean White (White) and
Anthony Wayne Criner (Criner) who accompanied him to the Wichita
Inn. Officers observed the three appellants drive from the airport
to the Wichita Inn, where Visoso read the note before proceeding to
Room 116 of the Days Inn. Vargas greeted Visoso at the door and
Cisneros handed him the keys to the LTD following a brief
conversation which was recorded by a body microphone worn by
Cisneros.
When Visoso returned to the car, White drove to the Wichita
Inn parking lot where the LTD was located. Criner exited White’s
vehicle, entered the LTD and drove out of the parking lot behind
White before passing her several blocks from the motel. Kansas
authorities stopped the LTD shortly after it passed White’s vehicle
because they did not want to lose the vehicle. When Criner was
stopped, he produced a driver’s license but had no proof of
insurance for the LTD. He was nervous, according to authorities at
the scene.
White and Visoso drove past the LTD and proceeded a few blocks
before turning around, when they were stopped by authorities. The
officers stated that White’s hands were visibly shaking as she
reached over to retrieve identification from the glove compartment.
She exited the vehicle and officers reported a strong odor of
3
marijuana on her clothing. Officers received permission to search
White, when they found $2,500 in her jacket pocket. An authorized
search of Visoso at the scene uncovered an airline ticket noting
that his return flight to Albuquerque departed at 6:46 pm. On the
outside of the ticket jacket, someone had written the phone number
to the Days Inn and the number 116.
Visoso was indicted by a Kansas grand jury for conspiracy to
distribute and possession with intent to distribute cocaine in
December 1996. The government requested dismissal of this
indictment, which was granted in February 1997. The government
filed a second indictment against Visoso and Cisneros in July 1997
in Texas. In December 1997, the government filed a superseding
indictment against appellants in this case as well as several other
persons. The government alleged that Visoso, Cisneros, White and
Criner conspired to possess with intent to distribute more than
five kilograms of cocaine between February 1 and November 26, 1996
(count one); Visoso, Cisneros and Criner aided and abetted
possession with intent to distribute 14.6 kilograms of cocaine
between July 14 and 28, 1996 (count two); Visoso and Cisneros
aided and abetted possession with intent to distribute 14.6
kilograms of cocaine between October 2 and 7, 1996 (count three);
and Visoso, Cisneros, White and Criner aided and abetted possession
with intent to distribute 14.6 kilograms of cocaine between
November 17 and 21, 1996 (count four).
As part of a plea agreement, Cisneros pleaded guilty to the
4
conspiracy charged in the original indictment and faced a minimum
sentence of 151 months. The case involving Visoso, White and
Criner was tried before a jury. Cisneros served as the
government’s primary witness and Visoso, White and Criner testified
on their own behalf. At the conclusion of the trial, the jury
convicted Visoso, White and Criner of all charges in the
superseding indictment.
Visoso was sentenced to four concurrent 188 month terms of
imprisonment followed by five years of supervised release. He was
also assessed a $10,000 fine. White was sentenced to two
concurrent 136 month terms of imprisonment followed by five years
of supervised release. The district court initially granted
Criner’s motion for judgment of acquittal on count two but reversed
itself and reimposed sentence on this count. Criner was sentenced
to three concurrent 120 month terms of imprisonment followed by
five years of supervised release. Visoso, White and Criner timely
appealed their convictions and sentences.
II. DISCUSSION
A. Sufficiency of the Evidence
Visoso, White and Criner contend that there was insufficient
evidence to support their convictions of conspiracy and possession
with intent to distribute cocaine. In considering whether there
was sufficient evidence, the evidence is reviewed “to determine
whether a rational trier of fact, after considering all the
5
evidence and reasonable inferences drawn therefrom in a light most
favorable to the verdict, could have found the defendant guilty
beyond a reasonable doubt.” United States v. Cornett, 195 F.3d
776, 781-82 (5th Cir. 1999) (citing United States v. Walker, 148
F.3d 518, 523 (1998)). Under this standard, it cannot be said that
the evidence was insufficient to support the convictions of Visoso
and White. Two of Criner’s three convictions are also supported by
the evidence.
To prove a conspiracy to possess and distribute a controlled
substance, the government must prove beyond a reasonable doubt 1)
the existence of an agreement between two or more persons to
violate narcotics laws, 2) knowledge of the conspiracy and intent
to join it and 3) voluntary participation in the conspiracy. See
United States v. Quiroz-Hernandez, 48 F.3d 858, 866 (5th Cir. 1995).
The factors that may be considered in determining whether a
defendant is guilty of committing a drug conspiracy crime are
“concert of action”, presence among or association with drug
conspirators, and “evasive and erratic behavior.” See United
States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied,
513 U.S. 1156 (1995). The jury may infer a conspiracy agreement
from circumstantial evidence. See Quiroz-Hernandez, 48 F.3d at
866. However, mere presence or association cannot establish that
a person has voluntarily joined a conspiracy. See Bermea, 30 F.3d
at 1552.
There was sufficient evidence of Visoso’s agreement, knowledge
6
and voluntary participation in the conspiracy to support his
convictions. First, the testimony of Cisneros, the government’s
primary witness, indicated that Visoso had an integral role in the
conspiracy. Cisneros stated that he met Visoso in 1994 when he
joined an enterprise that transported narcotics from Mexico to
Kansas. According to Cisneros, he drove several 14 kilogram loads
of cocaine to Kansas in 1996, beginning with a load of cocaine that
he delivered to Visoso at the Wichita Inn in July 1996. Cisneros
testified that after delivering a second load of cocaine to Visoso
in Wichita, Visoso asked him to transport $104,000 from New Mexico
to Texas. Cisneros stated that he drove to New Mexico where he
retrieved the cash and placed it in the secret compartment used to
hide narcotics. He was stopped by Border Patrol agents in New
Mexico where a canine alerted to the presence of narcotics.
Authorities seized $105,620 in cash and a sheet of paper containing
Visoso’s name and New Mexico phone number.1 Cisneros was released
following this incident. He testified that he transported cocaine
to Wichita two more times before his arrest on November 20, 1996.
Second, the government introduced evidence which confirmed
Cisneros’s testimony tying Visoso to the conspiracy. This evidence
included Wichita motel receipts from July 1996 and October 1996
with Cisneros’s handwriting that corresponded to the dates he said
1
The New Mexico phone number was billed to Naomi Perea.
According to the phone company’s records, Visoso was listed as
Perea’s roommate/boyfriend and was authorized to make charges on
this line.
7
he delivered narcotics to Visoso in Wichita; a photo of the
$105,620 retrieved when Cisneros was stopped in July 1996 and the
sheet of paper containing Visoso’s name and phone number that was
found with the money; Visoso’s plane ticket from Albuquerque to
Wichita with the phone number of the Days Inn and the number 116
written on it; and a business card containing White’s name and
Cisneros’s phone number found in Visoso’s possession when he was
arrested in November 1996.
The government also introduced records of telephone calls
between Visoso’s New Mexico phone number, White’s Kansas phone
number and a phone at the Greenville penitentiary. From September
19 to December 5, 1996, there were 16 phone calls from Visoso’s
phone number to White’s phone number; 11 collect phone calls from
White’s phone number to Visoso’s phone number; and 35 collect phone
calls from Greenville to Visoso’s phone number. From October 19,
1996 to January 6, 1997, there were 24 collect phone calls from
Greenville to White’s phone number. According to Visoso, the
purpose of these phone calls was to discuss obtaining an attorney
for Jesus Avila’s appeal. Avila was White’s former boyfriend who
was incarcerated at the Greenville penitentiary.
Third, Visoso gave conflicting versions of the events leading
to his arrest. Following his arrest, Visoso told officers that he
met White at a Wichita service station when he was driving through
the city en route to visit relatives. He said he was in Wichita to
purchase a used car from White’s father. When he testified at
8
trial, Visoso stated that he met White through Avila. For the
first time, Visoso said he had given White money on several
occasions for Avila’s appeal, including $2,500 in White’s jacket.
In addition, Visoso testified that he had never met Cisneros.
However, he was unable to explain why he had a business card with
Cisneros’s phone number when he was arrested in November 1996 or
why Cisneros had a sheet listing his name and phone number in July
1996 when Cisneros was arrested with more than $100,000 in cash.
The evidence presented by the government, coupled with
Visoso’s actions on the dates in question and the inconsistencies
in his story, constituted a sufficient basis from which a
reasonable juror could find beyond a reasonable doubt that the
government established Visoso’s guilt of the essential elements of
the crimes charged. Visoso flew to Wichita and was transported to
the motel where Cisneros was waiting as part of a prearranged
delivery of 14 kilograms of cocaine. Authorities observed Visoso
receive the keys to the vehicle containing cocaine from Cisneros.
When Visoso was searched by authorities, they discovered a plane
ticket that had the name and phone number of Cisneros’s hotel and
his room number written on it, as well as a business card with
White’s name and Cisneros’s phone number. There were an unusual
number of phone calls between Visoso, White and the Greenville
penitentiary. In addition, Visoso first claimed that he met White
by happenstance at a service station and later stated that he was
introduced to her by her former boyfriend. Thus, Visoso’s
9
convictions were supported by sufficient evidence.
White’s convictions were also supported by sufficient
evidence. White met Visoso at the airport and provided
transportation to the motels where Cisneros and the LTD were
located. After her vehicle was stopped, White initially told
authorities that she met Visoso through John Lopez, a former
boyfriend who was incarcerated in Greenville. She stated that
Visoso wanted to purchase a used vehicle from her father who
operated an automobile repair business. She also said that Criner
requested a ride to the Days Inn.
During the trial, White testified that Visoso had given her a
total of $9,000 on three or four occasions for Avila’s appeal. She
was unable to explain why she originally identified Avila as John
Lopez. Although she was allegedly helping Avila locate an
appellate attorney, White could not state the reason for his
incarceration. She testified that she asked Criner to accompany
her to the airport to meet Visoso because she did not know him,
despite earlier testimony that Visoso had given her money on
several occasions. During cross-examination, White explained that
Visoso’s wife mailed the money to her.
White testified that Visoso directed her to drive to the Days
Inn. When she was arrested in November 1996, however, White told
authorities that she was at the Days Inn because Criner requested
a ride to the motel. When questioned about the numerous phone
calls, White explained that she called Visoso after he failed to
10
purchase a vehicle from her father. Finally, although White stated
that Visoso was in Wichita to purchase a used car from her father,
she took him to a motel to retrieve the car instead of to her
father’s automobile shop. This evidence was sufficient for White’s
convictions.
Criner argues that there is insufficient evidence to convict
him of conspiracy because the government failed to prove he had
knowledge of the conspiracy or voluntarily participated in the
conspiracy. When Criner was stopped behind the wheel of the
vehicle containing the cocaine, he produced a driver’s license but
had no proof of insurance for the LTD. He was nervous, according
to authorities at the scene. He told the authorities that White
was a longtime friend who picked him up earlier that afternoon and
asked him to drive a car to an unspecified garage in Wichita.
Criner stated that he did not know the name or location of the
garage where he was taking the LTD to be repaired, even though he
was driving in front of White’s vehicle.
The government asserts that Criner’s participation in the
conspiracy can be inferred from the circumstances. See United
States v. Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990). While an
individual’s mere presence around a drug deal does not make that
individual a member of the conspiracy, “a jury may find
knowledgeable, voluntary participation from presence when the
presence is such that it would be unreasonable for anyone other
than a knowledgeable participant to be present.” United States v.
11
Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999), cert. denied,
120 S. Ct. 961 (2000) (internal citations and quotations omitted).
Criner had physical possession of the vehicle containing
cocaine when it was stopped by authorities. He had no proof of
insurance for the LTD. Criner said he did not know the name or
location of the garage where he was taking the LTD to be repaired,
even though he was driving in front of White’s vehicle when he was
stopped. The fact that he passed White’s vehicle belies his claim
that he was unaware of the final destination. Cisneros testified
that Visoso identified the purchaser of the cocaine as “El Negro”,
or the black man, and Criner was the only black male present.
Finally, it is unlikely that Criner would have been permitted to
drive the vehicle containing 14 kilograms of cocaine if he were not
part of the conspiracy. See United States v. Valdiosera-Godinez,
932 F.2d 1093, 1096 (5th Cir. 1991) (“Had [defendant] not been privy
to this agreement and part of it, the other two men certainly would
not have allowed him to stick around . . . In this case,
[defendant’s] presence and association are coupled with a total
absence of rational, non-inculpatory explanations of the facts.”),
cert. denied, 508 U.S. 921 (1993).
While the evidence presents a close case against Criner,
taking it and all reasonable inferences in the light most favorable
to the verdict, a rational trier of fact could have found Criner
guilty of conspiracy beyond a reasonable doubt. Accordingly, we
conclude that there was sufficient evidence to support Criner’s
12
convictions for counts one and three, involving offenses in October
1996 and November 1996. On the other hand, the government
acknowledged during oral argument that there was insufficient
evidence to convict Criner of count two, possession with intent to
distribute in July 1996. Given this concession, we reverse
Criner’s conviction and sentence for count two.
Visoso, White and Criner contend that Cisneros’s testimony was
not credible given his previous convictions and numerous aliases2,
and that without this testimony the evidence was insufficient to
sustain their convictions. Appellants also note that Cisneros
admitted lying to authorities during his cross examination. For
example, he admitted lying to an officer when he stated that he was
transporting cocaine to prevent individuals from hurting his child
and to allow his wife to receive credit on money owed in Mexico.
This court has repeatedly stated that the jury is the final
arbiter of the credibility of witnesses. See Bermea, 30 F.3d at
1552. “We have held that a guilty verdict may be sustained if
supported only by the uncorroborated testimony of a coconspirator,
even if the witness is interested due to a plea bargain or promise
of leniency, unless the testimony is incredible or insubstantial on
its face.” Id. Testimony is incredible as a matter of law only if
it relates to facts the witness could not have observed or to
2
Cisneros had at least nine aliases. At the time of his
testimony, he had three federal convictions and two state
convictions, and a state probated sentence had been revoked.
13
events which could not have occurred under the laws of nature. See
id. Cisneros’s testimony was not incredible as a matter of law.
The government introduced evidence that Cisneros checked into
Wichita hotels during the time periods he said he traveled there to
deliver cocaine to Visoso. When Cisneros was stopped in July 1996,
he had more than $100,000 in cash and Visoso’s telephone number.
Cisneros was arrested in November 1996 after authorities discovered
14 kilograms of cocaine hidden in the vehicle he was driving.
Given the evidence corroborating Cisneros’s testimony, it was not
incredible as a matter of law.
B. Admissibility of the Audiotape
A district court’s evidentiary rulings are reviewed for abuse
of discretion. See United States v. Narviz-Guerra, 148 F.3d 530,
536 (5th Cir.), cert. denied, 525 U.S. 1046 (1998). The
determination of trustworthiness of a tape recording is left to the
sound discretion of the trial judge. See United States v. Dukes,
139 F.3d 469, 473 (5th Cir.), cert. denied, 525 U.S. 894 (1998).
“[P]oor quality and partial unintelligibility do not render tapes
inadmissible unless the unintelligible portions are so substantial
as to render the recording as a whole untrustworthy.” Id. (citing
United States v. Stone, 960 F.2d 426, 436 (5th Cir. 1992)).
Visoso argues that the audiotape of his conversation with
Cisneros was completely unintelligible and should not have been
admitted. The conversation was in Spanish but the government had
the tape transcribed and translated into English for the jury.
14
Visoso also submitted a transcription of the tape in English. An
FBI agent compared the audiotape with the government transcription
and the Visoso transcription. The FBI agent stated that
approximately half of the audiotape was unintelligible but that the
gist of the conversation was reliable. He noted that the
government transcription accurately portrayed the unintelligible
portions of the audiotape, as opposed to Visoso’s transcription
which was incomplete and inaccurate. Based upon the these
statements, the district court ruled that the government
transcription was reliable and the unintelligible portions of the
audiotape were not so substantial that the recording as a whole was
untrustworthy.
The FBI agent testified to the jury concerning the accuracy
and reliability of the government transcription of the audiotape.
He was also cross examined by Visoso. The district court submitted
the audiotape and the government transcription to the jury,
directing them to use the translation as the official version and
to determine how much weight to place on the audiotape in their
deliberations. Given the testimony of the FBI agent and the
cautionary instructions by the district court, the district court
did not abuse its discretion in admitting the government
transcription of the audiotape to the jury.
C. Speedy Trial Act
In the final argument on appeal, Visoso contends that the
government failed to proceed to trial within the time limits set
15
forth in the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We review
the district court’s interpretation of the Speedy Trial Act de novo
and its findings of fact concerning the Act for clear error. See
United States v. Garrett, 45 F.3d 1135, 1137 (5th Cir.), cert.
denied, 514 U.S. 1134 (1995). Under the Speedy Trial Act, a
defendant who has not pled guilty must be tried within 70 days of
filing an indictment or the date on which the defendant first
appears before a judicial officer, whichever is later. See 18
U.S.C. § 3161(c)(1). Despite this 70 day requirement, the Act
provides for the exclusion of certain periods of time from this
calculation, including:
(F) delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion;
(G) delay resulting from any proceeding relating to the
transfer of a case or the removal of any defendant from
another district under the Federal Rules of Criminal
Procedure;
(H) delay resulting from transportation of any defendant
from another district . . except that any time consumed
in excess of ten days from the date an order of removal
or an order directing such transportation, and the
defendant’s arrival at the destination shall be presumed
to be unreasonable . . . .
18 U.S.C. § 3161 (h)(1)(F)-(H).
According to Visoso, there were 100 non-excludable days
between his indictment and the trial, 30 days more than the
statutory limit. The district court calculated 54 non-excludable
days between Visoso’s indictment and trial. After reviewing the
16
relevant dates and the statutorily permitted exclusions, we reject
Visoso’s calculation of 100 non-excludable days. The district
court correctly calculated the number of non-excludable days, with
one exception: the district court failed to include eight non-
excludable days between October 6, 1997 and October 13, 1997. When
eight non-excludable days are added to the 54 non-excludable days
calculated by the district court, there were 62 non-excludable
days. Thus, fewer than 70 non-excludable days elapsed and the
government complied with the terms of the Speedy Trial Act.
III. CONCLUSION
For the reasons assigned, we REVERSE and REMAND Criner’s
conviction and sentence on count two. Otherwise, we AFFIRM
Criner’s convictions and sentences on the remaining counts and we
AFFIRM the convictions and sentences of Visoso and White.
17