UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
___________
No. 01-40392
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODOLFO RICARDO VILLARREAL,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Texas
March 6, 2003
Before HIGGINBOTHAM and DAVIS, Circuit Judges, and HUDSPETH*,
District Judge.
HUDSPETH, District Judge:
Appellant Rodolfo Ricardo Villarreal (“Villarreal”) and
several others were charged in a multi-count indictment with
various drug offenses. Villarreal was named as a defendant in two
counts of the indictment. In the first count, he was charged with
conspiracy to distribute and to possess with intent to distribute
more than 1000 kilograms of marihuana in violation of 21 U.S.C.
§ 846. In the third count, he was charged with the substantive
*District Judge of the Western District of Texas,
sitting by designation.
1
offense of knowingly possessing more than 100 kilograms of
marihuana with intent to distribute it in violation of 21 U.S.C. §
841(a)(1). Villarreal went to trial on his plea of not guilty. On
January 12, 2001, the jury returned a verdict, finding Villarreal
not guilty of conspiracy, but guilty of the substantive offense of
possession of marihuana with intent to distribute it.
After the trial, but before sentencing, Villarreal's attorney,
Fernando Sanchez, Jr., was allowed to withdraw as counsel. He was
replaced by Adrienne Urrutia. On April 16, 2001, Ms. Urrutia filed
a motion for new trial on behalf of Villarreal. Following an
evidentiary hearing, the district court denied the motion for a new
trial. On July 11, 2001, Villarreal was sentenced to serve 120
months' imprisonment in the custody of the Bureau of Prisons to be
followed by eight years of supervised release.1 This appeal
followed.
Villarreal appeals his conviction on several grounds. First,
he contends there was insufficient evidence to support his
conviction and that the district court should have granted his
motion for a judgment of acquittal. Second, he contends that his
motion for a new trial based on newly discovered evidence should
have been granted by the district court. Third, he contends that
his trial counsel, Fernando Sanchez, Jr., rendered ineffective
1
The weight of the marihuana and Villarreal's prior drug
conviction combined to require a minimum mandatory sentence of 10
years' imprisonment and 8 years of supervised release. 21 U.S.C.
§ 841(b)(1)(B).
2
assistance. Finally, Villarreal contends that the cumulative
effect of these alleged errors rendered his conviction
fundamentally unfair. Finding no reversible error, we affirm
Villarreal's conviction and sentence.
I. SUFFICIENCY OF THE EVIDENCE
Villarreal made a motion for a judgment of acquittal at the
time the Government rested its case-in-chief. He did not renew his
motion after he presented defense evidence nor at the close of all
the evidence. However, he timely filed a post-verdict motion for
a judgment of acquittal pursuant to Fed.R.Crim.P.29(c). Therefore,
we review Villarreal's claim that the evidence was insufficient
under the “rational jury”, not the “manifest miscarriage of
justice”, standard. See United States v. Thomas, 12 F.3d 1350, 1373
(5th Cir. 1994); United States v. Allison, 616 F.2d 779, 783-84
(5th Cir. 1980). Under this standard of review, we decide whether,
viewing all the evidence in the light most favorable to the
verdict, a rational trier of fact could have found that the
evidence established the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Peters, 283 F.3d 300, 307 (5th Cir.), cert.
denied, Edmonson v. United States, _____ U.S. _____, 122 S.Ct. 1949
(2002), and cert. denied, Peters v. United States, _____ U.S.
_____, 122 S.Ct. 2612 (2002). All reasonable inferences must be
drawn, and all credibility determinations made, in the light most
3
favorable to the verdict. United States v. Hull, 160 F.3d 265, 272
(5th Cir. 1998).
In arriving at its verdict in this case, the jury could have
considered the following evidence: San Ygnacio, Texas is a small
town located approximately 40 miles south of Laredo on U.S. Highway
83. Highway 83 parallels the Rio Grande River, which is the
international boundary between the United States and Mexico. In
December 1998, agents of the Laredo Multi-Agency Narcotics Task
Force became aware that a house located at 107 Benavides in San
Ygnacio was being used by drug dealers as a “stash house”, i.e., a
place in which drugs could be stored temporarily before shipment to
other destinations. The rear of the house was located
approximately 150 yards from the Rio Grande River, with nothing but
a wooded area in between. In an effort to further their
investigation, Task Force officers installed an infra-red
surveillance camera in a location which permitted monitoring of
activity taking place at the suspected stash house. The camera was
monitored from Zapata, Texas, another small town approximately 15
miles southeast of San Ygnacio. On February 11, 1999, officers
monitoring the surveillance camera observed suspicious activity in
and around the stash house. For example, at 2:52 p.m. a red
Chevrolet Tahoe arrived and parked in front of the house. The
driver, later identified as Jose Soto-Gutierrez, got out of the
Tahoe and went inside the house. Eight minutes later, Soto
4
returned and drove away. At 4:13 p.m. a gray Mercury Marquis was
observed arriving at the stash house. An unknown person backed the
Mercury around to the rear of the house. Based on experience, the
officers monitoring the surveillance camera inferred that the
Mercury was being loaded with drugs. At 4:37 p.m., Villarreal
arrived at the stash house driving his tow-truck. Soto-Gutierrez
was riding in the tow-truck as a passenger. Soto-Gutierrez got out
of the tow-truck and walked around to the back of the house where
the gray Mercury was located. A few minutes later, Soto-Gutierrez
was seen walking back toward the driveway entrance followed by the
gray Mercury. Villarreal, Soto-Gutierrez, and one or two unknown
individuals loaded the gray Mercury on the tow-truck. Villarreal
and Soto-Gutierrez got back in the tow-truck, and at 4:42 p.m.,
Villarreal drove it away. From the monitoring office in Zapata,
vehicles were dispatched to intercept and stop the tow-truck.
Jorge Luna, a Laredo police officer, received a call
requesting assistance. Specifically, he was asked to stop a red
tow-truck with two occupants carrying a gray vehicle which was
suspected to contain illegal drugs. Luna positioned himself at the
intersection of Zacatecas and U.S. 83, on the south side of Laredo.
At approximately 5:50 p.m., he spotted the described tow-truck
approaching from the south. Officer Luna fell in behind the truck,
followed it a short distance, and then effected a stop.
Villarreal stepped out of his truck, and Officer Luna
5
requested to see his driver's license. Villarreal then proceeded
to volunteer that he was coming in to Laredo from San Ygnacio and
that he was taking the gray Mercury to Perez Garage. He further
volunteered that he had received a telephone call from an unknown
person asking him to pick up the vehicle at Pepe's Convenience
Store in San Ygnacio and to deliver it to the Perez Garage in
Laredo. When Officer Luna asked Villarreal to identify his
passenger (Soto-Gutierrez), Villarreal stated that Soto-Gutierrez
was a friend of his whom he had happened to encounter at the same
convenience store in San Ygnacio. According to Villarreal, Soto-
Gutierrez had asked for a ride upon learning that Villarreal was
headed toward Laredo. Villarreal further stated that he did not
know the name, address, or telephone number of the owner of the
gray vehicle, but that he had been told that someone at the garage
would pay him on delivery. As to Villarreal's demeanor, Officer
Luna described him as being “pretty calm”, but also over-
cooperative in that he was volunteering detailed information in
response to a simple request to see his driver's license.
Villarreal then gave verbal consent to a search of his tow-truck
and its cargo. Upon opening the rear door of the gray Mercury,
Luna immediately observed several large brown taped bundles on the
floorboards between the front seat and the rear seat. The bundles
were partially covered by a piece of carpet, but still visible.
Concluding that the bundles were probably packages of marihuana,
6
Luna placed both Villarreal and Soto-Gutierrez under arrest. Soto-
Gutierrez attempted to flee the scene, but was reapprehended a
short time later. A thorough search of the gray Mercury revealed
the presence of numerous bundles of marihuana in the trunk of the
vehicle in addition to those seen by Officer Luna on the rear
floorboards. The total gross weight of the marihuana was 289
kilograms, well in excess of the 100 kilograms alleged in the third
count of the indictment.
To convict him of possessing marihuana with the intent to
distribute, the Government was required to prove beyond a
reasonable doubt that Villarreal (1) knowingly (2) possessed the
marihuana (3) with the intent to distribute it. United States v.
Garcia-Flores, 246 F.3d 451, 454 (5th Cir. 2001). As in most
cases, the only element in dispute was Villarreal's knowledge that
he was in possession of a controlled substance.
A jury may ordinarily infer a defendant's knowledge of the
presence of drugs from his control over the vehicle in which they
are found. Garcia-Flores, 246 F.3d at 454; United States v.
Moreno, 185 F.3d 465, 471 (5th Cir. 1999); United States v.
Shabazz, 993 F.2d 431, 441 (5th Cir. 1993). If the contraband is
hidden, however, we require additional circumstantial evidence that
is suspicious in nature or demonstrates guilty knowledge. United
States v. Ortega-Reyna, 148 F.3d 540, 544 (5th Cir. 1998); United
States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995).
7
In this case, the marihuana was not “hidden” in the usual
sense of being secreted in a hidden compartment. See Garcia-
Flores, 246 F.3d at 454; Moreno, 185 F.3d at 471; United States v.
Pennington, 20 F.3d 593, 598 (5th Cir. 1994). Instead, some of the
tape-wrapped bundles of marihuana were lying on the rear
floorboards of the gray Mercury, and were visible to anyone
standing near the car and looking through the rear window. The
jury could have inferred that Villarreal, the tow-truck driver, had
looked inside the vehicle and seen the bundles. It is unclear,
however, whether someone without specialized knowledge would have
recognized and identified the bundles as probably containing
contraband.2 Therefore, we consider whether additional
circumstantial evidence of knowledge is present.
One example of circumstantial evidence which may be probative
of knowledge is the value of the drug being transported. United
States v. Gamez-Gonzalez, _____ F.3d _____, 2003 WL 168650 at *3
(5th Cir. Jan. 27,2003); Garcia-Flores, 246 F.3d at 455; United
States v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir. 1999). In this
case, Villarreal was transporting more than 600 pounds of
marihuana, which the evidence showed was conservatively valued at
more than $300,000. The jury could reasonably have inferred that
2
Villarreal, who had previously sustained a state conviction
for possession of marihuana, might have possessed such heightened
knowledge. However, proof of his conviction was not admitted in
evidence, and the jury was not aware of it.
8
Villarreal would not have been entrusted with that extremely
valuable cargo if he was not part of the trafficking scheme. There
was additional significant circumstantial evidence of knowledge.
For example, Villarreal told Officer Luna that he had picked up
the gray Mercury at Pepe's Convenience Store in San Ygnacio,
although the videotape from the surveillance camera conclusively
established that he had picked up the vehicle at the stash house at
107 Benavides. In a later interview, Villarreal admitted that he
had picked up the vehicle at the stash house. Villarreal also made
conflicting statements as to when, where and how he had gotten
together with Soto, and apparently false statements regarding
Soto's activities at the stash house. Villarreal stated that Soto
had remained in the tow-truck, when the surveillance videotape
showed Soto getting down from the tow-truck and walking around to
the rear of the stash house. Further, the jury could have found
that Villarreal's statements to Officer Luna about the arrangements
for the transportation of the gray Mercury were implausible.
Villarreal told Luna that he had driven to San Ygnacio to pick up
the gray Mercury on the basis of an anonymous telephone call, and
that he never obtained the name or telephone number of the owner.
Both inconsistent statements and implausible explanations have been
recognized as evidence of guilty knowledge. Moreno, 185 F.3d at
472; Ortega-Reyna, 148 F.3d at 544. Also, a defendant's
exculpatory statements which are shown by other evidence to be
9
false may give rise to an inference of consciousness of guilt.
United States v. Pringle, 576 F.2d 1114, 1120 (5th Cir. 1978).
Far from being devoid of evidence pointing to guilt, the
record in this case is more than sufficient to support a verdict of
guilt beyond a reasonable doubt. Villarreal's possession of the
marihuana on February 11, 1999, is not disputed, and the large
quantity is indicative of intent to distribute. Moreno, 185 F.3d
at 471. Villarreal's inconsistent statements, false exculpatory
statements, and implausible explanations as to how he came to be
hauling a vehicle loaded with marihuana, when combined with all the
other evidence in the case, are more than sufficient circumstantial
evidence of guilty knowledge. The jury's verdict of guilty as to
the third count of the indictment is supported by sufficient
evidence.
II. NEWLY DISCOVERED EVIDENCE
On April 16, 2001, more than three months after the trial
ended, Villarreal filed a motion for a new trial based on newly
discovered evidence. The “new evidence” asserted by Villarreal
consists of the testimony of Carolina Blanquez; the testimony of
Cresencio Perez, and evidence captured on videotape by the
surveillance camera trained on the stash house. The district court
denied the motion for new trial. Our standard for review of that
decision is abuse of discretion. United States v. Reedy, 304 F.3d
358,371(5th Cir. 2002).
10
A motion for new trial based on newly discovered evidence may
be filed any time within three years after the verdict or finding
of guilt, and may be granted by the district court “if the
interests of justice so require.” Fed.R.Crim.P. 33. In order to
prevail on such a motion, the defendant has the burden of showing
that:
(1) The evidence is newly discovered and was unknown to
the defendant at the time of trial; (2) failure to detect
the evidence was not due to a lack of diligence by the
defendant; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the
evidence introduced at a new trial would probably produce
an acquittal.
Reedy, 304 F.3d at 372. The defendant must establish all five
prerequisites in order to prevail. United States v. Bowler, 252
F.3d 741,747 (5th Cir. 2001).
Applying these criteria to the instant case, we find that the
district court did not abuse its discretion in denying Villarreal's
motion for new trial based on newly discovered evidence. The
district court held an evidentiary hearing, at which Carolina
Blanquez and Cresencio (Chencho) Perez testified. A review of the
record of that hearing reveals that the testimony of Carolina
Blanquez could have served no evidentiary purpose other than to
impeach the testimony of Officer Jorge Luna. The testimony of
Cresencio Perez was of even less value to the defense. Although
the purported destination of Villarreal was Perez' garage in
Laredo, Perez testified that he did not recall ever being contacted
11
by anyone concerning receipt of the gray Mercury automobile and
that he knew nothing concerning Villarreal's transportation of it.
Perez' testimony, like that of Blanquez, would be unlikely to
produce an acquittal.
According to Villarreal, the most significant “new” evidence
was the videotape from the surveillance camera. As the district
court pointed out, of course, the videotape was not new evidence;
it was introduced in evidence at the trial. However, Villarreal's
new counsel argued that a procedure utilized after the trial to
slow down the videotape revealed details that would have bolstered
Villarreal's defense by corroborating post-arrest statements which
the Government contended were false. Specifically, Villarreal
contends that the slowed down videotape showed he was telling the
truth when he told arresting officers (1) that the gray Mercury
Marquis was emitting a large quantity of black smoke as it was
driven from the rear of the stash house to his tow-truck, and (2)
that some of the occupants of the stash house left the scene in a
blue pickup truck. The district court correctly found, however,
that the videotape was not newly discovered; it was disclosed to
the defense before the trial and was introduced in evidence at the
trial. If the defense failed to appreciate the significance of the
evidence, that failure constituted a lack of diligence. See United
States v. Jaramillo, 42 F.3d 920, 925 (5th Cir. 1995). Further,
the district court did not abuse its discretion in finding that the
12
proffered evidence was neither material nor likely to produce an
acquittal. The district court found that the slowed down videotape
did not clearly show the emission of black smoke from the gray
Mercury, and that the blue pickup truck did not appear on the video
until 6:00 p.m., more than an hour after Villarreal and his tow-
truck had left the stash house. The denial of the motion for new
trial based on newly discovered evidence was not error.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Villarreal argues that his trial attorney, Fernando Sanchez,
Jr., rendered ineffective assistance because he labored under
multiple conflicts of interest and his pretrial investigation and
preparation failed to uncover significant exculpatory evidence. He
presented his claim of ineffective assistance to the district court
as part of his motion for a new trial, and he seeks to appeal from
the district court's denial of that motion. The Government
contends that this Court has no jurisdiction to entertain that
appeal. The Government is correct. This Court has held that
claims of ineffective assistance of counsel do not constitute newly
discovered evidence for purposes of Rule 33. United States v.
Medina, 118 F. 3d 371, 372 (5th Cir. 1997); United States v.
Ugalde, 861 F.2d 802, 805-10 (5th Cir. 1988). Any motion for a new
trial based on any grounds other than newly discovered evidence
must be filed within seven days after the jury verdict. Ugalde,
861 F.2d at 805. In this case, Villarreal's motion was filed more
13
than three months after verdict. Therefore, the district court had
no jurisdiction to hear a claim of ineffective assistance of
counsel in the form of a motion for new trial.
Even if the claim of ineffective assistance of counsel had
been properly before the district court, the record indicates that
the claim is without merit. A review of the record leads to the
conclusion that Attorney Sanchez defended Villarreal vigorously and
competently. First, he filed a motion to suppress evidence, which
was denied after an evidentiary hearing. Second, he vigorously,
and successfully, resisted the Government's efforts to introduce
evidence concerning Villarreal's prior conviction for possession of
marihuana. Third, he effectively cross-examined the witnesses
presented in the Government's case-in-chief. Fourth, he called
defense witnesses to give exculpatory testimony. Fifth, he
delivered a vigorous summation, and interposed objections to the
Government's closing argument. That his efforts did not go
unrewarded is illustrated by the fact that the jury acquitted
Villarreal on the more serious conspiracy count.
Notwithstanding this record, Villarreal's new counsel insists
that Sanchez rendered ineffective assistance. In order to prevail
on this claim, Villarreal has the burden of showing not only that
his trial counsel's allegedly deficient performance fell below an
objective standard of reasonableness, but also that but for trial
counsel's errors there was a reasonable probability of a different
14
outcome. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
In this connection, Villarreal argues again that Sanchez failed to
offer important defense evidence in the form of the testimony of
Carolina Blanquez and Cresencio Perez as well as evidence derived
from the enhanced surveillance camera videotape. As we noted in
Section II, infra, this evidence was relatively insignificant, and
the district court correctly found no reasonable probability that
it would have affected the outcome of the trial. Villarreal
further contends, however, that Sanchez was laboring under multiple
conflicts of interest. He has the burden of showing that an actual
conflict of interest adversely affected Sanchez' performance.
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The mere possibility
of a conflict, absent a showing that the attorney actively
represented conflicting interests, is not sufficient. Id. To
prevail, a defendant must identify “some plausible defense strategy
or tactic [that] might have been pursued but was not, because of
the conflict of interest.” Hernandez v. Johnson, 108 F.3d 554, 560
(5th Cir. 1997)(quoting Perillo v. Johnson, 79 F.3d 441, 449 (5th
Cir. 1996). In this case, Villarreal weaves the following facts
into his theory of conflict of interest: (1) Sanchez was an
assistant district attorney in 1990 when that office prosecuted
Villarreal for possession of marihuana in Zapata County; (2)
several years later, after leaving the district attorney's office
for private practice, Sanchez represented Raul Sanchez, Arnulfo
15
Lares, and Ovidio Navarro, all of whom had been witnesses in
Villarreal's state court case, in connection with matters wholly
unrelated to either the old or new charges against Villarreal; (3)
Sanchez employed Raul Sanchez, who was also his cousin, to take
photographs of the arrest scene and the stash house in preparation
for Villarreal's defense, and (4) Sanchez was a friend of Cresencio
Perez, and chose not to call him as a defense witness because of
concern that Perez might be implicated in a drug trafficking case.
The district court carefully reviewed these claims, and correctly
found that neither individually nor collectively did they add up
to an actual conflict of interest. The mere fact of Sanchez'
employment in the district attorney's office at the time of
Villarreal's prior conviction did not represent a conflict of
interest, see Hernandez, 108 F.3d at 559-60, nor did his later
representation of various participants in the old case in unrelated
matters. With respect to Cresencio Perez, Villarreal proffered no
evidence that Sanchez failed to call Perez as a witness because of
their friendship. Finally, we note, as did the district court,
that if a potential conflict of interest did exist, Sanchez made
Villarreal aware of it before the trial. Having been so informed,
Villarreal chose to continue being represented by Sanchez. Even if
this issue were properly before the Court, we would find it lacking
in merit.
IV. CUMULATIVE EFFECT OF ERRORS
16
Villarreal's final contention is that the cumulative effect of
multiple errors that occurred at his trial was so prejudicial that
reversal of his conviction is required. There is case law to the
effect that the cumulative effect of a series of errors may require
reversal, even though a single one of those errors, standing alone,
would not require such a result. See e.g., United States v.
Canales, 744 F.2d 413, 430 (5th Cir. 1984). We have stressed,
however, that a reversal based on the cumulative effect of several
alleged errors is a rarity. Reedy, 304 F.3d at 373; United States
v. Lindell, 881 F.2d 1313, 1327 (5th Cir. 1989). In any event,
this proposition of law, however sound, has no application to the
instant case. We have held that the district court did not err in
finding the evidence sufficient to support a finding of
Villarreal's guilt, and in denying Villarreal's motion for a new
trial based on newly discovered evidence.
V. CONCLUSION
Villarreal has failed to show that the evidence was
insufficient to support the jury's verdict that he was guilty of
knowingly possessing more than 100 kilograms of marihuana with
intent to distribute it. He has also failed to demonstrate error
in the district court's denial of his motion for a new trial. For
these reasons, the judgment of the district court is AFFIRMED.
17