US v. Ruben Gonzalez

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:09-cr-00070-BO-3 Copies to all parties and the district court/agency. [998484485] [10-4058]

US v. Ruben Gonzalez

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4058 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN JUAREZ GONZALEZ, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:09-cr-00070-BO-3) Submitted: November 29, 2010 Decided: December 14, 2010

Before WILKINSON, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Michael G. James, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Ruben Juarez Gonzalez was convicted of: conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine, 21 U.S.C. §§ 841(a)(1), 846 (2006); possession

with intent to distribute more than 500 grams of cocaine and aiding and abetting the same, 21 U.S.C. § 841(a)(1) (2006), 18 U.S.C. § 2 (2006); illegal entry, 8 U.S.C. § 1325(a) (2006); and false representation of United States citizenship, 18 U.S.C.

§ 1325(a) (2006). eight months.

He received an aggregate sentence of seventyGonzalez now appeals, contending that the

district court erred when it denied his Fed. R. Crim. P. 29 motion for judgment of acquittal with respect to the two drug charges. We affirm. "We review de novo the district court's ruling on a motion for judgment of acquittal and . . . will uphold the verdict if, viewing the evidence in the light most favorable to the government, States 129 that v. S. a it is supported 523 F.3d by 310, substantial 317 (4th evidence." cert. is as

United denied,

Reid, Ct.

Cir.),

663

(2008). finder

"Substantial of fact

evidence accept

evidence

reasonable

could

adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." omitted). Id. (internal quotation marks

We "can reverse a conviction on insufficiency grounds United States v.

only when the prosecution's failure is clear." 2

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Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation marks omitted). We review both direct and

circumstantial evidence and permit "the government the benefit of all reasonable inferences from the facts proven to those

sought to be established." 1018, 1021 (4th Cir. 1982).

United States v. Tresvant, 677 F.2d We "do not review the credibility

of witnesses and assume the jury resolved all contradictions in the testimony in favor of the government." Sun, 278 F.3d 302, 312 (4th Cir. 2002). To convict Gonzalez of conspiracy under 21 U.S.C. United States v.

§ 846, the government had to prove "(1) an agreement between two or more persons to engage in conduct that violates a federal drug law, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's knowing and voluntary participation in the conspiracy." United States v. Kellam, 568 F.3d 125, 139 (4th

Cir.), cert. denied, 130 S. Ct. 657 (2009) (internal quotation marks omitted). "After a conspiracy is shown to exist, . . .

the evidence need only establish a slight connection between the defendant and the conspiracy to support the conviction." Id. (internal quotation marks omitted). Testimony "Primo" asked visited if he at trial established informant one that Anthony kilogram "Maurice" Caldwell of and and

confidential to

wanted

purchase

cocaine.

Caldwell testified that a third individual, "Rudy," was known to 3

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be

Maurice's

supplier.

Caldwell

replied

that

he

could

only

afford one-half kilo but that he had a buyer for the remainder. Caldwell contacted authorities, alerting them to the impending transaction. to Caldwell's The next day, Maurice, Rudy, and Gonzalez traveled residence. Maurice drove one truck, while

Gonzalez drove Rudy in another truck.

While traveling to the

residence, Maurice and Rudy had numerous telephone conversations with Caldwell about the deal. Cell phone records disclosed that

two phones belonging to Gonzalez were used during some of these calls. The conversations were recorded. After Maurice, Rudy and Gonzalez arrived at the

Caldwell residence, Caldwell spoke to Rudy and Maurice about the impending transaction. Gonzalez heard some of the

conversations.

Caldwell left the property and returned with an

undercover officer, James Yowell, who posed as a potential buyer of one-half of the cocaine. Gonzalez saw Maurice retrieve the

bundle of cocaine from his truck, and he entered the residence with Yowell, Caldwell, Maurice, and Rudy. kitchen. The men went to the

Gonzalez was described as calm, and he said nothing Yowell

when Yowell cut the bundle open to inspect the drug.

testified that Gonzalez positioned himself so as to block the exit from the kitchen. Caldwell and Yowell left the residence on the pretext of having to get money to pay for the cocaine. 4 When they did

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not

return,

Rudy,

Maurice,

and

Gonzalez

left

the

residence.

Police soon initiated traffic stops of the trucks Gonzalez and Maurice were driving. five cell phones. Inside the Gonzalez truck, they found

Two belonged to Gonzalez, and three to Rudy.

This evidence was sufficient to convict Gonzalez of conspiracy. There clearly was an agreement among at least two Gonzalez's knowledge of and

persons to violate the drug laws.

participation in the conspiracy are established by his driving Rudy to the Caldwell residence, the use of his two cell phones -- presumably to discuss the impending transaction -- during the drive, his hearing conversations at the residence about drugs and money, his calm and unquestioning demeanor when Yowell cut open the bundle of cocaine, and his blocking the exit from the kitchen. With respect to Count Two, the government was required to prove "(1) possession of the controlled substance; (2) See

knowledge of the possession; and (3) intent to distribute."

United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009). "A defendant is guilty of aiding with and and abetting if he in has the

knowingly

associated

himself

participated

criminal venture."

United States v. Burgos, 94 F.3d 849, 873

(4th Cir. 1996) (en banc) (internal quotation marks omitted); see 18 U.S.C. § 2(a). only establish that To prove association, the government need the defendant 5 was "cognizant of the

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principal's activity."

criminal

intent

and

the

lawlessness

of

his

Burgos, 94 F.3d at 873.

"[P]articipation in every

stage of an illegal venture is not required, only participation at some stage accompanied by knowledge of the result and intent to bring about that result." F.2d 701, 705 (4th Cir. United States v. Arrington, 719 1983) (internal quotation marks

omitted). The evidence discussed above was sufficient to convict Gonzalez of aiding and abetting the possession with intent to distribute cocaine. He clearly was cognizant of the intent of

Maurice and Rudy to distribute the cocaine, and he participated in the offense by, for instance, driving Rudy to and from the Caldwell residence, allowing the use of his cell phones to

facilitate the anticipated transaction, and blocking the exit from the kitchen while the cocaine was inspected. We accordingly affirm. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

6