USA v. Alejandro Hernandez-Vera

Filing

UNPUBLISHED OPINION FILED. [09-40821 Affirmed ] Judge: EMG , Judge: FPB , Judge: BML Mandate pull date is 01/13/2011 for Appellant Alejandro Hernandez-Vera, Appellant Erick Herrera-Gutierrez, Appellant Martin Reyes-Cedillo and Appellant Federico Turrubiates-Garza [09-40821]

USA v. Alejandro Hernandez-Vera Case: 09-40821

Document: 00511330991 Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 23, 2010 N o . 09-40821 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. A L E J A N D R O HERNANDEZ-VERA; MARTIN REYES-CEDILLO; F E D E R I C O TURRUBIATES-GARZA; ERICK HERRERA-GUTIERREZ, D e fe n d a n t s ­ A p p e lla n t s .

A p p e a l from the United States District Court for the Southern District of Texas USDC No. 1:09-CR-60-3

B e fo r e GARZA and BENAVIDES, Circuit Judges, and LYNN,* District Judge. L Y N N , District Judge:* * A le ja n d r o Hernandez-Vera, Martin Reyes-Cedillo, Federico TurrubiatesG a r z a , and Erick Herrera-Gutierrez (collectively, the Defendants) were each c o n v ic t e d of possession with the intent to distribute and conspiracy to possess w it h the intent to distribute approximately 119.06 kilograms of marijuana. On

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District Judge of the Northern District of Texas, sitting by designation.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 09-40821 Document: 00511330991 Page: 2 Date Filed: 12/23/2010

No. 09-40821 a p p e a l, the Defendants argue that there is insufficient evidence to support the ju r y 's guilty verdict. We affirm.

I T h e Defendants were arrested by the United States Border Patrol in a t h ic k , brushy area approximately 120 yards from the Rio Grande River. This a r e a , known as the Armstrong Ranch, is a frequently used route for drug and a lie n smuggling. In high-traffic areas such as this, the Border Patrol has placed g r o u n d sensors that detect movement and notify the Border Patrol. On the e v e n in g of the Defendants' arrests, Agents Calderon, Barnett, and Hunt arrived a t the Armstrong Ranch in response to a notification by the Border Patrol d is p a t c h that a ground sensor in that area had been tripped. T h e agents first looked for signs that anyone had crossed any of the dirt r o a d s . Agent Hunt notified Agent Calderon and Agent Barnett that he had fo u n d footprints crossing the road, and the agents started looking for people in t h e brush. While Agent Barnett remained on the edge of the brush, Agent C a ld e r o n would move between five and ten yards into the thicket and then come b a c k out. Using this tactic, the agents came across a juvenile hiding in the b r u s h . As the agents seized the juvenile, they saw another individual running s o u th . Although Agent Barnett chased this individual, he escaped into the rows o f corn surrounding the thicket. Meanwhile, Agent Calderon took the juvenile t o a patrol vehicle and remained with him while the investigation continued. A g e n t Lopez arrived at the Armstrong Ranch approximately ten to fifteen m i n u t e s after the other agents in response to a call by Agent Calderon. He b e g a n searching the north side of the brush. After a few minutes of searching, A g e n t Lopez discovered Reyes-Cedillo hiding in the brush. Agent Barnett

a s s is t e d Agent Lopez in removing Reyes-Cedillo from the brush. Upon leaving t h e brush, Reyes-Cedillo told the agents that he was only an illegal alien. 2

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No. 09-40821 A g e n t Barnett returned to the location where the agents had apprehended t h e juvenile and continued searching the area with Agent Hunt. Following a t r a il inside the brush, the agents found five bundles of marijuana in trash bags t h a t were tied with rope. The bundles had straps made by rope so that they c o u ld be carried like backpacks. The bundles were about fifteen to twenty yards fr o m where Reyes-Cedillo was found. A fte r the bundles were discovered, Agent Lopez continued to search the a r e a where Reyes-Cedillo was found. He subsequently found the three other D e fe n d a n t s hiding in the brush. At this point it was dark, and Agent Lopez c o u ld not see the bundles from the places the Defendants were hiding, but he c o u ld see Agent Hunt and his flashlight in the area with the bundles through the trees. The agents then took the bundles and the Defendants to the Fort Brown S t a tio n for processing. At the station, Agent Lopez observed red markings on t h e shoulders and armpits of all four Defendants. Agent Lopez also saw freshly t o r n skin on one of Herrera-Gutierrez's shoulders. The Border Patrol took p h o to g r a p h s of the Defendants' backs and shoulders, and the Government in t r o d u c e d these photographs as evidence during trial. At the station, agents interviewed Hernandez-Vera after he waived his M ir a n d a rights. Hernandez-Vera stated that he, the other Defendants, and the ju v e n ile had crossed the border with a smuggler, who ran away when he saw the B o r d e r Patrol trucks arrive. He also told the agents that he had been carrying a backpack that contained clothes, blankets, and other small things and that the b a c k p a c k weighed approximately fifteen kilograms. He said that he threw the b a c k p a c k away when he was running from the Border Patrol. The morning after the Defendants' arrest, Agent Hunt asked Agent G u e r r a to go to the area where the Defendants were arrested and see where the D e fe n d a n t s had crossed the border. Agent Guerra found signs that individuals 3

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No. 09-40821 h a d crossed--footprints and grass dragged across the road--and, based on the p r in t s left by different shoes, Agent Guerra estimated that four to six people had c r o s s e d . He followed the signs into the brush and searched the area. He found o n e old tennis shoe that he concluded had been there for some time, but he did n o t find any backpacks with clothing. Agent Guerra did not find any other signs t h a t anyone had crossed the border. A federal grand jury returned a two-count indictment charging the D e fe n d a n t s with (1) conspiring to possess with intent to distribute

a p p r o x im a t e ly 119.06 kilograms of marijuana and (2) possessing with intent to d is t r ib u t e the marijuana. The Defendants pleaded not guilty and proceeded to t r i a l. Each Defendant moved for a judgment of acquittal at the close of the G o v e r n m e n t 's evidence and again at the close of the evidence in the case. The d is t r ic t court denied these motions. The jury found the Defendants guilty as to b o th counts of the indictment, and the district court sentenced each of the D e fe n d a n t s . This appeal followed. II B e c a u s e the Defendants moved for a judgment of acquittal at the close of t h e Government's evidence and again at the close of all evidence in the case, we r e v ie w the Defendants' sufficiency of the evidence claim de novo.3 We review the s u ffic ie n c y of the evidence to determine whether a rational trier of fact could h a v e found the essential elements of the offense beyond a reasonable doubt.4 "In a p p ly in g this standard, we view the evidence in the light most favorable to the p r o s e c u t io n and accept all reasonable inferences that tend to support the

See United States v. Broadnax, 601 F.3d 336, 343 (5th Cir. 2010), petition for cert. filed, No. 09-11478 (June 17, 2010). United States v. Sylvester, 583 F.3d 285, 295 (5th Cir. 2009), cert. denied, 130 S. Ct. 1313 (2010).
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No. 09-40821 v e r d ic t."5 "The evidence need not exclude every reasonable hypothesis of

in n o c e n c e or be wholly inconsistent with every conclusion except that of guilt, a n d the jury is free to choose among reasonable constructions of the evidence." 6 H o w e v e r , we will reverse if the evidence "gives equal or nearly equal c ir c u m s t a n t ia l support to a theory of guilt and a theory of innocence, . . . as u n d e r these circumstances a reasonable jury must necessarily entertain a r e a s o n a b le doubt."7 III T h e Defendants argue that there is insufficient evidence to support their c o n v ic t io n s on either the conspiracy charge or the possession charge. In order t o convict a defendant of a drug conspiracy, the Government must prove beyond a reasonable doubt: (1) "an agreement that entails violation of federal narcotics la w s " ; (2) "the defendant's knowledge of the agreement and intent to join it"; and (3 ) the defendant's voluntary participation in the conspiracy.8 "Each element m a y be inferred from circumstantial evidence; that is, the agreement may be in fe r r e d from a `concert of action' and knowledge of a conspiracy and voluntary p a r t ic i p a t io n . . . may be inferred from a collection of circumstances." 9 "The e s s e n t ia l elements of possession with the intent to distribute a controlled s u b s t a n c e in violation of 21 U.S.C. § 841 are (1) knowledge, (2) possession, and

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Broadnax, 601 F.3d at 343 (internal quotation marks omitted). United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Id. (internal quotation marks omitted) (emphasis in original). Sylvester, 583 F.3d at 295. United States v. Watkins, 591 F.3d 780, 788 (5th Cir. 2009).

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No. 09-40821 (3 ) intent to distribute the controlled substance."1 0 "Possession may be actual or c o n s t r u c t iv e and may be proved by either direct or circumstantial evidence." 11 T h e Defendants contend that the evidence gives equal circumstantial s u p p o r t to a theory of guilt and a theory of innocence, and thus requires this c o u r t to reverse the judgment of the district court. They maintain that the e v id e n c e in this case equally supports a theory that the marijuana belonged to s o m e o n e else. T h e Defendants assert that the following facts support their theory that t h e bundles of marijuana could have belonged to someone other than the D e fe n d a n t s . The Defendants were discovered in a high-traffic area with thick c o v e r that is known for narcotics and alien smuggling. One man escaped, and it is possible that more people could have escaped because the area was not s e c u r e . The sensor in the Armstrong Ranch went off eighteen other times in the t w e n t y -fo u r hours prior to the Defendants' arrest, and it went off six more times w h ile the Border Patrol agents were investigating the area. Although Agent

G u e r r a found signs of travel, he could not link those signs to the Defendants. The Defendants further argue that there is no evidence that they were a w a r e of the bundles of marijuana in the brush; no Defendant made selfi n c r i m in a t in g statements or demonstrated guilty knowledge of events in the b r u s h where the marijuana was found. When agents found Reyes-Cedillo, he im m e d ia t e ly told them that he was only an illegal alien. Furthermore, the m a r iju a n a was not visible from where the Defendants were hiding, and there w a s not a clear path from where the Defendants were found to where the m a r iju a n a was located. Agent Hunt acknowledged that in his seven years with t h e Border Patrol, "a package of marijuana that was unattended" had been

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United States v. Mata, 491 F.3d 237, 242 (5th Cir. 2007). Id.

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No. 09-40821 fo u n d in the Armstrong Ranch area, though no further details were provided. Hernandez-Vera told the agents that he was carrying a backpack, but the area w a s not scoured immediately after the arrest to look for other people or b a c k p a c k s . He also denied any involvement with the marijuana, even when A g e n t Hunt falsely told Hernandez-Vera that there was video of him carrying t h e marijuana. The Defendants argue that a reasonable hypothesis of innocence is that the marks on the Defendants' shoulders were caused by moving through t h e brush. Turrubiates-Garza argues that, in the Government's photographs, n o marks are apparent on the Defendants' skin, except on Herrera-Gutierrez. Herrera-Gutierrez argues that the marks on his body were not fresh. However, after reviewing the evidence presented at trial, we are satisfied t h a t the evidence was sufficient to meet each of the elements of both charges and t h e r e fo r e sufficient to sustain the jury's verdict. Agent Guerra testified that he fo u n d signs that four to six people had crossed the border in the area where the D e fe n d a n t s were found, and he found no other signs that anyone else had c r o s s e d in the area. Hernandez-Vera told the Border Patrol that the Defendants h a d crossed the border together. Each of the Defendants had marks on his s h o u ld e r s and armpits that were consistent with carrying the bundles of m a r iju a n a . Although Turrubiates-Garza argues that these marks were not v is ib le in the Government's photographs, and Herrera-Gutierrez argues that the m a r k s on his body were not fresh, Agent Lopez testified at trial that he saw the m a r k s on all four Defendants' bodies and that skin on Herrera-Gutierrez's s h o u ld e r s was freshly torn. t e s t im o n y . F u r t h e r m o r e , the jury was entitled to discredit Hernandez-Vera's c o n t e n t io n that the marks on his shoulders were the result of carrying a b a c k p a c k with clothes, blankets, and other small objects. The Border Patrol did n o t find any other backpacks in the area where the Defendants were 7 The jury was entitled to credit Agent Lopez's

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No. 09-40821 a p p r e h e n d e d on the night of their arrest or during Agent Guerra's search the f o l l o w in g morning. There was no evidence that a large quantity of drugs, in m u lt ip le containers, had previously been found abandoned in the area. Accordingly, there was sufficient evidence for the jury to conclude that the D e fe n d a n t s knowingly and voluntarily agreed to violate federal narcotics laws. Likewise, there was sufficient evidence for the jury to find that the Defendants k n o w in g ly possessed the marijuana with the intent to distribute.1 2 * * *

F o r the foregoing reasons, we AFFIRM the judgment of the district court.

See also United States v. Williamson, 533 F.3d 269, 277-78 (5th Cir. 2008) ("We have held in the past that the mere possession of a quantity of drugs inconsistent with personal use will suffice for the jury to find intent to distribute." (internal quotation marks omitted)).

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