USA v. Rafael Fellove

Filing

UNPUBLISHED OPINION FILED. [09-41265 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 12/21/2010 for Appellant Rafael Fellove [09-41265]

USA v. Rafael Fellove ase: 09-41265 C

Document: 00511306451 Page: 1 Date Filed: 11/30/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41265 S u m m a r y Calendar November 30, 2010 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. R A F A E L FELLOVE, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-638-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* R a fa e l Fellove was convicted by a jury of possession with intent to d is t r ib u t e over 1,000 kilograms of marijuana. On appeal, he argues that the e v id e n c e was insufficient to support his conviction. Specifically, Fellove claims t h a t the evidence did not show that he knowingly possessed the marijuana found in his trailer. Because Fellove properly preserved the sufficiency issue in the district c o u r t, we review his arguments de novo. United States v. Harris, 420 F.3d 467,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-41265 Document: 00511306451 Page: 2 Date Filed: 11/30/2010 No. 09-41265 4 7 0 (5th Cir. 2005). To support Fellove's conviction for possession with intent t o distribute, the evidence must show: (i) a knowing, (ii) possession of a c o n t r o lle d substance, (iii) with the intent to distribute it. See United States v. M ille r , 146 F.3d 274, 280 (5th Cir. 1998). "The knowledge element in a possession case can rarely be established by d ir e c t evidence." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1 9 9 9 ). Knowledge may be inferred from control of a vehicle in which drugs are fo u n d , but only if "the drugs are clearly visible or readily accessible." United S ta te s v. Pennington, 20 F.3d 593, 598 (5th Cir. 1998). If the drugs are concealed o r otherwise out of plain sight, as in this case, control of the vehicle alone is not s u ffic ie n t to prove knowledge. Id. In such cases, "this Court requires other c ir c u m s t a n tia l evidence that is suspicious in nature or demonstrates guilty k n o w le d g e ." United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008) Factors indicating guilty statements, implausible

(in t e r n a l quotation marks and citation omitted). k n o w le d g e include nervousness, inconsistent

e x p la n a t io n s , possession of large amounts of cash, ownership or long-term p o s s e s s io n of the vehicle or item containing the contraband, and the value of the c o n t r a b a n d . See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003); U n ite d States v. Moreno, 185 F.3d 465, 472 & n.3 (5th Cir. 1999); Pennington, 20 F .3 d at 598. A t trial, the Government presented evidence that Fellove owned and o p e r a t e d the tractor and trailer that contained the 1,600-plus kilograms of m a r iju a n a discovered; that Fellove claimed that the day of his arrest was the fir s t time he had been to the Falfurrias, Texas, Border Patrol Checkpoint, but t h a t the checkpoint's database indicated that the truck and/or trailer had gone t h r o u g h the checkpoint at least seven other times; that Fellove stated that he did n o t know what he was transporting; that Fellove possessed two bills of lading t h a t contained incorrect, inconsistent, and incomplete information; that Fellove's d r iv e r 's logbook was inconsistent with his travels and statements; that Fellove 2

Case: 09-41265 Document: 00511306451 Page: 3 Date Filed: 11/30/2010 No. 09-41265 s h o w e d unusual curiosity and nervousness as his trailer was being searched; t h a t Fellove's trailer contained an envelope with $1,500 in twenty-dollar bills; a n d finally, that the volume of marijuana recovered from Fellove's trailer had an e s t im a t e d street value of three million dollars. See United States v. MartinezM o n c iv a is , 141 F.3d 1030, 1035 (5th Cir. 1994) ("reasonable jurors could c o n c lu d e that [a distributor] would not have entrusted millions of dollars in each t r u c k lo a d of drugs to an unknowing, innocent driver."). This evidence, when c o n s id e r e d in light of the record as a whole, provided a substantial basis for the ju r y to find that Fellove's possession was knowing. See Miller, 146 F.3d at 281. In addition, Fellove's control of the truck was sufficient to establish possession o f the marijuana, and the amount involved supported a finding that the m a r iju a n a was intended for distribution. See United States v. Jones, 185 F.3d 4 5 9 , 464 (5th Cir. 1999); United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1 9 9 4 ). Accordingly, the evidence was sufficient to support Fellove's conviction fo r possession with intent to distribute marijuana. See Jackson v. Virginia, 443 U .S . 307, 318 (1979). Fellove also contends that the testimony of Pedro Figueroa was in a d m is s ib le guilt-by-association evidence. Because Fellove did not object at t r ia l to any guilt-by-association evidence, review is for plain error. See United S ta te s v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006). T h e Government may not attempt to prove a defendant's guilt by showing t h a t he associates with "unsavory characters." See United States v. Singleterry, 6 4 6 F.2d 1014, 1018 (5th Cir. 1981). Here, the Government focused primarily o n the similarities between Fellove and Figueroa's unrelated cases. Figueroa's t e s t im o n y suggested a connection between Fellove and a marijuana broker who t r a n s p o r t e d large volumes of marijuana using the same method Fellove had e m p lo y e d here. See United States v. Trejo-Mata, 372 F. App'x 466, 467 (5th Cir. 2 0 1 0 ) (evidence linking defendant to drug broker involved in transporting drugs in a similar fashion to that employed by the defendant permissible "to create 3

Case: 09-41265 Document: 00511306451 Page: 4 Date Filed: 11/30/2010 No. 09-41265 in fe r e n c e s of knowledge."). Moreover, Fellove and Figueroa had the same drug b r o k e r 's phone number in their cell phones, although the two men (Fellove and F ig u e r o a ) had no ties to one another. Figueroa's testimony and the prosecutor's c o m m e n ts on that testimony, when viewed as a whole, were not impermissible e v id e n c e of guilt by association, see United States v. McCall, 553 F.3d 821, 827 (5 t h Cir. 2008), but were offered to further show Fellove's knowing possession o f the marijuana found in his trailer. Accordingly, the district court did not p la in ly err by permitting Figueroa's testimony. See Thompson, 454 F.3d at 464. A F F IR M E D .

4