USA v. Eduardo Aquino-Brito

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Martha Craig Daughtrey, Authoring Judge; Eric L. Clay, Circuit Judge and Robert H. Cleland, U.S. District Judge., EDM

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0758n.06
No. 11-3396
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED

Jul 13, 2012
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUARDO AQUINO-BRITO,
Defendant-Appellant.

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LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO

Before: DAUGHTREY and CLAY, Circuit Judges; CLELAND,* District Judge.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Eduardo Aquino-Brito
appeals his convictions for conspiracy to possess with intent to distribute in excess of 500
grams of cocaine and for possession with intent to distribute in excess of 500 grams of
cocaine. He contends that the evidence adduced at trial was insufficient to support those
convictions and that the district judge erred in instructing the jury on the concept of
deliberate ignorance. We disagree and affirm.

When analyzing a challenge to the sufficiency of the evidence, we must determine
whether, viewing the trial testimony and exhibits in the light most favorable to the

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The Hon. Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.

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prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In doing
so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute
our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.
1993). Applying these standards to the facts before us, we conclude easily that the
government satisfied its burden of establishing that Aquino-Brito both conspired to
possess, and did actually possess, with intent to distribute almost two kilograms of cocaine.

At trial, prosecution witnesses established that Cincinnati police arrested Victor
Monroe, a known cocaine trafficker, on June 4, 2010. While Officer Kyle Ingram was
interviewing Monroe at the police station, Ingram became aware that several calls from a
person identified as “Carlos” had been made to Monroe’s confiscated cell phone. In light
of those calls, the police concocted a scheme in which Monroe would arrange to buy
cocaine from “Carlos” and would travel to meet “Carlos” at a location where the seller or
sellers could be arrested.

In accordance with that plan, Monroe did in fact contact “Carlos.” Monroe, Ingram,
and another officer then drove to a Cincinnati gas station for the prearranged “purchase”
of contraband. Upon their arrival, “Carlos,” later identified as Ishmael Gonzalez-Ocampo,
exited a blue Chevrolet Lumina and, after motioning to the driver of a nearby white SUV,
approached Monroe and asked whether Monroe was going to follow him to a location
where the transaction could be consummated. At that time, however, assisting police

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officers appeared on the scene and arrested Gonzalez-Ocampo; the two passengers in the
Lumina, Gonzalez-Ocampo’s brother and Rafael Carrillo-Medina; the defendant, who was
driving the SUV; and Osbel Osmal Castellano-Guerra, the passenger in the SUV. A
subsequent search of the SUV revealed that “[b]ehind the driver’s seat in a blue and yellow
backpack were approximately two kilos of cocaine.”

Additional information regarding the criminal activities of June 4, 2010, was offered
through the trial testimony of Gonzalez-Ocampo, Castellano-Guerra, and Carrillo-Medina.
Through that testimony, the government established that Gonzalez-Ocampo, also known
as Carlos Javier Pagan, lived in Cincinnati and had been asked by Victor Monroe to obtain
for Monroe a quantity of cocaine. Gonzalez-Ocampo had grown up in Mexico with Rafael
Carrillo-Medina and knew that Carrillo-Medina, who then lived in Columbus, Ohio, had
previously mentioned his ability to procure cocaine. Gonzalez-Ocampo contacted CarrilloMedina, who in turn contacted a work associate, Castellano-Guerra, about providing the
cocaine for sale to Monroe. Initially, Castellano-Guerra was unsuccessful in locating a
supplier, but he later met with the defendant, who instructed Castellano-Guerra and
Carrillo-Medina to follow him to his residence.

At the Columbus apartment complex where the defendant lived, Aquino-Brito made
a phone call to an unidentified individual and then drove Castellano-Guerra and CarrilloMedina in the white SUV to another location where someone approached the vehicle and
handed the defendant a plastic bag containing two bricks of cocaine. Aquino-Brito

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transferred the bag to Carrillo-Medina in the back seat of the SUV, and Carrillo-Medina
placed the bag into Castellano-Guerra’s backpack before the trio departed Columbus for
Cincinnati. According to the trial witnesses, the defendant mentioned to them that the
cocaine would be sold for $36,000 and that Aquino-Brito would pay each of them
approximately one thousand dollars for their assistance in the transaction.

As the trio of Aquino-Brito, Castellano-Guerra, and Carrillo-Medina made their way
from Columbus to Cincinnati, Carrillo-Medina, sitting in the back seat of the white SUV,
used his cell phone to call Gonzalez-Ocampo to tell “him that they were coming with the
drug.” When they eventually met with Gonzalez-Ocampo and his brother at a Cincinnati
rendezvous point, Carrillo-Medina exited the SUV and became a passenger in GonzalezOcampo’s Lumina. The vehicles, the Lumina and the white SUV, were then driven to
another location to await the arrival of Monroe. When Monroe arrived with the undercover
officers, the defendant and the other individuals participating in the foiled transaction were
arrested.

Two additional bits of evidence offered at trial contributed to the case made against
Aquino-Brito. First, during his testimony, Gonzalez-Ocampo claimed that, approximately
three days after their arrests, the defendant offered Gonzalez-Ocampo $5,000 if GonzalezOcampo would accept all the guilt for the attempted drug transaction.

In addition,

Cincinnati police officer Edwin Rivera testified that he took a voluntary statement from the
defendant on the night of Aquino-Brito’s arrest. According to Rivera, although Aquino-Brito

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attempted to deflect some of the criminal blame from himself onto others, the defendant
nevertheless admitted:

[H]e was contacted by Rafael [Carrillo-Medina] and Osmal [CastellanoGuerra] because they knew he had a driver’s license and they needed him
to drive them to Cincinnati and back the same night. He was told he would
be paid by both. He was to be picked up in a white vehicle, driven by Osmal,
and he was shown a bag containing cocaine. After taking control of the
vehicle, all three drove down to Cincinnati.

Aquino-Brito also took the stand in his own defense. Admitting that he drove to
Cincinnati with Castellano-Guerra and Carrillo-Medina, the defendant nevertheless insisted
that he was transporting the duo solely so that Castellano-Guerra could purchase a new
vehicle at a bargain price. He denied having knowledge of any pending drug transaction
until mere minutes before his arrest. He thus testified that he was not aware that the
backpack found in the vehicle he was driving contained cocaine, and he denied that he had
relayed any such information to Officer Rivera after his arrest. The defendant also denied
on the witness stand that, while driving to Cincinnati, he overheard Carrillo-Medina talking
on a cell phone about a drug delivery, saying, “I don’t go pay attention to other people’s
conversation.”

To establish the defendant’s guilt of the offense of possession of a controlled
substance with the intent to distribute, the government must prove, tautologically, “that:
(1) the defendant[ ] knowingly, (2) possessed a controlled substance, (3) with the intent to
distribute.” United States v. Wettstain, 618 F.3d 577, 585 (6th Cir. 2010), cert. denied, 131

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S.Ct. 1551 (2011) (citing United States v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006)). To
establish guilt of a conspiracy to possess a controlled substance with intent to distribute,
“the government must prove, beyond a reasonable doubt: (1) an agreement to violate drug
laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the
conspiracy.” Id. at 584 (citation and internal quotation marks omitted).

Our summary of portions of the trial testimony in this case clearly establishes that
a rational trier of fact would have been justified in concluding that Aquino-Brito possessed
approximately two kilograms of cocaine that were to be distributed to another individual for
$36,000. Furthermore, the prosecution witnesses provided sufficient testimony that the
defendant knowingly agreed with and assisted other individuals in procuring the cocaine
in question and in transporting it to an agreed-upon location for the sales transaction. We
thus have no hesitation in concluding that sufficient evidence was adduced at trial to
establish Aquino-Brito’s guilt of the charged offenses beyond a reasonable doubt.

The defendant nevertheless contends that we should credit his own exculpatory
testimony and not the testimony of the prosecution witnesses because those individuals
had incentives to testify falsely and were not otherwise believable.

As we stated

previously, however, it is not our place on appeal to re-evaluate the credibility of the
witnesses that the jurors had the opportunity to observe. See Hilliard, 11 F.3d at 620. The
challenge to the sufficiency of the convicting evidence is thus without merit.

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Likewise, we conclude that the defendant cannot prevail on his assertion that the
district court erred in offering the jury an instruction on the concept of deliberate ignorance.
At trial, the defendant claimed that he merely was driving a friend to purchase a vehicle in
Cincinnati and was unaware of Castellano-Guerra’s and Carrillo-Medina’s intent to
distribute two kilograms of cocaine. In light of that testimony, the prosecution requested
that the court inform the jurors that they could still find Aquino-Brito guilty of the charged
offenses if the defendant consciously chose to ignore obvious signs of his participation in
illegal behavior. The district court acquiesced and offered the following instruction:

No one can avoid responsibility for a crime by deliberately ignoring the
obvious. If you are convinced beyond a reasonable doubt that the defendant
deliberately ignored a high probability that Gonzalez-Ocampo, Guerra, and
Medina were intending to distribute the cocaine in question, then you may
find that he knew of the agreement to distribute drugs.
But to find this, you must be convinced beyond a reasonable doubt
that the defendant was aware of a high probability that Gonzalez-Ocampo,
Guerra, and Medina were intending to distribute the cocaine in question, and
that the defendant deliberately closed his eyes to what was obvious.
Carelessness, or negligence, or foolishness on his part is not the same as
knowledge, and is not enough to convict. This, of course, is all for you to
decide.

We review allegations of error in the jury charge for an abuse of discretion. United
States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010), cert. denied, 131 S.Ct. 1813 (2011).
Moreover, we do not examine a challenged instruction in isolation; rather, “[j]ury
instructions are reviewed as a whole to determine whether they fairly and adequately
submitted the issues and applicable law to the jury.” United States v. Poulsen, 655 F.3d

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492, 501 (6th Cir. 2011), cert. denied, 132 S.Ct. 1772 (2012). “Thus, we may reverse the
jury’s conviction only if the instructions, viewed as a whole, were confusing, misleading, or
prejudicial.” Geisen, 612 F.3d at 485 (citations and quotation marks omitted).

True, we have cautioned that a deliberate-ignorance jury instruction “should be used
sparingly because of the heightened risk of a conviction based on mere negligence,
carelessness, or ignorance.” Id. at 486. However, “when there is evidence supporting an
inference of deliberate ignorance,” such an instruction is proper. Id. (citing United States
v. Lee, 991 F.2d 343, 351 (6th Cir. 1993).

In this case, the risk of a conviction based upon mere carelessness, negligence, or
foolishness on Aquino-Brito’s part was minimized by the instruction given by the district
judge that specifically alerted the jurors to the fact that such lesser standards could not
support a verdict of guilt. We recognized in Geisen that such a cautionary limitation “is an
accurate statement of the law.” Id. Furthermore, even when a deliberate-ignorance
instruction is improperly given, that jury charge “is at most harmless error when[, as here,]
the prosecution presented sufficient evidence of actual knowledge.” Id. (citing United
States v. Mari, 47 F.3d 782, 786 (6th Cir. 1995); Griffin v. United States, 502 U.S. 46, 5556 (1991)).

For the reasons set out above, we find no merit to either of the issues raised by
Aquino-Brito on appeal. We thus AFFIRM the judgment of the district court.

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