United States v. Chavira

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

m 99-50352 Summary Calendar _______________

UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS

LILIANA RUIZ CHAVIRA and MARTIN ALONSO CHAVEZ, Defendants-Appellants. _________________________

Appeal from the United States District Court for the Western District of Texas _________________________ February 10, 2000

Before SMITH, BARKSDALE, and On October 28, 1998, an informant, Jose PARKER, Circuit Judges. Cruz, informed Armando Apodaca of the Metro Narcotics Task Force that a red car JERRY E. SMITH, Circuit Judge:* loaded with cocaine would be crossing from Mexico and that Cruz would be driving the car Martin Chavez was convicted of conspiring to a house in El Paso. Acting on the tip, to possess with intent to distribute a quantity officers observed Cruz pick up the car and of cocaine in violation of 21 U.S.C. §§ 846 drive it to a house at 500 Dorsey Street. and 841(a)(1), and he and Liliana Chavira According to Cruz, the car was loaded with were convicted of possession with intent to forty kilograms of cocaine that he placed in the distribute a quantity of cocaine in violation of garage. Officers observed Chavez driving a 21 U.S.C. § 841(a)(1). Chavez challenges blue van into the garage, closing the garage denial of a motion to suppress and a three- door, and according to Cruz, loading the level upward adjustment in sentencing, and cocaine into the van. Shortly thereafter, the Chavez and Chavira claim the evidence is garage door was opened, and Chavez left the insufficient to support their convictions. We premises in the van. affirm Chavez’s conviction and sentence, but we reverse and remand Chavira’s conviction The following day, Cruz notified Apodaca for insufficient evidence. of another such shipment, this time specifying that two Hispanic males driving a blue van I. with a given license plate number would pick up the shipment. Officers once again observed Cruz drive the red car to the Dorsey house, at * Pursuant to 5TH CIR. R. 47.5, the court has which point constant surveillance of the house determined that this opinion should not be began. published and is not precedent except under the limited circumstances set forth in 5TH CIR. On October 30, Chavez arrived at the R. 47.5.4.

house in the van and knocked on the door, but paper on which were written the license plate left after receiving no response. After making numbers of three vehicles involved in the a phone call at a nearby convenience store, surveillance, two-way radios, approximately Chavez returned and knocked again, leaving a $2,000 in cash, two garage door openers, and second time when there was still no answer. A an advertisement with the address 11640 few hours later, officers spotted the van McAuliffe. Officers later determined that one nearby; Chavez dropped off a man later garage door opener operated the door at the identified as Jesus Dominguez at the Robert David residence, and one operated the convenience store, and proceeded to the door at 11640 McAuliffe, a location at which Dorsey home. Chavez backed the van into the officers had seen Dominguez and Chavez garage and closed the garage door, whereupon previously. Cruz observed the cocaine being loaded. Approximately fifteen to thirty minutes later, Chavez claimed that he was staying at the Chavez left the house and picked up 11640 McAuliffe residence while the owners Dominguez at the convenience store. were out of town. A consent search of that residence located no contraband but did locate Officers followed the van to a house at a hidden compartment in the kitchen area. 12457 Robert David Drive, where the van entered the garage, and the garage door was Dominguez consented to a search of his closed. Approximately thirty to forty-five van, in which no relevant evidence was found. minutes later, Dominguez, with Chavez as Dominguez likewise gave consent to search passenger, drove the van to a nearby grocery the house on Robert David, where he informed store, where Chavez left the van and entered a the officers that he lived with his common-law gold Nissan Maxima, which he drove away. wife, Chavira, and her child. On arrival at the Chavez was not followed, but Dominguez residence, Chavira was informed of returned to the house on Robert David in the Dominguez’s consent to a search of the blue van. residence for evidence of narcotics activity; The following day, Dominguez was she asserted that she was not aware of any observed leaving the house in the van twice, drugs being kept there, but she did not object driving slowly around the area for hours, and to the search. Officers located approximately making “heat runs,” described as quick 716 pounds of cocaine in two secret U-turns designed to discover whether one is compartments of the home; the compartment being followed. On the second such design was similar to that found in the excursion, Dominguez ultimately evaded McAuliffe residence. surveillance. Following denial of motions to suppress, Later that day, officers spotted the van back Chavez and Chavira were tried together for at the grocery store parking lot and located conspiring to possess with intent to distribute Chavez driving the Maxima with Dominguez a quantity of cocaine in violation of 21 U.S.C. as passenger. The officers believed the two §§ 846 and 841(a)(1) (“the conspiracy count”) were attempting to discover the surveillance, and possession with intent to distribute a by driving very slowly, making frequent stops, quantity of cocaine in violation of 21 U.S.C. and making several heat runs; they also § 841(a)(1) (“the possession count”).2 The witnessed them using two-way radios. Two court granted Chavira a judgment of acquittal marked units pulled over the Maxima, and on the conspiracy count but denied acquittal officers arrested Chavez and Dominguez.1 motions on the remaining counts. The jury found Chavez guilty on both counts and A search of the Nissan yielded a piece of Chavira guilty on the possession count.

1 2 The parties stipulated that an arrest occurred Dominguez was also a co-defendant, but he is when the Maxima was stopped. not involved in this appeal.

II. Cruz twice informed Apodaca that he Chavez contends that his arrest was illegal, would be driving a red car containing a load of and therefore that the court erred in denying cocaine to the Dorsey house, and was his motion to suppress evidentiary fruits of observed driving a red car to the house on that arrest. In reviewing a denial of a motion both occasions. Cruz further informed to suppress, we view the evidence in the light Apodaca that Hispanic males in a blue van most favorable to the party that prevailed in with a specified license plate were going to the district court, here the government, and pick up the cocaine, and Chavez was observed consider the evidence offered at the driving the van into the garage of the Dorsey suppression hearing and the evidence admitted house following each of Cruz’s visits (on the at trial. See United States v. Gonzales, 121 second of which Chavez dropped off F.3d 928, 938 (5th Cir. 1997), cert. denied, Dominguez immediately before the brief stop). 522 U.S. 1063, and cert. denied, 522 U.S. 1131 (1998). Cruz informed Apodaca that he personally Because Chavez was arrested without a observed the van being loaded with the warrant, probable cause was required. See cocaine. Cruz was deemed credible because United States v. Ramirez, 145 F.3d 345, 352 he had been providing reliable information on (5th Cir.), cert. denied, 525 U.S. 1046 (1998). narcotics transactions to Apodaca for over a year.4 Chavez and Dominguez were observed Probable cause exists when the totality performing counter surveillance measures in of facts and circumstances within a their vehicles. The totality of facts and police officer's knowledge at the circumstances provided probable cause to moment of arrest are sufficient for a arrest. reasonable person to conclude that the III. suspect had committed or was Chavez claims insufficiency of the evidence. committing an offense. The presence of “In evaluating a challenge to the sufficiency of probable cause is a mixed question of the evidence, we view the evidence in the light fact and law. This court will not disturb most favorable to the verdict and uphold the the factual findings of the district court verdict if, but only if, a rational juror could absent clear error. Accepting these have found each element of the offense beyond facts, the ultimate determination of a reasonable doubt.” United States v. Brown, whether there is probable cause for the 186 F.3d 661, 664 (5th Cir. 1999). This arrest is a question of law to be review is de novo, and “[i]f the evidence reviewed de novo.3 viewed in the light most favorable to the prosecution gives equal or nearly equal Id. (internal citations omitted). “Although circumstantial support to a theory of guilt and probable cause requires more than a bare a theory of innocence, a defendant is entitled suspicion of wrongdoing, it requires to a judgment of acquittal.” Id. (internal substantially less evidence than that sufficient quotation marks omitted). to support a conviction.” United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1996). The district court found probable cause based on the information provided by the informant Cruz, 4 whom the court found to be reliable, and on Although Chavez stresses that Cruz’s past the suspicious driving activity observed by information had not led to arrests, this is not dispositive. In United States v. Carrillo-Morales, surveillance officers, and we agree. 27 F.3d 1054, 1057 n.1 (5th Cir. 1994), we found probable cause partially based on a tip from an informant with whom the officer had had no prior 3 These likewise are the general standards of experience. As in the case sub judice, the review for denial of a motion to suppress. See information was corroborated by subsequent Ramirez, 145 F.3d at 352. investigation and surveillance.

On the conspiracy count, the government had to prove “(1) that an agreement existed to The McAuliffe residence in which Chavez violate federal narcotics laws; (2) that the was residing, and to which Chavez and defendant knew of the existence of the Dominguez had traveled previously, contained agreement; and (3) that the defendant a secret compartment similar to those in the voluntarily participated in the conspiracy.” Robert David residence in which the cocaine Gonzales, 121 F.3d at 935. These elements was found. This evidence is sufficient to prove may be established by circumstantial evidence that Chavez and Dominguez had an agreement and “may be inferred from the development to violate federal narcotics laws and that and collocation of circumstances.” Id. Chavez knew of the agreement, and (internal quotation marks omitted). voluntarily participated in it.

The agreement between the co- On the possession count, the government conspirator[] and the defendant need not had to prove “(1) knowing (2) possession of a be proved by direct evidence, but may controlled substance (3) with intent to be inferred from concert of action. Such distribute it.” Gonzales, 121 F.3d at 936. action may be inferred from the Possession may be actual or constructive, the circumstances as a whole. Acts which establishment of which can depend on are not per se unlawful lose that circumstantial evidence and inference character when cumulatively viewed as therefrom. See United States v. Jones, 133 the constituent elements of a criminal F.3d 358, 362 (5th Cir.), cert. denied, 523 conspiracy. U.S. 1144 (1998); United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996). United States v. Morris, 46 F.3d 410, 420 (5th “‘Constructive possession’ is ownership, Cir. 1995) (internal quotation marks and dominion, or control over illegal drugs or citation omitted). dominion over the premises where drugs are found. In other words, constructive There is sufficient evidence to support possession is the ability to reduce an object to Chavez’s conspiracy conviction. He twice actual possession.” United States v. Pigrum, drove the van to the Dorsey house; Cruz 922 F.2d 249, 255 (5th Cir. 1991) (internal testified that he witnessed Chavez load the van quotation marks and citation omitted). with cocaine on those occasions. On the second trip, Chavez dropped off Dominguez The evidence is sufficient to sustain before reaching the destination, picked up Chavez’s possession count. Not only was Dominguez on the return, and drove the van Cruz’s testimony evidence of actual into the garage of Dominguez’s residence on possession, but the evidence further supports Robert David. Chavez performed heat runs a reasonable inference that Chavez had and other counter surveillance measures in his knowing access to, and control over, the Maxima, with Dominguez as passenger, in cocaine at the Robert David residence. The which vehicle was found a listing of the license amount of cocaine discovered, 716 pounds, plate numbers of three surveillance vehicles. provides an inference that it was meant for distribution: “Intent to distribute a controlled substance may generally be inferred solely from possession of a large amount of the substance.” United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir. 1986); see also Gonzales, 121 F.3d at 936.

IV. Chavira claims there is insufficient evidence that she knowingly possessed cocaine. She was Dominguez’s common-law wife, and she

and her child at least sometimes resided at the 1993).5 Robert David house. On the day the house was searched, an officer observed Chavira We have rejected findings of constructive leave the residence with Dominguez and her possession under somewhat analogous child and travel to a nearby Wal-Mart, where circumstances. In United States v. Pigrum, she “look[ed] around from left to right, and 922 F.2d 249 (5th Cir. 1991), a female also behind her.” The officer believed she was defendant was present at a co-defendant’s trying to discover whether anyone had house during a search that produced cocaine. followed her, even though her “looking Women’s undergarments were found in the around” took place approaching a crosswalk. bedroom dresser; drug residue and drug paraphernalia were in plain view throughout the house; when officers arrived, the defendant Chavira and her child were at the residence unlocked the door only after warning her when officers arrived to search it; informed of codefendant that the police were present; and their purpose, she replied that she was not a cocaine buy was made at the residence a aware of any drugs in the home. After couple of hours before the officers arrived to Chavira, Dominguez, and Chavez were execute the search. See id. at 255. There was arrested, they were transported to jail, where no evidence, however, either that the Chavira was observed pleading with undergarments belonged to the defendant or Dominguez to provide officers with that she generally resided in the house. We information which would help her and her concluded that there was insufficient evidence child. of constructive possession.

The cocaine was found in secret In United States v. Onick, 889 F.2d 1425, compartments located in the closets of the 1429 (5th Cir. 1989), police discovered the master bedroom and the child’s bedroom, and female defendant in nightclothes at the house Chavira’s purse was found in the closet of the when they searched it; a bedroom closet master bedroom. To transfer cocaine from the contained women’s clothing; there was a garage to the bedroom closets, one would photograph of the defendant in one of the have to walk through common areas of the bedrooms; and the defendant was present at house, including the kitchen and living room. the house at an earlier time when a locksmith To gain access the secret compartments, one installed a safe. We concluded that the had to remove shelves in the closet, turn on an evidence was insufficient to show that the electrical supply source, and push an electrical defendant constructively possess drugs found switch to open a hidden door. at the house.

The government contends that Chavira constructively possessed the cocaine. When there is joint occupancy of a location, 5 Although the elements of possession and however, mere control or dominion over the scienter (knowing) are theoretically distinct, in the place in which contraband is found is realm of constructive possession they tend insufficient for constructive possession: naturally to overlap. Constructive possession is “[S]omething else (e.g., some circumstantial “the knowing exercise of, or the knowing power or indicium of possession) is required besides right to exercise, dominion and control over the mere joint occupancy before constructive proscribed substance.” United States v. Brito, possession is established. . . . [There must be] 136 F.3d 397, 410 (5th Cir.), cert. denied, 523 U.S. 112, and cert. denied, 524 U.S. 962, and some evidence supporting at least a plausible cert. denied, 525 U.S. 867 (1998). See also inference that the defendant had knowledge of United States v. de Leon, 170 F.3d 494, 497 (5th and access to the . . . contraband.” United Cir.), cert. denied, 120 S. Ct. 156 (1999). States v. Mergerson, 4 F.3d 337, 349 (5th Cir. Whether we term it a failure to prove possession or a failure to prove the required scienter, the result is the same.

While there is evidence that Chavira jointly demonstrates a consciousness of guilt.7 occupied the house with Dominguez, there is Likewise, the fact that she pleaded with her no further evidence supporting a plausible husband to provide authorities with inference that she had knowledge of and information that would help her and her child access to the cocaine. Although conducting is no more indicative of guilt than it is of counter surveillance measures such as heat innocence. runs is suspicious, testimony that Chavira was observed looking around on her way to Wal- The totality of the evidence against Chavira Mart is not nearly so probative. amounts to nothing more than residing at the house where the cocaine was found and her That the cocaine had to pass through close association with Dominguez, which is common areas of the house to reach the not sufficient to prove constructive possession. compartments does not implicate Chavira See United States v. Steen, 55 F.3d 1022, without some evidence that she was present 1032 n.23 (5th Cir. 1995). We therefore during any such transfer. Unlike the reverse her conviction for insufficient circumstance in Pigrum, in which evidence of evidence.8 drugs was in plain view, access to the cocaine in the secret compartments in the closets V. required the removal of shelves, the turning on Chavez contends that the court erred in of an electrical supply source, and the pushing giving him a three-level upward adjustment of a switchSSa detective testified that the based on his aggravating role in the offense secret compartments were very sophisticated, pursuant to U.S.S.G. § 3B1.1(b), which “the best [he had] ever seen.” Therefore, the provides such an enhancement if “the presence of Chavira’s purse in one of the defendant was a manager or supervisor . . . closets does not allow the inference that she and the criminal activity involved five or more therefore knew of the presence of the drugs. participants or was otherwise extensive.” The presentence investigation report The government also relies on Chavira’s recommending the adjustment does not specify statements as inferentially proving guilty knowledge, but they are just as indicative of innocence as of guilt. When officers informed 7 Chavira of the purpose of the search, she While we have recognized both nervousness responded that to the best of her knowledge and an absence of nervousness as circumstantial there were no drugs at the house. evidence of guilty knowledge, we also have criticized government attempts to use such evidence when it lacks probative value. See United The government attempts to make use of States v. Ortega Reyna, 148 F.3d 540, 544-45 (5th the nervous/not nervous dichotomy, arguing Cir. 1998). The government urges Chavira’s that Chavira was not nervous enough when general calm composure and submission to the asked the question, demonstrating a guilty search as evidence of guilty conscience, but as in conscience.6 Nervous behavior, such as Ortega we postulate that had Chavira been nervous countersurveillance measures, before one is and vehemently objected to the search, the confronted by police, is more probative than is government would have argued that this behavior, one’s reaction to an actual confrontation. See, as well, justified an inference of guilty knowledge. e.g., Carrillo-Morales, 27 F.3d at 1065. See id. While nervousness, or lack thereof, during a 8 confrontation may also sometimes be The government argues that, in the alternative, Chavira’s conviction can be sustained on a theory probative, nothing about Chavira’s response of aiding and abetting. Because the court did not instruct the jury on aiding and abetting, this contention is incorrect. See Brito, 136 F.3d at 410 n.18. Regardless, there is no evidence that Chavira 6 There was trial testimony that she was “very associated with the criminal activity or acted to calm” but also that she was “a little bit nervous.” help it succeed. See Gonzales, 121 F.3d at 936.

whether the criminal activity was considered to involve five or more participants or whether it ‘Plain error’ is error which, when was “otherwise extensive,” and the court did examined in the context of the entire not clarify the basis for the increase, merely case, is so obvious and substantial that terming Chavez a “manager.” failure to notice and correct it would affect the fairness, integrity, or public Because Chavez did not raise this issue at reputation of judicial proceedings . . . . or before sentencing, we review for plain Review for plain error is uniquely error. See United States v. Lopez, 923 F.2d addressed to the appellate court’s 47, 49 (5th Cir. 1991). discretion. Questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.

Id. at 50. A ruling on a defendant’s role in the offense is a factual determination. See United States v. Navarro, 169 F.3d 228, 234 (5th Cir.), cert. denied, 120 S. Ct. 117, 312 (1999); United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998), cert. denied, 119 S. Ct. 1280, 1487, 1792 (1999). Therefore, we need not reach the merits of Chavez’s argument; the court did not commit plain error.

Chavira’s judgment of conviction is REVERSED and REMANDED for entry of judgment of acquittal, and Chavez’s judgments of conviction and sentence are AFFIRMED.