U.S. v. SalazarU.S. v. Salazar
Jose Manuel Ramos and Luz Estella Salazar were convicted of (count 1) conspiracy to possess over five kilograms of cocaine with
I. FACTS AND PRIOR PROCEEDINGS
This appeal involves the culmination of a series of surveillances occurring between May 1 and May 8, 1990, as part of a narcotics investigation. On May 1, 1990, United States Customs Service Special Agents and the Houston Police Department Narcotics Group received information that a warehouse at 5950 Bingle, Houston, Texas, was being used by Colombian money launderers to receive, distribute, and transport cocaine and narcotics-related
Surveillance was established at the warehouse. Special Agent Brooks and Narcotics Officer Patton observed a white Chevrolet Astro van parked in front of the building under surveillance; a vehicle registration check revealed that the van was registered to a known narcotic trafficker, Fabio Urrego. A black Chrysler with Maryland license plates subsequently arrived at 5950 Bingle and its driver removed a package from the white van and placed it in the trunk of the Chrysler. Agent Brooks and Officer Patton then followed the Chrysler to a residence at 14020 Schroeder. The driver parked, went insidе, and came out carrying a different package which he then placed in the Chrysler. He next drove to the area of Highway 290 and Bingle where he pulled into a parking lot. Soon thereafter, Ramos appeared, driving a silver Corsica. The driver of the Chrysler removed from its trunk the package he had taken from the Schroeder address and got into the Corsica with Ramos. Ramos was then observed making heat runs--erratic driving maneuvers to detect if being followed--for about forty-five minutes.
Eventually, Ramos drove the Corsica back to the parking lot, and the driver of the Chrysler returned to his vehicle carrying a package smaller than the one taken from the Schroeder address. Both the Chrysler and the Corsica were next observed driving into a fenced area of the warehouse at 5950 Bingle. Subsequently, the
The Chrysler and the white van were then seen traveling in tandem, making heat runs, and ultimately entering the Nantucket Square Apartments. Agent Brooks later saw Ramos drive the Corsica into the rear of the Nantucket Square Apartments, exit the apartment complex, and park at a side street nearby. Agent Brooks and Officer Patton witnessed further furtive, erratic moves by the white van and the Chrysler before the automobiles returned to the apartment complex and parked inside a garage.
Surveillance next saw the white van pull into a parking lot nеxt to Slick Willie‘s, a pool hall in the FM 1960 area. Late that evening, Officer Patton, while following the white van, observed Ramos driving a dark Buick. Officer Patton saw Ramos turn towards the vicinity of Slick Willie‘s. Soon thereafter, the white van was detained by the Baytown Police Department, 416 kilograms of cocaine were found inside, and the driver, Lazaro Fontecha, was placed in custody.3
Searches were then conducted in the warehouse at 5950 Bingle, in an apartment and its surrounding building at the Nantucket
At 14020 Schroeder, agents found a pickup truck in the garage with $900,000 in cash in a tool box in the truck‘s bed. The money was bundled in thousands and ten thousands and bound with colored and beige rubber bands. Similarly, inside the residence, two boxes of beige rubber bands and numerous colored rubber bands were found along with a torn piece of United States currency, and a series of photographs of Ramos at a shooting range.
The Nantucket Square apartment had no furnishings and the Chrysler was parked in the apartment‘s garage. The Chrysler‘s trunk had a 2-by-1 1/2 foot hidden compartment capable of holding several kilos of cocaine as well as currency.
Agents subsequently learned through confidential sources that Ramos and Salazar leased an apartment at the Timber Top Apartments. The evidence at trial showed that Apartment #905 was leased to David and Maria Rodriguez, aliases for Ramos and Salazar. Agents
A year earlier, Salazar had purchased a non-owner automobile liability insurance policy from Gonzales Insurance. In addition, Ramos and Salazar had purchased a beeper there about eight to ten days earlier. Salazar entered the business carrying her purse.4 Minutes later, she came back to the car and got the black and white plastic shopping bag. When Salazar re-entered the business she saw the agents approach her. She walked to the rear of the business with the bag. She was detained, and the bag, containing $77,000 in
In the search of the Buick, agents found a California driver‘s license in the name of Jose Manuel Ramos, mobile phones, a six-page “drug ledger,” photographs of Salazar, and a residential lease agreement in the names of David and Maria Rodriguez for the Timber Top apartment. The lease indicated that the Rodriguezes moved into the apartment on April 16, 1990, and a security guard testified that he had seen Salazar and Ramos move in with a small child.
Salazar‘s purse was found to contain a Colombian passport in the name of Luz Estella Salazar Munoz; a set of keys to the black Chrysler and to its false compartment; a key ring marked “‘88 Astro white” containing four serialized plastic key punch-outs (the key later made from the punch-outs fit the white van from which the cocaine was recovered); two sets of keys for the Timber Top apartment; two address books; and a photograph of a small child.
Subsequently, a search of the Timber Top apartment was conducted. Cash totaling $1,200,000 was seized. The money was found in bundles inside a washing machine, a safe, and a dresser drawer. The agents also seized a residential lease agreement identical to the one recovered from the Buick; an insurance policy in the name of Luz Salazar; a boat registration receipt made out to Estella Salazar; a doctor‘s receipt in the name of Jose M. Ramos; and male and female clothing in the master bedroom.
Drug ledgers also found inside the apartment were seized. These drug ledgers, together with the ones found in the Buick, were
During the course of further investigation, another search warrant was executed at 100 Plantation in Houston. A passport seized there contained photographs of Ramos and Salazar under the aliases of David Navia Rodriguez and Rosa Maria Mia de Rodriguez. Upon Ramos’ arrest, around August 1, 1990, another search warrant was executed at 3228 Canterbury and more documents and passports were seized. Those documents included a paper removed from Ramos’ suitcase which contаined the name Fabio Urrego, the same name on the title to the white van used to transport the cocaine. There were also Mexican passports bearing Ramos’ photograph and the name
II. DISCUSSION
A. JOSE MANUEL RAMOS
1. Standard of Review
Ramos asserts that there was insufficient evidence to support his convictions. We review his claim under the well established standard that the Court view the evidence, whether direct or circumstantial, and all the inferences reasonably drawn from it, in the light most favorable to the verdict. U.S. v. Pigrum, 922 F.2d 249, 253 (5th Cir.), cert. denied, __ U.S. __, 111 S.Ct. 2064, 114 L.Ed.2d 468 (1991); United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989). The ultimate test for sufficiency of the evidence challenges is whether a reasonable jury could find that the evidence establishes guilt beyоnd a reasonable doubt. See United States v. Gonzales, 866 F.2d 781, 783 (5th Cir.), cert. denied, 490 U.S. 1093, 109 S.Ct. 2438, 104 L.Ed.2d. 994 (1989).
2. Count 1
Ramos argues that knowledge and acquiescence in the conspiracy are not to be lightly inferred. Ramos was never seen in possession оf any cocaine and was never seen coming from or going into the
The elements of a conspiracy “may be inferred from the `development and collocation of circumstances.‘” United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991) (citation omitted). Although Ramos was never seen in the possession of cocaine or in the vicinity of the Schroeder or Nantucket Square apartments, wе find that the evidence establishes a concert of action among Ramos, Salazar, Fontecha, and other unnamed conspirators. Ramos and Salazar used aliases to move into the Timber Top apartment, a residence later found to contain a money counting machine, a bullet
3. Count 2
The challenges to the sufficiency of the evidence to support Ramos’ conviction for aiding and abetting in the possession of a controlled substance with intent to distribute also must fail. “The crime of aiding and abetting occurs when the defendant associates with a criminal venture, purposefully participates in it, and seeks by his actions to make it succeed.” United States v. Vaden, 912 F.2d 780, 783 (5th Cir. 1990). A conviction for aiding
Ramos focuses primarily on the issue of possession. Ramos first contends that the mere fact that he may have been the person who rented the warehouse on Bingle is insufficient to infer knowing dominion and control over any items present at the warehouse. Second, the government has not shown that Ramos has exercised any dominion and control over the white van and its contents. As earlier stated, however, Ramos’ conviction merely requires association and participation in the venture, not his actual or constructive possession of the drug. Nonetheless, even assuming possession were required, when the evidence is sufficient to establish the defendant‘s participation in a conspiracy to possess illegal narcotics, the defendant will be deemed to possess narcotics through his сo-conspirator‘s possession. United States v. Medina, 887 F.2d 528, 532 (5th Cir. 1989).
Since there is direct evidence that his alleged co-conspirator Fontecha possessed the cocaine in the white van, Ramos could properly be deemed to have possessed the cocaine through Fontecha‘s possession. We have recognized that “[t]ypically, the same evidence will support both a conspiracy and an aiding and abetting conviction.” United States v. Singh, 922 F.2d 1169, 1173 (5th Cir.), cert. denied, __ U.S. __, 111 S.Ct. 2066, 114 L.Ed.2d 471, cert. denied, __ U.S. __, 112 S.Ct. 260, 116 L.Ed.2d 214 (1991). Thus, the same evidence that proved Ramos’ participation in the conspiracy to possess cocaine with intent to distribute is sufficient to support his conviction for aiding and abetting in the possession of cocaine with intent to distribute.
4. Count 3
Finally, Ramos questions the sufficiency of thе evidence to support his conviction for aiding and abetting an attempt to commit money laundering. His pivotal contention is that because the district judge granted Salazar‘s motion for judgment of acquittal on the money laundering count, he cannot be vicariously liable for her conduct. Because we hold that the district court‘s decision as to direct Salazar‘s acquittal must be reversed, this contention loses vitality.
We have stated a two-step test for finding criminal attempt. “To be guilty of an attempt, the defendant (1) `must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting,’ and (2) `must have engaged in conduct which constitutes a substantial step toward commissiоn of the crime.‘” United States v. Briscoe, 742 F.2d 842, 846 (5th Cir. 1984) (citation omitted). In order to establish a violation of
Ramos argues that his conviction cannot stand because insufficient evidence was presented connecting him to Salazar‘s presence at Gonzales Insurance on May 8th when she took the $77,0009 into the business. In order for Ramos to be guilty of aiding and abetting in the attempted money laundering, the government must prove that Ramos shared Salazar‘s intent and that he engaged in conduct designed to aid the attempt. According to the government, Ramos’ intent to transfer the proceeds from cocaine trafficking out of the cоuntry can be reasonably inferred from the evidence showing his involvement as a cocaine broker. Furthermore, he used a false name to lease the Timber Top apartment where large portions of the drug proceeds, including the $77,000, were kept. Further, the apartment contained the money counting machine. Finally, he used the drug ledgers to record his transactions. From all these facts, the government urges that the jury could
Our review of the record indicates that ample evidence exists to provide the requisite nexus between Salazar and Ramos to affirm the conviction of aiding and abetting in an attempt to money laundеr.
B. LUZ ESTELLA SALAZAR
1. Standard of Review
The crux of the government‘s argument as to Salazar is that the district court utilized the wrong standard in granting Salazar‘s motion for judgment of acquittal. According to the government, the district court‘s comments in ruling on the motion indicate that it held the government to a higher burden of proof than the law requires.
THE COURT: . . . I suppose, where the question has to be put to me, as a question of law, what is it you have to exclude in order for the evidence to be sufficient for circumstantial evidence to constitute what a jury should consider?
It seems to me, and maybe I am in error in this, that under a circumstantial evidence case where all the evidence is circumstantial, when I say “all” I mean the conclusions to be reached have to be reachеd based upon some other points that don‘t necessarily link themselves together but which are separate individual pieces of evidence.
It seems to me you have to exclude some of those reasonable other alternatives that the jury could reach by direct evidence, by some evidence. When I say “direct evidence,” I mean some actual evidence that is not a reasonable alternative.
In other words, I don‘t think that a jury can reach a verdict on a circumstantial evidence case by simply saying that, okay, this is one way it could have gone. It could have gone another way; it could have gone a third way or fourth way, but the way I think it really went is this way, and the reason I think that is because that‘s thе way I feel. They have to have some evidence that guides and leads them in that direction more than simply a scintilla of evidence.
And what I‘m suggesting is that the underlying basis, the underlying premises for the circumstantial evidence case is inadequate, in my opinion, in order for a jury to reach and come to that kind of conclusion. That‘s the problem I have.
The government urges that in United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff‘d, 462 U.S. 356, 103 S.Ct. 2398, 76 L.E.2d 638 (1983), this Court specifically rejected the standard set out by the district court for judging the sufficiency of the evidence in a circumstantial evidence case. The test is not whether the evidence excludes every reasonable hypothesis of innocence or is wholly inconsistent with every conclusion except that of guilt, but whether a reasonable trier of fact could find thаt the evidence establishes guilt beyond a reasonable doubt. “Further, this [C]ourt accepts all credibility choices that tend to support the jury‘s verdict.” Gallo, 927 F.2d at 820.
Salazar concedes that the government need not disprove all other reasonable hypotheses to sustain a conviction. But she asserts that the “outstanding reasonable hypothesis rule” (a term she leaves undefined) has vitality as an analytical tool even if it is not the test to determine the legal sufficiency of the evidence. She relies upon United States v. Espinoza-Seanez, 862 F.2d 526, 538 (5th Cir. 1988). In Espinoza-Seanez, the entire government case against one of the defendants consisted of only four facts which this Court found insufficient to prove knowledge of the conspiracy. We found that though we do give the jury deference in questions of credibility of testimony, the case was not one where “competing explanations” were being offered. We observed that “`[t]oo many innocent scenarios jibe with the sparse record facts.‘”
Salazar‘s attempt to utilize Espinoza-Seanez to differentiate a rule from a test is inventive, but unavailing. The cases are broadly distinguishable. In this case, a number of factors, taken together, support her conviction on the various counts. “As the United States Supreme Court remarked long ago, `[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.‘” United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989) (quoting Coggeshall v. United States (The Slavers, Reindeer), 69 U.S. (2 Wall.) 383, 17 L.Ed. 911, 914-15 (1865)).
Salazar also asserts thаt while the district court‘s statements concerning the sufficiency of the evidence “may incorrectly state the legal test, it applied the correct legal test.” But we can only consider the record. After a close scrutiny of the record, we find that the district court did apply a more stringent burden of proof than is required by the law. Using the proper standard of review, we address and evaluate the
2. Count One
Salazar argues the insufficiency of the evidence by focusing upon the factors considered critical by the government: (1) she shared an apartment with Ramos; (2) she was driving Ramos’ car and had keys to the other cars; (3) her fingerprints were on sheets of what the government proved as a drug ledger; (4) she possessed a Colombian passport; and (5) she took $77,000 to Gonzalez Insurance.
Salazar acknowledges that based upon Ramos’ involvement in the cocaine conspiracy, a reasonable jury could infer that due to her close relationship with him, Salazar knew of the existence of the conspiracy. This alone, she urges, does not constitute sufficient evidence to support a conspiracy conviction. Salazar relies primarily on United States v. Onick, 889 F.2d 1425, 1429 (5th Cir. 1989). We find that case inapposite. There, only four unpersuasive items of evidence connected Onick to the case: (1) she was found on the premises in her nightgown when the house was searched; (2) a bedroom closet contained women‘s clothing; (3) the bedroom contained a photograph of Onick with Tolliver, the man convicted with her, and an unidentified man; and (4) several months before her arrest, Onick had showed a locksmith where to install a safe on the premises. We held that we would not lightly impute dominion or control to establish constructive possession to one found in another‘s house. Moreover, the jury must limit itself to reasonable constructions of the evidence, not mere speculations.
This case does not present a question of whether four undisputed casual circumstantial facts are sufficient to convict Salazar of conspiracy beyond a reasonаble doubt. In contrast to Onick‘s situation, Salazar lived with Ramos in the apartment; she had moved in with him (under an alias) and had complete access to the residence; she also had possession of the keys, or their equivalent, to three vehicles used in the drug transactions. Moreover, while in the company of Ramos, some time between April 28th and 30th, she purchased a beeper; Fontecha, the driver of the white van, made contact with either Ramos or Salazar, or one of the unnamed co-conspirators, by beeper around April 30th. Also evidence indicates Salazar‘s involvement in the conspiracy because she had access to the million dollars in the apartment and the fact that she toоk the $77,000 to Gonzales Insurance. Evidence that an individual is “solely entrusted with a large portion of the
3. Count 2
In granting the motion for judgment of acquittal on count two, the district court found that there was no evidence presented showing that Salazar aided and abetted the particular transaction involving the shipment of 416 kilograms of cocaine. We disagree. Because the evidence is sufficient to support Salazar‘s conspiracy conviction, and she is deemed to have possessed cocaine through her co-conspirator‘s possession, the evidence is sufficient also to suppоrt her conviction for aiding and abetting the possession of cocaine with intent to distribute. As we stated in the discussion of Ramos’ conviction, the same evidence often supports both a
4. Count 3
In granting the motion for judgment of acquittal on count three, aiding and abetting in an attempt to launder the money, the district court concluded that Salazar had not taken enough steps toward completion of a financial transaction to support a finding of criminal attempt. Section
Salazar concedes that a rational jury could find that she knew that the money in the apartment was the proceeds of illegal activity due to the large amount of cash. She also agrees that the evidence supports a jury finding that the money was in fact from drug-trafficking. Salazar asserts, however, that the government has failed to prove the remaining element: that she knowingly undertook to conduct a financial transaction with the intent to promote or further that unlawful activity. According to Salazar, the government is relying on inferenсes stacked upon inferences in
Our review of the record finds sufficient evidence demonstrating both Salazar‘s intent to carry out the money laundering and her commission of a substantial step toward that end. Proof of Salazar‘s intent to transfer drug proceeds out of the country in order to promote the drug activity is corroborated nоt only by her physical acts of removing the money from the Timber Top apartment and bringing it to a place where the transaction was to occur, but also by her involvement in the drug conspiracy. Taken in the aggregate and viewed in the light most favorable to the government, a reasonable jury could conclude sufficient evidence exists to convict her. Salazar had a Colombian passport in her possession when she arrived at Gonzales Insurance, a business which offered wire transfers to Colombia. Upon arrival, she first entered the business empty handed and then returned for the money. Upon re-entering the business and seeing agents approach her, Salazar walked to the rear of the business with the bag and placed it on top of a door ledge. Although it perhaps is possible that Salazar planned to do something else with the money, the amount involved and the services offered at the business make
Salazar‘s objective acts are not consistent with innocent activity. Her actions, when taken as a whole, show that she moved beyond preparation. There is adequate evidence to establish the required culpability. We find that the jury was justified under the evidence in finding Salazar guilty of aiding and abetting an attempt to launder drug proceeds.
III. CONCLUSION
We conclude that sufficient evidence sustаins Ramos’ convictions. We also find that the district court erred in granting Salazar‘s motion for judgment of acquittal as to her conviction. The jury chose not to believe Salazar. Instead, it found her acts to be sufficiently unique and strongly corroborative of her criminal intent as to all counts. We hold the evidence sufficient to reverse the court‘s granting of the motions for acquittal and reinstate the jury‘s convictions against Salazar. We remand for the sentencing of Salazar.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR SENTENCING.