UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo GONZALEZ-LIRA, Defendant-Appellant.
No. 90-2609.
United States Court of Appeals, Fifth Circuit.
July 9, 1991.
Finally, Duggan argues that there was insufficient evidence to establish that he had three prior felony convictions. He contends that his uncorroborated video-taped confession is insufficient to establish this essential element of the offense.
Duggan correctly states that under federal law a defendаnt cannot be convicted solely on the basis of his own admissions. Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). The essential elements of the offense must be established by independent evidence or corroborated admissions. United States v. Micieli, 594 F.2d 102, 108-09 (5th Cir.1979).
Duggan‘s confession was corroborated. As discussed above, the district court could properly consider the penitentiary packets as substantive evidence of guilt because Duggan failed to object to their admission at trial. These packets were independent evidence that Duggan had been convicted of three prior felonies. There was also testimоny from police officers to corroborate the prior convictions. The evidence was sufficient to establish that Duggan had three prior felony convictions.
III.
For the foregoing reasons, we affirm Billy Russell Duggan‘s conviction and sentence.
AFFIRMED.
Jeffery A. Babcock, Jr. and Paula C. Offenhauser, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
Before POLITZ, JOHNSON and GARWOOD, Circuit Judges.
JOHNSON, Circuit Judge:
Rodolfo Gonzalez-Lira appeals from his conviction for possession of marijuana with intent to distribute it. He argues that the trial judge erred in admitting certain evidence and that the evidence was not sufficient to support his conviction. After a careful review of the record and the controlling case law, this Court concludes that it must affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
At 7:45 in the morning on Monday, February 26, 1990, Rodolfo Gonzalez-Lira drove a tractor-trailer rig up to the U.S. border station outside Falfurrias, Texas. He owned the truck tractor, but the refrigerated trailer was not his. Gonzalez produced for the border patrol agent a bill of lading which purported to have been prepared on May 25, 1989 (nearly a year earliеr), and called for delivery of the load of lettuce (which was supposedly in the trailer) to an address in Austin, Texas by 6:00 a.m. that Monday morning. Gonzalez’ breath smelled of alcohol. The border patrol agent directed Gonzalez to the secondary inspection area. Once there Gonzalez consented to a search of the trailer, unlocking the padlock himself. The agent found several boxes of spoiled lettuce at the rear of the trailer and detected an odor of marijuana. The agent called for a drug-sniffing dog, and canine “Barko” аlerted several times outside the trailer. A search turned up bundles of marijuana stacked three deep along the length of the trailer. All told, the bundles weighed 3,243 pounds. On his person, Gonzalez carried no wallet, no identification, and no papers. He had $652 in cash, a key to the trailer, and a piece of paper with the name Ramsey and two phone numbers written on it.
Gonzalez was informed of his rights and questioned about his cargo. He stated that he had only recently purchased the tractor from an outfit in Edinburg, Texas.1 He claimed that on the previous Friday night, February 23, an unknown man had offered him $500 to drive a cargo of lettuce north; on Saturday, this unknown man supplied the trailer, already loaded. On Sunday, the unknown man gave Gonzalez a bill of lading. Gonzalez professed to be wholly unaware of the presence of the marijuana.
At trial the prosecutor sought to introduce evidence that two years earlier, an individual named Moreno attempted to
Before admitting the evidence, and out of the hearing of the jury, the court explained that
I‘m going to overrule the objection. I‘m going to allow the questions on two grounds. First of all, I think the defense has attempted to impeach the integrity of the investigation and thoroughness of the investigation of the United States authorities. And I think that the effort [the investigating officer] has shown goes to show that he was trying to get to the bottom of this. He followed up the lead on the other tractor-trailer.
Secondly, I think it‘s admissible under 404. The reason I think that is because [defense] counsel in opening statement stated to the jury ... that the question was knowledge and intent. [Defense counsel] put the issues of knowledge and intent directly before the jury in [his] opening statement and [has] continued to do so with respect to the interrogation of the [investigating officer] and the witness from the ... Border Patrol.... Specifically, [defense counsel‘s] questions dealt with, “did he know it was there” and “no, he just happened to pick up a load of spoiled lettuce“. All of these issues gоing to demonstrate to the jury that this was a thoroughly innocent act on the part of the defendant, and that he had no knowledge of the ton of marijuana—ton and a half of marijuana in his trailer rig. But this evidence with respect to the other tractor-trailer shows previous to this event the fact that this defendant owned a tractor-trailer rig that was used in marijuana smuggling. And that it was the very tractor-trailer rig that was the subject and provided the money for that tractor in this particular transaction. And under those circumstances, there is not only the evidentiary tie-in from the previous ownership but also the mental intent and the knowledge that this defendant is well aware that tractor-trailer rigs are used for smuggling and that his own in the past has been used for smuggling, and it has been used in this same manner and at the same checkpoint, and that he has retrieved it....
2 R. 81-82. The trial judge concluded: “I find that the probative value on the issue of knowledge and intent, as well as the probative value on the issue of credibility, outweighs the prejudicial value of the 404 evidence.” 2 R. 83.
Armed by this ruling, the prosecutor then elicited the following testimony from the investigating officer.
Q: All right. During your investigation into this case, did yоu learn of any other truck that was registered to the defendant?
A: Yes, sir, I did.
Q: And what kind of truck was that, sir?
A: It was a 1979 International tractor.
Q: All right. And would that be an International Freightliner?
A: Yes, sir.
Q: And what kind of tractor was involved in this very case that we‘re here about today?
A: Also a ‘79 Freightliner.
Q: But two different Freightliners?
A: Yes, sir.
Q: All right. Now, did your investigation disclose whether or not that other Freightliner that was registered to the defendant and owned by the defendant
had ever been in the custody of the United States Government or of any local government? A: Yes, I did.
Q: And what government had it been in the custody of?
A: In December of ‘88, the Drug Enforcement Administration Task Force in Corpus Christi seized the vehicle.
Q: Okay, and where was that vehicle seized?
A: The vehicle was seized at Falfurrias, Texas Border Patrol checkpoint.
Q: All right. And when it was seized at the Falfurrias checkpoint at that time, was there a trailer attached to it?
A: Yes, sir, there was.
Q: What was in the trailer of the vehicle at that time?
A: There were 2,000 pounds of marijuana.
Q: All right. Now was the defendant driving the vehicle at that time?
A: No, sir, he was not.
Q: Did anybody ever make arrangements to get that vehicle back from the Government?
A: Yes, sir.
Q: Who was that?
A: Mr. Rodolfo Gonzalez through his attorney, Raul Garcia, contacted the Nueces County Sheriff‘s Department in August of ‘89, paying off a $1,200 storage fee, to have the vehicle released to their custody.
Q: All right. And did Mr. Gonzalez himself pick it up or somebody else?
A: A subject by the name of Jose Lopez picked up the tractor and trailer.
2 R. 84-86. The prosеcutor then introduced into evidence a photograph of the first tractor-trailer rig, and indicated that he was finished with the witness.
The Government‘s examination of the witness, however, did not end at that point. When the prosecutor indicated that he had no further questions, the court called for the attorneys to approach the bench. The court asked the prosecutor if he was going to question the agent about the fact that Gonzalez had sold the first tractor-trailer and used part of the proceeds to purchase the tractor used in this case. 2 R. 86-87. Thе court reminded the prosecutor that “that‘s one of the reasons for the admissibility of this evidence,” and that its admissibility was not predicated on “just this 404 type stuff.” 2 R. 87. The prosecutor responded that he had just “overlooked” that line of questioning and resumed his examination. He elicited testimony to the effect that Gonzalez had sold that first rig for $12,000 and used $4,000 of that money to purchase the tractor used in this case. 2 R. 87-88. When the Government finished with the witness the trial court instructed the jury that it was to use the testimony it had just heard only for the limited purposes of deciding how thorough the Government‘s investigatiоn had been and whether Gonzalez had the requisite knowledge or intent. 2 R. 88-89. Neither party voiced any objection to the limiting instruction. 2 R. 89.
The jury returned a verdict of guilty. Gonzalez timely appeals, arguing that the evidence regarding the prior smuggling attempt should not have been admitted, and that the evidence was insufficient to support his conviction.
II. DISCUSSION
A. Admission of the Evidence Concerning the Prior Smuggling Attempt
Gonzalez argues that it was prejudicial error for the trial court to allow the testimony concerning the truck he had previously owned, particularly to the extent that such testimony linked Gonzalez to a crime for which he was never indicted or charged, much less convicted. The Government contends that the decision to admit the testimony was correct on both grounds relied upon by the trial judge: first, that the evidence was relevant to the issues of Gonzalez’ intent and knowledge, and was therefore admissible under
The basic test for deciding whether
The admission of evidence under
[o]ne of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense.
Beechum, 582 F.2d at 914. The Beechum court added, in language applicable to this case, that
[t]his danger is particularly great where, as here, the extrinsic activity was not the subject of a сonviction; the jury may feel that the defendant should be punished for that activity even if he is not guilty of the offense charged.
Id. “It is for this fear,” the court added, “that extrinsic offense evidence is excluded when it is relevant solely to the issue of the defendant‘s character.” Id.
In order to minimize the “particularly great” danger presented by admission of evidence of a prior bad act which did not result in a conviction, this Court has insisted that evidence proffered under
The Government is not required to show that the defendant was convicted as a result of the prior bad acts; by its terms,
Viewed even against this generous standard, however, it is clear that the Government did not establish a proper basis under
2. Admissibility under Rules 401 and 403
The fact that the testimony regarding the prior smuggling attempt may not have been admissible as a prior act of Gonzalez under
As a general matter, all relevant evidence is admissible.
While the Court agrees that there may have been some danger of unfair prejudice to Gonzalez, the Court is also persuaded that that danger was greatly reduced by two factors. First, defense counsel was entitled to—and did—cross-examine the investigating officer, bringing out the fact that there was never any evidence developed against Gonzalez with respect to the prior smuggling attempt. 2 R. 93-94. Such an admission by the Government‘s own witness undoubtedly reduced the chance that the jury would convict Gonzalez for the prior smuggling attempt. Second, the trial judge explicitly instructed the jury that they were to use the evidence only for the limited purposes of deciding how thoroughly the Government had investigated the crime and what Gonzalez’ state of mind was when hе was stopped at the border. These limiting instructions were entirely proper. Combined with the defense‘s ability to bring out the truth on cross-examination, this Court is confident that the introduction of the evidence relating to the prior smuggling attempt would not lead the jury to convict Gonzalez for that prior crime.
In the end, though, the question before this Court is not whether the evidence relating to the prior smuggling attempt was prejudicial, or even whether it was admissible; the question on review is whether the district court abused its discretion when it decided to admit the evidence. When confronted with а question of whether to admit relevant evidence pursuant to Rules 401 and 402, or to exclude it on one of the grounds set forth in Rule 403, the trial court must weigh the probative value of the evidence against its potential to do the harms set out in
Gonzalez has not shown a clear abuse of discretion by the district court. The proba-
B. Sufficiency of the Evidence
Gonzalez’ second argument is that the evidence before the jury was not sufficient to allow it to convict him. This argument has little force. Gonzalez’ conviction must be sustained if, considering the evidence in the light most favorable to the Government, a rational trier of fact could have found that the evidence established each of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Brookins, 919 F.2d 281, 284 (5th Cir.1990). The elements which the Government must prove to convict a defendant of possession of marijuana with intеnt to distribute are 1) knowing 2) possession of marijuana with 3) intent to distribute it. United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir.1990). The requirements for proving each of these elements are well settled.
1. Possession
Possession may be either actual or constructive and may be proven either by direct or circumstantial evidence. E.g., United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir.1989). Constructive possession has been defined as ownership, dominion, or control over the contraband, or over the vehicle in which the contraband was concealed. E.g., United States v. Posner, 868 F.2d 720, 722-23 (5th Cir.1989).
2. Knowledge
Similarly, knowledge of the presence of a controlled substance may be inferred from the exercise of control over the vehicle in which it is concealed. United States v. Olivier-Becerril, 861 F.2d 424, 426-27 (5th Cir.1988). To prove knowledge when the contraband is hidden, however, the Fifth Circuit requires that in addition to mere presence in the vehicle, or control over it, there be circumstances evidencing a consciousness of guilt on the part of the defendant. Diaz-Carreon, 915 F.2d at 954.
3. Intent to distribute
Finally, intent to distribute the marijuana may be inferred from the fact that the defendant is in possession of a large amount of it. United States v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir.1989).
4. The evidence
There is little question that the evidence before the jury was sufficient to allow it to find that each of these elements were present. Gonzalez owned and drove a truck which hauled a trailer loaded with one and a half tons of marijuana. Gonzalez had keys to the trailer. He was an experienced trucker, but claimed not to have noticed the flaws in the bill of lading. His story about how he came by the trailer was implausible and his story about why he was late in reaching his destination contained inconsistencies. Previously, a truck Gonzalez had owned had been used in an almost identical attempt to smuggle marijuana across the border. Plainly there was enough evidence for the jury to conclude
III. CONCLUSION
The evidence concerning the prior smuggling attempt was not shown to be relevant under
AFFIRMED.
GARWOOD, Circuit Judge, specially concurring:
I concur in all of Judge Johnson‘s able opinion except insofar as it indicates the challenged evidence does not come within the second sentence of
“tended to show, quite strongly, ... that Gonzalez knew that marijuana was smuggled across the border in tractor-trailer rigs, and indeed that it had been smuggled in his own tractor-trailer. The evidence thus allowed the jury to infer that Gonzalez knew what was in the trailer when he attempted to bring it across the bordеr.”
This being true, the evidence was admissible to show “knowledge” and “absence of mistake,” as Judge Johnson‘s opinion recognizes in connection with