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United States v. De Lora, 00-20483 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 00-20483 Visitors: 21
Filed: May 01, 2002
Latest Update: Feb. 21, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-20483 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EMILIANA DE LORA, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas (H-99-CR-213-13) _ April 30, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges: PER CURIAM:* Emiliana De Lora appeals her convictions for conspiracy to transport stolen vehicles in interstate commerce and aiding and abetting such
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                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                               No. 00-20483
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

                             EMILIANA DE LORA,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                         (H-99-CR-213-13)
_________________________________________________________________
                          April 30, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:

PER CURIAM:*

     Emiliana De Lora appeals her convictions for conspiracy to

transport stolen vehicles in interstate commerce and aiding and

abetting such transportation of one such vehicle. See 18 U.S.C. §§

2, 371, and 2312.         She contends solely that the evidence is

insufficient to support her convictions because there was no direct

evidence showing she had knowledge of the conspiracy or voluntarily

assisted   any   of    the   conspirators.       De   Lora   claims:   the

Government’s evidence was purely circumstantial; it was refuted by


     *
      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this opinion should not be published and is not precedent except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.
her testimony; and her mere relation to, or association with,

members of the conspiracy was insufficient to show her complicity.

     Because De Lora timely moved for judgment of acquittal, the

standard of review in assessing her sufficiency challenge is

whether   a   “reasonable       jury   could       conclude    that   the    relevant

evidence,     direct    or    circumstantial,           established    all    of    the

essential elements of the crime beyond a reasonable doubt when

viewed in the light most favorable to the verdict”.                   United States

v. Loe, 
262 F.3d 427
, 432 (5th Cir. 2001) (emphasis added), cert.

denied, 
122 S. Ct. 1078
(2002); see Jackson v. Virginia, 
443 U.S. 307
, 319 (1979).       In so viewing the evidence, the Government must

be “given the benefit of all reasonable inferences and credibility

choices”.     United States v. Inocencio, 
40 F.3d 716
, 724 (5th Cir.

1994).

     For a conspiracy conviction, the Government must prove, beyond

a reasonable doubt, the following elements:                     (1) a conspiracy

existed; (2) the defendant knew of it, and (3) with that knowledge,

she voluntarily became part of it.                United States v. Williams, 
264 F.3d 561
, 577 (5th Cir. 2001).                Of course, such proof “may be

established by circumstantial evidence and may be inferred from

concert of action”.          
Id. (internal quotation
marks and citation

omitted).     To obtain a conviction for aiding and abetting, the

Government    must     prove,    beyond       a   reasonable    doubt,       that   the

defendant:       (1)     associated       with      a    criminal     venture;      (2)


                                          2
participated     in    it;   and   (3)   “sought     by   action   to   make    [it]

successful".     United States v. Carreon-Palacio, 
267 F.3d 381
, 389

(5th   Cir.    2001)    (citation      omitted;    internal    quotation       marks

omitted).

       The evidence, viewed in the light most favorable to the

Government, was sufficient for a reasonable jury to conclude that

De Lora knew of the conspiracy and voluntarily assisted others in

effecting the scheme.        See 
Loe, 262 F.3d at 432
.        During one of the

criminal      transactions     underlying      the    conspiracy,       De   Lora’s

boyfriend, Ricardo Acevedo, described De Lora as his “co-investor”

in a stolen 1994 Lexus sold to a dealership in Texas, requesting

that a check for half of the sale proceeds be made payable to her.

De Lora received and cashed the resulting $6,000 check.

       Concerning      the    aiding     and      abetting    conviction,        the

circumstantial evidence demonstrated that De Lora posed as “Sonia

Pena” to facilitate the sale of a stolen 1994 Mitsubishi Montero to

the Flowers Motor Company, by faxing false identification matching

the counterfeit title to that car, purporting to establish her

ownership and authorizing the sale.            Several witnesses, including

De Lora, testified she often used the name “Sonia”; and the

evidence established that: she was an employee at the company from

which the false documents were faxed; she was at work on the date

in question; the faxes were sent from the department where she

worked; there was no employee named Sonia Pena; and only employees


                                         3
had access to the company’s fax machines.    Additionally, at the

time of her arrest, De Lora was found driving a vehicle her uncle

had obtained in exchange for a stolen vehicle as part of the

ongoing scheme.

     De Lora’s assertion that her own testimony defeated the

Government’s case is unavailing. Her reasoning is essentially that

the jury should have credited her testimony over that of the

Government’s witnesses; however, this court will not disturb the

jury’s credibility determinations. See United States v. Jaramillo,

42 F.3d 920
, 923 (5th Cir.), cert. denied, 
514 U.S. 1134
(1995).


                                                      AFFIRMED




                                4

Source:  CourtListener

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