Filed: May 20, 1992
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 91-2261 _ UNITED STATES OF AMERICA, Plaintiff-Appellant, versus LUZ ESTELLA SALAZAR, Defendant-Appellee. * * * * * _ No. 91-2382 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE MANUEL RAMOS, Defendant-Appellant. _ Appeals from the United States District Court for the Southern District of Texas _ (April 10, 1992) Before WILLIAMS and WIENER, Circuit Judges, and LITTLE,1 District Judge. JERRE S. WILLIAMS, Circuit Judge: J
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 91-2261 _ UNITED STATES OF AMERICA, Plaintiff-Appellant, versus LUZ ESTELLA SALAZAR, Defendant-Appellee. * * * * * _ No. 91-2382 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE MANUEL RAMOS, Defendant-Appellant. _ Appeals from the United States District Court for the Southern District of Texas _ (April 10, 1992) Before WILLIAMS and WIENER, Circuit Judges, and LITTLE,1 District Judge. JERRE S. WILLIAMS, Circuit Judge: Jo..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-2261
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LUZ ESTELLA SALAZAR,
Defendant-Appellee.
* * * * *
_____________________
No. 91-2382
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL RAMOS,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(April 10, 1992)
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE,1 District
Judge.
JERRE S. WILLIAMS, Circuit Judge:
Jose Manuel Ramos and Luz Estella Salazar were convicted of
(count 1) conspiracy to possess over five kilograms of cocaine with
1
District Judge of the Western District of Louisiana,
sitting by designation.
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846, (count 2) aiding and abetting in the
possession of over five kilograms of cocaine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 18 U.S.C. § 2, and (count 3) aiding and abetting in an attempt
to launder money obtained from unlawful activity in violation of 18
U.S.C. §§ 1956(a)(1)(A)(i) and 2. Ramos contests the sufficiency
of the evidence supporting his convictions. Finding no reversible
error, we affirm the district court.2 As to Salazar, the district
court granted Salazar's post-verdict motion of acquittal. Upon a
review of the record and applicable law, we reverse the district
court and reinstate the jury verdict against Salazar on all three
counts.
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
2
At oral argument, Ramos' counsel appeared to suggest that
Ramos had failed to move for judgment of acquittal pursuant to Fed.
R. Crim. P. 29(a). The government did not allege such a failure in
either its briefs or at oral argument. The record docket indicates
that the district court denied a motion to acquit, although no
formal motion to acquit is in the record.
2
proceeds. Investigation determined that Ramos was present at two
meetings around April 27, 1990, at which the lease for the
warehouse at 5950 Bingle was negotiated and executed.
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 inside, 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
3
surveillance unit observed Ramos continually looking out of the
open bay door of the warehouse.
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
next 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
3
Fontecha entered into a plea agreement with the government.
Some facts concerning this alleged co-conspirator, however, remain
relevant. Fontecha was an independent truck driver living in
Florida who was in the business of hauling loads on consignment.
He had previously transported loads of cocaine and had arranged for
transportation of this load of cocaine by calling a local beeper
number after he arrived in Houston around April 30th--a beeper
linked either to Ramos or Salazar, or one of the unnamed co-
conspirators. The record indicates that Fontecha met his Houston
contact at Slick Willie's the same evening Ramos was observed
there.
4
Square Apartments, and in an apartment at 14020 Schroeder. At the
Bingle warehouse, items seized included a fuel tanker truck
complete with false compartments, some containing cocaine, that had
a North Carolina license plate on its rear, and a tractor rig
having a Guatemalan license plate. Also seized were a generator,
a Black & Decker saw with special carbide blades, a crowbar, metal
boxes capable of being used as hidden compartments in vehicles, and
other miscellaneous tools. Agents later found that the markings on
some of the kilogram packages of cocaine found in the tanker were
the same markings found on some of the kilogram packages seized
from the white van.
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
5
obtained a search warrant for the premises and set up surveillance
units. On May 8th, Officer Patton observed Salazar arriving at the
apartment driving the same Buick that Ramos had been driving in the
early morning hours of May 2, 1990, during the delivery of the 416
kilograms of cocaine to Fontecha. Salazar entered the apartment
using a key. About 20 to 25 minutes later, she left carrying a
black and white plastic shopping bag. After making heat runs,
Salazar drove to an office complex in southwest Houston. There she
entered Emily Investments carrying a large, bulky manila envelope,
which she left there. She then drove to a strip center area of the
Gulf Freeway and entered a business called Gonzales Insurance.
Gonzales Insurance offered money wire transfers to Mexico and to
all countries in Central and South America, as well as insurance,
beeper, and cellular telephone sales, bail bonds, rental mailboxes.
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
4
At trial, David Gonzales, the owner of Gonzales Insurance,
who arrived at the business after Salazar was arrested, testified
that Salazar wanted to return the beeper because it was not working
properly.
6
bundles of U. S. currency, was found at the rear of the store on
top of a door ledge.
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
7
analyzed for fingerprints. Three of Ramos' fingerprints were
identified on the drug ledger sheets that were taken from the
Buick; one of Salazar's fingerprints was also found on one of the
sheets. Ramos' fingerprints were also identified on the drug
ledgers that were recovered from the Timber Top apartment.
According to an expert in illicit business records analysis, the
drug ledgers reflected, among others, a transaction involving at
least 301 kilograms of cocaine sold for over $5 million and
included a list of expenses generally associated with the
activities of an illicit drug business--costs for beepers and
telephones. Correlations were also found between the account
headings in the drug ledgers and some of the entries in the address
books recovered from Salazar's purse at the time of her arrest.5
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 contained 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
5
For instance, on the Buick ledger, about 170 kilograms was
reflected as sold to "Perla," "Negro," and "Polo," among others.
The address books contained telephone numbers and references to
those and other names.
8
Alejandro Salinas Sanchez as well as a visa permit for the
Republica de Colombia.
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 beyond 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
9
Count 1 involves Ramos' conviction for conspiracy.6 In a
conspiracy prosecution under 21 U.S.C. § 846, the government is
required to prove: (1) that an agreement exists between two or
more persons to violate the narcotics laws, (2) that each
conspirator knew of the conspiracy and intended to join it, and (3)
that each conspirator did voluntarily participate in the
conspiracy. United States v. Juarez-Fierro, 935 F.2d 672, 677 (5th
Cir.), cert. denied, __ U.S. __,
112 S. Ct. 402,
116 L. Ed. 2d 351
(1991). All elements may be inferred from circumstantial evidence.
Id. Moreover, "`[c]ircumstances altogether inconclusive, if
separately considered, may, by their number and joint operation
. . . be sufficient to constitute conclusive proof.'" United
States v. Roberts,
913 F.2d 211, 218 (5th Cir. 1990) (citation
omitted), cert. denied, __ U.S. __,
111 S. Ct. 2264,
114 L. Ed. 2d 716
(1991).
Ramos argues that knowledge and acquiescence in the conspiracy
are not to be lightly inferred. Ramos was never seen in possession
of any cocaine and was never seen coming from or going into the
6
At oral argument, Ramos appeared to argue for the first
time on appeal that the evidence does not conform to a charge for
this particular conspiracy, implying the potential for various
conspiracies at work. Our review of the record and the briefs
indicates that Ramos did not address prior to oral argument the
notion of the government's failure to prove a single conspiracy.
"[I]ssues raised for the first time on appeal `are not reviewable
by this Court unless they involve purely legal questions and
failure to consider them would result in manifest injustice.'"
United States v. Sherbak, 950 F.2d 1095 (5th Cir. 1992) (per
curiam) (citation omitted). Hence we find that review is not
proper. A determination of the presence of a single conspiracy
constitutes a fact question and failure to consider the issue does
not result in manifest injustice.
10
Schroeder or Nantucket Square apartments. His fingerprints were
not found in any of the packages or boxes containing cocaine or in
the white van. Furthermore, the fact that his fingerprints were
found on the drug ledgers is insufficient to support his
conviction. No evidence exists that Ramos ever wrote or read the
information contained in those papers.7
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, we
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
7
Salazar and Ramos address the fingerprint issue throughout
their briefs and attempt to denigrate its significance by citing
primarily to United States v. Lonsdale, 577 F.2d 923 (5th Cir.
1978) and United States v. Stephenson,
474 F.2d 1353 (5th Cir.
1973). First, these cases do not stand for the proposition that
fingerprint evidence is irrelevant. Such cases address the issue
of whether fingerprint evidence standing alone suffices to sustain
a conviction where no evidence exists concerning when the
fingerprint was implanted or other significant evidence connecting
the accused to the crime. Consequently, they are clearly
distinguishable from this case. We find that the fingerprint
evidence is relevant and admissible as circumstantial evidence of
Ramos' and Salazar's involvement, and together with other evidence,
support their convictions. Second, as this Court recently noted in
Gibson v. Collins,
947 F.2d 780, 782 (5th Cir. 1991), Lonsdale and
Stephenson treated circumstantial evidence as insufficient to
support a conviction unless that evidence excluded every reasonable
hypothesis of the defendant's innocence. This standard has been
rejected by this Circuit in United States v. Bell,
678 F.2d 547
(5th Cir. 1982), aff'd,
462 U.S. 356,
103 S. Ct. 2398,
76 L. Ed. 2d
638 (1983), and its progeny.
11
proof vest, and approximately $1.2 million. Additionally, a drug
ledger recovered from the vehicle Salazar was driving on May 8,
1990, a vehicle Ramos was seen driving earlier, bore both Ramos'
and Salazar's fingerprints, and revealed that 170 kilograms of
cocaine had been purchased at a price of $17,300 per kilogram and
resold at a price of $18,500 per kilogram. Ramos was also present
when the lease at the warehouse at 5950 Bingle was negotiated and
later signed. Moreover, Ramos went with Salazar to Gonzales
Insurance and purchased a beeper that later by inference was used
to make contact with Fontecha. Seven hours before Fontecha took
possession of the white van containing the 416 kilograms of
cocaine, Ramos was actively involved with unnamed persons in
exchanging packages with others and placing them in false
compartments of cars, and was present when the white van entered
the Bingle warehouse. Based upon these facts, the jury could
reasonably determine that Ramos was actively involved in the
conspiracy.
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
12
and abetting the possession of a controlled substance with intent
to distribute does not require that Ramos have actual or
constructive possession of the drugs. United States v. Pena, 949
F.2d 751, 755 (5th Cir. 1991). It merely requires that Ramos'
association and participation with the venture were in a way
calculated to bring about that venture's success.
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 co-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
13
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 the 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 commission of the crime.'" United States v. Briscoe,
742 F.2d 842, 846 (5th Cir. 1984) (citation omitted). In order to
establish a violation of 18 U.S.C. § 1956, the government must
prove that the defendant (1) knowingly conducted a financial
14
transaction,8 (2) which involved the proceeds of unlawful activity,
and (3) with the intent to promote or further that unlawful
activity.
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 country 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
8
"Financial transaction," in this context, means "the
movement of funds by wire or other means . . . which in any way or
degree affects interstate or foreign commerce." 18 U.S.C.
§ 1956(c)(4).
9
According to the government, if the $77,000 that Salazar
carried into the business were divided into eight convenient $9,000
transfers (to evade currency reporting requirements under the
Currency Transaction Reportings Act, 31 U.S.C. § 5311, et seq.) and
if a seven percent charge of $5,040 were added to that amount (what
Gonzales Insurance would have charged for sending eight $9,000
transfers totalling $72,000 to Colombia), the total cost for the
transfers would be $77,040, an amount remarkably close to $77,000.
15
reasonably infer conduct designed to aid Salazar's attempt to
transfer drug money.
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
launder.
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 reached 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.
16
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 the 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. Ed. 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
that 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
17
(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 that 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
18
district court's determinations leading to its judgment of
acquittal.
19
2. Count One
As to count one, the district court found that there was an
insufficient link between Salazar and the 416 kilograms of cocaine
seized from the white van. Although the court conceded that the
cocaine seized from the van could have been a part of a larger
shipment, it was not satisfied that it was sufficiently linked to
the ledger on which Salazar's fingerprints had been found. Second,
although it noted that Salazar's possession of the punch-outs for
the keys to the van was some evidence linking her to the cocaine,
the court concluded that, standing alone, it was insufficient.
While the court did observe that the government proved that Salazar
was involved in some criminal activity, it concluded that the
government failed to prove that Salazar was involved in the
conspiracy.
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
20
(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 reasonable 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 took the $77,000 to Gonzales Insurance. Evidence that an
individual is "solely entrusted with a large portion of the
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proceeds of the drug trafficking enterprise establishes [her]
familiarity with, or high level participation in, that enterprise."
Gallo, 927 F.2d at 821. Additionally, one cannot escape criminal
liability on the basis that one played a relatively minor role in
the total scheme. United States v. Davis,
666 F.2d 195, 201 (5th
Cir. 1982). Finally, Salazar's knowledge of the contents of the
drug ledgers could reasonably be inferred from the presence of her
fingerprints on one of the ledgers, from her possession of address
books bearing some of the same names that were used as account
designations in the ledgers, and from the presence of other ledgers
in her residence containing information that corresponded to the
information contained in the ledgers found in the Buick. Viewed
cumulatively, this evidence was sufficient to uphold a jury verdict
of Salazar's participation in the conspiracy.
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
support 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
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conspiracy and an aiding and abetting conviction. Singh, 922 F.2d
at 1173.
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 18 U.S.C. § 1956(a)(1) prohibits
knowing involvement in a financial transaction that uses the
proceeds of some form of unlawful activity. In order to prove an
attempt, the government must satisfy this Circuit's two
requirements of proof that there was (1) an action involving the
kind of culpability otherwise required for the commission of the
crime upon which the charge of the attempt is based and (2) conduct
constituting a substantial step toward commission of the crime.
United States v. Contreras, 950 F.2d 232, 237 (5th Cir. 1991).
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 inferences stacked upon inferences in
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order to justify a guilty verdict. Further, in applying the law of
attempt, Salazar asserts that there are insufficient objective acts
performed which are unique rather than commonplace to mark her
conduct as criminal in nature as a violation of 18 U.S.C. § 1956.
In essence, she asserts that questions exist whether she took a
substantial step which is strongly corroborative of the firmness of
criminal intent.
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
not 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
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such an alternative overwhelmingly unlikely. No indication exists
on the record that any other possible expenditure in that business
could cost $77,000.
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 sustains 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.
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