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United States v. Albarran, 06-51366 (2007)

Court: Court of Appeals for the Fifth Circuit Number: 06-51366 Visitors: 18
Filed: Jun. 29, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 29, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-51366 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS ALBARRAN, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas 5:00-CR-117-17 Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Jesus Albarran was charged with and convicted of conspiracy with inte
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                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    UNITED STATES COURT OF APPEALS
                                                              June 29, 2007
                        FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk


                             No. 06-51366
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

                                  v.

     JESUS ALBARRAN,

                                         Defendant-Appellant.



         Appeal from the United States District Court for the
                       Western District of Texas
                             5:00-CR-117-17



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jesus Albarran was charged with and convicted of conspiracy

with intent to distribute more than five kilograms of cocaine in

violation of 21 U.S.C. §§ 841 and 846, and conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h).         Albarran

appeals his convictions, arguing that the government presented



     *
        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that this opinion should not be published and is not precedent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.
insufficient evidence to prove his identity.             Finding sufficient

evidence as to each count, we AFFIRM Albarran’s convictions.

     In order to overturn a conviction for insufficient evidence,

we must be satisfied that no rational jury could have found that

the government proved the essential elements of each charge beyond

a reasonable doubt.     United States v. Anderson, 
174 F.3d 515
, 522

(5th Cir. 1999).

     The government presented more than adequate evidence for a

juror to find that Albarran was involved with several other co-

conspirators in an extensive cocaine smuggling operation.             See 21

U.S.C. § 846.     The evidence also adequately established that the

profits    from   selling   narcotics   were   funneled     back   into    the

operation, through the purchase of numerous vehicles and other

assets.    See 18 U.S.C. § 1956(h)(a)(1)(A)(i).

     We need not give a detailed account of the evidence, as

Albarran    focuses   his   argument    on   what   he    considers   to    be

insufficient identification evidence. This was a question in large

part because the witnesses knew Albarran by the sobriquet “Venado.”

Albarran argues that the evidence was insufficient to show that he

was the person involved known as Venado.        He has two bases for his

complaint: (1) of the four witnesses that picked him out of a photo

lineup, two could not positively identify him from the stand; and

(2) the identifying witnesses were inherently unreliable because

they were all co-conspirators with strong incentives to lie.

     Neither of these complaints presents an adequate basis to
overturn Albarran’s convictions.                  It is true that an uncertain

identification alone will not support a conviction.                           See United

States v. Guerrero, 
169 F.3d 933
, 942 (5th Cir. 1999).                            But here,

four witnesses positively identified Albarran in a photo lineup.

While   two   of   them   could       not    positively       identify       him    in    the

courtroom, the government explained that Albarran’s appearance

changed drastically in the six years since those two witnesses last

encountered    Albarran.         But    even      if   we    find    that    explanation

inadequate and that no rational juror could have relied on those

two witnesses, two other witnesses conclusively identified Albarran

in   the   photo   lineup       and    in   the    courtroom.             Those    positive

identifications are sufficient to withstand this challenge.

      Albarran then assails all of the witnesses’ identifications as

being self-serving and unreliable, largely because they were all

co-conspirators.          But    “it    is     well-settled         that     credibility

determinations are the sole province of the jury.”                         United States

v. Cathey, 
259 F.3d 365
, 368 (5th Cir. 2001).                        Albarran had the

opportunity, and took it, to attempt to discredit these witnesses

before the jury.      The jury apparently found the witnesses to be

convincing    despite      any    biases.          We       will    not    disturb       that

determination simply because the witnesses arguably had incentives

to give false testimony.

      Finding that sufficient evidence exists on each count, we

AFFIRM Albarran’s convictions.

Source:  CourtListener

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