IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                             January 7, 2009

                                         No. 08-20175                    Charles R. Fulbruge III
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                     Plaintiff - Appellee
v.

RUBEN DELFIN PEREZ

                                                     Defendant - Appellant



                     Appeals from the United States District Court
                          for the Southern District of Texas
                              USDC No. 4:07-CR-00204-1


Before SMITH and SOUTHWICK, Circuit Judges, and RODRIGUEZ, District
Judge.*
PER CURIAM:**
       Defendant-Appellant Ruben Perez appeals his conviction of conspiracy to
possess cocaine with intent to distribute and aiding and abetting the possession
of cocaine with intent to distribute. He argues that the evidence was not
sufficient to support either conviction and that certain testimony of a co-
conspirator was inadmissible. We AFFIRM.

       *
           District Judge of the Western District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-20175

                              I. BACKGROUND
      On April 24, 2007, Perez drove a truck from the border town of Reynosa,
Mexico, across into Texas, and eventually to Houston. In Houston, Perez met
Miguel Angel Navarro-Barajas, one of his co-defendants, at a restaurant. There,
Perez gave Navarro the keys to the truck. Navarro left Perez at the restaurant
and took the truck to a warehouse. At the warehouse, Navarro met with a group
of men who gave him $33,000 in exchange for a large amount of cocaine that had
been located in a secret compartment under the bed liner of the truck. Police
had the warehouse under surveillance and quickly arrested everyone present.
While Navarro was being questioned at the scene of his arrest, his cell phone
began to ring. Navarro told one of the officers that it was the truck’s owner who
was calling. The officer answered the phone and pretended to be Navarro. The
caller was Perez, who asked when the truck would be returned. The officer,
posing as Navarro, told Perez when to expect him. When the meeting occurred,
Navarro identified Perez. The accompanying officers arrested him. At that
time, Perez told the officers that the truck was his.
      Each of Perez’s four co-defendants pled guilty, but Perez chose to go to
trial. At trial, Navarro testified against Perez and shed more light on the events
surrounding the drug transaction. According to Navarro, a man in Mexico
named Clemente arranged the drug transaction and designated the roles for
those involved. Navarro put the cocaine into the truck’s secret compartment
while in Mexico and took the truck to Monterrey, Mexico. From there, Perez’s
son drove the truck to his father in Reynosa. Perez was designated as the driver
to cross the border and take the truck to Houston. Navarro followed Perez in his
own car. Navarro stated that he and Perez did not on April 24 talk about the
presence of cocaine in the truck, and they did not talk about the secret
compartment in the truck. The only conversation that day alluding to drugs was
a statement that Navarro claims Perez made at the restaurant where they met.


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At that time, Perez allegedly said that it was a bad omen that Navarro’s car was
searched at the border crossing and Perez’s truck was not. Navarro testified
that he and Perez had brought drugs into the United States on previous
occasions and that Perez knew that there was cocaine in the truck on April 24.
He also testified that because each man knew his role in the transaction, there
was no need to discuss the topic on April 24.
      Navarro also testified that Perez telephoned him on April 20, 2007, to let
him know that April 24 would be the date for the deliveries. The call was
corroborated by cell phone records that showed a number of calls between Perez
and Navarro on April 20 and April 24. The only other evidence of Perez’s
involvement in the drug transaction, outside of Navarro’s testimony, was a
photograph of him driving the truck across the border.
      At trial, the jury found Perez guilty of both charges. On appeal Perez
raises four arguments: (1) evidence that he had the knowledge and intent
necessary to be guilty of conspiracy was insufficient; (2) evidence that he had the
knowledge and intent necessary to be guilty of aiding and abetting possession
of cocaine with intent to distribute was insufficient; (3) uncorroborated
testimony of a co-conspirator was insufficient to support his conviction; and (4)
hearsay testimony of a co-conspirator was improperly admitted.
                                II. DISCUSSION
A.    Sufficiency of the Evidence
      We give de novo review to a properly preserved claim that the evidence
was insufficient. United States v. Jimenez, 

, 690 (5th Cir. 2007).
In reviewing the evidence, all reasonable inferences drawn and credibility
determinations made are viewed in the light most favorable to the jury’s verdict.
United States v. Medina, 

, 872 (5th Cir. 1998). “This standard
applies whether the evidence is direct or circumstantial.” United States v.
Mergerson, 

, 341 (5th Cir. 1997). “However, in a case depending on

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circumstantial evidence, if the evidence viewed in the light most favorable to the
prosecution gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence, a defendant is entitled to a judgment of
acquittal.” United States v. Bieganowski, 

, 275 (5th Cir. 2002)
(internal quotation marks and citation omitted).        Additionally, “[i]t is not
necessary that the evidence exclude every reasonable hypothesis of innocence or
be wholly inconsistent with every conclusion except that of guilt,” provided a
reasonable jury could conclude that guilt was established beyond a reasonable
doubt. 

to establish the existence of a conspiracy, “the government must
prove beyond a reasonable doubt that: (1) an agreement existed between the
defendant and one or more persons to violate the applicable narcotics laws; (2)
each defendant knew of the conspiracy and intended to join it; and (3) the
defendant participated voluntarily in the conspiracy.” United States v. Infante,

, 385 (5th Cir. 2005). “An express agreement is not required; a
tacit, mutual agreement with common purpose, design, and understanding will
suffice.” 

secrecy is the norm in drug conspiracies, each
element of the crime may be established by circumstantial evidence.” 

from a co-conspirator, including one who has agreed
to testify in exchange for leniency, may be found to be sufficient evidence to
convict, provided the testimony is not factually insubstantial or incredible.
United States v. Westbrook, 

, 1190 (5th Cir. 1997).
      To establish guilt for aiding and abetting a crime, the government must
prove the elements of the substantive offense and that the defendant associated
himself with the criminal venture, purposefully participated in the criminal
activity, and sought by his actions to make the venture succeed. See United
States v. McDowell, 

, 314 (5th Cir. 2007).          The elements of
possession of a controlled substance with intent to distribute are: “(1) knowledge,

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(2) possession, and (3) intent to distribute the controlled substance.” United
States v. Mata, 

, 242 (5th Cir. 2007). “To be guilty of possession
with intent to distribute, the defendant must have aided and abetted both the
possession and the intent to distribute.” 

.
      Perez challenges the knowledge element of both crimes. He claims that
there is insufficient evidence to prove both that he knew drugs were in the truck
he was driving and that he had knowledge of the conspiracy. We disagree. At
trial, Navarro testified that Perez knew that drugs were in the truck, knew what
his role was in the larger scheme, and had participated in similar drug
transactions in the past. This testimony supports that Perez knew he possessed
a large amount of drugs, knew about and voluntarily participated in the
conspiracy, and furthered the conspiracy by bringing the drugs from Mexico into
the United States. Moreover, phone records between Navarro and Perez confirm
that they were in close contact on April 20 and 24, which confirms key portions
of Navarro’s testimony. Additionally, a photograph exists of Perez driving the
truck across the border. We find nothing in the precedents he cites to undermine
the verdict. Navarro’s testimony and the other evidence provided sufficient
grounds upon which the jury could base a finding of guilt on both the conspiracy
and the aiding and abetting charges.
B.    Admission of Co-conspirator Testimony
      We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Hall, 

, 443 (5th Cir. 2007). Hearsay is defined as
“a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.
R. Evid. 801(c). However, a statement is not hearsay if it is made by a co-
conspirator “during the course and in furtherance of the conspiracy.” Fed. R.
Evid. 801(d)(2). To introduce a co-conspirator’s statement, the government must
prove by a preponderance of the evidence: “(1) the existence of the conspiracy; (2)

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the statement was made by a co-conspirator of the party; (3) the statement was
made during the course of the conspiracy; and (4) the statement was made in
furtherance of the conspiracy.” United States v. Hall, 

, 443 (5th Cir.
2007). “The court may consider the content of the statement at issue as a factual
basis for these elements.” 

v. United States, 

,
181 (1987)).
      Perez challenges as inadmissible hearsay Navarro’s testimony in which he
claimed that Clemente told Navarro who Perez was and that Clemente chose
Perez to be the driver because Perez was a safe person. The district court ruled
that there was evidence of a conspiracy involving Clemente, Perez, and Navarro;
therefore, Clemente’s out of court statements were admissible as statements of
a co-conspirator. The district court did not abuse its discretion in this decision.
Navarro’s non-hearsay statements regarding the preparations for the drug
transaction combined with his recitation of Clemente’s out of court statements
provided enough evidence for the district court to find by a preponderance of the
evidence that a conspiracy existed between Clemente, Perez, and Navarro.
Clemente’s statements were made during the conspiracy and in furtherance of
it. Therefore, the statements were admissible as non-hearsay.
      The district court’s judgment is AFFIRMED.




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