United States v. Moreno-Garcia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-40159
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EUFEMIO MORENO-GARCIA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(L-98-CR-380-2)
_________________________
August 9, 2000
Before SMITH and DENNIS, Circuit
Judges, and ROETTGER, District Judge.*
JERRY E. SMITH, Circuit Judge:**
Eufemio Moreno-Garcia appeals, on
grounds of insufficient evidence, his conviction
* District Judge of the Southern District of Florida,
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determined that this opinion should not be published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.

-- 1 of 6 --

2
of conspiracy and possession with intent to
distribute marihuana. Because he did not re-
new his motion for acquittal at the close of all
evidence, we review only for plain error.
Finding none, we AFFIRM.
I.
Moreno-Garcia (“Moreno”), Juan Serna-
Arrambide (“Serna”), and Carlos Rios were
charged in a two-count indictment with
conspiracy and possession with intent to
distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1), 21 U.S.C. § 841(b)(1)(D), and
18 U.S.C. § 2. Serna and Rios pleaded guilty
to the possession count, and the government
dismissed the conspiracy count as to them. A
jury found Moreno guilty on both counts.
On April 3, 1998, Serna was attempting to
enter the United States from Nuevo Laredo,
Mexico, when Customs agents discovered ap-
proximately fifty pounds of marihuana secreted
in a hidden compartment under the driver’s
seat of the truck he was driving. The
inspectors had noticed a zipper in the seat that
opened from the driver’s side. The seat was
hard as a rock and unusually high. They
opened the zipper on the seat and found a tray
containing foam, baby powder, and vacuum-
sealed plastic packages of marihuana.
Serna indicated his desire to cooperate and
gave the inspectors a slip of paper with the
name “Rogelio” and “331-0438” written on it.
Serna said that he had been approached by a
man he did not know, who gave him $177 to
cover expenses and asked him to drive the
truck to Dallas and to call the phone number
upon arrival. Serna told Special Agents Dami-
en Vega and Eric Wilson that he did not know
what was in the truck, but that he was being
paid $250 to drive it either just across the
border or to Dallas.
Serna then changed his story,
acknowledging that he knew there was
marihuana in the truck and stating that he was
being paid $1500 to deliver it to Rogelio in
Dallas and then drive back to Nuevo Laredo
with an unknown amount of currency. When
he arrived in Dallas, he was to call Rogelio at
the number on the paper.
The agents and Serna proceeded to Dallas
with the truck and attempted a controlled de-
livery. Before noon on April 4, the agents
parked the loaded truck outside of Grandy’s
Restaurant, and Serna called the number for
Rogelio, saying that he had arrived in Dallas
and needed someone to pick him up because
he did not know his way around Dallas. They
agreed to meet at Grandy’s.
Meanwhile, agents conducted surveillance
of a residence at 702 Ely Street, Dallas, to
which the phone number on the slip of paper
was assigned. Shortly after Serna’s phone call,
three Hispanic males left 702 Ely Street in a
white car with yellow license plates. The
group included Moreno, a 20-year-old man,
and a 40-year-old man who drove the car.
Rios had met Rogelio at the bus stop in Nu-
evo Laredo, in December 1997. At about
2:30 p.m. on April 4, he received a call on his
cellular telephone from Rogelio, who offered
to pay him $500 to deliver marihuana to
another person. Rogelio told Rios to meet him
at a gas station, where Rios would pick up
someone who would know whom to contact at
Grandy’s Restaurant.
Rios drove a gold car to a gas station near
Grandy’s. Rogelio arrived, driving a white car
with yellow license plates, which Rios
previously had seen Rogelio driving in Nuevo
Laredo. Moreno exited Rogelio’s car and
entered Rios’s car.

-- 2 of 6 --

3
Rios drove Moreno to Grandy’s. Rios tes-
tified that when they arrived in the Grandy’s
parking lot, Moreno said, “That’s the pickup.”
Moreno entered the restaurant and came out a
short time later with Serna. Rios testified that
he had not seen the truck or Serna before.
Rios told the pair to follow him. Serna
drove the load vehicle, and Moreno rode as a
passenger. Rios drove on Highway 35, then
exited and pulled into the parking lot of the
Elms Apartments. He waited there for a call
from Rogelio, who instructed him to go to an
auto shop at 200 North Marcella Street. Ac-
cording to Rios’s testimony, Moreno walked
up to Rios’s car but said nothing. Rios told
Moreno to follow him.
Vega testified that Rios first told him that
Moreno had gotten into his car at the
apartments and that Moreno called Rogelio.
Rios changed his story and told Vega that
Rogelio had called Rios and that Moreno had
merely asked why they had stopped.
Serna and Moreno then followed Rios to
200 North Marcella Street. The car and truck
pulled into the garage of an auto tint shop.
Rios testified that when the truck got near his
car inside the garage, Moreno was no longer in
the truck. The last time he saw Moreno, Mo-
reno had been close to the front door. Rios
testified that Serna placed the marihuana into
the trunk of Rios’s car.
After about five to ten minutes, as the
agents prepared to enter the garage and arrest
the participants, the gold car exited. An agent
pulled in behind the car and blocked it, and
other agents secured the garage. Agents re-
covered nine bundles of marihuana from Rios’s
trunk, the same marihuana that had been in the
load truck and seized by Customs the previous
day. Moreno was arrested while seated in the
driver’s seat of the load truck.
The agents testified that there were twenty
people inside the garage but that only the three
defendants were arrested. Agents spoke to ev-
eryone inside the garage, and apparently no
one had information about the transfer of the
marihuana or about Moreno’s actions inside
the garage.
Vega testified that he believed Moreno’s
role in the conspiracy was that of a middleman
between Rogelio and Serna and as a “lookout”
at the garage. Vega stated that it is unusual
for participants in a drug conspiracy to
associate with persons not participating in the
conspiracy when they are doing acts in
furtherance of the conspiracy. Another agent
testified that Moreno’s actions were
characteristic of an individual involved as a
lookout.
Rios testified that he did not know More-
no’s role in the conspiracy, but only that Mo-
reno would know the person at the restaurant.
Rios testified that only he, Serna, and Rogelio
knew that marihuana was being transferred
from the truck to his car at the auto shop.
Moreno testified that he worked as a
mechanic’s assistant making about $40 to $50
a week. He had known Serna, who lived
around the corner from him, for about five
years. He saw Serna on April 2, 1998, driving
the brown truck that was the load truck.
Serna offered to pay Moreno $100 to drive a
truck to Nuevo Laredo that Serna was going
to buy in Dallas.
Serna planned to leave for Dallas on April 3
and said that someone was going to come get
Moreno. On April 3, Rogelio, whom Moreno
had not met before, arrived at Moreno’s
house, said that Serna had sent him, and asked

-- 3 of 6 --

4
whether Moreno was going to Dallas to help
drive the pickup.
Moreno rode with Rogelio and Rogelio’s
wife and son to the bridge at the border. Ro-
gelio told Moreno to cross into the United
States and wait for him at the H.E.B. grocery
store in downtown Laredo. Rogelio, his wife,
and son picked Moreno up from the store at
about noon, and they traveled to Dallas in the
same car that later delivered Moreno to the
gas station near Grandy’s.
They arrived in Dallas at about 8 p.m. and
spent the night at the Ely Street home of peo-
ple Moreno did not know. Moreno testified
that he did not ask when he was going to meet
up with Serna and that he did not have a phone
number or any way to contact Serna.
The next morning, after Rogelio received a
phone call, Moreno, Rogelio, and his son left
the house and drove to the gas station. Roge-
lio told Moreno to get into a gold car with Ri-
os and that Rios would take him to meet Serna
at a restaurant. Moreno testified that this was
the first time he met Rios.
Rios drove Moreno to Grandy’s but did not
tell Moreno anything. Moreno recognized the
brown truck in the parking lot as the one he
had seen Serna driving in Nuevo Laredo. Mo-
reno found Serna inside Grandy’s and told
Serna, “They’re looking for you outside.”
They exited the restaurant, and Moreno got
into the passenger side of the truck with Serna.
Moreno stated that he did not know where
Serna was going.
Moreno testified that he did not know why
Rios stopped at the apartments. Moreno
asserted that he got out of the truck at the
apartments to look for a place to get a drink of
water. When he walked up to Rios’s car, Rios
told him to get back into the truck because
they were going to keep going.
When they arrived at the auto tint shop,
Serna told Moreno to wait for him near the
door, and Serna proceeded inside the garage
with the truck. Moreno testified that he was in
the driver’s seat of the truck when he was ar-
rested, because Serna said he was tired and
asked whether Moreno would drive the truck
out of the garage. Moreno testified that he did
not know who transferred the marihuana from
the pickup to Rios’s car, did not use marihua-
na, had never participated in the distribution of
marihuana or other drugs, and did not know
that Serna was taking marihuana to Dallas.
II.
Moreno argues that the evidence was insuf-
ficient to support his convictions and that the
court erroneously denied his motion for
judgment of acquittal. He argues that the
government did not prove that he was a willing
and knowing conspirator doing his part to
further the conspiracy. He contends that the
evidence showed only that he associated with
individuals who were engaged in the
transportation of marihuana and that he was
merely present during the transportation of the
drugs from Grandy’s to Marcella Street.
Only “[p]lain errors or defects affecting
substantial rights may be noticed although they
were not brought to the attention of the
court.” FED. R. CRIM. P. 52(b). Because Mo-
reno failed to renew his motion for judgment
of acquittal after the close of all the evidence,
we are limited to a review for plain error. See
United States v. McCarty, 36 F.3d 1349, 1358
(5th Cir. 1994).
It is not enough, therefore, for us merely to
find that the district court would have erred
had it denied a motion for judgment of

-- 4 of 6 --

5
acquittal at the close of evidence. See United
States v. Olano, 507 U.S. 725, 732 (1993).
Rather, the error is reversible “only if it is
‘plain’ and ‘affect[s] substantial rights.’” Id.
“‘Plain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’” Id. at 734 (citations
omitted).
Rule 52(b) was intended to afford a
means for the prompt redress of
miscarriages of justice. By its terms,
recourse may be had to the Rule only on
appeal from a trial infected with error so
“plain” the trial judge and prosecutor
were derelict in countenancing it, even
absent the defendant’s timely assistance
in detecting it. The Rule thus reflects a
careful balancing of our need to
encourage all trial participants to seek a
fair and accurate trial the first time
around against our insistence that
obvious injustice be promptly redressed.
United States v. Frady, 456 U.S. 152, 163
(1982).
Thus, for Moreno to prevail, he must do
more than show t hat the evidence was
insufficient; he must also show that
insufficiency was “so ‘plain’ the trial judge and
prosecutor were derelict in countenancing it.”
Id. Moreno cannot meet that high standard
with respect to either count.
A.
A defendant is guilty of conspiracy if
(1) there is agreement between two or more
persons to commit a crime and the defendant
(2) knew of the agreement, and (3) voluntarily
participated in the agreement. See United
States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.
1994); United States v. Maltos, 985 F.2d 743,
746 (5th Cir. 1992). These elements need not
be proved by direct evidence. Moreover,
“[o]nly slight evidence is needed to connect an
individual to an illegal conspiracy once the
United States has produced evidence of that
conspiracy.” United States v. Vaquero, 997
F.2d 78, 82 (5th Cir. 1993).
Thus, while mere presence and association
with conspirators, alone, will not support an
inference of participation in the conspiracy, see
Maltos, 985 F.2d at 746, evidence of concert-
ed action can indicate both agreement and vol-
untary participation in the conspiracy. See
United States v. Quiroz-Hernandez, 48 F.3d
858, 866 (5th Cir. 1995). A jury may infer
participation and membership in a conspiracy
when the facts make it unlikely that
conspirators would permit an innocent person
to be present or act. See United States v.
Martinez-Moncivais, 14 F.3d 1030, 1034-35
(5th Cir. 1994).
While Moreno’s plea of innocence and ig-
norant acquiescence is not wholly lacking in
plausibility, it is not sufficiently supported in
the record to call for plain error reversal. He
was not only present and associating with the
co-conspirators, but played an active role in
effecting the goals of the established
conspiracy. While it is not impossible that
Moreno did so blindly, without knowledge that
he was participating in criminal activity, it was
not plain error to al low the jury to conclude
otherwise.
B.
“Conviction for possession with intent to
distribute requires proof of (1) knowing
(2) possession (3) with intent to distribute.”
United States v. Anchondo-Sandoval, 910
F.2d 1234, 1236 (5th Cir. 1990). Possession
of contraband may be either “actual or
constructive and may be joint among several
defendants. This court has defined

-- 5 of 6 --

6
‘constructive possession’ as ‘the knowing
exercise of, or the knowing power or right to
exercise dominion and control over the
proscribed substance.’” United States v.
Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993)
(citations omitted).
When the contraband is hidden in a
compartment within a vehicle, “[p]ossession of
or control over a vehicle does not, standing
alone, suffice to prove guilty knowledge.” An-
chondo-Sandoval, 910 F.2d at 1236. But,
“knowing possession can be inferred from the
defendant’s control over the vehicle in which
the illicit substance is contained if there exists
other circumstantial evidence that is suspicious
in nature or demonstrates guilty knowledge.”
Id.
For the same reasons that Moreno’s
conspiracy conviction survives plain error
review, there is sufficient circumstantial
evidence to support an inference of knowing
possession of marihuana. The suspicious
surrounding circumstances supporting
Moreno’s knowing participation in the
conspiracy can serve double duty and establish
his constructive possession of the seized
contraband.
Possession of an amount of marihuana larg-
er than is necessary for personal consumption
supports a finding that the defendant intended
to distribute the drug. See United States v.
Williams-Hendricks, 805 F.2d 496, 501-02
(5th Cir. 1986). The fifty-one pounds seized
here falls squarely within that inference. It
therefore was not plain error to allow the jury
to convict Moreno for possession with intent
to distribute marihuana.
AFFIRMED.

-- 6 of 6 --