United States v. Chavira

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-50352
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LILIANA RUIZ CHAVIRA and MARTIN ALONSO CHAVEZ,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
February 10, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Martin Chavez was convicted of conspiring
to possess with intent to distribute a quantity
of cocaine in violation of 21 U.S.C. §§ 846
and 841(a)(1), and he and Liliana Chavira
were convicted of possession with intent to
distribute a quantity of cocaine in violation of
21 U.S.C. § 841(a)(1). Chavez challenges
denial of a motion to suppress and a three-
level upward adjustment in sentencing, and
Chavez and Chavira claim the evidence is
insufficient to support their convictions. We
affirm Chavez’s conviction and sentence, but
we reverse and remand Chavira’s conviction
for insufficient evidence.
I.
On October 28, 1998, an informant, Jose
Cruz, informed Armando Apodaca of the
Metro Narcotics Task Force that a red car
loaded with cocaine would be crossing from
Mexico and that Cruz would be driving the car
to a house in El Paso. Acting on the tip,
officers observed Cruz pick up the car and
drive it to a house at 500 Dorsey Street.
According to Cruz, the car was loaded with
forty kilograms of cocaine that he placed in the
garage. Officers observed Chavez driving a
blue van into the garage, closing the garage
door, and according to Cruz, loading the
cocaine into the van. Shortly thereafter, the
garage door was opened, and Chavez left the
premises in the van.
The following day, Cruz notified Apodaca
of another such shipment, this time specifying
that two Hispanic males driving a blue van
with a given license plate number would pick
up the shipment. Officers once again observed
Cruz drive the red car to the Dorsey house, at
which point constant surveillance of the house
began.
On October 30, Chavez arrived at the
* 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determined that this opinion should not be
published and is not precedent except under the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.

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2
house in the van and knocked on the door, but
left after receiving no response. After making
a phone call at a nearby convenience store,
Chavez returned and knocked again, leaving a
second time when there was still no answer. A
few hours later, officers spotted the van
nearby; Chavez dropped off a man later
identified as Jesus Dominguez at the
convenience store, and proceeded to the
Dorsey home. Chavez backed the van into the
garage and closed the garage door, whereupon
Cruz observed the cocaine being loaded.
Approximately fifteen to thirty minutes later,
Chavez left the house and picked up
Dominguez at the convenience store.
Officers followed the van to a house at
12457 Robert David Drive, where the van
entered the garage, and the garage door was
closed. Approximately thirty to forty-five
minutes later, Dominguez, with Chavez as
passenger, drove the van to a nearby grocery
store, where Chavez left the van and entered a
gold Nissan Maxima, which he drove away.
Chavez was not followed, but Dominguez
returned to the house on Robert David in the
blue van.
The following day, Dominguez was
observed leaving the house in the van twice,
driving slowly around the area for hours, and
making “heat runs,” described as quick
U-turns designed to discover whether one is
being followed. On the second such
excursion, Dominguez ultimately evaded
surveillance.
Later that day, officers spotted the van back
at the grocery store parking lot and located
Chavez driving the Maxima with Dominguez
as passenger. The officers believed the two
were attempting to discover the surveillance,
by driving very slowly, making frequent stops,
and making several heat runs; they also
witnessed them using two-way radios. Two
marked units pulled over the Maxima, and
officers arrested Chavez and Dominguez.1
A search of the Nissan yielded a piece of
paper on which were written the license plate
numbers of three vehicles involved in the
surveillance, two-way radios, approximately
$2,000 in cash, two garage door openers, and
an advertisement with the address 11640
McAuliffe. Officers later determined that one
garage door opener operated the door at the
Robert David residence, and one operated the
door at 11640 McAuliffe, a location at which
officers had seen Dominguez and Chavez
previously.
Chavez claimed that he was staying at the
11640 McAuliffe residence while the owners
were out of town. A consent search of that
residence located no contraband but did locate
a hidden compartment in the kitchen area.
Dominguez consented to a search of his
van, in which no relevant evidence was found.
Dominguez likewise gave consent to search
the house on Robert David, where he informed
the officers that he lived with his common-law
wife, Chavira, and her child. On arrival at the
residence, Chavira was informed of
Dominguez’s consent to a search of the
residence for evidence of narcotics activity;
she asserted that she was not aware of any
drugs being kept there, but she did not object
to the search. Officers located approximately
716 pounds of cocaine in two secret
compartments of the home; the compartment
design was similar to that found in the
McAuliffe residence.
Following denial of motions to suppress,
Chavez and Chavira were tried together for
conspiring to possess with intent to distribute
a quantity of cocaine in violation of 21 U.S.C.
§§ 846 and 841(a)(1) (“the conspiracy count”)
and possession with intent to distribute a
quantity of cocaine in violation of 21 U.S.C.
§ 841(a)(1) (“the possession count”).2 The
court granted Chavira a judgment of acquittal
on the conspiracy count but denied acquittal
motions on the remaining counts. The jury
found Chavez guilty on both counts and
Chavira guilty on the possession count.
1 The parties stipulated that an arrest occurred
when the Maxima was stopped.
2 Dominguez was also a co-defendant, but he is
not involved in this appeal.

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3
II.
Chavez contends that his arrest was illegal,
and therefore that the court erred in denying
his motion to suppress evidentiary fruits of
that arrest. In reviewing a denial of a motion
to suppress, we view the evidence in the light
most favorable to the party that prevailed in
the district court, here the government, and
consider the evidence offered at the
suppression hearing and the evidence admitted
at trial. See United States v. Gonzales, 121
F.3d 928, 938 (5th Cir. 1997), cert. denied,
522 U.S. 1063, and cert. denied, 522 U.S.
1131 (1998).
Because Chavez was arrested without a
warrant, probable cause was required. See
United States v. Ramirez, 145 F.3d 345, 352
(5th Cir.), cert. denied, 525 U.S. 1046 (1998).
Probable cause exists when the totality
of facts and circumstances within a
police officer's knowledge at the
moment of arrest are sufficient for a
reasonable person to conclude that the
suspect had committed or was
committing an offense. The presence of
probable cause is a mixed question of
fact and law. This court will not disturb
the factual findings of the district court
absent clear error. Accepting these
facts, the ultimate determination of
whether there is probable cause for the
arrest is a question of law to be
reviewed de novo.3
Id. (internal citations omitted). “Although
probable cause requires more than a bare
suspicion of wrongdoing, it requires
substantially less evidence than that sufficient
to support a conviction.” United States v. Ho,
94 F.3d 932, 936 (5th Cir. 1996). The district
court found probable cause based on the
information provided by the informant Cruz,
whom the court found to be reliable, and on
the suspicious driving activity observed by
surveillance officers, and we agree.
Cruz twice informed Apodaca that he
would be driving a red car containing a load of
cocaine to the Dorsey house, and was
observed driving a red car to the house on
both occasions. Cruz further informed
Apodaca that Hispanic males in a blue van
with a specified license plate were going to
pick up the cocaine, and Chavez was observed
driving the van into the garage of the Dorsey
house following each of Cruz’s visits (on the
second of which Chavez dropped off
Dominguez immediately before the brief stop).
Cruz informed Apodaca that he personally
observed the van being loaded with the
cocaine. Cruz was deemed credible because
he had been providing reliable information on
narcotics transactions to Apodaca for over a
year.4 Chavez and Dominguez were observed
performing counter surveillance measures in
their vehicles. The totality of facts and
circumstances provided probable cause to
arrest. III.
Chavez claims insufficiency of the evidence.
“In evaluating a challenge to the sufficiency of
the evidence, we view the evidence in the light
most favorable to the verdict and uphold the
verdict if, but only if, a rational juror could
have found each element of the offense beyond
a reasonable doubt.” United States v. Brown,
186 F.3d 661, 664 (5th Cir. 1999). This
review is de novo, and “[i]f 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.” Id. (internal
quotation marks omitted).
3 These likewise are the general standards of
review for denial of a motion to suppress. See
Ramirez, 145 F.3d at 352.
4 Although Chavez stresses that Cruz’s past
information had not led to arrests, this is not
dispositive. In United States v. Carrillo-Morales,
27 F.3d 1054, 1057 n.1 (5th Cir. 1994), we found
probable cause partially based on a tip from an
informant with whom the officer had had no prior
experience. As in the case sub judice, the
information was corroborated by subsequent
investigation and surveillance.

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4
On the conspiracy count, the government
had to prove “(1) that an agreement existed to
violate federal narcotics laws; (2) that the
defendant knew of the existence of the
agreement; and (3) that the defendant
voluntarily participated in the conspiracy.”
Gonzales, 121 F.3d at 935. These elements
may be established by circumstantial evidence
and “may be inferred from the development
and collocation of circumstances.” Id.
(internal quotation marks omitted).
The agreement between the co-
conspirator[] and the defendant need not
be proved by direct evidence, but may
be inferred from concert of action. Such
action may be inferred from the
circumstances as a whole. Acts which
are not per se unlawful lose that
character when cumulatively viewed as
the constituent elements of a criminal
conspiracy.
United States v. Morris, 46 F.3d 410, 420 (5th
Cir. 1995) (internal quotation marks and
citation omitted).
There is sufficient evidence to support
Chavez’s conspiracy conviction. He twice
drove the van to the Dorsey house; Cruz
testified that he witnessed Chavez load the van
with cocaine on those occasions. On the
second trip, Chavez dropped off Dominguez
before reaching the destination, picked up
Dominguez on the return, and drove the van
into the garage of Dominguez’s residence on
Robert David. Chavez performed heat runs
and other counter surveillance measures in his
Maxima, with Dominguez as passenger, in
which vehicle was found a listing of the license
plate numbers of three surveillance vehicles.
The McAuliffe residence in which Chavez
was residing, and to which Chavez and
Dominguez had traveled previously, contained
a secret compartment similar to those in the
Robert David residence in which the cocaine
was found. This evidence is sufficient to prove
that Chavez and Dominguez had an agreement
to violate federal narcotics laws and that
Chavez knew of the agreement, and
voluntarily participated in it.
On the possession count, the government
had to prove “(1) knowing (2) possession of a
controlled substance (3) with intent to
distribute it.” Gonzales, 121 F.3d at 936.
Possession may be actual or constructive, the
establishment of which can depend on
circumstantial evidence and inference
therefrom. See United States v. Jones, 133
F.3d 358, 362 (5th Cir.), cert. denied, 523
U.S. 1144 (1998); United States v. Gonzales,
79 F.3d 413, 423 (5th Cir. 1996).
“‘Constructive possession’ is ownership,
dominion, or control over illegal drugs or
dominion over the premises where drugs are
found. In other words, constructive
possession is the ability to reduce an object to
actual possession.” United States v. Pigrum,
922 F.2d 249, 255 (5th Cir. 1991) (internal
quotation marks and citation omitted).
The evidence is sufficient to sustain
Chavez’s possession count. Not only was
Cruz’s testimony evidence of actual
possession, but the evidence further supports
a reasonable inference that Chavez had
knowing access to, and control over, the
cocaine at the Robert David residence. The
amount of cocaine discovered, 716 pounds,
provides an inference that it was meant for
distribution: “Intent to distribute a controlled
substance may generally be inferred solely
from possession of a large amount of the
substance.” United States v. Prieto-Tejas, 779
F.2d 1098, 1101 (5th Cir. 1986); see also
Gonzales, 121 F.3d at 936.
IV.
Chavira claims there is insufficient evidence
that she knowingly possessed cocaine. She
was Dominguez’s common-law wife, and she

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5
and her child at least sometimes resided at the
Robert David house. On the day the house
was searched, an officer observed Chavira
leave the residence with Dominguez and her
child and travel to a nearby Wal-Mart, where
she “look[ed] around from left to right, and
also behind her.” The officer believed she was
trying to discover whether anyone had
followed her, even though her “looking
around” took place approaching a crosswalk.
Chavira and her child were at the residence
when officers arrived to search it; informed of
their purpose, she replied that she was not
aware of any drugs in the home. After
Chavira, Dominguez, and Chavez were
arrested, they were transported to jail, where
Chavira was observed pleading with
Dominguez to provide officers with
information which would help her and her
child.
The cocaine was found in secret
compartments located in the closets of the
master bedroom and the child’s bedroom, and
Chavira’s purse was found in the closet of the
master bedroom. To transfer cocaine from the
garage to the bedroom closets, one would
have to walk through common areas of the
house, including the kitchen and living room.
To gain access the secret compartments, one
had to remove shelves in the closet, turn on an
electrical supply source, and push an electrical
switch to open a hidden door.
The government contends that Chavira
constructively possessed the cocaine. When
there is joint occupancy of a location,
however, mere control or dominion over the
place in which contraband is found is
insufficient for constructive possession:
“[S]omething else (e.g., some circumstantial
indicium of possession) is required besides
mere joint occupancy before constructive
possession is established. . . . [There must be]
some evidence supporting at least a plausible
inference that the defendant had knowledge of
and access to the . . . contraband.” United
States v. Mergerson, 4 F.3d 337, 349 (5th Cir.
1993).5
We have rejected findings of constructive
possession under somewhat analogous
circumstances. In United States v. Pigrum,
922 F.2d 249 (5th Cir. 1991), a female
defendant was present at a co-defendant’s
house during a search that produced cocaine.
Women’s undergarments were found in the
bedroom dresser; drug residue and drug
paraphernalia were in plain view throughout
the house; when officers arrived, the defendant
unlocked the door only after warning her
codefendant that the police were present; and
a cocaine buy was made at the residence a
couple of hours before the officers arrived to
execute the search. See id. at 255. There was
no evidence, however, either that the
undergarments belonged to the defendant or
that she generally resided in the house. We
concluded that there was insufficient evidence
of constructive possession.
In United States v. Onick, 889 F.2d 1425,
1429 (5th Cir. 1989), police discovered the
female defendant in nightclothes at the house
when they searched it; a bedroom closet
contained women’s clothing; there was a
photograph of the defendant in one of the
bedrooms; and the defendant was present at
the house at an earlier time when a locksmith
installed a safe. We concluded that the
evidence was insufficient to show that the
defendant constructively possess drugs found
at the house.
5 Although the elements of possession and
scienter (knowing) are theoretically distinct, in the
realm of constructive possession they tend
naturally to overlap. Constructive possession is
“the knowing exercise of, or the knowing power or
right to exercise, dominion and control over the
proscribed substance.” United States v. Brito,
136 F.3d 397, 410 (5th Cir.), cert. denied,
523 U.S. 112, and cert. denied, 524 U.S. 962, and
cert. denied, 525 U.S. 867 (1998). See also
United States v. de Leon, 170 F.3d 494, 497 (5th
Cir.), cert. denied, 120 S. Ct. 156 (1999).
Whether we term it a failure to prove possession or
a failure to prove the required scienter, the result is
the same.

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6
While there is evidence that Chavira jointly
occupied the house with Dominguez, there is
no further evidence supporting a plausible
inference that she had knowledge of and
access to the cocaine. Although conducting
counter surveillance measures such as heat
runs is suspicious, testimony that Chavira was
observed looking around on her way to Wal-
Mart is not nearly so probative.
That the cocaine had to pass through
common areas of the house to reach the
compartments does not implicate Chavira
without some evidence that she was present
during any such transfer. Unlike the
circumstance in Pigrum, in which evidence of
drugs was in plain view, access to the cocaine
in the secret compartments in the closets
required the removal of shelves, the turning on
of an electrical supply source, and the pushing
of a switchSSa detective testified that the
secret compartments were very sophisticated,
“the best [he had] ever seen.” Therefore, the
presence of Chavira’s purse in one of the
closets does not allow the inference that she
therefore knew of the presence of the drugs.
The government also relies on Chavira’s
statements as inferentially proving guilty
knowledge, but they are just as indicative of
innocence as of guilt. When officers informed
Chavira of the purpose of the search, she
responded that to the best of her knowledge
there were no drugs at the house.
The government attempts to make use of
the nervous/not nervous dichotomy, arguing
that Chavira was not nervous enough when
asked the question, demonstrating a guilty
conscience.6 Nervous behavior, such as
countersurveillance measures, before one is
confronted by police, is more probative than is
one’s reaction to an actual confrontation. See,
e.g., Carrillo-Morales, 27 F.3d at 1065.
While nervousness, or lack thereof, during a
confrontation may also sometimes be
probative, nothing about Chavira’s response
demonstrates a consciousness of guilt.7
Likewise, the fact that she pleaded with her
husband to provide authorities with
information that would help her and her child
is no more indicative of guilt than it is of
innocence.
The totality of the evidence against Chavira
amounts to nothing more than residing at the
house where the cocaine was found and her
close association with Dominguez, which is
not sufficient to prove constructive possession.
See United States v. Steen, 55 F.3d 1022,
1032 n.23 (5th Cir. 1995). We therefore
reverse her conviction for insufficient
evidence.8
V.
Chavez contends that the court erred in
giving him a three-level upward adjustment
based on his aggravating role in the offense
pursuant to U.S.S.G. § 3B1.1(b), which
provides such an enhancement if “the
defendant was a manager or supervisor . . .
and the criminal activity involved five or more
participants or was otherwise extensive.” The
p r e s e n t e n c e i n v e s t i g a t i o n r e p o r t
recommending the adjustment does not specify
6 There was trial testimony that she was “very
calm” but also that she was “a little bit nervous.”
7 While we have recognized both nervousness
and an absence of nervousness as circumstantial
evidence of guilty knowledge, we also have
criticized government attempts to use such
evidence when it lacks probative value. See United
States v. Ortega Reyna, 148 F.3d 540, 544-45 (5th
Cir. 1998). The government urges Chavira’s
general calm composure and submission to the
search as evidence of guilty conscience, but as in
Ortega we postulate that had Chavira been nervous
and vehemently objected to the search, the
government would have argued that this behavior,
as well, justified an inference of guilty knowledge.
See id.
8 The government argues that, in the alternative,
Chavira’s conviction can be sustained on a theory
of aiding and abetting. Because the court did not
instruct the jury on aiding and abetting, this
contention is incorrect. See Brito, 136 F.3d at 410
n.18. Regardless, there is no evidence that Chavira
associated with the criminal activity or acted to
help it succeed. See Gonzales, 121 F.3d at 936.

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whether the criminal activity was considered to
involve five or more participants or whether it
was “otherwise extensive,” and the court did
not clarify the basis for the increase, merely
terming Chavez a “manager.”
Because Chavez did not raise this issue at
or before sentencing, we review for plain
error. See United States v. Lopez, 923 F.2d
47, 49 (5th Cir. 1991).
‘Plain error’ is error which, when
examined in the context of the entire
case, is so obvious and substantial that
failure to notice and correct it would
affect the fairness, integrity, or public
reputation of judicial proceedings . . . .
Review for plain error is uniquely
addressed to the appellate court’s
discretion. Questions of fact capable of
resolution by the district court upon
proper objection at sentencing can never
constitute plain error.
Id. at 50. A ruling on a defendant’s role in the
offense is a factual determination. See United
States v. Navarro, 169 F.3d 228, 234 (5th
Cir.), cert. denied, 120 S. Ct. 117, 312 (1999);
United States v. Posada-Rios, 158 F.3d 832,
878 (5th Cir. 1998), cert. denied, 119 S. Ct.
1280, 1487, 1792 (1999). Therefore, we need
not reach the merits of Chavez’s argument; the
court did not commit plain error.
Chavira’s judgment of conviction is
REVERSED and REMANDED for entry of
judgment of acquittal, and Chavez’s judgments
of conviction and sentence are AFFIRMED.

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