     Case: 10-10397 Document: 00511419311 Page: 1 Date Filed: 03/22/2011




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

                                                FILED
                                                                           March 22, 2011
                                     No. 10-10397
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

VONGSAVAT SAYASANE,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 2:09-CR-72-8


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Vongsavat Sayasane appeals his jury trial conviction and sentence for
conspiracy to possess with intent to distribute a mixture and substance
containing 500 grams or more of methamphetamine (meth) and five kilograms
or more of cocaine (Count One) and possession with intent to distribute
approximately 4,628 grams of a mixture or substance containing a detectable
amount of meth and aiding and abetting (Count Six). The district court
sentenced Sayasane to concurrent terms of 262 months in prison to be followed

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 10-10397

by five years of supervised release. Sayasane argues that the evidence was
insufficient to sustain a conviction for either Count One or Count Six. He
further argues that the district court erred in giving the jury an instruction on
deliberate indifference.
      Sayasane moved for a judgment of acquittal at the close of the
Government’s case-in-chief, but failed to renew the motion at the close of all
evidence. Therefore, our review is limited to whether there has been a “manifest
miscarriage of justice,” which occurs when the record is devoid of evidence of
guilt or if the evidence on a key element of the offense is so tenuous that a
conviction would shock the conscience. See United States v. Miller, 576 F.3d 528,
529-30 & n.2 (5th Cir.) (internal citations and quotation marks omitted), cert.
denied, 130 S. Ct. 652 (2009); United States v. Rodriguez-Martinez, 480 F.3d 303,
307 (5th Cir. 2007).
      In regards to Count One, Sayasane argues that the evidence was
insufficient for the jury to conclude that he knew about and willfully participated
in the conspiracy. Roberto Martinez, an admitted member of the conspiracy,
expressly identified Sayasane as a participant.           During the course of
surveillance, officials observed Sayasane meet with Reymundo Haro, another co-
conspirator. Haro removed a white plastic bag from the cab of Sayasane’s
Freightliner tractor trailer. A subsequent search of Haro’s vehicle revealed that
the bag contained 4,628 grams of meth. A later search of the cab of Sayasane’s
truck revealed a secret compartment in the roof above the driver’s seat, as well
as drug paraphernalia similar to the items used to package the meth that had
been discovered in the white bag. During a second search, a drug-sniffing dog
alerted to the earlier presence of drugs.
      Sayasane’s concerted actions with other known members of the conspiracy
rose to a level of more than just mere association or mere presence in an
unsavory atmosphere. See United States v. Wieschenberg, 604 F.2d 326, 335 (5th
Cir. 1979). The record contains ample direct and circumstantial evidence of

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                                    No. 10-10397

Sayasane’s involvement in the drug conspiracy; accordingly, he has failed to
demonstrate that the record is devoid of evidence of his guilt or that the evidence
on a key element of his offense is so tenuous that his conviction should shock the
conscience. See Rodriguez-Martinez, 480 F.3d 303, 307; see also United States
v. Ramirez-Velasquez, 322 F.3d 868, 881 (5th Cir. 2003) (affirming conspiracy
conviction,   under   a   less   strict   standard,   where   the   “aggregation   of
circumstances” supported jury’s verdict).
      In regards to Count Six, Sayasane argues that the evidence was legally
insufficient to establish that he knowingly possessed the meth. Under Pinkerton
v. United States, 328 U.S. 640, 645-46 (1946), a defendant may be held liable for
the reasonably foreseeable acts committed by co-conspirators in furtherance of
the conspiracy, and no additional evidence is necessary to sustain a conviction
on a resulting substantive count where the Government has provided sufficient
evidence to establish that the defendant was a knowing member of the
conspiracy. United States v. Jimenez, 509 F.3d 682, 692 n.9 (5th Cir. 2007).
Because the Government provided ample direct and circumstantial evidence that
Sayasane knowingly participated in the conspiracy, and there was no dispute
that Haro possessed 4628 grams of meth with the intent to distribute it in
furtherance of the conspiracy, the Government did not need to provide additional
evidence that Sayasane knowingly possessed the meth. See id.
      Sayasane’s assertion that the district court erred in giving the jury a
deliberate indifference instruction because the instruction was not supported by
the facts of the case and because the Government proceeded on a theory of actual
knowledge is equally without merit.            Sayasane did not object to the jury
instruction during trial; accordingly, review is for plain error only. United States
v. Fuchs, 467 F.3d 889, 901 (5th Cir. 2006).
      The district court is permitted to instruct the jury on deliberate
indifference when there is a proper factual basis such as where the record
supports inferences that “(1) the defendant was subjectively aware of a high

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probability of the existence of illegal conduct; and (2) the defendant purposely
contrived to avoid learning of the illegal conduct.” United States v. Freeman, 434
F.3d 369, 378 (5th Cir. 2005) (internal citations and quotations omitted). In
light of Sayasane’s continued protestations of ignorance in the face of such
suspicious circumstances, it was appropriate for the district court to instruct the
jury on deliberate indifference. Id.
      Nothing precludes us from simultaneously determining that the record is
not devoid of evidence and that the evidence is sufficient to support Sayasane’s
conspiracy conviction. See United States v. Salinas, 480 F.3d 750, 759-60 (5th
Cir. 2007). Therefore, even if providing the jury instruction was clear error,
Sayasane’s substantial rights were not affected because the Government
provided sufficient evidence that he had actual knowledge of the conspiracy. See
United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010), cert.
denied, No. 10-8092, 2011 WL 589251 (Feb. 22, 2011); cf. United States v. Miller,
588 F.3d 897, 906 (5th Cir. 2009) (holding, under an abuse of discretion
standard, that an erroneous deliberate indifference instruction would be
harmless where the Government presented ample evidence of defendant’s actual
knowledge).    Furthermore, according to circuit precedent, “a deliberate
indifference instruction is not inconsistent with evidence of actual knowledge”;
thus, the jury may consider both theories simultaneously. Freeman, 434 F.3d
at 378-79 & n.9. Sayasane cannot demonstrate that the district court committed
error, plain or otherwise. United States v. Ellis, 564 F.3d 370, 377 (5th Cir.),
cert. denied, 130 S.Ct. 371 (2009).
      AFFIRMED.




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