     Case: 15-51146      Document: 00513849639         Page: 1    Date Filed: 01/25/2017




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

                                      No. 15-51146                                FILED
                                                                           January 25, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff - Appellee

v.

ELIZAR SAUCEDO MADRID; PEDRO SAUCEDO MADRID,

              Defendants - Appellants




                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:15-CR-122-2


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       A jury convicted two brothers of conspiring to possess controlled
substances with intent to distribute, possessing firearms in furtherance of that
drug crime, and felon in possession of a firearm. They challenge the sufficiency
of the government’s evidence, and one additionally argues that the government
violated its Brady duty. Because we find the evidence sufficient to support the
convictions and the Brady argument without merit, we affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51146
                                       I.
      Pedro Saucedo Madrid, Elizar Saucedo Madrid, and Albert Prieto, Jr.,
were indicted for conspiracy to possess controlled substances with intent to
distribute. The Madrids were further indicted for possession of firearms in
furtherance of that drug crime and felon in possession of a firearm. Prieto pled
guilty and testified against the Madrids, hoping for sentencing leniency. The
charges against the Madrids went to trial. The government’s trial evidence
showed as follows:
      Before the events of this case, Prieto had been arrested for drug
possession. As a result, he briefly acted as an informant for Homeland Security.
The investigation into the Madrids began when Prieto was caught with drugs
again and informed Homeland Security that he had gotten the drugs from the
Madrid brothers. That tip led investigators to the defendants, eventually
resulting in their arrest and trial.
      Pedro and Elizar Madrid were brothers who went by the names “Kiko”
and “Chiquito,” respectively. They lived together at a trailer park on Big Valley
Road in Odessa, Texas. Prieto testified that he initially met the defendants
through Facebook, where he reached out to them seeking to act as their dealer.
Elizar Madrid asked if Prieto “wanted to work,” which Prieto interpreted as
asking whether he wanted to sell drugs. The government offered Facebook
records reflecting this conversation. After that, Prieto would go to the Madrids’
Big Valley trailer park approximately every other day to get meth from the
defendants. Though Prieto himself was a heavy meth user, he primarily
“distribute[d]” the meth that he bought throughout Pecos, Texas. He would
purchase the meth from the defendants on a “front,” meaning that he would
take the drugs without paying, then repay the defendants with the proceeds of
his subsequent sales. When he would repay the front, he would give the money
either to Pedro or Elizar Madrid. He started out buying only quarter ounces,
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                                     No. 15-51146
but later began to buy full ounces at a time—a distribution amount according
to the government’s witness DEA Agent Hutchison.
       Prieto testified that when he would go to the Big Valley property, Elizar
Madrid had guns with him “[m]ostly all the time,” and Pedro Madrid had a gun
“24/7.” He described specific guns that each defendant carried. The defendants
typically stashed their weapons under the bed in “trailer 3” of the Big Valley
property, 1 the trailer out of which they always fronted meth to Prieto. Both
Madrids had pictures on Facebook of themselves brandishing semiautomatic
handguns, an assault rifle, and a shotgun. A search of the Big Valley property
turned up a semiautomatic handgun and an assault rifle in trailer 3, and
distribution amounts of cocaine, heroin, and meth in a nearby shed. When
Pedro Madrid was arrested, he was a passenger in a vehicle where officers
found three handguns and a sawed-off shotgun.
      The defendants were tried together, and the jury convicted them both on
all counts. All issues on appeal were preserved in the district court. They timely
appealed.
                                            II.
      We begin with Elizar Madrid’s contention that his convictions should be
overturned because the government withheld exculpatory evidence from him.
Under the rule established by Brady v. Maryland, 2 prosecutors have a
constitutional duty to disclose exculpatory and impeachment evidence to
criminal defendants even absent a request. 3 There are three elements of a
Brady violation: “The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have



       1Here, we adopt the numbered labels of each trailer on the government’s exhibit 6, a
diagram of the defendants’ trailer park.
      2 373 U.S. 83 (1963).
      3 Strickler v. Greene, 527 U.S. 263, 280 (1999).

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                                     No. 15-51146
been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.” 4 This court reviews alleged Brady violations de novo. 5
      The Brady violation that Madrid alleges was the government’s late
disclosure of the fact that Prieto, the government’s key witness, had previously
been arrested for possession of meth and cooperated with Homeland Security
as a confidential informant as a result. Defense counsel learned this
information on the first morning of trial during HSI Agent Carl’s testimony.
Madrid used the information during his cross-examination of Prieto and
closing argument. The government acknowledges that its late disclosure of this
information was “suppression” of impeachment evidence within the meaning
of the first two Brady elements. However, it argues that Madrid was not
prejudiced at trial because it promptly corrected its oversight. Madrid contends
that he was prejudiced by the late disclosure because he may have planned his
trial strategy differently and may have used the information in his opening
statement.
      We find that the government’s late disclosure of the impeachment
evidence did not prejudice Madrid. Madrid “received the material in time to
put it to effective use at trial” 6 by cross-examining Prieto about the prior arrest
and cooperation with Homeland Security and then using the information in his
closing argument. We are not persuaded that counsel would have done
anything differently if the information were disclosed earlier; Madrid deferred
his opening statement at the beginning of trial, then waived opening altogether
at the start of his case-in-chief (when he had the information). It is not clear
that he would have chosen to present an opening statement if he had the
information prior to trial or that doing so would have been helpful to him. This


      4 Id. at 281-82.
      5 United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).
      6 United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985).

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demonstrates that Madrid suffered no prejudice as a result of the government’s
late disclosure. Therefore, we reject Elizar Madrid’s Brady argument.
                                           III.
       We turn to the defendants’ challenges to the sufficiency of the
government’s trial evidence. Both defendants challenge their convictions for
conspiracy to possess controlled substances with intent to distribute and
possession of firearms in furtherance of that drug crime. Pedro Madrid alone
challenges his conviction for felon in possession of a firearm.
       This court reviews the denial of a motion for judgment of acquittal de
novo. 7 If the evidence presented at trial, viewed in the light most favorable to
the government, was sufficient to allow a reasonable jury to find all of the
essential elements beyond a reasonable doubt, then the conviction must be
affirmed. 8
                                            A.
       Both defendants argue that the government presented insufficient
evidence to support their convictions for conspiracy to possess controlled
substances with intent to distribute. To prove conspiracy to possess with intent
to distribute, the government must establish three elements: “(1) the existence
of an agreement between two or more persons to violate narcotics laws, (2)
knowledge of the conspiracy and intent to join it, and (3) voluntary
participation in the conspiracy.” 9
       Both defendants devote their entire argument to negating a conspiracy
with Prieto, who was initially their co-defendant, but testified against them
hoping for leniency. They ignore that the jury could have found them to have



       7United States v. Olguin, 643 F.3d 384, 393 (5th Cir. 2011).
       8United States v. Romans, 823 F.3d 299, 311 (5th Cir. 2016).
      9 United States v. Nieto, 721 F.3d 357, 367 (5th Cir. 2013) (quoting United States v.

Turner, 319 F.3d 716, 721 (5th Cir. 2003)).
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conspired with each other, a conclusion that would support a guilty finding, as
the government notes. The evidence supports that conclusion: the defendants
are brothers who worked together, routinely selling jointly from the same
location. Tools associated with drug distribution were found in Pedro Madrid’s
truck at the time of his arrest. Elizar Madrid continued to try to distribute
drugs after his brother was arrested. That the jury could have rationally found
them to have conspired with each other is an independent reason to reject both
of their sufficiency challenges to this conviction.
       Even so, their argument that they did not conspire with Prieto fails as
well. Both defendants contend that a mere buyer–seller relationship is
insufficient to establish conspiracy to possess with intent to distribute, and
they are correct. 10 However, the government’s evidence here showed that both
defendants had more than a mere buyer–seller relationship with Prieto; they
had a supplier–dealer relationship. Prieto described himself as a “drug-dealer.”
Though he was a user himself, he would buy meth from the defendants on a
“front,” resell it, then repay the defendants the proceeds. The first contact that
Prieto ever had with the defendants was a Facebook message in which Prieto
said that he needed to make money and meth was selling well. When Prieto
would get meth from the defendants, he would get it in ounce quantities, which
is a distribution amount. Prieto would resell the meth in Pecos, Texas. After a
search of Prieto’s car resulted in the confiscation of an ounce of meth, Pedro
Madrid went to Prieto’s home with a gun and demanded payment for that
ounce. This court has found the fronting of drugs to establish more than a
buyer–seller relationship. 11 Moreover, the fact that Prieto purchased from the



       10 United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993) (“[A] buyer-seller
relationship, without more, will not prove a conspiracy.” (citing United States v. Hughes, 817
F.2d 268, 273 (5th Cir. 1987))).
       11 United States v. Thomas, 690 F.3d 358, 367 (5th Cir. 2012).

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defendants every other day surely put the defendants on notice that Prieto was
doing more than using the drugs personally.
      All of their stray arguments fail as well. Elizar Madrid points out that
Prieto was an unreliable witness because he was a drug user and was dishonest
with investigators. But this court does not weigh evidence or credibility on
sufficiency review. 12 Arguments about what investigators did incorrectly or
could have done better miss the point because they do not negate the evidence
that the jury heard from which it could have inferred an agreement to possess
with intent to distribute. The alternate narrative that Elizar Madrid advances
in his brief: that his relationship with Prieto was limited to selling him chrome
rims, was rejected by the jury by its guilty finding. Remaining arguments, such
as the possibility that Prieto planted the drugs recovered in the search, are
speculative.
      In sum, sufficient evidence supports both defendants’ convictions for
conspiracy to possess controlled substances with intent to distribute.
                                              B.
      Both defendants also challenge their convictions for possessing firearms
in furtherance of a drug crime. These charges are predicated on the drug crime
discussed above: conspiracy to possess with intent to distribute. Both
defendants’ only argument on this point is that if we reverse their convictions
for the underlying drug crime, we must also reverse their convictions for
possessing firearms in furtherance of it. Perhaps, but for the reasons discussed,
we reject the defendants’ challenge to the underlying drug crime, so we reject
this challenge as well.




      12   United States v. Tovar, 719 F.3d 376, 388 (5th Cir. 2013).
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                                            C.
      Finally, Pedro Madrid contends that the government presented
insufficient evidence to support either of his convictions for felon in possession
of a firearm. Madrid was charged with two counts of this crime: Count Five for
December 5th and Count Seven for February 7th.
      To establish felon in possession of a firearm, the government must show
“(1) that the defendant previously had been convicted of a felony; (2) that he
possessed a firearm; and (3) that the firearm traveled in or affected interstate
commerce.” 13 For both counts, Madrid does not dispute the convicted-felon or
interstate-commerce elements, but disputes that he possessed the charged
firearms. “[P]ossession can be established by (1) actual, physical possession of
the firearm, (2) sole control and occupancy of a place where a firearm is found,
or (3) joint occupancy of a place where a firearm is found, combined with some
evidence of the defendant's access to and knowledge of the firearm.” 14 When a
single count in an indictment charges possession of multiple firearms, the
evidence need only be sufficient as to possession of one of the firearms charged
to sustain the conviction. 15
Count Five – December 5th Possession
      Count Five of the indictment charges Pedro Madrid with possessing “a
Springfield .40 caliber semiautomatic handgun . . . and a Windham Weaponry
.223 caliber semiautomatic assault rifle” on or about December 5, 2014. These
were the weapons discovered in the search of the Big Valley property. The jury
convicted.
      Madrid’s conviction under Count Five can be affirmed either under an
actual-possession theory or constructive-possession theory. The government


      13 United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).
      14 United States v. Anderson, 559 F.3d 348, 353 (5th Cir.2009).
      15 See United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996).

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presented evidence to the jury that Madrid actually possessed the weapons
charged. Prieto testified that Madrid carried a handgun “24/7” and that Madrid
showed him an assault rifle in trailer 3 (where the charged assault rifle was
discovered). A reasonable jury could have found that Madrid actually
possessed either of the weapons discovered in trailer 3 based on that testimony.
       Madrid’s conviction on Count Five is also sustainable on a constructive-
possession theory. Prieto testified that he had meth fronted to him out of trailer
3 roughly every two days and frequently saw the brothers in trailer 3—facts
from which the jury could have inferred that Madrid had at least joint control
over trailer 3 where the weapons were found. Prieto testified that he saw Pedro
Madrid store drugs under the bed in trailer 3, where the handgun was found,
so the jury could have inferred that he was aware of it. Madrid was also likely
aware of the assault rifle, as he is pictured on Facebook standing next to his
brother, who is holding it.
       Madrid’s arguments against the sufficiency of the government’s evidence
are unavailing. He argues that the government cannot establish the “temporal
limitation” in the indictment. But the date in the indictment, December 5,
2014, was the date of the search that revealed the weapons, and is not an
essential element of the crime. 16 Prieto observed Madrid possessing the
firearms in question in the two-and-a-half months leading up to the day of the
search referenced in the indictment. Moreover, a Facebook photo uploaded
eight days before the search shows Madrid holding a handgun. The jury could
have reasonably inferred that the photo was taken shortly before it was
uploaded, and that the handgun in Madrid’s hand in the photo was the same


       16 United States v. Girod, 646 F.3d 304, 316 (5th Cir. 2011) (“In this Circuit, ‘an
allegation as to the time of the offense is not an essential element of the offense charged in
the indictment and, “within reasonable limits, proof of any date before the return of the
indictment and within the statute of limitations is sufficient.”’” (quoting Russell v. United
States, 429 F.2d 237, 238 (5th Cir. 1970))).
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one that Prieto testified he always carried. Madrid further argues that his
brother was the one who had control over the weapons in trailer 3. But
“[constructive] possession may be joint, in that two or more persons can share
[a firearm].” 17
      We find the trial evidence sufficient to support Madrid’s conviction under
Count Five of the indictment.
Count Seven – February 7th
      Count Seven of the indictment charges Pedro Madrid with possessing “a
Ruger Model P89DC 9mm semiautomatic handgun . . . ; a Jiminez Arms Model
J.A. Nin 9mm semiautomatic handgun . . . ; a KelTec Model PF9 9mm
semiautomatic handgun . . . and a Winchester 12 gauge shotgun” on or about
February 7, 2015. These were the weapons discovered in the truck that Madrid
was riding in when he was arrested. The jury convicted.
      At the time of Madrid’s arrest, all of the weapons charged in Count Seven
of the indictment were found in the truck with him, covered by a jacket. Madrid
was the passenger at the time of the arrest, but the driver testified that Madrid
had picked him up in the truck, then they swapped at Madrid’s request. This
testimony gives rise to the inference that the weapons found the truck belonged
to Madrid. Moreover, Madrid is featured in two different Facebook pictures
holding a shotgun like the one recovered from the truck.
      We also find the evidence sufficient to support Madrid’s conviction under
Count Seven of the indictment.
                                              IV.
      For the reasons described, the trial court’s judgments of conviction of
both defendants are affirmed as to all counts.




      17   United States v. Virciglio, 441 F.2d 1295, 1298 (5th Cir. 1971).
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