     Case: 11-41336       Document: 00512067479         Page: 1     Date Filed: 11/29/2012




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

                                                                            FILED
                                                                        November 29, 2012
                                     No. 11-41336
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DUVAL URREA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 6:10-CR-95-1


Before WIENER, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Duval Urrea appeals his jury trial convictions of one count of conspiring
to transport and harbor illegal aliens within the United States and five counts
of aiding and abetting the transportation and movement of illegal aliens within
the United States. He contends that the evidence was insufficient to support his
convictions.
       .“When an insufficiency-of-the-evidence claim of error is properly
preserved through a motion for judgment of acquittal at trial, it is reviewed de

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41336

novo.” United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007). However,
when a motion for judgment of acquittal does not properly preserve a claim, “our
review is only for a manifest miscarriage of justice.” Id.
      As to the five counts of aiding and abetting the transportation and
movement of illegal aliens within the United States, Urrea preserved the
sufficiency issue by moving for a judgment of acquittal at the close of the
evidence. See id. Our review of the record reveals no motion for a judgment of
acquittal directed to the conspiracy charge. However, because the evidence as
to the conspiracy count is sufficient under either standard, it is unnecessary to
decide the applicable standard of review, and we apply the de novo standard.
See United States v. Winkler, 639 F.3d 692, 696 n.1 (5th Cir. 2011).
      We will affirm “if a reasonable trier of fact could conclude from the
evidence that the elements of the offense were established beyond a reasonable
doubt.” United States v. Delgado, 256 F.3d 264, 273 (5th Cir. 2001). We “do not
evaluate the weight of the evidence or the credibility of the witnesses, but view
the evidence in the light most favorable to the verdict, drawing all reasonable
inferences to support the verdict.” Id. at 273-74. Our review of the sufficiency
of the evidence is the same for circumstantial evidence as it is for direct
evidence. United States v. Ibarra-Zelaya, 465 F.3d 596, 602 (5th Cir. 2006).
      Urrea concedes in his opening brief that the evidence demonstrated the
existence of a conspiracy involving others and his knowledge of illegal activity.
He argues, however, that the evidence did not prove that he was a part of the
charged conspiracy.    He also contends that there is no evidence that he
undertook any affirmative conduct with respect to the transportation and
movement of the aliens identified in the five aiding and abetting counts.
      To prove Urrea guilty of the conspiracy offense, the Government had to
establish that Urrea and at least one other person agreed to violate the law by
transporting and harboring illegal aliens within the United States, acted overtly
in furtherance of the agreement, had knowledge of the conspiracy, and

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voluntarily intended to join and participate in it.          See United States v.
Avila-Dominguez, 610 F.2d 1266, 1271 (5th Cir. 1980). To prove Urrea guilty of
the five substantive offenses, the Government had to establish that an alien
illegally entered or remained in the United States, that the alien was
transported within the United States with the intent to further the alien’s
unlawful presence, that Urrea knew or recklessly disregarded the fact that the
alien was illegally in the country, and that Urrea aided and abetted the offense.
See United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002). To prove
that he aided and abetted, the Government had to establish that the substantive
offense occurred and that Urrea associated with the criminal venture,
purposefully participated in the crime, and sought by his actions for it to
succeed. See United States v. Rodriguez, 553 F.3d 380, 391 n.5 (5th Cir. 2008).
All of the offenses also required proof that the offense placed in jeopardy the life
of any person.    See 8 U.S.C. § 1324(a)(1)(B)(iii).        Evidence supporting a
conspiracy conviction typically supports a conviction for aiding and abetting.
Rodriguez, 553 F.3d at 391.
      The Government demonstrated Urrea’s association with individuals who
participated in an alien smuggling conspiracy that involved the illegal entry of
approximately 20 aliens and their transportation within the United States.
“[P]resence or association is one factor that the jury may rely on, along with
other evidence, in finding conspiratorial activity by a defendant.” United States
v. Magee, 821 F.2d 234, 239 (5th Cir.1987). However, “it is well established that
mere presence at the crime scene or close association with conspirators, standing
alone, will not support an inference of participation in the conspiracy.” United
States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992).
      In addition to proof of his close association with alien smugglers, the
Government introduced the testimony of a jailhouse informant. The informant’s
testimony indicated that Urrea had related the details of a vehicle accident that
resulted in the death of one of the illegal aliens being transported within the

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United States. Specifically, the informant testified: “He said that it was a car
in front of them, that one of [the aliens] had died.” The above evidence, along
with circumstantial evidence pointing to Urrea’s involvement in the conspiracy
and alien smuggling operation, was sufficient to support Urrea’s convictions.
      AFFIRMED.




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