     Case: 11-41197     Document: 00512003284         Page: 1     Date Filed: 09/28/2012




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

                                                                            FILED
                                                                        September 28, 2012
                                     No. 11-41197
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ISRAEL AVILA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-398-1


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Israel Avila was convicted by a jury of conspiracy to possess with intent to
distribute 501.6 kilograms of marijuana, possession with intent to distribute
501.6 kilograms of marijuana, and being a felon in possession of a firearm. Avila
was sentenced to 70 months of imprisonment and four years of supervised
release. He appeals his convictions for possession with intent to distribute and
conspiracy to possess with intent to distribute, arguing that there was
insufficient evidence for the jury to convict him.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41197

                                    FACTS
      On March 2, 2011, Border Patrol agents encountered evidence that 15 to
20 individuals had smuggled drugs across the Rio Grande River to a nearby
levee the previous night.    The next morning, March 3, the DEA received
information that a property close to the river contained a manmade bunker with
marijuana in it. The DEA’s investigation led agents to 720 East Doffin Road in
San Juan, Texas, a five-acre property located approximately one-half to three-
quarters of a mile from the river. The property, which is surrounded by a chain-
link and barbed-wire fence, abuts Doffin Canal Road to the south, which runs
alongside the waterway levee.
      At around 11:30 a.m., DEA agents entered the property through an open
gate on the north side and encountered Avila and three other men in the process
of removing the gas tank from a Dodge Durrango. Avila later testified that he
met these three men for first time earlier that day at a convenience store and
that they had agreed to come to his property to help him take the gas tank off
his truck. The agents asked Avila if the property was his and he stated that it
was, explaining that his mother was the owner of the property but that they both
lived on it. The agents told Avila that they were interested in looking for drugs
or weapons on the property. Avila initially stated that there were none on the
property, but gave the agents verbal and written consent to search the property.
Before the agents began searching the property, Avila repeatedly looked at the
three men who had been working on the Durrango with him and appeared to be
concerned by their presence. A DEA agent asked Avila to move out of the field
of vision of the other three individuals so that they could no longer observe him.
Shortly thereafter, Avila admitted that the agents could find drugs in the
chicken coops located on the property.
      The chicken coops were surrounded by a fence and a locked gate. An agent
asked Avila if he knew that the fence was locked and Avila replied that he did
and removed the key to the gate from his pocket and gave it to the agent. Agents

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then entered the gate and searched a house in front of the chicken coops. In the
house, they found an interior door with a padlock on it and opened the lock with
the key that Avila had given them. Inside the house, agents found a green trash
can containing approximately 10 kilograms of marijuana. Surrounding the trash
can was a pile of cellophane-type packaging material and opened burlap sacks.
The house also had a bunker cut into the floor leading to the underside of the
house and concealed by dirt and gravel. Agents searched the chicken coops
behind the house and found 28 bundles of marijuana weighing 517 kilograms.
The bundles were packaged in the same type of burlap sacks found in the house
in front of the chicken coops.
      Agents also searched a second house on the property. In a refrigerator in
the second house, agents found a bundle of marijuana weighing 0.6 kilograms
wrapped in aluminum foil. Avila told agents that this marijuana was for his
personal use. Agents found a handgun and rifle in a third house on the property
that Avila admitted belonged to him.
      Avila’s defense at trial was that the marijuana found in the chicken coops
and adjoining house did not belong to him, but rather was being stored on the
property by drug traffickers without his permission. He testified that he had
placed locks on the gate surrounding the chicken coops and on the interior door
of the adjoining house to “stop things going in there.” He admitted that he had
known about the marijuana on his property for several days before the search,
but stated that he feared that if he called the police “something [was] going to
happen to [him] or [his] mom.”
                                 DISCUSSION
      Avila argues that the Government did not produce sufficient evidence to
support his conviction for conspiracy with intent to distribute because there was
no evidence that a conspiracy existed between him and the three other men on
his property or that he had voluntarily participated in it. He contends that his



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mere presence with these three men is insufficient to prove beyond a reasonable
doubt that they had an agreement to distribute marijuana.
      Although Avila moved for a judgment of acquittal after the Government
rested its case, he failed to renew the motion at the close of all evidence. Avila
argues that he preserved this issue for review by making a motion for acquittal
at the close of the Government’s case. As the Government correctly argues,
however, Avila’s sufficiency claim is reviewed for “a manifest miscarriage of
justice,” which is found only if the record is “devoid of evidence pointing to guilt.”
United States v. Miller, 576 F.3d 528, 529-30 (5th Cir. 2009) (internal quotation
marks and citation omitted).
      The record is not devoid of evidence that Avila entered into an agreement
with unknown conspirators and authorized the use of his property as a storage
location for a load of marijuana. See United States v. Perez-Cruz, 93 F. App’x
672, 673 (5th Cir. 2004) (holding that evidence was sufficient for jury to infer
that Perez knowingly participated in a drug-trafficking conspiracy where
evidence showed that house was being used to store marijuana and Perez had
access to the residence as shown by his knowledge of the combination to the lock
on the front gate and his ability to open it). The jury could have reasonably
rejected Avila’s explanation that three men whom he had just met at a
convenience store and whose names he did not know came to help him take the
gas tank off the Durango. See United States v. Aguilar, 503 F.3d 431, 435-36
(5th Cir. 2007) (noting the implausibility of defendant’s trial testimony “that she
did not know the last names of several friends to whom she had spoken on her
cell phone the day she was arrested”). The jury could have reasonably found
that the three men with Avila in the garage with the Durango were there to
remove and transport the marijuana by vehicle to the intended destination.
Avila’s hesitancy to tell the agents about the marijuana in the chicken coops
until he was out of sight of the three men supports a conclusion that Avila did
not want his cooperation with the DEA to be known to them. Avila presented

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his explanation of the facts: that some unknown drug smugglers had left the
marijuana on his property and that he did not want to do anything about it out
of fear for his mother’s safety. The jury rejected that explanation. The record
is not devoid of evidence supporting the jury’s verdict of guilty on the conspiracy
offense.
         Avila also argues that the evidence was insufficient to show that he
knowingly possessed marijuana with intent to distribute it or aided and abetted
possession of the marijuana with intent to distribute it. He contends that
although he was aware of the presence of the marijuana on his property, he did
not and could not exercise dominion and control over the marijuana because he
feared retribution by Mexican drug smugglers.
         Avila does not deny knowledge of the marijuana, but he argues that he did
not possess it. Avila’s possession of the keys to the lock on the gate in the fence
surrounding the chicken coops gave him constructive possession of the
marijuana, and his use of the keys to gain access gave him actual possession.
See United States v. Caballero, 712 F.2d 126, 129-30 (5th Cir. 1983) (stating that
possession of keys to van containing marijuana gave defendant dominion and
control over marijuana, and use of keys to open van gave defendant actual
possession).     Even if it could be argued that Avila did not actually or
constructively possess the marijuana, the evidence of his actions in allowing the
marijuana to be stored on his property was sufficient to show that he aided and
abetted the possession offense. See United States v. Hall, 240 F. App’x 655, 656
(5th Cir. 2007) (holding that evidence that defendant allowed her boyfriend to
use her home as a stash house for drugs was sufficient for conspiracy and
substantive offense). Accordingly, the record is not devoid of evidence of Avila’s
guilt.
         AFFIRMED.




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