     Case: 12-20735       Document: 00512447436         Page: 1     Date Filed: 11/20/2013




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

                                                                            FILED
                                                                        November 20, 2013
                                     No. 12-20735
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CESAR AVILA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-655-1


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Cesar Avila appeals his conviction for conspiracy to commit hostage taking
in violation of 18 U.S.C. § 1203(a). He contends that there was insufficient
evidence that he agreed to commit hostage taking and was a willful participant
in any such conspiracy.
       We review de novo the sufficiency of the evidence. See United States v.
Garcia-Gonzalez, 714 F.3d 306, 313 (5th Cir. 2013). “The analysis focuses on
‘whether, after viewing the evidence in the light most favorable to 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-20735

prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” United States v. Zamora, 661 F.3d 200,
209 (5th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)), cert.
denied, 132 S. Ct. 1771 (2012).
      Hostage taking involves “(1) seiz[ing] or detain[ing] another person, and
(2) threaten[ing] to kill, injure or continue to detain that person, (3) with the
purpose of compelling a third person or government entity to act in some way.”
United States v. De Jesus-Batres, 410 F.3d 154, 160 (5th Cir. 2005). To prove a
conspiracy to commit hostage taking, the Government was required to prove that
Avila directly or indirectly agreed to commit hostage taking, knew that the
purpose of the agreement was unlawful, and voluntarily joined in the agreement
to further its unlawful purpose. Id.
      Viewing the evidence in the light most favorable to the Government, a
rational trier of fact could have inferred that Avila agreed to commit hostage
taking and was a voluntary participant in the conspiracy. See Zamora, 661 F.3d
at 209 (drug conspiracy case). All the hostages identified Avila as their captor.
Avila engaged in methods commonly used by smugglers to keep hostages from
escaping and made threatening phone calls to the hostages’ friends and families
demanding money for their release. Avila was entrusted with the hostage ledger
and a handgun and guarding and transporting the hostages and was assisted by
other smugglers in these activities. There was no direct evidence of an express
agreement to commit hostage taking. However, the coordinated activities among
Avila and the other smugglers supported the inference that Avila agreed to and
was a voluntary participant in the conspiracy. See id. at 210 (explaining that a
“concert of action” among conspirators can indicate agreement and voluntary
participation in a conspiracy). Although much of the evidence implicating Avila
in the conspiracy came from two hostages’ testimony, “[t]he jury is solely
responsible for determining the weight and credibility of the evidence; this court



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                                 No. 12-20735

will not substitute its own determination of credibility for that of the jury.”
United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994).
      The judgment of the district court is AFFIRMED.




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