                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2007

USA v. Garcia
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1760




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"USA v. Garcia" (2007). 2007 Decisions. Paper 740.
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                                                    NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                          No. 06-1760



               UNITED STATES OF AMERICA

                               v.

                     WILSON A. GARCIA,
                                  Appellant


         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                    (D.C. No. 04-cr-00662-2)
          District Judge: Honorable Harvey Bartle, III



           Submitted Under Third Circuit LAR 34.1(a)
                         July 9, 2007

   Before: SLOVITER, HARDIMAN, and ROTH, Circuit Judges

                     (Filed: July 18, 2007)
                             _____

                           OPINION
SLOVITER, Circuit Judge.

       Appellant Wilson A. Garcia was convicted following a jury trial of two counts of

cocaine distribution in violation of 21 U.S.C. §§ 841(a)(1), 860(a). Garcia challenges the

sufficiency of the evidence to support his conviction at trial. We will affirm.

                                             I.

       As we write primarily for the parties, who are already familiar with the facts of this

case, we will not restate those facts except as necessary for our analysis. Undercover

Philadelphia Police Officer Roberto Fontan testified at trial that he received a phone call

from a confidential informant at approximately 5:00 p.m. on the afternoon of April 21,

2004. The informant, who had advised Fontan a day earlier that “two guys from Reading,

Pennsylvania might be coming down” to sell cocaine, App. at 111, told Fontan during this

call that the two males were inside a location at 4430 N. 3rd Street, Philadelphia, and

were prepared to sell him a kilo of cocaine. The informant had arranged that the price for

the kilo would be $23,000.

       Provisioned with prerecorded “buy money,” Fontan went to the 4430 N. 3rd Street

address at approximately 6:00 p.m. and knocked on the door. A man later identified as

co-defendant Fernando Garcia, who was Wilson Garcia’s brother, admitted Fontan to the

residence. Upon entering the house, Fontan saw Wilson Garcia, along with the informant

and a male friend of the informant; he had never met any of the men at the house before,

aside from the informant. A teenaged woman was also briefly present, but she went

upstairs soon after Fontan arrived.

                                             2
       Wilson Garcia directed Fontan to sit on the couch. Fontan testified that he

engaged in “a conversation in reference to buying the kilo of cocaine,” conducted in

Spanish. App. at 76. Fontan and Fernando Garcia apparently engaged in the bulk of the

conversation inside the house as Wilson Garcia stood nearby and listened without saying

anything. At some point during the meeting, however, Wilson Garcia looked in the

direction of his brother, Fernando, and stated, “[L]et's get this over with.” App. at 78.

       Upon this statement, Fernando Garcia exited the house and Fontan waited in the

living room with Wilson Garcia, the informant, and the informant’s friend for

approximately five minutes. Wilson Garcia then looked out the front window of the

residence, told Fontan to go outside to a red minivan parked across the street from the

address, and opened the door to let Fontan go.

       Fontan entered the van and sat in the second row of seats. Fernando Garcia, who

was sitting in the driver’s seat, told Fontan that the kilo of cocaine was in the third row of

seats. Fontan retrieved the package of cocaine, accepting a razor blade from Fernando

Garcia to cut it open. Fontan inspected the cocaine, saying he was satisfied. He then

handed over $11,000 to Fernando Garcia, told him he needed to retrieve an additional

$12,000 from his vehicle, and exited the van.

       While at his vehicle retrieving the additional funds, Fontan notified his supervisor

by phone that he had seen the cocaine. As he began walking back from his vehicle to the

van to give Fernando Garcia the additional funds, Fontan observed Wilson Garcia leave

4430 N. 3rd Street and begin walking toward Wingohocking Street a half-block away.

                                              3
       Fontan returned to the van and gave the $12,000 to Fernando Garcia, who was in

the process of placing the initial $11,000 in the van’s glove compartment as Fontan

arrived. Upon noticing that a back-up officer had pulled up near the van as he counted

the second set of funds, Fernando Garcia cursed and fled, taking the keys and the

additional $12,000 with him. He was chased and later arrested by an officer.

       After Fernando Garcia ran from the van, Fontan exited the van as well, taking the

kilo of cocaine with him. From his vehicle, Fontan saw Wilson Garcia, who was looking

in the direction of uniformed police personnel, run towards and enter the passenger side

of a parked car at 300 West Wingohocking Street and drive off. The car was later

stopped by police and Wilson Garcia was arrested. Wilson Garcia had in his possession a

Pennsylvania driver's license with a Reading address at the time he was searched.

Paperwork found in the red van used in the transaction also demonstrated that it was

registered to and owned by Wilson Garcia.

       A grand jury in the Eastern District of Pennsylvania returned an indictment of

Wilson and Fernando Garcia, charging them each with three counts stemming from the

events of April 21, 2004. Count One charged conspiracy to distribute 500 grams or more

of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). Count Two of

the indictment charged distribution, and aiding and abetting the distribution, of 500 grams

or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. §

2. Count Three charged distribution, and aiding and abetting the distribution, of 500

grams or more of cocaine near a school in violation of 21 U.S.C. §§ 860(a), 841(a)(1),

                                             4
841(b)(1)(B) and 18 U.S.C. § 2.

       Following presentation of the government’s case-in-chief at trial, Wilson Garcia

moved for acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing

that the evidence was insufficient to sustain a conviction on any of the three counts. The

District Court denied this motion. The jury found Wilson Garcia and Fernando Garcia

guilty of Counts Two and Three on May 10, 2005. They were each found not guilty of

the conspiracy count. Wilson Garcia renewed his Rule 29 motion after the verdict, which

the District Court also denied. He was sentenced to 120 months of imprisonment

followed by a term of supervised release of eight years. Garcia filed a timely appeal.

                                             II.

       The District Court had subject matter jurisdiction over this case under 18 U.S.C. §

3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. “A Rule 29 motion for

judgment of acquittal obliges a district court to review the record in the light more

favorable to the prosecution to determine whether any rational trier of fact could have

found proof of guilt beyond a reasonable doubt based on the available evidence. This

Court reviews grants or denials of Rule 29 motions de novo and independently applies the

same standard as the District Court.” United States v. Bobb, 471 F.3d 491, 494 (3d Cir.

2006) (internal citations and quotation marks omitted). “The standard of review is

‘particularly deferential’ when deciding whether a jury verdict is based on legally

sufficient evidence[,]” and the “appellant carries a very heavy burden on appeal.” United

States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002) (internal citation omitted).

                                              5
                                              III.

        Garcia challenges the sufficiency of the evidence presented at trial to support his

convictions under the distribution charges. The elements of a base offense under 21

U.S.C. § 841(a)(1) are “(1) knowing or intentional (2) possession (3) with intent to

distribute (4) a controlled substance[,]” United States v. Lacy, 446 F.3d 448, 454 (3d Cir.

2006), and under 18 U.S.C. § 2, one who aids and abets such distribution is liable as a

principal.1 Garcia asserts that there was a lack of evidence at trial that he played any role


                    1
                      The statute provides that “[w]hoever commits an offense
             against the United States or aids, abets, counsels, commands,
             induces or procures its commission, is punishable as a principal”
             and that “[w]hoever willfully causes an act to be done which if
             directly performed by him or another would be an offense against
             the United States, is punishable as a principal.” 18 U.S.C. §
             (2)(a),(b). 18 U.S.C. § 2 has abolished the common-law distinction
             between principals and accessories and makes them all principals.
             See, e.g., Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007)
             (“[E]very jurisdiction – all States and the Federal Government –
             has expressly abrogated the distinction among principals and aiders
             and abettors . . . .”) (internal citation and quotation marks omitted);
             United States v. Hodge, 211 F.3d 74, 77 (3d Cir. 2000) (observing
             that the federal aiding and abetting statute indicates that “an aider
             and abettor should be treated like any other principal”); United
             States v. Pungitore, 910 F.2d 1084, 1132 (3d Cir. 1990) (noting
             that “[f]ederal courts have long recognized that a defendant
             indicted as a principal may be convicted upon proof that he aided
             and abetted the charged offense”); see also United States v. Oates,
             560 F.2d 45, 55 (2d Cir. 1977) (noting that “one who aids and abets
             the commission of a crime is not only punishable as a principal but
             is a principal” and explaining that the current phrase in the statute,
             ‘is punishable as a principal,’ presents no evidence of “any
             Congressional intent to change the substantive law that an aider
             and abettor is a principal”) (internal citations and quotation marks
             omitted).

                                               6
in the distribution of the cocaine, arguing that he was merely present during his brother’s

discussion of the sale with Fontan.

       Viewing the evidence in the light most favorable to the government, as we must,

we disagree. In order to “establish liability for a crime based on an aiding and abetting

theory, the government must prove that the underlying crime occurred and that the

defendant knew of the crime and attempted to facilitate it[,]” with the “specific intent of

facilitating the crime[, as] mere knowledge of the underlying offense is not sufficient for

conviction.” United States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002) (internal citations

and quotation marks omitted). We require “proof that the defendant is in some way

associated with the substantive offense – that he participated in it as in something that he

wished to bring about, that he sought by his action to make it succeed.” United States v.

Garth, 188 F.3d 99, 113 (3d Cir. 1999) (internal citation and quotation marks omitted).

       Garcia’s argument ignores the substantial evidence of his participation in the

crime, and of his specific awareness that the object of Fontan’s visit was the cocaine

purchase. Officer Fontan testified that, during the conversation inside the house, he was

“talking about the kilo of cocaine” and “talking towards Wilson Garcia and Fernando

Garcia[.]” App. at 146. While apparently Fernando Garcia “was the one who talked” for

the most part with Fontan during this conversation, Wilson Garcia did state, “Let’s get

this over with,” “[a]t which time,” according to Fontan’s testimony, Fernando Garcia then

exited the property. App. at 146, 78. Wilson Garcia thereafter directed Fontan across the

street to the van that he owned where the cocaine was to be found and where the

                                              7
transaction was consummated with Fernando Garcia. This kind of substantial evidence

adequately supports the jury’s verdict. See United States v. Frorup, 963 F.2d 41, 43-44

(3d Cir. 1992) (upholding conviction for possession on aiding and abetting theory, where

defendant arranged for an agent’s purchase by telling him from whom to buy, brought the

agent to a particular location, and assisted in the cash-for-cocaine exchange). Fontan’s

testimony makes clear that the precise object of the purchase – the kilo of cocaine – was

specifically discussed during the meeting with the two brothers, and the kilo itself was

found inside Wilson Garcia’s vehicle, to which he directed Fontan.

       Finally, we also reject the argument that Garcia’s acquittal on the conspiracy

charge necessarily means the jury concluded Garcia did not participate in the transaction

with his brother and Fontan. The decision in United States v. Powell, 469 U.S. 57 (1984),

stands for the proposition that a defendant is not entitled to have a conviction on one

count set aside because it is inconsistent with an acquittal on another count. Id. at 67-68

(noting that a “criminal defendant already is afforded protection against jury irrationality

or error by the independent review of the sufficiency of the evidence undertaken by the

trial and appellate courts” which is independent from “the jury's determination that

evidence on another count was insufficient”); see also United States v. Schwartz, 548

F.2d 427, 430-31 (2d Cir. 1977) (conviction on grounds of aiding and abetting extortion

would not be reversed where conviction was based on adequate evidence, despite the fact

that the jury had acquitted defendant of conspiracy).

                                            IV.

                                              8
      For the above-stated reasons, we will affirm the judgment of conviction and

sentence.

_______________________




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