          Case: 13-15031   Date Filed: 07/10/2014   Page: 1 of 7




                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-15031
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:12-cr-00035-WCO-JCF-2



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,


                                 versus


DANIEL AGUILAR-GONZALEZ,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                            (July 10, 2014)
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Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:

       After a jury trial, Daniel Aguilar-Gonzalez appeals his convictions for

conspiracy to possess with intent to distribute a controlled substance, namely

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a), and

841(b)(1)(A)(viii); and possession with intent to distribute a controlled substance,

in violation of 21 U.S.C. § 841(a), (b)(1)(A)(viii). On appeal, Aguilar-Gonzalez

contends the trial evidence was insufficient to support his convictions because the

government failed to prove he was a knowing participant in the methamphetamine

sale. After review, we affirm. 1

                              I. GENERAL PRINCIPLES

       To convict a defendant of conspiracy to possess with intent to distribute a

controlled substance, the government must prove (1) an illegal agreement existed,

(2) the defendant knew of the illegal agreement, and (3) “the defendant, with

knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,

1333 (11th Cir. 2005) (quotation marks omitted). To prove the underlying

possession offense, the government must prove the defendant’s (1) knowledge, (2)


       1
         We review de novo the sufficiency of the evidence presented in a criminal trial. United
States v. Dominguez, 661 F.3d 1051, 1061 (11th Cir. 2011). “Evidence is sufficient to support a
conviction if a reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” Id. (quotation marks and brackets omitted). In conducting our review, “we
“view[ ] the evidence in the light most favorable to the government,” and “assume that the jury
made all credibility choices in support of the verdict.” Id. (quotation marks omitted).
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possession, and (3) intent to distribute. United States v. Mercer, 541 F.3d 1070,

1076 (11th Cir. 2008). For both offenses, the knowledge element may be proven

by circumstantial evidence. See United States v. Garcia, 405 F.3d 1260, 1270

(11th Cir. 2005). While a defendant’s presence at a drug deal alone is insufficient

to prove knowledge, it is a probative factor the jury may consider. See Hernandez,

433 F.3d at 1333; United States v. Diaz-Boyzo, 432 F.3d 1264, 1269-70 (11th Cir.

2012).

               II. SUFFICIENCY OF THE TRIAL EVIDENCE

      At trial, the government presented ample evidence from which the jury

could find that Aguilar-Gonzalez knowingly participated in the drug conspiracy

and knowingly possessed the drugs. The government presented evidence that

Aguilar Gonzalez delivered a bag containing seven Tupperware containers of

methamphetamine to an arranged drug deal between his co-defendant, Exequiel

Elorza-Barrera, and a confidential informant.

      Specifically, co-defendant Elorza-Barrera testified that a drug dealer named

Roberto Moreno instructed him to go to the airport and pick up Defendant Aguilar-

Gonzalez, who worked for Moreno as a driver. Moreno sent Defendant Aguilar-

Gonzalez to drive the drugs to the sale and ensure that Moreno was paid.

According to Elorza-Barrera: (1) the night before the arranged drug deal, he and

Defendant Aguilar-Gonzalez opened the Tupperware containers, checked the


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methamphetamine, and then wrapped the containers in plastic wrap; (2) the next

day, Defendant Aguilar-Gonzalez placed the bag containing the methamphetamine

in a blue truck; and (3) Defendant Aguilar-Gonzalez drove the blue truck to a store

to meet the confidential informant, while his co-defendant Elorza-Barrera drove a

separate vehicle.

      The confidential informant testified that, at the store, co-defendant Elorza-

Barrera introduced Defendant Aguilar-Gonzalez as the “chauffeur” who would be

“helping with the driving.” In Defendant Aguilar-Gonzalez’s presence, Elorza-

Barrera told the confidential informant that “it,” meaning the methamphetamine,

was in the blue truck. Co-defendant Elorza-Barrera rode in the confidential

informant’s car to a nearby storage unit to conduct the transaction. Defendant

Aguilar-Gonzalez followed in the blue truck with the drugs. Law enforcement

conducted surveillance, observed the initial meeting at the store, and followed the

two vehicles to the storage unit.

      The confidential informant testified that, when the three men arrived at the

storage unit, Defendant Aguilar-Gonzalez, without any instructions or questions,

grabbed the bag of methamphetamine from the blue truck and tried to hand it to the

confidential informant. The confidential informant could see the Tupperware

containers of drugs inside the bag, and told Defendant Aguilar-Gonzalez to put the




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bag down while he found the people who would pay for the drugs. At that point,

Defendant Aguilar-Gonzalez and his co-defendant Elorza-Barrera were arrested.

      At the time, the storage unit was under surveillance by law enforcement, and

the events in the storage unit were recorded on video. The video recording was

played for the jury. The government presented evidence of two cell phones found

on Defendant Aguilar-Gonzalez, which showed that both co-defendant Elorza-

Barrera and the drug dealer Moreno were stored as contacts in one of Defendant

Aguilar-Gonzalez’s cell phones and that Defendant Aguilar-Gonzalez had multiple

phone calls with them prior to the drug deal. Defendant Aguilar-Gonzalez also

exchanged multiple texts with Moreno, some relating to the planning of the drug

deal, such as who would pick up the blue truck’s title and whether the drugs had

arrived. The government also presented evidence that Defendant Aguilar-

Gonzalez’s fingerprint was found on the bag holding the methamphetamine, but

that no fingerprints at all were found on the Tupperware containers.

      This evidence established much more than Defendant Aguilar-Gonzalez’s

presence at a drug deal. In fact, co-defendant Elorza-Barrera’s testimony about

Defendant Aguilar-Gonzalez’s role in the drug deal, alone, was sufficient to

establish Defendant Aguilar-Gonzalez’s knowledge. See Garcia, 405 F.3d at 1270

(“[U]ncorroborated testimony of an accomplice may be enough to support a

conviction if the testimony is not on its face incredible or otherwise


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insubstantial.”). Although Aguilar-Gonzalez suggests co-defendant Elorza-

Barrera’s testimony was not credible, we must accept it as it was not contrary to

the laws of nature or incredible on its face. See United States v. Ramirez-Chilel,

289 F.3d 744, 749 (11th Cir. 2002). Contrary to Aguilar-Gonzalez’s contention, it

was not necessary for co-defendant Elorza-Barrera to testify that he discussed with

Defendant Aguilar-Gonzalez that the substance inside the Tupperware containers

was methamphetamine for the government to carry its burden because knowledge

can be proven by circumstantial evidence. Given the totality of the circumstances

co-defendant Elorza-Barrera described, a jury could have reasonably inferred that

Defendant Aguilar-Gonzalez knew he and Elorza-Barrera were handling a

controlled substance and were involved in a drug deal.

      Further, co-defendant Elorza-Barrera’s testimony was corroborated by other

evidence suggesting that Defendant Aguilar-Gonzalez was a knowing participant,

including: (1) the testimony of the confidential informant and the video recording,

showing that Defendant Aguilar-Gonzalez was the “driver” of the drugs and knew

that the drugs he was carrying were intended for the confidential informant; (2) the

fingerprint evidence showing that Defendant Aguilar-Gonzalez handled the bag

containing the drugs; and (3) the cell phone records showing that Defendant

Aguilar-Gonzalez had been in frequent contact with other members of the drug

conspiracy in the days leading up to the drug deal. Based on all the evidence, the


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jury reasonably found that Defendant Aguilar-Gonzalez knew a controlled

substance was inside the Tupperware containers and knew he was participating in a

drug deal.

      AFFIRMED.




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