     Case: 09-50286     Document: 00511033868          Page: 1    Date Filed: 02/23/2010




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

                                                  FILED
                                                                          February 23, 2010
                                     No. 09-50286
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ISMAEL TORALBA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-2397-4


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Ismael Toralba appeals his jury trial convictions for conspiracy to attempt
to possess with intent to distribute five kilograms or more of cocaine and
attempted possession (and aiding and abetting) with the intent to distribute five
kilograms or more of cocaine. On appeal, Toralba argues that the evidence
established only his mere presence, which was insufficient to establish his guilt.
        Because Toralba timely moved for a judgment of acquittal, we review his
sufficiency claim de novo. United States v. Ollison, 555 F.3d 152, 158 (5th Cir.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50286   Document: 00511033868 Page: 2        Date Filed: 02/23/2010
                                No. 09-50286

2009). Viewing the evidence in the light most favorable to the verdict, we must
determine whether a rational jury could have found that the evidence
established the elements of the offenses. See id.
      Mere presence at a scene of criminal activity and association with other
defendants is insufficient to support a conviction. United States v. Paul, 142
F.3d 836, 840 (5th Cir. 1998). However, a jury may find knowing and voluntary
participation in a conspiracy when the defendant’s presence “is such that it
would be unreasonable for anyone other than a knowledgeable participant to be
present.” Id. (internal quotation marks and citation omitted). In the instant
case, there was surveillance evidence and testimony establishing that Toralba
was present on several occasions when the proposed drug transaction was being
discussed and when cocaine was shown to other defendants. Because a rational
jury could find that it “would be unreasonable for anyone other than a
knowledgeable participant to be present” on such occasions, it could find that
Toralba knowingly and voluntarily participated in the conspiracy and attempted
possession. Id. (internal quotation marks and citation omitted)
      In addition, the testimony established that Toralba knowingly and
voluntarily participated in the drug transaction in various ways, including
acting as a lookout, offering the use of his home office, assisting in the opening
a package of cocaine, and by evaluating the “vibes” surrounding the participants
and the locations used. He also provided reassurance to several participants by
stating that everything was safe or going well, which encouraged the other
participants to complete the transaction.
      Therefore, we conclude that there was sufficient evidence for a rational
jury to find that the elements of the offenses were established beyond a
reasonable doubt. See Ollison, 555 F.3d at 158.
      AFFIRMED.




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