                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                                 No. 92-7400



                      UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,


                                   VERSUS


                          ECCEHOMO VELGAR-VIVERO,
                          JOSE ANTONIO TORRES-TIRADO and
                          EULICES RIVAS-CORDOVA,

                                                    Defendants-Appellants.




           Appeals from the United States District Court
                 For the Southern District of Texas
                            (November 17, 1993)


Before JOHNSON, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:
     For the second time, Eccehomo Velgar-Vivero, Jose Antonio

Torres-Tirado, and Eulices Rivas-Cordova appeal their convictions

of conspiracy to possess with the intent to distribute cocaine,1

aiding   and   abetting    the   importation   of   cocaine,2   aiding   and

abetting the possession of cocaine on a vessel arriving in the


     1
          21   U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, 952,
960(b)(1), and 963.

     2
           21 U.S.C. §§ 952(a), 960(b)(1), and 18 U.S.C. § 2.
United States,3 aiding and abetting possession with the intent to

distribute cocaine,4 and use of a firearm during a drug-trafficking

crime.5   In the first appeal, we reversed their convictions because

of noncompliance with the Speedy Trial Act.         United States v.

Ortega-Mena, 949 F.2d 156 (5th Cir. 1991).       We now affirm the

convictions of Torres-Tirado, affirm the convictions and sentence

of Rivas-Cordova, but reverse the convictions of Velgar-Vivero

because of insufficient evidence.

                  I. Facts and Procedural History

     Customs officials received information that THE SPRING BRIDE,

a cargo ship traveling from the Republic of Colombia to Galveston,

Texas, was being used to transport cocaine into the United States.

As the vessel entered the Port of Galveston, U.S. Customs frogmen

entered the water and approached the rudder hold of the vessel.   As

they neared, six men6 bailed out of the hold and attempted to flee.

Five were apprehended immediately, and the sixth, Velgar-Vivero,

hid under the dock and was caught three hours later.




     3
           21 U.S.C. §§ 955, 960(b)(1), and 18 U.S.C. § 2.

    4
           21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.

     5
           18 U.S.C. § 924(c)(1).

     6
          The six men were the three defendants plus Alberto
Ortega-Mena, Denio Miguel Rengifo-Acosta, and a Columbian juvenile
who was later deported before indictments were returned.

                                    2
           The rudder hold of the vessel is accessible only from the

water and is approximately 6'x 6'x 10'.               In the rudder hold, the

officers discovered 11 canvas bags containing approximately 850

pounds of cocaine, all secured to the wall with an elaborate rope

web.           They also discovered personal effects in separate piles,

including food, bottled water, flashlights, and a burlap bag

containing five loaded handguns. The agents also found five lists,

each of which displayed several phone numbers:                 (1) a list from

Torres-Tirado's wallet; (2) a list from Rengifo-Acosta's wallet;

(3) a list from Ortega-Mena's wallet; (4) a list from Rivas-

Cordova's bag; and (5) a list from an unidentified wallet.                    The

agents found no wallet or identification for Velgar-Vivero or the

juvenile.7         The list from the unidentified wallet duplicated phone

numbers from the list found in Torres-Tirado's and Rengifo-Acosta's

wallets.           The   agents   ultimately   used   the   phone   numbers   from

Rengifo-Acosta's and Ortega-Mena's wallets to execute controlled

deliveries of the cocaine shipment.8

           When he was retrieved from the water, Rivas-Cordova had a sock

full of bullets in his shirt pocket.            The agents placed the sock on

the dock but Rivas-Cordova grabbed the sock and pitched it into

Galveston Bay.           Later, inside the Customs office, Rivas-Cordova




           7
          The three wallets and Rivas-Cordova's bag contained
Columbian identification cards linking them to the defendants.
       8
          The agents never executed controlled deliveries with the
remaining numbers because the successful interdiction had become
locally newsworthy.

                                          3
somehow regained possession of the list of phone numbers in his bag

and ate it.

       The five adult stowaways were indicted on five drug-related

charges.         On the eve of the first trial in October 1990, Ortega-

Mena       and   Rengifo-Acosta    pled    guilty    to   four   counts   of   the

indictment.        Velgar-Vivero, Torres-Tirado, and Rivas-Cordova were

convicted of all five counts in the indictment.                   We reversed in

February 1992 under the Speedy Trial Act.             The defendants then were

re-indicted on the same five counts, and trial began in October

1992.      Velgar-Vivero, who was the only defendant to testify in the

second trial,9 stated that he stowed away on the vessel to come to

the United States to find work.               He testified that he had been

working as a longshoreman loading bananas on to THE SPRING BRIDE

when he decided to stow away.         He climbed into the dark rudder hold

and fell asleep.           When he awoke, the vessel was underway.

       The defendants again were convicted on all five counts.

Velgar-Vivero        and    Torres-Tirado     were   sentenced    to   concurrent

235-month sentences on the drug counts and a consecutive 60-month

sentence on the gun count.           At sentencing, Rivas-Cordova received

an increase in his offense level for obstruction of justice.                   He

was sentenced to concurrent 292-month terms on the drug counts and

a consecutive 60-month sentence on the gun count.                 The defendants

timely appealed, contesting the sufficiency of the evidence to

support      their    convictions.        Rivas-Cordova    also    contests    the

       9
          None of the defendants testified at the first trial.
Further, the two stowaways who pled guilty did not testify at
either trial.

                                          4
assessment    at   sentencing   of    the    offense   level      increase   for

obstruction of justice.

                              II. Discussion

                          A. Standard of Review

      When reviewing the sufficiency of the evidence, we must

determine    whether,    viewing     the    evidence   and      the   inferences

therefrom in a light most favorable to the jury's guilty verdicts,

a rational trier of fact could have found these defendants guilty

beyond a reasonable doubt. United States v. Rena, 981 F.2d 765, 771

(5th Cir. 1993); United States v. Roberts, 913 F.2d 211, 217 (5th

Cir. 1990).        Accordingly, we need not be persuaded that the

evidence excludes every reasonable hypothesis of innocence. United

States v. Brechtel, 997 F.2d 1108, 1116 (5th Cir. 1993).                Instead,

our function is to measure whether any rational jury could conclude

that the government proved beyond a reasonable doubt each element

of the offense.      Rena, 981 F.2d at 770.

                         II. The Conspiracy Count

      In a narcotics conspiracy, the government must prove beyond a

reasonable doubt that: (1) an agreement existed between two or more

persons to violate narcotics laws; (2) each alleged conspirator

knew of the conspiracy and intended to join it; and (3) each

alleged conspirator participated in the conspiracy.               United States

v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993); United States v.

Guerra-Marez, 928 F.2d 665 (5th Cir. 1991). In meeting its burden,

the   government    is   permitted   to     use   direct   or   circumstantial

evidence, or both, to prove conspiracy.             Rena, 981 F.2d at 770.


                                       5
The jury certainly may consider the defendant's presence at the

crime scene, along with other evidence, in finding a conspiracy,

but presence, by itself, is insufficient to prove conspiracy.

United States v. Chavez, 947 F.2d 742, 745 (5th Cir. 1987).

Granted, one's presence may trigger another's suspicions; but we

have    stated     on   numerous    occasions      that     mere    suspicion   of

conspiratorial activity cannot support a guilty verdict.                        See

United States v. Sacerio, 952 F.2d 860, 863 (5th Cir. 1992); United

States v. Jackson, 700 F.2d 181, 185 (5th Cir. 1983).

       We   find   sufficient      evidence   to    support        the   conspiracy

convictions of Torres-Tirado and Rivas-Cordova.10               A conspiratorial

relationship       between   Torres-Tirado      and       the   other    narcotics

conspirators could have been established from both his presence and

his possession of a phone list that included the same number as the

list of another participant. Although no number on Torres-Tirado's


       10
          In Ortega-Mena, the defendants' first appeal, we stated
in a footnote that our reversal of the district court did not
preclude the government from re-prosecuting the defendants because
double jeopardy does not attach when a district court is reversed
for noncompliance with the Speedy Trial Act. Ortega-Mena, 949 F.2d
at 160 n.4. Had we reversed for insufficient evidence, then double
jeopardy would have attached. See Burks v. United States, 437 U.S.
1, 15-17, 98 S. Ct. 2141, 2149-50 (1978) (double jeopardy does not
attach when a conviction is reversed unless the reversal is based
on insufficient evidence); United States v. Mize, 820 F.2d 118, 120
(5th Cir. 1987). To emphasize this point, we further indicated
that sufficient evidence existed at the first trial to convict
Velgar-Vivero of the firearms offense. That statement, which was
purely dicta, was intended to sanitize the appellate reversal from
a double jeopardy defense. It was not intended to be the law of
the case, thereby precluding a second appeal from a second
conviction. After all, our reversal for noncompliance with the
Speedy Trial Act essentially nullified the first trial. Thus, for
legal purposes, the instant appeal is the only appeal to date,
unaccompanied by law of the case baggage.

                                        6
list was used to make a controlled delivery of the cocaine, the

agents did use phone numbers on Rengifo-Acosta's list to execute a

delivery.        Both lists included a number that matched that on the

unidentified participant's list, thereby implicating all the lists

and their possessors.           From these facts, a jury reasonably could

have        concluded    that   Torres-Tirado   knowingly   entered     into   an

agreement to violate narcotics laws.

        Rivas-Cordova's conduct also is legally sufficient to support

a finding of conspiracy.            He possessed ammunition of a caliber

identical to the caliber of the guns found in close proximity to

the drugs.        Further, he destroyed the phone list found among his

possessions,11 making it impossible for the agents to use that list

to   establish      his     connection   to   the   drugs   or   to   the   other

participants.           His attempts to hinder the investigation support a

reasonable inference of guilty knowledge.

        Velgar-Vivero's conspiracy conviction is much more troubling.

The government asks us to affirm Velgar-Vivero's conviction with

evidence that shows only that he was present at the crime scene and

subsequently fled from it.          We have rejected that argument before,

and we reject it again today.            See United States v. DeSimone, 660


       11
          We reject Rivas-Cordova's argument, with respect to both
the sufficiency and sentencing issues, that the agents' testimony
that he destroyed this evidence was incredible as a matter of law.
"We cannot declare testimony incredible as a matter of law unless
it is 'so unbelievable on its face that it defies physical laws.'"
United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987)
(quoting United States v. McKenzie, 768 F.2d 602, 605 (5th Cir.
1985)). While we concede that it may have been difficult for a
handcuffed Rivas-Cordova to destroy evidence in the manner so
stated, we do not find that it defies the laws of physics.

                                         7
F.2d 532, 537 (5th Cir. 1981); United States v. Lopez-Ortiz, 492

F.2d 109, 115 (5th Cir. 1974).    Evidence of presence and flight is

redundant: one necessarily involves the other. The government must

proffer something more, which it failed to do.             The government

offered no evidence linking Velgar-Vivero to either the cocaine or

the guns.    Further, the government failed to link him with the

phone numbers used to execute controlled deliveries.12

     Recognizing the dearth of evidence against Velgar-Vivero, the

government insists that the jury reasonably could infer that both

the unidentified wallet, which contained inculpatory phone numbers,

and the fifth gun belonged to Velgar-Vivero.          This inference,

however, is based solely on Velgar-Vivero's presence in and flight

from the rudder hold, which are legally insufficient evidence to

establish guilt.    While the jury obviously chose not to believe

Velgar-Vivero's stowaway defense, their disbelief is not tantamount

to proof beyond a reasonable doubt that he agreed to, knew about,

and participated in the conspiracy. The government was required to

meet that burden with more evidence than exists here.        The evidence

establishing   Velgar-Vivero's   presence   and   flight    creates   only

suspicion.     But "[i]t is not enough that the defendant merely


     12
          We note that the evidence demonstrated that there were
five guns found in the hold and five sets of phone numbers, leading
us to infer that one of the six persons found in the rudder hold
may not have been a participant in the narcotics offenses. The
government claims that, because the sixth stowaway was a juvenile,
the jury reasonably inferred that the five guns and phone lists
necessarily belonged to the five adults, including Velgar-Vivero.
The inference that today's juveniles are incapable of participating
in gun-related narcotics offenses is unreasonable, not to mention
naive.

                                  8
associated with those participating in a conspiracy, nor is it

enough that the evidence places the defendant in a climate of

activity that reeks of something foul."             United States v. Sacerio,

952 F.2d 860, 863 (5th Cir. 1992).           The jury's conclusion that the

government proved Velgar-Vivero's guilt beyond a reasonable was

unreasonable as a matter of law and, therefore, is reversed.

               II. The Possession and Importation Counts

     To      convict   for    possession     of    cocaine    with     intent    to

distribute, the government must prove beyond a reasonable doubt

that the defendant (1) possessed cocaine, (2) knowingly, and

(3) with the intent to distribute.                21 U.S.C. § 841(a); United

States v. Vasquez, 953 F.2d 176, 183 (5th Cir. 1992).                           The

defendant's possession may be either actual or constructive, the

latter being defined as "the knowing exercise of, or the knowing

power   or    right    to    exercise,   dominion     and    control    over    the

proscribed substance."         United States v. Gardea Carrasco, 830 F.2d

41, 45 (5th Cir. 1987) (quoting United States v. Vergara, 687 F.2d

57, 61-62 (5th Cir. 1982)). A conviction for possession of cocaine

on a vessel requires the government to prove that the cocaine

entered the United States aboard a vessel.                   21 U.S.C. § 955.

Finally, to convict for importation of cocaine, the government must

prove that the defendant knowingly participated in bringing cocaine

from a foreign country into the United States.              21 U.S.C. § 952(a);

United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990).

     Because we find the government's evidence insufficient to

convict Velgar-Vivero of narcotics conspiracy, we necessarily find


                                         9
the same evidence insufficient evidence to convict him of the

substantive offenses, including the firearms offense.                                  United

States v. Galvan, 693 F.2d 417, 420 (5th Cir. 1982); United States

v. Gutierrez, 559 F.2d 1278, 1282 (5th Cir. 1977).                         The government

has failed to introduce evidence, circumstantial or otherwise,

linking     Velgar-Vivero         with     either       the    cocaine     or    the   guns.

Therefore, we reverse all of his convictions of the substantive

offenses.

       As   to    Torres-Tirado           and        Rivas-Cordova,       the    government

proffered sufficient evidence to convict them of the possession and

importation       counts.         The    inculpatory          phone     lists   support     an

inference of constructive possession, i.e., dominion and control

over the cocaine.            Further, their constructive possession of

several hundred pounds of cocaine justifies a conclusion of intent

to distribute.          United States v. Prieto-Tejas, 779 F.2d 1098, 1101

(5th   Cir.      1986).      As    to     the    vessel-related          and    importation

convictions, the defendants, all Colombian nationals, were found in

possession of the cocaine on a vessel which had just recently left

Colombia and entered the United States.

                             III. The Firearms Count

       To convict for use of a firearm during a drug trafficking

offense, the government must prove that the defendant (1) used or

carried     (2)     a     firearm       (3)      during       or   in    relation      to    a

drug-trafficking crime.                 18 U.S.C. § 924(c); United States v.

Pigrum, 922 F.2d 249, 255 (5th Cir. 1991).                            We interpret this

provision broadly.          See United States v. Ivy, 973 F.2d 1184, 1189


                                                10
(5th Cir. 1992); United States v. Raborn, 872 F.2d 589, 595 (5th

Cir. 1989).       The weapon need not be fired or even brandished; we

require only that the firearm be available to provide protection to

the defendant in the commission of his or her offense.

     In this case, the guns were readily "available."                      They were

loaded and always within the defendant's reach because of the

rudder hold's tight confines. In addition, Rivas-Cordova possessed

additional ammunition for the firearms.               The government proffered

sufficient evidence such that a reasonable jury could find Torres-

Tirado and Rivas Cordova guilty of § 924(c).                 But as the firearms

charge is collateral to the drug charges and thus cannot stand

independently,      Velgar-Vivero's      firearms      conviction       necessarily

evaporates with our reversal of his drug count convictions.

                       IV. Rivas-Cordova's Sentence

     The Sentencing Guidelines provide that a district court may

increase    a    defendant's   offense       level    by    two   points    if   "the

defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice during the investigation,

prosecution, or sentencing of the instant offense."                     U.S.S.G. §

3C1.1.   The increase is not discretionary.                If the court finds the

defendant       obstructed   justice,    it    must    impose     the    two     point

increase.       United States v. Roberson, 872 F.2d 597, 609 (5th Cir.

1989).   The court's finding is factual, meaning we review it only

for clear error.       United States v. Edwards, 911 F.2d 1031, 1033

(5th Cir. 1990).       If sufficient evidence exists in the record to




                                        11
support the district court's factual conclusion, we must affirm.

Id.

        At sentencing in this case, Rivas-Cordova's offense level was

increased        for     obstruction      of   justice    based   upon    the   agents'

testimony that he pitched the sock full of bullets into Galveston

Bay and chewed to a pulp the list of phone numbers found among his

possessions.             The   district    court    was   entitled   to    credit   the

testimony of the customs agents, id., and sufficient evidence

exists in the record to buttress their version of events.                           We

accordingly find that the district court did not err in increasing

Rivas-Cordova's base offense level by two points.

        For the foregoing reasons we AFFIRM the convictions of Jose

Antonio        Torres-Tirado       and    Eulices    Rivas-Cordova,       AFFIRM    the

sentence of Rivas-Cordova, and REVERSE the convictions of Eccehomo

Velgar-Vivero.




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