   Case: 10-41270    Document: 00511725656      Page: 1    Date Filed: 01/13/2012




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

                                                                     FILED
                                                                   January 13, 2012

                                  No. 10-41270                      Lyle W. Cayce
                                                                         Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,
versus

PEDRO VASQUEZ,

                                             Defendant-Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before REAVLEY, ELROD and GRAVES, Circuit Judges.
PER CURIAM:
      A jury convicted defendant-appellant, Pedro Vasquez, of (1) possessing
with intent to distribute over five kilograms of cocaine, (2) importing cocaine into
the United States, and (3) conspiring to possess with intent to distribute over
five kilograms of cocaine. Vasquez appeals all three convictions and his sentence
of three concurrent 125-month terms. We AFFIRM.
                        Facts and Procedural History
      On May 25, 2010, United States Customs and Border Patrol (“CBP”)
Aniterrorist Contraband Enforcement Team (“ATCET”) Officer Analia Natividad
Salazar selected Vasquez's Chevrolet Suburban, based on trend analysis, for
inspection at the Lincoln-Juarez Bridge Number 2, in Laredo, Texas,
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approximately 4.5 kilometers from Nuevo Laredo, Mexico. This CBP ATCET
stop occurred at 11:55 a.m. in Laredo, Texas where the average May
temperature is 95°F. Several CBP personnel were present at and participated
in the stop at the federal inspection area (“FIA”), including but not limited to
Officer José (Joe) Gonzalez. Officer Salazar testified that she found it unusual
that Vasquez drove the vehicle at "an extremely slow pace" after he passed the
primary inspection, and was "very alert to his surroundings . . . pretty much
looking forwards, sideways, backwards . . . ." Officer Salazar further testified
that Vasquez was constantly fidgeting his hands when other CBP officers were
inspecting the Suburban, and his eyes were concentrated on the Suburban,
particularly when officers inspected the hood area. Officer Salazar noticed that
when they inspected the hood area, Vasquez "was a bit anxious of wanting to see
what was being done and also wanting to get near . . . ." Officer Salazar testified
that when she asked him why he was entering the United States, Vasquez said
he had attended an alcoholics' anonymous meeting in Nuevo Laredo, Mexico, and
he was returning to work at Cristalina Pools, a pool construction company in
Laredo, Texas.
      Rolando Villalobos, the owner of Cristalina Pools, testified that Vasquez
had worked for him for about two-and-a-half years. Villalobos further testified
that Vasquez would typically cross from Nuevo Laredo, Mexico, on foot every
morning, where he would then be picked up by other Cristalina Pools employees.
As far as Villalobos knew, Vasquez did not own a car. On several occasions,
Villalobos permitted Vasquez to leave work early in order to attend meetings in
Nuevo Laredo, Mexico. Villalobos testified that he knew nothing about the
meetings except that Vasquez told him they were for alcohol-addiction
treatment. Shortly before May 25, 2010, Vasquez asked Villalobos for some time
off to try and make some money towing vehicles. Villalobos granted the request.
      Officer Gonzalez testified that he was among the CBP personnel who

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inspected the Suburban. He further testified that the inspection revealed what
appeared to be two car batteries in the engine compartment. Gonzalez also
testified that this was unusual, because Vasquez's Suburban is a gasoline vehicle
that needs only one battery. Gonzalez went on to testify that he and other
officers disassembled the batteries' casings.       They discovered that each
car-battery casing was lined with lead sheeting and that each contained a
motorcycle battery and three shrink-wrapped bundles of cocaine.          The six
bundles of cocaine had a total weight of 10.25 kilograms. The motorcycle
batteries were connected to the Suburban’s electrical system. Gonzalez testified
that tools, a hitch, and some chains in a bucket were found in the back of the
Suburban. CBP officers found another set of tools (a 1/2-inch wrench, a 7/16-
inch wrench and 2 pliers) behind the driver's seat on the floor. The sizes of the
wrenches and pliers fit the terminals on the motorcycle batteries. However,
Gonzalez testified that wrenches and pliers of that size are extremely common.
      United States Department of Homeland Security Immigration and
Customs Enforcement (“ICE”) Special Agent Owen William Tims – the lead
investigator and case agent, as well as the duty agent on May 25, 2010 –
testified that he interviewed Vasquez at 1:20 p.m. on the bridge with the
assistance of two Spanish-speaking officers. He further testified that Vasquez
was visibly nervous. Special Agent Tims also testified that Vasquez initially
denied ownership of the car, but shortly changed his answer and admitted to
owning it. He went on to testify that Vasquez became more nervous at that
point, his hands and his mouth began quivering, and he started shifting
frequently in his seat. Vasquez's counsel attempted to elicit testimony from
Special Agent Tims regarding Vasquez's other statements during the interview,
but the district court sustained the prosecutor's hearsay objection. Special Agent
Tims entered the information that he obtained from his interview of Vasquez in
an ICE C-CATS report.

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      CBP Officers Blanca De Leon and Maria Villarreal interviewed Vasquez
again in Spanish and wrote an I-213 Record of Deportable Alien immigration
report in English. Neither Officer De Leon nor Villarreal testified at trial.
Vasquez’s attorney attempted to question Special Agent Tims about the report.
The government objected that Special Agent Tims cannot testify to a report that
someone else authored. The district court sustained the government’s objection.
      ICE agents and CBP officers had discovered a sales contract in the
Suburban.     Javier Niera, of J&R Auto Sales, in Laredo, Texas, properly
authenticated the sales contract and testified that he sold the Suburban to
Vasquez in working order, with a single car battery. However, Niera testified
that the Suburban's air conditioning system was leaking and would work for
only two or three days before it needed more freon. Niera testified that another
man1 accompanied Vasquez when the Suburban was purchased. Niera had seen
the other man at the car lot before. The man had previously purchased at least
four other vehicles, and during a previous visit, he had looked over the
Suburban. Niera testified that the man did all the talking and paid for the
Suburban, although only Vasquez signed the sales contract. Niera also testified
that the other man asked Niera to leave the Suburban's old plates on it, but
Niera refused because Texas law requires dealers to remove and destroy plates
registered in the name of a vehicle's previous owner.
      Corey Grubbs, an ICE Special Agent, as well as Dr. Xiu Liu, Ph.D., a
forensic chemist with the United States Drug Enforcement Agency (“DEA”),
testified that 10.25 kilograms of cocaine has a street-value between $111,875
and $138,375 in Nuevo Laredo, Mexico; between $148,625 and $179,375 in




      1
        During oral argument, Vasquez’s attorney represented that Timoteo – whose last
name is unknown to both Vasquez and the government – purchased, in cash, the 1997
Chevrolet Suburban on or about May 14, 2010 in Vasquez’s name only.

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Laredo, Texas; between $225,500 and $266,500 in San Antonio, Texas; and
between $266,500 and $287,000 in Austin, Texas.
                              Standards of Review
I.       Conspiracy Count
         Vasquez moved for a judgment of acquittal at the close of the government's
case-in-chief and again after the close of the evidence. This court reviews the
district court's denial of a motion for acquittal de novo.       United States v.
Campbell, 52 F.3d 521, 522 (5th Cir. 1995). A motion for acquittal should be
granted if the government fails to present evidence sufficient for a reasonable
jury to have found that each essential element of the offense was established
beyond a reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540, 543
(5th Cir. 1998). This court considers the evidence in the light most favorable to
the government, with all reasonable inferences and credibility determinations
made in the government's favor. United States v. Santillana, 604 F.3d 192, 195
(5th Cir. 2010). "The jury may choose among reasonable constructions of the
evidence: The evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of guilt." Id. (citing
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996) (emphasis supplied)).
“‘[C]ircumstances altogether inconclusive, if separately considered, may, by their
number and joint operation, especially when corroborated by moral coincidences,
be sufficient to constitute conclusive proof.’" United States v. Ayala, 887 F.2d 62,
67 (5th Cir. 1989) (quoting Coggeshall v. United States (The Slavers), 69 U.S. (2
Wall.) 383, 17 L. Ed. 911, 914-15 (1865) (emphasis supplied)). Jurors may
properly “‘use their common sense’" and “‘evaluate the facts in light of their
common knowledge of the natural tendencies and inclinations of human beings’."
Ayala, 887 F.2d at 67 (quoting United States v. Henry, 849 F.2d 1534, 1537 (5th
Cir. 1988)).
II.      Deliberate Ignorance Jury Instruction

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        Generally, this court reviews jury instructions for abuse of discretion and
harmless error. United States v. Betancourt, 586 F.3d 303, 305 (5th Cir. 2009).
However, when a defendant fails to object to jury instructions, we review for
plain error:
        A party who objects to any portion of the instructions or to a failure to give
        a requested instruction must inform the court of the specific objection and
        the grounds for the objection before the jury retires to deliberate. An
        opportunity must be given to object out of the jury's hearing and, on
        request, out of the jury's presence. Failure to object in accordance with this
        rule precludes appellate review, except as permitted under Rule 52(b).

Fed. R.Crim. P. 30(d). Reversal is justified if giving the deliberate ignorance jury
instruction was (1) an error, that was (2) plain, that (3) affected the defendant's
substantial rights, and (4) seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-
67, 117 S.Ct. 1544, 1548-49 (1997). “The standard of review of a defendant’s
claim that a jury charge was inappropriate is ‘whether the court’s charge, as a
whole, is a correct statement of the law and whether it clearly instructs jurors
as to the principles of law applicable to the factual issues confronting them.’”
United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990) (quoting
United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990)) (emphasis added in
Lara-Velasquez). The court’s charge “not only must be legally accurate, but also
factually supportable; the court ‘may not instruct the jury on a charge that is not
supported by evidence.’” Id. (quoting United States v. Ortega, 859 F.2d 327, 330
(5th Cir. 1988) (emphasis supplied).
                                      Analysis
I.      Whether sufficient evidence of a conspiracy existed to support
        Vasquez’s conviction?
        To establish a drug conspiracy, "the government must prove: 1) the
existence of an agreement between two or more persons to violate federal

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narcotics laws; 2) the defendant's knowledge of the agreement; and 3) the
defendant’s voluntary participation in the agreement."                   United States v.
Gonzales, 79 F.3d 413, 423 (5th Cir. 1996). "[A] defendant may be convicted of
conspiring with other unknown persons if the indictment asserts that other such
persons exist and the evidence supports their existence and the existence of a
conspiracy." United States v. Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th
Cir. 1988). During closing argument, the government stated that “this case was
primarily one of circumstantial evidence . . .”
       The government presented evidence2 that revealed several facts, which
standing alone are insufficient, but together, support the jury’s guilty verdict on
the conspiracy count. In particular, the government argues persuasively that
the conspiracy conviction is supported by the "large and valuable quantity of
cocaine,"3 the installation of the Suburban's two false car-battery casings, and
Niera's testimony about the man who bought the Suburban for Vasquez. ICE
Agent Grubbs and the government's expert, Dr. Liu with the DEA testified that
the street value of the cocaine would have cost $111,875, at a minimum, in
Nuevo Laredo, Mexico and as much as $287,000 on the upper end in Texas’
Capitol.    Indeed, both Dr. Liu and ICE Agent Grubbs expressed opinions



       2
         This court makes clear that the government’s evidence in the present instance was
both circumstantial and cumulative, which supports the inference(s) that can be drawn in
order for the jury to declare Vasquez guilty of conspiracy.
       3
          The jury may consider the amount of the contraband seized “which . . . is enough to
justify the inference that more than one person must be involved in moving it towards its
ultimate dispersal.” United States v. Barnard, 553 F.2d 389, 393 (5th Cir. 1977); see also
United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002) (“To begin, the jury could
have inferred from the large quantity and value of marijuana, and the difficulty of secreting
it in the tires, that the others were involved in the scheme.”); United States v. Hawkins, 547
F.3d 66, 72 (2d Cir. 2008); United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005); United
States v. Howard, 966 F.2d 1362, 1364 (10th Cir. 1992) (“The huge quantity of crack cocaine
involved in this case permits an inference of conspiracy, but by itself this is not enough to
convict defendant.”) .

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concerning the cocaine – specifically, its weight and value, which the jury took
into consideration.
         This court must credit all of this evidence, because the “court 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). While “[i]t takes at least two
to tango for conspiracy purposes[,]” United States v. Morgan, 835 F.2d 79, 82
(5th Cir. 1987), the government is not required to identify each of the co-
conspirators by name. See, e.g., United States v. Lance, 536 F.2d 1065, 1068 (5th
Cir. 1976). Here, there is more than ample evidence. Vasquez’s challenge to the
sufficiency of the evidence on the conspiracy count fails.
II.      Whether the district court correctly gave its deliberate ignorance
         jury instruction?
         If a deliberate ignorance instruction is given, a "balancing" instruction
should be considered upon request of defendant.              See United States v.
Farfan-Carreon, 935 F.2d 678, 681 n.5 (5th Cir. 1991). In the present instance,
Vasquez neither objected to the deliberate ignorance instruction, nor did he
request a balancing instruction, hence, the plain error standard. See Betancourt,
586 F.3d at 305-06. The district court read into the record, word-for-word, this
court's pattern jury instruction on deliberate ignorance:
         The word "knowingly," as that term has been used from time to time in
         these instructions, means that the act was done voluntarily and
         intentionally, not because of mistake or accident. You may find that a
         defendant had knowledge of a fact if you find that the defendant
         deliberately closed his eyes to what would otherwise have been obvious to
         him. While knowledge on the part of the defendant cannot be established
         merely by demonstrating that the defendant was negligent, careless, or
         foolish, knowledge can be inferred if the defendant deliberately blinded
         himself to the existence of a fact.

Fifth Circuit Pattern Jury Instructions: Criminal § 1.37.



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      The deliberate ignorance instruction "does not lessen the government's
burden to show, beyond a reasonable doubt, that the knowledge elements of the
crimes have been satisfied." United States v. Reveles, 190 F.3d 678, 686 n.12
(5th Cir. 1999); see United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992)
(this court warned that a deliberate ignorance instruction “should rarely be
given” because it creates the risk that a jury may convict on a lesser negligence
standard); see also United States v. Newell, 315 F.3d 510, 528 (5th Cir. 2002) (the
essence of deliberate ignorance is “‘Don’t tell me, I don’t want to know.’”)
(quoting Lara-Velasquez, 919 F.2d at 951); cf. Global-Tech Appliances, Inc. v.
SEB S.A., 131 S.Ct. 2060 (2011) (analyzing deliberate ignorance’s civil
equivalent, willful blindness). A judge is cautioned that, in instructing on a
statute which punishes "otherwise innocent conduct," the knowledge
requirement applies to each element. United States v. Ahmad, 101 F.3d 386, 390
(5th Cir. 1996), reh'g and suggestion for reh'g en banc denied, 108 F.3d 335 (5th
Cir. 1997). Fifth Circuit precedent requires that a district court give a deliberate
ignorance instruction "when a defendant claims a lack of guilty knowledge and
the proof at trial supports an inference of deliberate indifference." United States
v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999).
      Vasquez, through his attorney, stated before the district court and argued
on appeal to this court that he did not know about the cocaine. In particular,
Vasquez’s attorney stated, during his opening statement that:
      [T]he government agents found cocaine hidden in the batteries. The other
      thing, as [the government] told you-all, it was hidden and concealed. You
      couldn't see the stuff. You couldn't see the cocaine or anything or
      anything unusual by looking at -- under the hood. All you could see were
      batteries. She talked about how they were motorcycle batteries. The
      motorcycle batteries were concealed within a shell of larger batteries. So
      anyone looking at them would see nothing but larger batteries. So there's
      nothing unusual about the way the car looked, nothing unusual about the
      way the car operated.


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      Vasquez’s attorney also stated at the beginning of his closing argument:
      And the court has read you the instructions, and the instructions say the
      government may not rely upon the defendant’s ownership and control of
      the vehicle to prove the defendant knew he possessed the controlled
      substance. In other words, they can’t just show you that Pedro Vasquez
      owned the vehicle. They can’t just show you that Pedro Vasquez was
      driving the vehicle. They have to bring you other evidence, other evidence
      to show beyond a reasonable doubt that he knew.

      A reasonable doubt, we talked about in jury selection, is the kind of doubt
      that would make you, you hesitate in the most important of your own
      affairs. There is reasonable doubt in this case, and there’s reasonable
      doubt because Pedro Vasquez is innocent. That’s why there’s doubt. And
      that’s why there’s no evidence of his knowledge because the evidence
      doesn’t exist because he’s innocent.

      The trigger for deliberate ignorance is that the evidence at trial must raise
two inferences:    that the defendant (1) was subjectively aware of a high
probability of the existence of the illegal conduct, and (2) purposely contrived to
avoid learning of the illegal conduct. United States v. Mendoza-Medina, 346
F.3d 121, 132-33 (5th Cir. 2003); see also United States v. Cavin, 39 F.3d 1299,
1310 (5th Cir. 1994). The essential feature of deliberate ignorance "is the
conscious action of the defendant — the defendant consciously attempted to
escape confirmation of conditions or events he strongly suspected to exist."
Mendoza-Medina, 346 F.3d at 133 (quoting Lara-Velasquez, 919 F.2d at 951).
      Here, Vasquez contends that not only was the deliberate ignorance
instruction not supported by the evidence, but also that it was deficient because
it omits the requirement that a defendant possessed "subjective awareness of a
high probability of the existence of illegal conduct." Threadgill, 172 F.3d at 368.
In other words, Vasquez argues that the evidence at trial was insufficient to
support the deliberate ignorance instruction, and he asserts that the deliberate
ignorance instruction incorrectly stated the law. Vasquez is wrong.



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      The evidence demonstrates that Vasquez owned and controlled the
Suburban, which some unknown buyer purchased. Vasquez drove extremely
slowly, and then had a nervous demeanor when CBP officers and ICE agents
questioned him. Vasquez’s Suburban, which requires only a single battery, had
two car batteries under its hood. Moreover, the car dealer testified that the
Suburban required changing the freon every two to three days in order to
operate the air-conditioning, thus necessitating a check under the hood.
Likewise, the photographs demonstrate how the batteries were loaded with
cocaine. Finally, Vasquez’s employer testified regarding Vasquez’s coincidental
leave of absence from Cristalina Pools. We do note that neither the government
nor the defendant requested that a deliberate ignorance instruction be given, but
nonetheless, the district court’s instruction was supported by the evidence at
trial and was a correct statement of the law.
                                  Conclusion
        This court concludes that the evidence presented here is sufficient to
support a conviction for conspiracy, and that the district court properly gave the
deliberate ignorance jury instruction. Accordingly, the district court did not err,
and Vasquez's convictions are upheld. AFFIRMED.




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