     Case: 11-41363   Document: 00512174700     Page: 1   Date Filed: 03/14/2013




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

                                                                   FILED
                                                                  March 14, 2013

                                 No. 11-41363                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee

v.

RUBEN VARGAS-OCAMPO,

                                           Defendant - Appellant


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



Before DAVIS, JONES and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Appellant challenges one of two counts of his drug-trafficking conviction
for insufficiency of evidence and the other for an erroneously submitted jury
instruction. Finding no error, we affirm. We also clarify that because the
Supreme Court has stated and repeatedly reaffirmed the constitutional test for
sufficiency of the evidence to uphold a conviction, Jackson v. Virginia, 443 U.S.
307, 99 S. Ct. 2781 (1979), the statements inconsistent with Jackson that have
appeared in some Fifth Circuit cases must be disavowed.
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                                       Background
      The grand jury for the United States District Court for the Southern
District of Texas, McAllen Division, filed a two-count indictment charging Ruben
Vargas-Ocampo with possession with intent to distribute 100 kilograms or more
of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and with
conspiring to do the same, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B).
The possession count also cited 18 U.S.C. § 2, which provides for the punishment
of anyone who aids or abets a crime. Vargas-Ocampo was tried by jury. Vargas-
Ocampo moved for a judgment of acquittal at the close of the government’s case-
in-chief and after the presentation of all the evidence, and the district court
denied both motions. The jury found Vargas-Ocampo guilty on both counts, and
the district court sentenced him to 78 months in prison. Vargas filed a timely
appeal.
      The following facts were developed at trial.
      United States Customs and Border Protection Service (“CBP”) Agent
Stewart Goodrich was patrolling the Rio Grande Valley by helicopter1 when he
observed a pickup truck leaving the Rio Grande River headed north and two rafts
moving south across the river toward Mexico. Agent Goodrich could see that the
rafts were occupied.
      Agent Goodrich dropped to an altitude between 150 and 200 feet and began
following the truck. Agents Goodrich and Martinez-Baco could see that the
truck’s bed liner was too small and that there was about a six-inch gap between
the walls of the truck bed and the liner. The agents could see what they believed
to be packages of narcotics in the space in between. Agent Goodrich circled the
helicopter around to in front of the truck, and he saw more packages in the




       1
           Agent Orlando Martinez-Baco was also in the helicopter.

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                                       No. 11-41363

passenger seat of the truck and that the driver appeared to be talking on a cell
phone.
      In the meantime, the agents had contacted CBP ground units.
Agent Maibum was on patrol in a ground unit. Shortly before receiving the call,
Agent Maibum had observed two men sitting in vehicles approximately one and
a half miles apart. The two men remained at their respective locations and used
their push-to-talk radios each time Agent Maibum passed them in his vehicle.
He believed they were acting as scouts for drug smugglers and was making plans
to investigate when he received the call from the helicopter agents.
      Agent Maibum drove toward the location indicated by the helicopter agents
(an area notorious for drug smuggling) and saw Vargas-Ocampo’s truck.2 Agent
Maibum began pursuing the truck and pulled to within 10-15 feet of it. Vargas-
Ocampo drove the truck approximately another one-eighth of a mile before
stopping by a fence. Vargas-Ocampo jumped the barbed-wire fence, ran through
some thick brush, and disappeared into an open garage. Agent Maibum exited
his vehicle and pursued Vargas-Ocampo on foot but fell trying to navigate his
way past the barbed-wire fence, losing sight of Vargas-Ocampo. The helicopter
agents informed Agent Maibum that Vargas-Ocampo had ducked into a nearby
garage, and Agent Maibum found him there. Vargas-Ocampo was holding a
push-to-talk radio and a cell phone. Vargas-Ocampo’s phone rang many times
after he was apprehended.
      The agents retrieved the packages from the truck and discovered they
contained marijuana.           The agents ultimately found 84 packages totaling
approximately 430 kilograms of marijuana. The registered owner of the truck
was Maria Alvarez.




         2
             It is unknown what happened to the two men Agent Maibum observed.

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                                       No. 11-41363

                                     DISCUSSION
      On appeal, the defendant first challenges the sufficiency of evidence to
convict him of conspiracy. Because the issue of evidentiary sufficiency was
preserved at trial, this court reviews the record de novo under the thirty-four
year old standard of Jackson v. Virginia, 443 U.S. 307, 90 S. Ct. 2781 (1979). The
essential question is whether, viewing the evidence and all reasonable inferences
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. 443 U.S.
at 319, 90 S. Ct. at 2789.
      The Appellant adds to this standard, however, a caveat, gleaned from a few
Fifth Circuit cases, that this court “must reverse a conviction if the evidence
construed in favor of the verdict ‘gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence of the crime charged.’ ”
United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995)(citations omitted).
This court has embroidered the Jackson standard further by stating that “[w]hen
the evidence is essentially in balance, a reasonable jury must necessarily
entertain a reasonable doubt." United States v. Ortega Reyna, 148 F.3d 540, 543
(5th Cir. 1998). Rarely have these glosses, founded on a concept of equipoise, led
to reversal of a conviction on appeal,3 but they have been so frequently cited as
to suggest confusion in our understanding of Jackson. See, e.g., United States v.
Mudd, 685 F.3d 473, 479–80 (5th Cir. 2012) (upholding conviction); United States
v. Viscarra, 494 F.3d 490, 493–94 (5th Cir. 2007) (upholding conviction); United


       3
           United States v. Reveles, 190 F.3d 678, 686 (5th Cir. 1999) (reversing conviction on
the basis that “a reasonable trier of fact would see virtually equal circumstantial evidence of
incrimination and exoneration, and consequently would entertain a reasonable doubt”); United
States v. Peñeloza, 473 F.3d 575, 580–81 (5th Cir. 2006) (“[B]ecause the circumstantial
evidence equally supports a theory of innocence of the crime charged, we find that it is
insufficient to sustain the jury’s verdict of guilt.”); United States v. Stewart, 145 F.3d 273,
277–81 (5th Cir. 1998) (reversing conviction where government’s arguments required the court
to “pile inference on inference”).

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States v. Mireles, 471 F.3d 551, 555–57 (5th Cir. 2006) (upholding conviction);
United States v. Valdez, 453 F.3d 252, 256–61 (5th Cir. 2006) (upholding
conviction); United States v. Rose, 449 F.3d 627, 630–32 (5th Cir. 2006)
(upholding conviction); United States v. Dean, 59 F.3d 1479, 1484–90 (5th Cir.
1995) (upholding conviction). It is time to dispel the confusion.
      The Supreme Court has never departed from the Jackson standard, which
preserves the fact-finder’s role as weigher of the evidence.         As the Court
explained in Jackson, “[t]his familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
443 U.S. at 319, 90 S. Ct. at 2789. Moreover, a court “faced with a record of
historical facts that supports conflicting inferences must presume--even if it does
not affirmatively appear in the record--that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.” 443 U.S.
at 326, 90 S. Ct. at 2793. Jackson expresses no hierarchy of creditable evidence,
whether direct or circumstantial, lay or expert or scientific. In particular,
Jackson says nothing about the consequences for appellate review if a case is
based on circumstantial evidence in equipoise, such that the prosecution and
defense can each claim the benefit of inferences. Compare Peñeloza, 473 F.3d at
580–81 (“[B]ecause the circumstantial evidence equally supports a theory of
innocence of the crime charged, we find that it is insufficient to sustain the jury’s
verdict of guilt.”) The Supreme Court’s point is to confirm, as a matter of due
process, that the fact-finder, having viewed the evidence in the lively context of
trial with the defendant present, is best positioned to reach a rational verdict.
The role of reviewing courts is accordingly limited.
      That Jackson remains unadulterated for sufficiency questions is confirmed
by no less than three recent Supreme Court decisions, each a per curiam reversal
of a lower court’s misapplication of the standard. In Coleman v. Johnson,

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___ U.S. ___, 132 S. Ct. 2060 (2012), the Court criticized a circuit court for its
“fine grained factual parsing” of the evidence and erroneous use of state law to
determine the distinction between mere speculation and a reasoned inference.
The Court concluded, “the only question under Jackson is whether that finding
[of guilt] was so insupportable as to fall below the threshold of bare rationality.”
132 S. Ct. at 2065. See also Cavazos v. Smith, ___ U.S. ___, 132 S. Ct. 2, 7
(2012)(reversing habeas grant on ground that, under Jackson, “The jury decided
that question [of guilt], and its decision is supported by the record.”); McDaniel
v. Brown, ___ U.S. ___, 130 S. Ct. 665, 674 (2010)(while court of appeals
acknowledged that it must review the evidence in the light most favorable to the
prosecution, “the court’s recitation of inconsistencies in the testimony shows it
failed to do so.")
      Because we must operate on the premise that Jackson alone states the test
for reviewing sufficiency of evidence supporting a conviction, the glosses that
have appeared in our decisions, for whatever reason,4 must be excised. Such
statements should no longer be relied upon in this court.
      When confronted with these authorities, Appellant’s response is to reiterate
his arguments that for each incriminating inference from the circumstantial
evidence of conspiracy--the presence and timing of rafts in the river when Vargas
Ocampo’s truck was located, the large amount of marijuana found in his truck,
the proximity and actions of surveillance “scouts” for the drug transfer, Ocampo’s
use of a push-to-talk telephone and numerous calls received on his other
phone—there is a benign explanation. But this is precisely the weighing of
inferences that, under Jackson, the jury was entitled to perform. The elements
of a drug conspiracy are (1) an agreement between two or more persons to violate


       4
        See United States v. Bell, 678 F.2d 547, 550 (5th Cir. 1982)(en banc). The concurring
opinion may be the source of confusion, although Bell itself holds that Jackson is controlling
whether the evidence is direct or circumstantial. 678 F.2d at 549 n.3.

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the narcotics laws; (2) a defendant’s knowledge of the agreement, and (3) his
voluntary participation in the agreement. United States v. Misher, 99 F.3d 664,
667 (5th Cir. 1996). Not infrequently, the elements must be inferred from
evidence concerning the defendant’s concert of action with others. While it is not
enough to sustain a conspiracy conviction that the defendant was merely present
in an atmosphere that reeks of something foul, that objection will not wash in
this case.   Nor is it enough that a defendant was in a mere buyer-seller
relationship with others, United States v. Maseratti, 1 F.3d 330, 336 (5th Cir.
1993), but again, this defendant was a link in the chain of importation and
distribution. A circumstantial case is built upon reasonable inferences from all
the relevant circumstances. And as this court has stated, “Circumstances,
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. Rodriguez-Mireles, 896 F.2d 890,
892 (5th Cir. 1990).     Appellant may present all his arguments why the
circumstantial evidence adduced here was insufficient to support a rational jury's
determination of guilt. But even if there was “equipoise,” a vague and subjective
description in any event, the jury’s final determination of guilt controls this
court’s review unless it was “so insupportable as to fall below the threshold of
bare rationality.” Coleman, supra.
      It should be clear that, based on the Jackson standard, this court finds the
evidence, circumstantial though it is, sufficient in quantity and quality to convict
Vargas-Ocampo of knowing, voluntary participation in a conspiracy to possess
with intent to distribute marijuana.
      Vargas-Ocampo additionally contends that the district court erred in giving
an aiding and abetting instruction to the jury on the possession charge, because
it was unsupported by the evidence. A district court has “substantial latitude in
formulating a jury charge,” and may only be reversed for abuse of discretion.

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United States v. Carrillo, 660 F.3d 914, 925-26 (5th Cir. 2011)(internal quotation
marks and citation omitted). The court reasonably explained its lengthy aiding
and abetting charge on the basis that a jury might think Vargas-Ocampo did not
illegally possess the contraband if he did not package it and did not actually load
it in his truck. Aiding and abetting is not a separate crime but (at least) an
implicit charge in every indictment. United States v. Neal, 951 F.2d 630, 633 (5th
Cir. 1992). The court neither erred nor abused its discretion.
      For these reasons, the conviction is AFFIRMED.




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