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

                                                 FILED
                                                                         November 2, 2009

                                       No. 09-50088                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

BRYAN MENDOZA,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
              for the Western District of Texas, San Antonio Division
                             USDC No. 5:07-CR-558-3


Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Bryan Mendoza was convicted of conspiracy to
distribute and possess with intent to distribute more than 500 grams of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, and of attempt to
possess with intent to distribute more than 500 grams of cocaine, also in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. For the reasons set forth
below, we affirm.



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
                                  No. 09-50088

                        I. FACTUAL BACKGROUND
      On September 3, 2007, state troopers stopped a car driven by the
appellant’s co-defendant Jose Hinojosa near Devine, Texas. After Hinojosa
consented to a search of the vehicle, the officers discovered two individually
wrapped bundles containing a total of 989 grams of cocaine. The officers also
discovered three mobile phones in the car. Following his arrest, Hinojosa agreed
to cooperate with the investigation. He told the officers that he was paid to drive
the cocaine from Mexico into the United States and planned to deliver it to the
appellant at a Denny’s restaurant in San Antonio. At trial, Hinojosa stated that
he had delivered cocaine to the appellant at a San Antonio Wal-Mart one week
earlier.
      While in custody, Hinojosa provided details about the three mobile phones
found in his car. The first phone was Hinojosa’s personal phone. The second
was an inoperable phone that had been given to Hinojosa by his Mexican drug
source with instructions to return it to the appellant. The third phone was also
given to Hinojosa by his drug source, with instructions to use it to contact the
appellant to arrange the delivery of the cocaine. Over the next several hours
following Hinojosa’s arrest, the third phone rang repeatedly and displayed the
number “(210) 404-5358” along with the name “Bryan” on the caller ID screen.
      Shortly after 4 p.m., police instructed Hinojosa to place a recorded call to
the appellant. After the first attempt failed, Hinojosa attempted to contact the
appellant at an alternative number, but only received a voicemail greeting.
Hinojosa again tried to reach him at the primary number ((210) 404-5358) and
was successful. During the course of the recorded conversation, Hinojosa
provided a false story that he had been delayed by rain. The appellant replied
“Yes, but, well, yeah. Right now, I wasn’t expecting you this late.” The appellant
also inquired if anything “bad” had happened and wanted to know why Hinojosa
had not returned his calls. The appellant then indicated that he was “far away”

                                        2
                                 No. 09-50088

from the drop-off point, but that he would “see what was going on” and call
Hinojosa.
      The officers then drove Hinojosa and his car to the Denny’s with two
packages containing sheet rock that were made to look like the bundles of
cocaine. Hinojosa testified that the appellant called his phone and told him that
he would not be able to meet him, but that he would be sending his cousin
instead. According to Hinojosa’s testimony, the appellant informed him that he
would recognize the individual by his tattoos.
      At 5:40 p.m., a tattooed man, co-defendant Samson Cady, arrived in the
Denny’s parking lot with his wife Angelica. Hinojosa testified that Cady climbed
into his car, told him that he was “Bryan’s cousin,” and retrieved the two
bundles from him. After Cady exited the vehicle, he was arrested. The arresting
officers observed that Cady was transporting the two bundles of sheet rock under
his shirt. A review of Cady’s mobile phone directory revealed calls to and from
the appellant as well as several missed calls from the appellant, including four
made after Cady’s arrest.
      Officers subpoenaed the phone records for the mobile phones involved in
the investigation. The records revealed that the appellant was the subscriber
for “Bryan’s” two mobile numbers: (210) 404-5358 and (210) 797-6637. The
appellant was also the subscriber for a third phone used to contact Cady and
Hinojosa on September 3: (210) 317-1581. The phone records confirmed that
multiple calls were placed between Hinojosa’s mobile phone and the appellant’s
phones on September 3, including the time period following Hinojosa’s arrest
and the time period during which Hinojosa sat inside his car at Denny’s. They
also confirmed multiple calls between the appellant and Cady on the afternoon
of September 3, following Hinojosa’s conversation with the appellant.




                                       3
                                         No. 09-50088

                              II. PROCEEDINGS BELOW
       On September 19, 2007, a grand jury charged the appellant with one count
of conspiracy to distribute and possess with intent to distribute more than 500
grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, and
one count of attempt to possess with intent to distribute more than 500 grams
of cocaine, also in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. The
government introduced the subpoenaed phone records and Hinojosa’s testimony
as evidence of the appellant’s participation in the conspiracy.
       Hinojosa’s testimony at trial was somewhat inconsistent with the
statements that he had made to the officers while in custody following his arrest.
It also conflicted with certain information contained in the phone records. At the
close of the Government’s case and again after the defense rested, counsel for the
appellant moved for a judgement of acquittal based on the insufficiency of the
evidence. The district court denied both of these motions. The jury convicted the
appellant on both counts. The district court sentenced him to two concurrent
terms of sixty months in prison.1
                             III. STANDARD OF REVIEW
       When reviewing the record to determine whether there is sufficient
evidence to support a conviction, we will uphold the conviction if “a rational
trier of fact could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt.” United States v. Klein, 543
F.3d 206, 212 (5th Cir. 2008) (internal quotation marks and citation omitted),
cert denied, 129 S. Ct. 1384 (2009). “All reasonable inferences are drawn in the



       1
         The judgment refers to the second count as one for “conspiracy to attempt to possess
with intent to distribute” in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. However,
the indictment actually charged that the appellant “did unlawfully, knowingly and
intentionally attempt to possess with intent to distribute” in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 846. Because no party has raised this issue on appeal and we find that the
clerical error was harmless, we disregard it. Fed. R. Crim. P. 52(a).

                                                4
                                  No. 09-50088

light most favorable to the prosecution.” United States v. Moody, 564 F.3d 754,
758, cert denied, 129 S. Ct. 2756 (2009). “It is not necessary that the evidence
exclude every reasonable hypothesis of innocence . . . . A jury is free to choose
among reasonable constructions of the evidence.” United States v. Bell, 678 F.2d
547, 549 (5th Cir. Unit B 1982) (en banc) (footnote omitted), aff’d, 462 U.S. 356
(1983).
                               IV. DISCUSSION
      The appellant first argues that the evidence was insufficient as a matter
of law to support his conviction for conspiracy to traffic more than 500 grams of
cocaine. To establish the conspiracy in this case, the government must prove the
following elements beyond a reasonable doubt: (1) an agreement with one other
person to distribute or possess with intent to distribute more than 500 grams of
cocaine; (2) the appellant’s knowledge of the agreement; and (3) the appellant’s
voluntary participation in the conspiracy. See United States v. Percel, 553 F.3d
903, 910 (5th Cir. 2008) cert. denied, 129 S. Ct. 2067 (2009). Knowledge and
voluntary participation in a conspiracy “may be inferred from a collection of
circumstances.” United States v. Fuchs, 467 F.3d 889, 908 (5th Cir. 2006)
(internal quotation marks and citations omitted).
      The appellant asserts that Hinojosa’s inconsistent statements rendered his
testimony incapable of supporting the verdict. As the district judge correctly
observed, however, issues of witness credibility are the province of the jury. This
court will not “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) (internal quotation marks and footnote
omitted). It is true that Hinojosa made several inconsistent statements during
the course of his testimony; the prosecutor acknowledged as much in his closing
remarks to the jury. We cannot say, however, that no rational trier of fact could



                                        5
                                 No. 09-50088

choose to believe Hinojosa’s testimony that he was paid to deliver the cocaine to
the appellant on September 3.
      Moreover, other evidence corroborated Hinojosa’s testimony. The phone
records show a number of calls connecting Hinojosa to the appellant and Cady,
who ultimately picked up the cocaine. The appellant argues that, at best, these
records demonstrate association with an admitted drug dealer. He maintains
that the records could just as easily support the defense’s theory that the
appellant was meeting with Hinojosa for the benign purpose of retrieving a
broken phone. It is true that mere association with individuals engaged in
criminal activity, without more, is insufficient to support a conviction for
conspiracy. See United States v. Williams-Hendricks, 805 F.2d 496, 503 (5th Cir.
1986); see also United States v. Espinoza-Seanez, 862 F.2d 526, 537-39 (5th Cir.
1988). In this case, however, the appellant’s argument misses the mark. The
jury was entitled to view the phone records alongside Hinojosa’s testimony. It
was free “to choose among [the] reasonable constructions of the evidence” and
conclude that Hinojosa’s testimony and the phone records, when viewed
together, established the appellant’s participation in the conspiracy beyond a
reasonable doubt. Bell, 678 F.2d at 549. There was sufficient evidence for the
jury to convict the appellant of conspiracy.
      The appellant also challenges the sufficiency of the evidence supporting
his conviction for attempting to possess with intent to distribute more than 500
grams of cocaine. To establish an attempt to possess with intent to distribute in
this case, the government must prove that (1) the appellant acted with the kind
of culpability required for the crime of possession with intent to distribute and
(2) the appellant engaged in conduct constituting a substantial step toward
commission of the crime. See United States v. Redd, 355 F.3d 866, 872-73 (5th
Cir. 2003). Possession with intent to distribute requires that the government
prove “(1) knowing (2) possession of the illicit substance (3) with intent to

                                        6
                                 No. 09-50088

distribute it.” United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir.
1989) (citations omitted).    It is well-established that each member of a
conspiracy may be held liable for the substantive offenses committed by his co-
conspirators in furtherance of the conspiracy during his membership in the
conspiracy. See, e.g., United States v. Becker, 569 F.2d 951, 958 (5th Cir. 1978)
(citing Pinkerton v. United States, 328 U.S. 640 (1946)).
      In this case, the evidence was sufficient to support the appellant’s
conviction for attempted possession with intent to distribute. The jury found
that the appellant knowingly participated in a conspiracy to possess and
distribute the cocaine. Having reached this conclusion, the jury could find that
the appellant attempted to possess the cocaine through the actions of his co-
conspirator, Cady.
      For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.




                                       7
