                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0593n.06

                                    Nos. 09-5069 and 09-5241                               FILED
                                                                                       Sep 02, 2010
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   ) ON APPEAL FROM THE UNITED
v.                                                 ) STATES DISTRICT COURT FOR THE
                                                   ) WESTERN DISTRICT OF KENTUCKY
OLIMPIA GASPAR,                (09-5069)           )
JAVIER GASPAR,                 (09-5241)           )
                                                   )
       Defendants-Appellants.                      )



Before: GIBBONS and COOK, Circuit Judges; and VAN TATENHOVE, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Defendants–appellants Javier and Olimpia

Gaspar (collectively “the defendants”) appeal their convictions for aiding and abetting the

distribution of over five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B),

and 18 U.S.C. § 2. They argue that the government presented insufficient evidence to sustain their

convictions and that the district court erred when it denied their motions for judgments of acquittal.

In addition, Olimpia Gaspar challenges the district court’s denial of her motion for a mistrial based

on the testimony of a government witness regarding her prior bad acts. For the reasons that follow,

we affirm the judgment of the district court.




       *
         The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
Nos. 09-5069 and 09-5241
United States v. Gaspar
                                                 I.

       This case concerns a Bowling Green, Kentucky, drug transaction. From March to June of

2006, Special Agent David Hayes of the Bureau of Alcohol, Tobacco, Firearms, and Explosives

(“ATF”) in Bowling Green, confidential informant Laura Chapman, and another undercover officer

made several controlled purchases of cocaine base from Cesar Gaspar, also known as Cecil.1 They

also purchased from Cecil’s wife, Margarita Gaspar, and Margarita’s brother, David Puga-Rios. An

individual named Larry Larue was the Gaspars’s source for the drugs. On May 18, 2006, Hayes and

Chapman, posing as crack resellers from Indianapolis, arranged to purchase two ounces of cocaine

base from Cecil at Puga-Rios’s home at 4 Walker Court (“No. 4” or “Walker Court”). Another

undercover agent, Special Agent Wayne Kilday of the Nashville ATF office, accompanied them.

The buy was electronically monitored. Chapman carried a camera mounted on her purse and Hayes

wore a microphone; the audio and visual evidence was introduced at trial.

       When Chapman, Hayes, and Kilday arrived at Walker Court, Hayes told Cecil that their

previous transaction had been short four or five grams, and the two agreed on a price of $1,400 per

ounce. Cecil, however, did not have drugs in his physical possession at the time. He told Hayes that

he would retrieve the drugs from Larue but demanded payment upfront. Hayes then paid Cecil

$2,800 on the condition that Cecil personally bring the crack back to Walker Court. At trial,

Chapman testified that Cecil seemed “skeptical” during this conversation because Kilday had not

previously participated in the drug buys.



       1
          In order to avoid confusion, we hereinafter refer to the members of the Gaspar family by
their first names.

                                                 2
Nos. 09-5069 and 09-5241
United States v. Gaspar
       While Hayes and Cecil were negotiating prices, Cecil’s brother, defendant Javier Gaspar,

arrived at Walker Court. After Cecil left, Hayes, Chapman, and Kilday joined Javier and several

other people around a neighborhood bonfire. During the approximately one and a half hours that

they waited for the cocaine, Hayes engaged Javier in conversation. They discussed the drug situation

in Bowling Green, and Hayes commented that Cecil had good drugs. Javier agreed that his brother

had “good shit.” Javier also said to Hayes, “[M]y brother helps you make money.” Finally, when

Hayes mentioned to Javier that the previous transaction had been short, Javier replied, “No, my

brother [would] not do that.” When Hayes asked Javier when Cecil would return, Javier told him,

“He’s real close,” and mentioned that Cecil was waiting for a set of digital scales to weigh the drugs.

       Javier then received a phone call from Cecil. “Immediately after that,” Olimpia Gaspar, the

sister of Cecil and Javier, arrived at Walker Court. Aside from her two young children, Olimpia was

the only person inside her car. Chapman testified that she saw Puga-Rios approach Olimpia’s car

and retrieve something from inside. Puga-Rios and Hayes then entered 4 Walker Court and Puga-

Rios gave Hayes a baggie containing crack cocaine. Because the previous transaction was short,

Hayes wanted to weigh the drugs. As Hayes placed a set of digital scales on the hood of his car,

Javier approached Hayes and asked, “Is there a problem? What’s going on?” Hayes showed Javier

the weight to indicate that the amount was correct, then asked where Cecil was and why he did not

return to Walker Court. Javier replied that Cecil was wary of Kilday and so had sent the drugs with

someone else.2 The transaction thus concluded.


       2
        There is some discrepancy in the witness testimony about when this information was
relayed. According to Hayes, Javier told him why Cecil was not coming back after Hayes had
weighed the drugs. Chapman, however, testified that Javier volunteered the information after

                                                  3
Nos. 09-5069 and 09-5241
United States v. Gaspar
       In February 2008, a grand jury returned an indictment against Cecil, Margarita, Olimpia,

Javier, Puga-Rios, and Larue. Javier and Olimpia were charged with aiding and abetting the

distribution of over five grams of crack cocaine on May 18, 2006, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. At trial, defense counsel asked Chapman how she knew

what Olimpia had handed to Puga-Rios. Chapman testified that she knew it was cocaine because

she previously had purchased drugs from Olimpia. Defense counsel moved for a mistrial, but the

district court denied the motion and instructed the jury to disregard the reference to prior drug

transactions. At the close of the government’s case-in-chief, the defendants moved for judgments

of acquittal based on insufficiency of the evidence. The district court denied the motions, finding

that “the evidence is not overwhelming, but . . . it’s sufficient.” The jury convicted the Gaspars. The

defendants submitted written motions for judgments of acquittal, which the district court again

denied. This appeal timely followed.

                                                  II.

       We review de novo a district court’s sufficiency determination. United States v. Humphrey,

279 F.3d 372, 378 (6th Cir. 2002). “When deciding whether a conviction is supported by sufficient

evidence, we determine ‘whether, after viewing the evidence 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.’” United States v. Russell, 595 F.3d 633, 644 (6th Cir. 2010) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)) (additional citation omitted). “To prove that [a defendant]

aided and abetted drug transactions under 18 U.S.C. § 2, the government must establish that [he]


receiving the phone call from Cecil earlier in the evening.

                                                  4
Nos. 09-5069 and 09-5241
United States v. Gaspar
participated in the venture as something he wished to bring about and sought to make succeed.”

United States v. Cecil, — F.3d —, 2010 WL 3120027, at *12 (6th Cir. Aug. 10, 2010) (quoting

United States v. Ward, 190 F.3d 483, 487 (6th Cir. 1999)) (quotation marks omitted). All conflicts

in the testimony are resolved in favor of the government, and every reasonable inference is drawn

in its favor. United States v. Bashaw, 982 F.2d 168, 171 (6th Cir. 1992). Further, “[c]ircumstantial

evidence alone is sufficient to sustain a conviction and such evidence need not remove every

reasonable hypothesis except that of guilt.” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.

1986). Thus, under this standard of review, a defendant “bears a very heavy burden.” United States

v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000).

                                                 A.

       Javier claims that the government failed to present sufficient evidence that he aided and

abetted the drug transaction on May 18, 2006. He argues that he was merely present at the scene of

the crime and said nothing to Hayes to encourage or facilitate the transaction. Javier also contends

that the transaction was complete before he arrived at Walker Court. He points out that Hayes

testified that he would not have left Walker Court until he was in possession of the cocaine and

concludes that he could not have said anything to aid in the transaction. Finally, he argues that his

comments regarding Cecil’s drug operations could not reasonably be construed as attempts to

encourage the drug deal because they were only in response to Hayes’s questions.

       “Although mere presence alone is insufficient to support a guilty verdict, presence is a

material and probative factor which the jury may consider in reaching its decision.” United States

v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991) (quoting United States v. Christian, 786 F.2d 203, 211


                                                 5
Nos. 09-5069 and 09-5241
United States v. Gaspar
(6th Cir. 1986)) (quotation marks omitted). Further, “[a] defendant’s guilty knowledge and

voluntary participation may be inferred from surrounding circumstances.” Id. (citation, emphasis,

and quotation marks omitted); see also United States v. Fisher, 992 F.2d 1218, 1993 WL 100096,

at * 3–4 (6th Cir. Apr. 5, 1993) (per curiam) (unpublished table opinion) (applying Hodges to a

charge of aiding and abetting). Javier was more than merely present during the sale of cocaine at

Walker Court. Rather, the evidence before the jury supported a finding that he was involved in and

aided this particular drug transaction. There is evidence that Javier knew that Cecil was a drug

dealer and knew that Hayes, in his undercover persona, was a buyer and reseller of Cecil’s drugs.

Javier’s conversations with Hayes indicate that he knew about the specific drug deal that was

occurring. The jury heard testimony that Javier made comments about his brother’s drug operations,

including references to the quality of the drugs and to Cecil’s transactional honesty. There was also

testimony that Javier explained the reasons for the delay in delivery of the drugs to Hayes, and, in

stating that Cecil was “real close,” sought to minimize concerns about the delay. Furthermore, there

is evidence that Javier received a phone call from Cecil immediately before the drugs were delivered

to Hayes. After the drugs were delivered, Javier approached while Hayes weighed the drugs and

checked on the status of the transaction. Javier then indicated that he knew why Cecil did not

personally return with the drugs, stating that Cecil was wary of the first-time presence of Kilday.

Viewed in the light most favorable to the prosecution, these facts would allow a reasonable juror to

conclude that Javier aided and abetted the distribution of drugs.




                                                 6
Nos. 09-5069 and 09-5241
United States v. Gaspar
                                                   B.

        Olimpia argues that the jury relied on speculation in convicting her because she was not

found with drugs or drug money, nor was she seen participating in the transaction. She argues that

her only suspect action was to be near the scene of the transaction and cites United States v. Peters,

15 F.3d 540, 544 (6th Cir. 1994), for the proposition that being in a common area near a quantity of

drugs cannot alone support a conviction.

        While simply being near a quantity of drugs may be, on its own, insufficient to support a

conviction for aiding and abetting, we have held that the exhibition of suspicious behavior near the

scene of a drug transaction can be sufficient circumstantial evidence to support such a conviction.

See United States v. Torres-Ramos, 536 F.3d 542, 557 (6th Cir. 2008). Here, there is more than just

suspicious behavior—there is evidence that Olimpia actively participated in the drug transaction.

First, the drug transaction was not completed until Olimpia arrived at Walker Court. Because no

drugs changed hands immediately upon Hayes’s arrival at the residence, a juror could reasonably

infer that initially there were no drugs there. This inference is strengthened by the fact that Cecil said

that he would need to meet his supplier and his insistence on payment up front. Further, when

Olimpia arrived, she was the only adult in the car. Puga-Rios retrieved something from the car, and

the handover of the drugs took place immediately thereafter. From these facts, a rational juror

likewise could infer that Olimpia delivered the drugs to Walker Court. Additionally, Olimpia arrived

immediately after Javier spoke with Cecil on the phone. A reasonable juror could conclude that

Cecil phoned Javier to alert him that the drugs were en route and that Olimpia would deliver them.

It is therefore unlikely that Olimpia was simply “in the wrong place at the wrong time.” Id. at 558.


                                                    7
Nos. 09-5069 and 09-5241
United States v. Gaspar
Drawing inferences from the evidence presented in the light most favorable to the prosecution, there

was sufficient evidence to conclude that Olimpia aided and abetted the distribution of crack cocaine

by delivering the drugs.

       Viewed as a whole, the evidence against each defendant was sufficient for a rational juror

to find all of the elements of aiding and abetting beyond a reasonable doubt. The district court’s

denial of Javier and Olimpia Gaspar’s acquittal motions was therefore without error.

                                                III.

       “We review a district court’s denial of a motion for mistrial under the abuse-of-discretion

standard.” United States v. Wimbley, 553 F.3d 455, 460 (6th Cir. 2009). In determining whether an

improper reference warrants a mistrial, we consider five factors: “(1) whether the remark was

unsolicited, (2) whether the . . . line of questioning was reasonable, (3) whether the limiting

instruction was immediate, clear, and forceful, (4) whether any bad faith was evidenced by the

government, and (5) whether the remark was only a small part of the evidence against the

defendant.” Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003). “The primary concern [in this

inquiry] is fairness to the defendant.” United States v. Forrest, 17 F.3d 916, 919 (6th Cir. 1994).

       Olimpia claims that error tainted her trial when Chapman testified about past cocaine base

transactions involving Olimpia. This argument focuses on the following exchange between defense

counsel and Chapman:

       Q. What did you actually see her deliver? Describe what you saw her—not what you saw
       Puga-Rios pull out of his pocket. Tell me exactly what you saw her hand to him.

       A. I did not exactly see her hand it to him. I know she brought it over there to us.



                                                 8
Nos. 09-5069 and 09-5241
United States v. Gaspar
        Q. So you know—you don’t know what she handed him, correct?

        A. I’m very—I’m pretty clear of what she handed him because I’ve dealt with Olimpia
        before prior to all this with a friend, another friend, where she was selling crack cocaine out
        of her house.

Following a brief bench conference, the district court then issued the following admonition to the

jury:

        Ladies and gentlemen, there were just some statements that were made about
        something that may or may not have happened before this event. You’re just to
        completely disregard that testimony. It was an unresponsive answer, and there’s no
        corroborating testimony in that regard. Just completely disregard it. It was just
        volunteered.

        Olimpia argues that Chapman deliberately interjected an unsolicited reference to Olimpia’s

past drug activity into her testimony and contends that the reference was particularly harmful in light

of the fact that it constituted the only direct evidence that she may have been involved in distributing

cocaine. Because Chapman was a paid government informant, Olimpia contends, she had an

incentive to interject damaging testimony to ensure an outcome favorable to the prosecution.

Finally, without offering any basis for her contention, she argues that the district court’s instruction

to the jury was ineffective.

        Applying the relevant factors to the circumstances presented, the district court did not abuse

its discretion in concluding that a mistrial was unwarranted. First, Chapman’s remark was not

unsolicited by defense counsel. Defense counsel, having asked Chapman once to describe what she

saw, continued to press Chapman about how she knew what she saw. Describing what one has seen

and how one knows what one has seen are different inquiries, and defense counsel’s line of

questioning invited Chapman’s varying answers. Second, there does not appear to be anything


                                                   9
Nos. 09-5069 and 09-5241
United States v. Gaspar
unreasonable about defense counsel’s line of questioning. Defense counsel sought merely to cross-

examine an eyewitness and, in so doing, elicited inadmissible information adverse to the defendant.

Third, the district court issued an explicit admonition to the jury, repeating twice that it was to

disregard Chapman’s comment and highlighting that the comment was supported by “no

corroborating testimony.” The instruction was issued within minutes of the testimony, cf. United

States v. Wiedyk, 71 F.3d 602, 608 n.2 (6th Cir. 1995) (finding instructions given seventy minutes

after improper questioning sufficiently curative because, inter alia, they were clear and forceful),

and “[j]uries are presumed to understand and follow such directions from the court,” Forrest, 17

F.3d at 920–21. Finally, the jury heard testimony from other government witnesses about Olimpia’s

involvement in the events of May 18, 2006. In context, Chapman’s testimony regarding Olimpia’s

prior drug dealings was a small part of the government’s case, and there was sufficient evidence for

the jury to convict Olimpia even in the absence of Chapman’s extraneous comments. For these

reasons, the district court acted well within its discretion in denying the motion for a mistrial.


                                                 IV.

       For the foregoing reasons, we affirm the judgment of the district court.




                                                  10
