Opinion
Criminal Action No. 3:01-CR-200-G
February 19, 2002
MEMORANDUM ORDER
Before the court are the post-trial motions of the defendant Victor Manuel Estrada ("Estrada") for a judgment of acquittal or a new trial. For the following reasons, these motions are denied.
I. BACKGROUND
On June 6, 2001, Estrada was indicted for possession with intent to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Defendant's Motion for New Trial Pursuant to Rule 33 of the Federal Rules of Criminal Procedure ("Motion for New Trial") at 1; Government's Response to Defendant's Motion for New Trial ("Response to New Trial") at 1. The events leading up to Estrada's indictment and conviction for this offense are as follows.
According to evidence at trial, U.S. Postal Inspector Don Smiddy had identified as a suspect package a U.S. Express Mail parcel addressed to 11423 Rupley Street, Dallas, Texas. Response to New Trial at 2-3.; Motion for New Trial at 8. On May 22, 2001, after obtaining a search warrant for the package, Inspector Smiddy opened the parcel and discovered that it contained 11 bundles, weighing approximately 5 kilograms, of a whitish crystalline substance, which tested positive for the presence of methamphetamine. Response to New Trial at 2-3; Motion for New Trial at 9. Inspector Smiddy testified that the estimated street value of the narcotics in the package was $250,000. Response to New Trial at 3. On May 23, 2001, after resealing the parcel with only a small portion of the narcotics left inside (approximately 60 milligrams), Inspector Smiddy and other law enforcement officers arranged for a controlled delivery of the package to 11423 Rupley Street. Response to New Trial at 3; Motion for New Trial at 9-10. The parcel was delivered to that address and signed for by Williams Akers, using the name, "Will Louis." Response to New Trial at 3; Motion for New Trial at 10. Approximately 15 minutes later, Estrada came out of the residence with the package and got into his pick-up truck and drove away. Response to New Trial at 3; Motion for New Trial at 11. Following his departure, Inspector Smiddy instructed a Dallas Police Officer to stop Estrada. Response to New Trial at 3; Motion for New Trial at 11. Estrada was then arrested and the parcel was seized from inside his vehicle. Response to New Trial at 3; Motion for New Trial at 11. Subsequently, Estrada was taken to the police station and advised of his constitutional rights. Response to New Trial at 4. After signing a written waiver of his rights, Estrada gave the investigators inconsistent answers about his knowledge of the package and its contents. Id. at 4-5.
On June 26, 2001, Estrada entered a plea of not guilty to the charge of possession with intent to distribute. Id. at 1. On July 13, 2001, Estrada filed a motion to suppress evidence, which this court denied in an oral order on August 2, 2001. Motion for New Trial at 1-2. On August 7, 2001, a jury found Estrada guilty of the offense charged in the indictment. Id. at 2. At the close of the government's case-in-chief and again at the end of the trial, Estrada made a motion for judgment of acquittal, which the court denied in each instance. Defendant's Motion for Judgment of Acquittal Pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure ("Motion for Acquittal") at 2. Estrada now renews this motion and seeks, in the alternative, a new trial.
II. ANALYSIS A. Motion for Judgment of Acquittal
Federal Rule of Criminal Procedure 29(c) provides that on motion of a defendant "[i]f a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal." See FED. R. CRIM. P. 29(c). In deciding a motion for judgment of acquittal, the court must "determine whether, viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Sneed, 63 F.3d 381, 385 (5th Cir. 1995), cert. denied, Polley v. United States, 516 U.S. 1048 (1996). To grant a judgment of acquittal, the court must conclude, after viewing the evidence in the light most favorable to the government, that a rational jury would necessarily have entertained a reasonable doubt as to the defendant's guilt. See United States v. Burns, 597 F.2d 939, 941 (5th Cir. 1979). The same test applies whether the government's case relies on direct or entirely circumstantial evidence. See id.; United States v. Lorence, 706 F.2d 512, 518 (5th Cir. 1983).
Here, Estrada argues that this court should grant his judgment of acquittal because the uncontested facts at trial demonstrated that Estrada possessed, at most, 60 milligrams of methamphetamine, not the 500 grams alleged in the indictment. Motion for Acquittal at 4, 11. According to Estrada, he never had either actual or constructive possession of the 500 grams or more of methamphetamine charged in the indictment because the package he possessed during his arrest contained only 60 milligrams of methamphetamine. Id. at 8-11. Thus, he reasons, the government failed to meet its burden of proving beyond a reasonable doubt the element of the offense of knowing possession of more than 500 grams of methamphetainine. Id. at 11-12.
In a less than enlightening response, the government contends the verdict should stand for two reasons. First, any variance between the indictment and the evidence at trial is harmless in nature. Government's Response to Defendant's Motion for Acquittal ("Response to Acquittal") at 6-7. In support of this claim, the government relies on United States v. Sheikh, in which the Fifth Circuit held that the variance in proof in the amount of narcotics actually possessed by the defendant during his arrest did not affect his substantial rights. 654 F.2d 1057, 1066 (5th Cir. 1981), cert. denied, 455 U.S. 991 (1982), overruled on other grounds by United States v. Zuniga-Salinas, 952 F.2d 876 (5th Cir. 1992). Second, the government argues that the evidence, viewed in the light most favorable to the verdict, establishes Estrada's constructive possession of the requisite 500 grams of methamphetamine. Response to Acquittal at 7.
In reply, Estrada contends that the government's reliance on Sheikh is misplaced in light of the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant's Reply to Government's Response to Defendant's Motion for Acquittal ("Acquittal Reply") at 2-3. In Apprendi, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. In Estrada's view, the government failed to prove beyond a reasonable doubt, as required by Apprendi, that he possessed more than 500 grams of methamphetamine. Acquittal Reply at 9-10. In addition, Estrada argues that the government failed to demonstrate that he ever had constructive possession over the package when it contained approximately 5 kilograms of methamphetamine. Id. at 5-9.
At the outset, the court rejects Estrada's contention that Apprendi applies to this situation. Apprendi generally applies in circumstances where the government has failed to state the drug amount in the indictment. See, e.g., United States v. Virgen-Moreno, 265 F.3d 276, 297 (5th Cir. 2001) ("If the government seeks an enhancement of the penalties for a crime based on the amount of drugs, the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt.") (internal citations and quotation omitted), cert. denied, ___ U.S. ___, 122 S.Ct. 843 (2002). In this case, the indictment alleged that Estrada violated 21 U.S.C. § 841(a)(1) by possessing 500 grams or more of a substance containing methamphetamine with intent to distribute it. Motion for Acquittal at 4. In accordance with Apprendi, the court instructed the jury that in order to find Estrada guilty of this offense, the government must prove all the elements of the offense beyond a reasonable doubt, including the amount of narcotics alleged in the indictment. See Court's instructions to the Jury ("Jury Instructions") at 11.
Those elements included the following:
First: That the defendant knowingly or intentionally possessed a controlled substance;
Second: That the substance was in fact methamphetamine;
Third: That the quantity was 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine; and
Fourth: That the defendant possessed the methamphetamine with intent to distribute it.
Jury Instructions at 11.
The court also instructed that for the jury to find Estrada in constructive possession of the methamphetamine, it must conclude that he "knowingly [had] both the power and the intention, at a given time, to exercise dominion or control over [the parcel], either directly or through another person or persons. . . ." Id.
Notwithstanding Estrada's claims to the contrary, the court remains convinced that the government produced sufficient evidence for a rational jury to find him guilty of the offense charged in the indictment. The undisputed evidence presented at trial was that the package contained approximately 5 kilograms of methamphetamine. Motion for New Trial at 9; see also Response to New Trial at 5 ("A stipulation between the defendant and the Government was read into the record. This stipulation concluded that the package sent to Estrada contained 4,657.9 grams of a mixture and substance containing methamphetamine."). The record also clearly established that, after the controlled delivery was made, Estrada left the residence with the package. Motion for New Trial at 11. During the trial, the government presented evidence regarding the use of a "drop house" by narcotics traffickers. Response to New Trial at 4. Specifically, Inspector Smiddy testified that a trafficker will pick a house with people who are not suspected of dealing in narcotics and pay those individuals money to receive a package, which the trafficker will then pick up after delivery is made. Id. This and other evidence supported the jury's determination of Estrada's guilt. Cf. United States v. Manolatos, No. CR. A. 01-156, 2002 WL 83647 at *1, *5 (E.D. La. Jan. 18. 2002) (rejecting defendant's Apprendi claims in support of his motions for judgment of acquittal and new trial because the indictment specifically accused the defendant of possession with intent to distribute and the evidence supported the jury's conclusion that over five kilograms of cocaine was involved in the trafficking operation).
The jury's conclusion regarding Estrada's guilt is further understandable in light of the fact that the jury was given an instruction on aiding and abetting. See Jury Instructions at 12-13 Although the indictment did not specifically charge Estrada with aiding and abetting, the Fifth Circuit has held that "[a]iding and abetting is not a separate offense, but it is an alternative charge in every indictment whether explicit or implicit." United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992); United States v. Gordon, 812 F.2d 965, 969 (5th Cir.) ("The words `aid and abet' need not appear in the indictment in order to sustain a conviction as an aider and abettor."), cert. denied, Woodcock v. United States, 482 U.S. 908 (1987). "To be convicted of aiding and abetting, the defendant must have (1) associated with a criminal venture, (2) participated in the venture, and (3) sought by action to make the venture successful." United States v. Lombardi, 138 F.3d 559, 561 (5th Cir. 1998) (citing United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994), cert. denied, 514 U.S. 1051 (1995)). "Moreover, to aid and abet, a defendant must share in the intent to commit the offense as well as play an active role in its commission." Id. Thus, Estrada's conviction for violating 21 U.S.C. § 841(a)(1) can stand if he aided and abetted each material element of the offense alleged in the indictment. See United States v. Williams, 985 F.2d 749, 753 (5th Cir.) (holding that to be guilty of aiding and abetting possession of drugs with intent to distribute, the defendant need not have actual or constructive possession of the narcotics, but he must have aided both the possession and the intent to distribute), cert. denied, Kitchens v. United States, 510 U.S. 850 (1993). In the court's view, there was more than sufficient evidence to convict Estrada of aiding and abetting the crime of possession with intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
The aiding and abetting instruction stated:
The guilt of a defendant in a criminal case may be established without proof that he personally did every act constituting the particular offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through direction of another person as his agent, or by acting in concert with, or under the direct[ion] of, another person or persons in a joint effort or enterprise.
Section 2 of Title 18, United States Code, provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
So, if another person is acting under the direction of the defendant, or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other person or persons, just as though the defendant himself had committed the acts or engaged in such conduct.
Notice, however, that before the defendant may be held criminally responsible for the acts of others, it is necessary that he willfully associate himself in some way with the criminal venture, and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that the defendant either directed or aided and abetted a crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator. In other words, you may not find the defendant guilty of aiding and abetting an offense unless you find beyond a reasonable doubt that every element of that offense, as defined in these instructions, was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.
Jury Instructions at 12-13.
Accordingly, for the reasons stated above, Estrada's motion for a judgment of acquittal is denied. See, e.g., United States v. Turner, 490 F. Supp. 583, 588 (E.D. Mich. 1979) (a judgment of acquittal "is granted for only one reason: insufficiency of the evidence to sustain the conviction"), aff'd, 663 F.2d 219 (6th Cir. 1980) (table), cert. denied, 450 U.S. 912 (1981).
B. Motion for New Trial
Federal Rule of Criminal Procedure 33 provides that "the court may grant a new trial to [a] defendant if the interests of justice so require." See FED. R. CRIM. P. 33. "Such motions are not favored and are granted with great caution." United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977). A new trial is granted "only upon demonstration of adverse effects on substantial rights of a defendant." United States v. Rasco, 123 F.3d 222, 228 (5th Cir. 1997) (internal citation omitted), cert. denied, 522 U.S. 1083 (1998).
Estrada argues this court should grant his motion for a new trial because the government's case relied on statements and evidence that should have been excluded by this court. Motion for New Trial at 1. In particular, Estrada claims that had the court held an evidentiary hearing on Estrada's motion to suppress, it would have found Estrada's arrest to be without probable cause. Id. at 18. According to Estrada, the uncontested facts leading up to the time he was pulled over did not support probable cause for his arrest. Id. at 11-12 (". . . no reasonable law enforcement officer would have reason to believe that Mr. Estrada had committed the offense for which he was arrested."). In response, the government cites a litany of facts in support of the claim that probable cause existed to support Estrada's arrest. Response to New Trial at 6-7. The court agrees with the government and finds Estrada's argument to be without merit.
On August 2, 2001, the court denied Estrada's motion to suppress evidence. Motion for New Trial at 1-2.
An evidentiary hearing on a motion to suppress is not granted as a matter of course but only when the defendant alleges sufficient facts which, if proven, would justify relief. United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). Because the determination of whether a hearing is required necessarily depends on the facts attending a particular request, the district court has discretion to grant or deny a hearing. Id. An evidentiary hearing is not required where none of the critical facts is in dispute and the facts as alleged by the defendant, if true, would not justify the relief requested. United States v. Smith, 546 F.2d 1275, 1279-80 (5th Cir. 1977); United States v. Poe, 462 F.2d 195, 197 (5th Cir. 1972), cert. denied, 414 U.S. 845 (1973).
A warrantless arrest must be based on "probable cause." See United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995), cert. denied, 519 U.S. 895 (1996). "Probable cause for a warrantless arrest exits when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense. . . . Although probable cause requires more than a bare suspicion of wrongdoing, it requires `substantially less evidence than that sufficient to support a conviction.'" Wadley, 59 F.3d at 512 (internal citations omitted); see also Illinois v. Gates, 462 U.S. 213, 230-31 (1983) (when the court determines whether probable cause existed it must look to the "totality of the circumstances").
The uncontested facts in this case clearly support a finding that Estrada's arrest was based upon probable cause. Motion for New Trial at 8-11; Response to New Trial at 6-7. His arrest was therefore lawful. See, e.g., United States v. Pringle, 576 F.2d 1114, 1118 (5th Cir. 1978) (holding probable cause existed to arrest defendant after he departed residence, where a controlled delivery of a package of heroin had just been made, with what appeared to be a package concealed under his jacket).
The government summarized those facts as follows:
1. Express Mail Parcel #EF277349022US was known to contain a large amount of a substance suspected of containing a detectable amount of methamphetamine;
2. The suspect parcel originated from an area noted for illegal narcotics distribution and was addressed to a house in a neighborhood noted for illegal narcotics activity;
3. Estrada was seen in possession of Express Mail Parcel #EF277349022US shortly after it was delivered to 11423 Rupley Lane and the package did not appear to have been opened;
4. Estrada got inside his pick-up truck with Express Mail Parcel #EF277349022US and left 11423 Rupley Lane;
5. Inspector Smiddy, based on his training and experience, recognized that Estrada had likely utilized 11423 Rupley Lane as a "drop house;" and
6. The estimated street value of the methamphetamine was $250,000. This is such a valuable package that it is inconceivable that a person without knowledge of the contents would be given solo control and possession of the narcotics.
Response to New Trial at 6-7.
III. CONCLUSION
For the foregoing reasons, Estrada's motions for judgment of acquittal and new trial are DENIED.
SO ORDERED.