* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 95-40857

Summary Calendar

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERMIN GONZALEZ-RIVAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(M-93-CR-208-01)

October 18, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Fermin Gonzalez-Rivas (“Gonzalez”) appeals his convictions for

conspiracy to possess marijuana with intent to distribute, in

violation of 21 U.S.C. § 846, and aiding and abetting possession of

marijuana with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. We affirm.

The arrest of Gonzalez and his alleged co-conspirators, Jaime

Chapa-Barrera (“Chapa”), Victor Lopez-Davila, and Ruben VelaMascoro (“Vela”), arose out of an undercover operation in which
-2-

police negotiated with Chapa for the purchase of 1000 pounds of

marijuana. On the day of the arrest, Chapa met with police in a

restaurant in Mission, Texas, to discuss delivery of the drugs and

later led police to the home of Lopez-Davila where the marijuana

was located. Police arrested Chapa and Lopez-Davila at the house,

and soon thereafter arrested Gonzalez and Vela who had been

circling the neighborhood in Gonzalez’s truck. A grand jury

indicted each with conspiracy to possess marijuana with intent to

distribute, and aiding and abetting possession of marijuana with

intent to distribute. Gonzalez was tried alone, and convicted on

both counts. 

On appeal, Gonzalez contends that the evidence presented by

the prosecution was insufficient to support the inference that he

knew of the conspiracy or voluntarily participated in it. Gonzalez

additionally contends that the district court erred in allowing the

prosecution to introduce evidence of his prior state conviction for

possession of marijuana because the prosecution failed to give

reasonable notice to the defense under Rule 404(b) of the Federal

Rules of Evidence and because the prior conviction bears solely on

his character.

When determining the sufficiency of the evidence after

conviction by a jury, the scope of our review is narrow. We must

affirm if, viewing the evidence in the light most favorable to the

government, a reasonable trier of fact could have found that the
-3-

evidence established guilt beyond a reasonable doubt. United

States v. Burmea, 30 F.3d 1539, 1551 (5th Cir.), reh’g and

suggestion for reh’g en banc denied, 39 F.3d 322 (5th Cir. 1994),

and cert. denied, ___ U.S. ___, 115 S. Ct. 1113, 130 L. Ed. 2d 1077

(1995), and ___ U.S. ___, 115 S. Ct. 1825, 131 L. Ed. 2d 746

(1995). The evidence need not exclude every reasonable hypothesis

of innocence, and the jury is free to choose among reasonable

constructions of the evidence. United States v. Pigrum, 922 F.2d

249, 254 (5th Cir.), cert. denied, 500 U.S. 936, 111 S. Ct. 2064,

114 L. Ed. 2d 468 (1991). 

In order to sustain a conviction for conspiracy, the

prosecution must show that the defendant knew of the conspiracy and

intended to participate in it. United States v. Puig-Infante, 19

F.3d 929, 936 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct.

180, 130 L. Ed. 2d 115 (1994). A conviction for aiding and

abetting requires proof that the defendant associated with and

participated in the criminal venture and sought to make the venture

succeed. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.),

cert. denied, ___ U.S. ___, 115 S. Ct. 2014, 131 L. Ed. 2d 1013

(1995). Gonzalez concedes that a conspiracy to distribute

marijuana existed between Chapa and Lopez-Davila, but asserts that

from the evidence presented, a jury could not have found beyond a

reasonable doubt that Gonzalez knowingly participated in that

conspiracy. The record, however, clearly refutes this assertion.
-4-

On the day of his arrest, Gonzalez drove Chapa to the

restaurant in Mission and waited outside in his truck while

negotiations for the sale of the drugs took place. Later,

surveillance teams witnessed Gonzalez and Vela cruising back and

forth past Lopez-Davila’s house while Chapa, Lopez-Davila, and

police consummated the transaction. Moreover, phone records showed

numerous telephone calls to and from the co-conspirators during the

period of the investigation, one of which was placed from

Gonzalez’s home phone in Rio Grande City to the pager of an

undercover agent, and another of which was placed from Gonzalez’s

cellular phone to Lopez-Davila’s house while Chapa was inside the

restaurant negotiating with police.

Viewing this evidence in the light most favorable to the

prosecution, we find that a reasonable jury could have concluded

beyond a reasonable doubt that Gonzalez knew of and actively

participated in the conspiracy, and that he aided and abetted his

co-conspirators to possess marijuana with intent to distribute.

See Jaramillo, 42 F.3d at 923 (holding circumstantial evidence

sufficient to establish aider and abettor liability where defendant

did not “merely stand and watch the transaction”).

Next, Gonzalez argues that the district court violated Rule

404(b) of the Federal Rules of Evidence when it allowed the

prosecution to introduce evidence of his prior state conviction

without reasonable notice to the defense. Gonzalez also contends
-5-

that the prior conviction should have been excluded from evidence

because it bears solely on his character.

We apply a highly deferential standard of review to the trial

court’s evidentiary rulings and will reverse only for an abuse of

discretion. United States v. Buchanan, 70 F.3d 818, 831 (5th Cir.

1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1340, 134 L. Ed. 2d

490 (1996), and ___ U.S. ___, 116 S. Ct. 1366, 134 L. Ed. 2d 532

(1996); United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir.

1991). What constitutes “reasonable notice” under Rule 404(b)

depends largely on the circumstances of each case. FED. R. EVID.

404(b) advisory committee note. Although the government did not

inform Gonzalez that it intended to introduce his prior conviction

for Rule 404(b) purposes until two days prior to trial, it informed

defense counsel six weeks before trial that it would use the

conviction in order to seek an enhanced punishment. Gonzalez does

not assert that he was in any way prejudiced by a lack of notice.

We therefore hold that the district court did not abuse its

discretion in admitting the prior conviction into evidence. We

also hold that the district court did not abuse its discretion in

finding that the prior conviction was both relevant to the issue of

Gonzalez’s intent to participate in the conspiracy, and that its

probative value outweighed its prejudicial effect. See Buchanan,

70 F.3d at 831-32 (holding that prior conviction was properly

admitted as probative of intent and not unduly prejudicial where it
-6-

tended to refute defendant’s story that he was merely “in the wrong

place at the wrong time”). 

For the foregoing reasons, we AFFIRM.