IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41270

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO VASQUEZ,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

Before REAVLEY, ELROD and GRAVES, Circuit Judges.

PER CURIAM:

A jury convicted defendant-appellant, Pedro Vasquez, of (1) possessing

with intent to distribute over five kilograms of cocaine, (2) importing cocaine into

the United States, and (3) conspiring to possess with intent to distribute over

five kilograms of cocaine. Vasquez appeals all three convictions and his sentence

of three concurrent 125-month terms. We AFFIRM.

Facts and Procedural History

On May 25, 2010, United States Customs and Border Patrol (“CBP”)

Aniterrorist Contraband EnforcementTeam (“ATCET”)Officer Analia Natividad

Salazar selected Vasquez's Chevrolet Suburban, based on trend analysis, for

inspection at the Lincoln-Juarez Bridge Number 2, in Laredo, Texas,

United States Court of Appeals

Fifth Circuit

F I L E D

January 13, 2012

Lyle W. Cayce

Clerk

Case: 10-41270 Document: 00511725656 Page: 1 Date Filed: 01/13/2012
No. 10-41270

approximately 4.5 kilometers from Nuevo Laredo, Mexico. This CBP ATCET

stop occurred at 11:55 a.m. in Laredo, Texas where the average May

temperature is 95°F. Several CBP personnel were present at and participated

in the stop at the federal inspection area (“FIA”), including but not limited to

Officer José (Joe) Gonzalez. Officer Salazar testified that she found it unusual

that Vasquez drove the vehicle at "an extremely slow pace" after he passed the

primary inspection, and was "very alert to his surroundings . . . pretty much

looking forwards, sideways, backwards . . . ." Officer Salazar further testified

that Vasquez was constantly fidgeting his hands when other CBP officers were

inspecting the Suburban, and his eyes were concentrated on the Suburban,

particularly when officers inspected the hood area. Officer Salazar noticed that

when they inspected the hood area, Vasquez "was a bit anxious of wanting to see

what was being done and also wanting to get near . . . ." Officer Salazar testified

that when she asked him why he was entering the United States, Vasquez said

he had attended an alcoholics' anonymous meeting in Nuevo Laredo, Mexico, and

he was returning to work at Cristalina Pools, a pool construction company in

Laredo, Texas.

Rolando Villalobos, the owner of Cristalina Pools, testified that Vasquez

had worked for him for about two-and-a-half years. Villalobos further testified

that Vasquez would typically cross from Nuevo Laredo, Mexico, on foot every

morning, where he would then be picked up by other Cristalina Pools employees. 

As far as Villalobos knew, Vasquez did not own a car. On several occasions,

Villalobos permitted Vasquez to leave work early in order to attend meetings in

Nuevo Laredo, Mexico. Villalobos testified that he knew nothing about the

meetings except that Vasquez told him they were for alcohol-addiction

treatment. Shortly before May 25, 2010, Vasquez asked Villalobos for some time

off to try and make some money towing vehicles. Villalobos granted the request.

Officer Gonzalez testified that he was among the CBP personnel who

2

Case: 10-41270 Document: 00511725656 Page: 2 Date Filed: 01/13/2012
No. 10-41270

inspected the Suburban. He further testified that the inspection revealed what

appeared to be two car batteries in the engine compartment. Gonzalez also

testified thatthiswas unusual, because Vasquez's Suburban is a gasoline vehicle

that needs only one battery. Gonzalez went on to testify that he and other

officers disassembled the batteries' casings. They discovered that each

car-battery casing was lined with lead sheeting and that each contained a

motorcycle battery and three shrink-wrapped bundles of cocaine. The six

bundles of cocaine had a total weight of 10.25 kilograms. The motorcycle

batteries were connected to the Suburban’s electrical system. Gonzalez testified

that tools, a hitch, and some chains in a bucket were found in the back of the

Suburban. CBP officers found another set of tools (a 1/2-inch wrench, a 7/16-

inch wrench and 2 pliers) behind the driver's seat on the floor. The sizes of the

wrenches and pliers fit the terminals on the motorcycle batteries. However,

Gonzalez testified that wrenches and pliers of that size are extremely common.

United States Department of Homeland Security Immigration and

Customs Enforcement (“ICE”) Special Agent Owen William Tims – the lead

investigator and case agent, as well as the duty agent on May 25, 2010 –

testified that he interviewed Vasquez at 1:20 p.m. on the bridge with the

assistance of two Spanish-speaking officers. He further testified that Vasquez

was visibly nervous. Special Agent Tims also testified that Vasquez initially

denied ownership of the car, but shortly changed his answer and admitted to

owning it. He went on to testify that Vasquez became more nervous at that

point, his hands and his mouth began quivering, and he started shifting

frequently in his seat. Vasquez's counsel attempted to elicit testimony from

Special Agent Tims regarding Vasquez's other statements during the interview,

but the district court sustained the prosecutor's hearsay objection. Special Agent

Tims entered the information that he obtained from his interview of Vasquez in

an ICE C-CATS report.

3

Case: 10-41270 Document: 00511725656 Page: 3 Date Filed: 01/13/2012
No. 10-41270

CBP Officers Blanca De Leon and Maria Villarreal interviewed Vasquez

again in Spanish and wrote an I-213 Record of Deportable Alien immigration

report in English. Neither Officer De Leon nor Villarreal testified at trial. 

Vasquez’s attorney attempted to question Special Agent Tims about the report. 

The government objected that Special Agent Tims cannot testify to a report that

someone else authored. The district court sustained the government’s objection.

ICE agents and CBP officers had discovered a sales contract in the

Suburban. Javier Niera, of J&R Auto Sales, in Laredo, Texas, properly

authenticated the sales contract and testified that he sold the Suburban to

Vasquez in working order, with a single car battery. However, Niera testified

that the Suburban's air conditioning system was leaking and would work for

only two or three days before it needed more freon. Niera testified that another

man accompanied Vasquez when the Suburban was purchased. Niera had seen 1

the other man at the car lot before. The man had previously purchased at least

four other vehicles, and during a previous visit, he had looked over the

Suburban. Niera testified that the man did all the talking and paid for the

Suburban, although only Vasquez signed the sales contract. Niera also testified

that the other man asked Niera to leave the Suburban's old plates on it, but

Niera refused because Texas law requires dealers to remove and destroy plates

registered in the name of a vehicle's previous owner. 

Corey Grubbs, an ICE Special Agent, as well as Dr. Xiu Liu, Ph.D., a

forensic chemist with the United States Drug Enforcement Agency (“DEA”),

testified that 10.25 kilograms of cocaine has a street-value between $111,875

and $138,375 in Nuevo Laredo, Mexico; between $148,625 and $179,375 in

During oral argument, Vasquez’s attorney represented that Timoteo – whose last

1

name is unknown to both Vasquez and the government – purchased, in cash, the 1997

Chevrolet Suburban on or about May 14, 2010 in Vasquez’s name only.

4

Case: 10-41270 Document: 00511725656 Page: 4 Date Filed: 01/13/2012
No. 10-41270

Laredo, Texas; between $225,500 and $266,500 in San Antonio, Texas; and

between $266,500 and $287,000 in Austin, Texas.

Standards of Review

I. Conspiracy Count

Vasquez moved for a judgment of acquittal at the close of the government's

case-in-chief and again after the close of the evidence. This court reviews the

district court's denial of a motion for acquittal de novo. United States v.

Campbell, 52 F.3d 521, 522 (5th Cir. 1995). A motion for acquittal should be

granted if the government fails to present evidence sufficient for a reasonable

jury to have found that each essential element of the offense was established

beyond a reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540, 543

(5th Cir. 1998). This court considers the evidence in the light most favorable to

the government, with all reasonable inferences and credibility determinations

made in the government's favor. United States v. Santillana, 604 F.3d 192, 195

(5th Cir. 2010). "The jury may choose among reasonable constructions of the

evidence: The evidence need not exclude every reasonable hypothesis of innocence

or be wholly inconsistent with every conclusion except that of guilt." Id. (citing

United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996) (emphasis supplied)).

“‘[C]ircumstances 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. Ayala, 887 F.2d 62,

67 (5th Cir. 1989) (quoting Coggeshall v. United States (The Slavers), 69 U.S. (2

Wall.) 383, 17 L. Ed. 911, 914-15 (1865) (emphasis supplied)). Jurors may

properly “‘use their common sense’" and “‘evaluate the facts in light of their

common knowledge of the natural tendencies and inclinations of human beings’." 

Ayala, 887 F.2d at 67 (quoting United States v. Henry, 849 F.2d 1534, 1537 (5th

Cir. 1988)).

II. Deliberate Ignorance Jury Instruction

5

Case: 10-41270 Document: 00511725656 Page: 5 Date Filed: 01/13/2012
No. 10-41270

Generally, this court reviews jury instructions for abuse of discretion and

harmless error. United States v. Betancourt, 586 F.3d 303, 305 (5th Cir. 2009). 

However, when a defendant fails to object to jury instructions, we review for

plain error:

A party who objects to any portion of the instructions or to a failure to give

a requested instruction must inform the court of the specific objection and

the grounds for the objection before the jury retires to deliberate. An

opportunity must be given to object out of the jury's hearing and, on

request, out of the jury's presence. Failure to object in accordance with this

rule precludes appellate review, except as permitted under Rule 52(b).

Fed. R.Crim. P. 30(d). Reversal is justified if giving the deliberate ignorance jury

instruction was (1) an error, that was (2) plain, that (3) affected the defendant's

substantial rights, and (4) seriously affected the fairness, integrity, or public

reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-

67, 117 S.Ct. 1544, 1548-49 (1997). “The standard of review of a defendant’s

claim that a jury charge was inappropriate is ‘whether the court’s charge, as a

whole, is a correct statement of the law and whether it clearly instructs jurors

as to the principles of law applicable to the factual issues confronting them.’” 

United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990) (quoting

United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990)) (emphasis added in

Lara-Velasquez). The court’s charge “not only must be legally accurate, but also

factually supportable; the court ‘may not instruct the jury on a charge that is not

supported by evidence.’” Id. (quoting United States v. Ortega, 859 F.2d 327, 330

(5th Cir. 1988) (emphasis supplied).

Analysis

I. Whether sufficient evidence of a conspiracy existed to support

Vasquez’s conviction?

To establish a drug conspiracy, "the government must prove: 1) the

existence of an agreement between two or more persons to violate federal

6

Case: 10-41270 Document: 00511725656 Page: 6 Date Filed: 01/13/2012
No. 10-41270

narcotics laws; 2) the defendant's knowledge of the agreement; and 3) the

defendant’s voluntary participation in the agreement." United States v.

Gonzales, 79 F.3d 413, 423 (5th Cir. 1996). "[A] defendant may be convicted of

conspiring with other unknown persons if the indictment asserts that other such

persons exist and the evidence supports their existence and the existence of a

conspiracy." United States v. Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th

Cir. 1988). During closing argument, the government stated that “this case was

primarily one of circumstantial evidence . . .” 

The government presented evidence that revealed several facts, which 2

standing alone are insufficient, but together, support the jury’s guilty verdict on

the conspiracy count. In particular, the government argues persuasively that

the conspiracy conviction is supported by the "large and valuable quantity of

cocaine," the installation of the Suburban's two false car-battery casings, and 3

Niera's testimony about the man who bought the Suburban for Vasquez. ICE

Agent Grubbs and the government's expert, Dr. Liu with the DEA testified that

the street value of the cocaine would have cost $111,875, at a minimum, in

Nuevo Laredo, Mexico and as much as $287,000 on the upper end in Texas’

Capitol. Indeed, both Dr. Liu and ICE Agent Grubbs expressed opinions

This court makes clear that the government’s evidence in the present instance was

2

both circumstantial and cumulative, which supports the inference(s) that can be drawn in

order for the jury to declare Vasquez guilty of conspiracy.

 The jury may consider the amount of the contraband seized “which . . . is enough to 3

justify the inference that more than one person must be involved in moving it towards its

ultimate dispersal.” United States v. Barnard, 553 F.2d 389, 393 (5th Cir. 1977); see also

United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002) (“To begin, the jury could

have inferred from the large quantity and value of marijuana, and the difficulty of secreting

it in the tires, that the others were involved in the scheme.”); United States v. Hawkins, 547

F.3d 66, 72 (2d Cir. 2008); United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005); United

States v. Howard, 966 F.2d 1362, 1364 (10th Cir. 1992) (“The huge quantity of crack cocaine

involved in this case permits an inference of conspiracy, but by itself this is not enough to

convict defendant.”) .

7

Case: 10-41270 Document: 00511725656 Page: 7 Date Filed: 01/13/2012
No. 10-41270

concerning the cocaine – specifically, its weight and value, which the jury took

into consideration.

This court must credit all of this evidence, because the “court will not

substitute its own determination of credibility for that of the jury . . .” United

States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994). While “[i]t takes at least two

to tango for conspiracy purposes[,]” United States v. Morgan, 835 F.2d 79, 82

(5th Cir. 1987), the government is not required to identify each of the coconspirators by name. See, e.g., United States v. Lance, 536 F.2d 1065, 1068 (5th

Cir. 1976). Here, there is more than ample evidence. Vasquez’s challenge to the

sufficiency of the evidence on the conspiracy count fails.

II. Whether the district court correctly gave its deliberate ignorance

jury instruction?

If a deliberate ignorance instruction is given, a "balancing" instruction

should be considered upon request of defendant. See United States v.

Farfan-Carreon, 935 F.2d 678, 681 n.5 (5th Cir. 1991). In the present instance,

Vasquez neither objected to the deliberate ignorance instruction, nor did he

request a balancing instruction, hence, the plain error standard. See Betancourt,

586 F.3d at 305-06. The district court read into the record, word-for-word, this

court's pattern jury instruction on deliberate ignorance:

The word "knowingly," as that term has been used from time to time in

these instructions, means that the act was done voluntarily and

intentionally, not because of mistake or accident. You may find that a

defendant had knowledge of a fact if you find that the defendant

deliberately closed his eyes to what would otherwise have been obvious to

him. While knowledge on the part of the defendant cannot be established

merely by demonstrating that the defendant was negligent, careless, or

foolish, knowledge can be inferred if the defendant deliberately blinded

himself to the existence of a fact.

Fifth Circuit Pattern Jury Instructions: Criminal § 1.37.

8

Case: 10-41270 Document: 00511725656 Page: 8 Date Filed: 01/13/2012
No. 10-41270

The deliberate ignorance instruction "does not lessen the government's

burden to show, beyond a reasonable doubt, that the knowledge elements of the

crimes have been satisfied." United States v. Reveles, 190 F.3d 678, 686 n.12

(5th Cir. 1999); see United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992)

(this court warned that a deliberate ignorance instruction “should rarely be

given” because it creates the risk that a jury may convict on a lesser negligence

standard); see also United States v. Newell, 315 F.3d 510, 528 (5th Cir. 2002) (the

essence of deliberate ignorance is “‘Don’t tell me, I don’t want to know.’”)

(quoting Lara-Velasquez, 919 F.2d at 951); cf. Global-Tech Appliances, Inc. v.

SEB S.A., 131 S.Ct. 2060 (2011) (analyzing deliberate ignorance’s civil

equivalent, willful blindness). A judge is cautioned that, in instructing on a

statute which punishes "otherwise innocent conduct," the knowledge

requirement applies to each element. United States v. Ahmad, 101 F.3d 386, 390

(5th Cir. 1996), reh'g and suggestion for reh'g en banc denied, 108 F.3d 335 (5th

Cir. 1997). Fifth Circuit precedent requires that a district court give a deliberate

ignorance instruction "when a defendant claims a lack of guilty knowledge and

the proof at trial supports an inference of deliberate indifference." United States

v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999).

Vasquez, through his attorney, stated before the district court and argued

on appeal to this court that he did not know about the cocaine. In particular,

Vasquez’s attorney stated, during his opening statement that:

[T]he government agents found cocaine hidden in the batteries. The other

thing, as [the government] told you-all, it was hidden and concealed. You

couldn't see the stuff. You couldn't see the cocaine or anything or

anything unusual by looking at -- under the hood. All you could see were

batteries. She talked about how they were motorcycle batteries. The

motorcycle batteries were concealed within a shell of larger batteries. So

anyone looking at them would see nothing but larger batteries. So there's

nothing unusual about the way the car looked, nothing unusual about the

way the car operated.

9

Case: 10-41270 Document: 00511725656 Page: 9 Date Filed: 01/13/2012
No. 10-41270

Vasquez’s attorney also stated at the beginning of his closing argument:

And the court has read you the instructions, and the instructions say the

government may not rely upon the defendant’s ownership and control of

the vehicle to prove the defendant knew he possessed the controlled

substance. In other words, they can’t just show you that Pedro Vasquez

owned the vehicle. They can’t just show you that Pedro Vasquez was

driving the vehicle. They have to bring you other evidence, other evidence

to show beyond a reasonable doubt that he knew.

A reasonable doubt, we talked about in jury selection, is the kind of doubt

that would make you, you hesitate in the most important of your own

affairs. There is reasonable doubt in this case, and there’s reasonable

doubt because Pedro Vasquez is innocent. That’s why there’s doubt. And

that’s why there’s no evidence of his knowledge because the evidence

doesn’t exist because he’s innocent.

The trigger for deliberate ignorance is that the evidence at trial must raise

two inferences: that the defendant (1) was subjectively aware of a high

probability of the existence of the illegal conduct, and (2) purposely contrived to

avoid learning of the illegal conduct. United States v. Mendoza-Medina, 346

F.3d 121, 132-33 (5th Cir. 2003); see also United States v. Cavin, 39 F.3d 1299,

1310 (5th Cir. 1994). The essential feature of deliberate ignorance "is the

conscious action of the defendant — the defendant consciously attempted to

escape confirmation of conditions or events he strongly suspected to exist." 

Mendoza-Medina, 346 F.3d at 133 (quoting Lara-Velasquez, 919 F.2d at 951).

Here, Vasquez contends that not only was the deliberate ignorance

instruction not supported by the evidence, but also that it was deficient because

it omits the requirement that a defendant possessed "subjective awareness of a

high probability of the existence of illegal conduct." Threadgill, 172 F.3d at 368. 

In other words, Vasquez argues that the evidence at trial was insufficient to

support the deliberate ignorance instruction, and he asserts that the deliberate

ignorance instruction incorrectly stated the law. Vasquez is wrong.

10

Case: 10-41270 Document: 00511725656 Page: 10 Date Filed: 01/13/2012
No. 10-41270

The evidence demonstrates that Vasquez owned and controlled the

Suburban, which some unknown buyer purchased. Vasquez drove extremely

slowly, and then had a nervous demeanor when CBP officers and ICE agents

questioned him. Vasquez’s Suburban, which requires only a single battery, had

two car batteries under its hood. Moreover, the car dealer testified that the

Suburban required changing the freon every two to three days in order to

operate the air-conditioning, thus necessitating a check under the hood. 

Likewise, the photographs demonstrate how the batteries were loaded with

cocaine. Finally, Vasquez’s employer testified regarding Vasquez’s coincidental

leave of absence from Cristalina Pools. We do note that neither the government

nor the defendant requested that a deliberate ignorance instruction be given, but

nonetheless, the district court’s instruction was supported by the evidence at

trial and was a correct statement of the law.

Conclusion

This court concludes that the evidence presented here is sufficient to

support a conviction for conspiracy, and that the district court properly gave the

deliberate ignorance jury instruction. Accordingly, the district court did not err,

and Vasquez's convictions are upheld. AFFIRMED.

11

Case: 10-41270 Document: 00511725656 Page: 11 Date Filed: 01/13/2012