### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 2 5 , 2010, United States Customs and Border Patrol (“CBP”) Aniterrorist C o ntr ab an d E nf orc e m e nt T e a m (“

AT C E T”) O f

f ic er An ali a N atividad Salazar selected Vasquez's Chevrolet Suburban, based on t r e n d analysis, for inspection at the Lincoln-Juarez Bridge Nu m b e r 2 , in Laredo, Texas, U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary13 , 20 12 Lyle W . Cayce Clerk Case: 10-41270 Document: 00511725656 Page: 1 Date Filed: 01/13/2012No. 10-41270

approximately 4.5 kilometers f r o m Nuevo Laredo, Mexico. This CBP ATCET

s t o p o c c urred 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 w a s " very alert to his surroundings

. . . pretty much looking f

o rw a r d s , 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 c o n c e ntrated 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' ano ny m o u s m e etin g in Nu evo Laredo, Mexico, and he was returning to work at Cristalina Pools, a p o o l c o n s truction 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 occ a s i ons, Villalobos permitted Vasquez to leave work early in order to attend meetings in Nuev o L a r e d o, Mexico. Villalobos testified that he knew nothing about the meetings except that Vasquez told hi m t h e y 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 t e s t ified that he was among the CBP personnel who

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

inspected the Suburban. He further testified that the inspection revealed what appeared to be two car batteries in the e n gi n e c ompartment. Gonzalez also testified th at thi s w a s unu s u al , b e cause Vasquez's Suburban is a gasoline vehicle that needs only one battery. G o n z a l ez went on to testify that he and other officers dis a s s e m b l ed the batteries' casings. They discovered that each car-battery casing was lined w i th lead sheeting and that each contained a motorcycle battery and three shrink-wra p ped bundles of cocaine. The six bundles of cocaine had a total weight of 10.25 kilogr a m s . The motorcycle batteries were connected to the Suburban’s electrical system. Gonzalez testified that tools, a hitch, and s o m e chains in a bucket were found in the back of the Suburban. CBP officers found another set of tools (a 1/2-inch w r e nch, a 7/16- inch wrench and 2 pliers) behind the driver's seat on the floor. The sizes of the

w r e n c h e s and pliers fit the terminals on the motorcycle batteries. However, Gonzalez testified that wrenches and pliers of that size are extremely common. United St a t es Department of Homeland Security Immigration and Customs Enforcement (“ICE”) S p e c i a l Agent Owen William Tims – the lead investigator and case agent, a s w ell 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 visibl y nervous. Special Agent Tims also testified that Vasquez initially denied ownership of t h e c a r , b ut shortly changed his answer and admitted to owning it. He went on to testify that Vasquez became more ne rvous at that point, his hands and his mouth began quivering, and he started shifting f r e qu e ntly 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 s u s t ain e d th e p ro s ecutor'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: 01/13/2012No. 10-41270

CBP Officers Blanca De Leon and Maria Villarreal interviewed Vasquez again in Spanish and wrote an I-213 Rec ord of Deportable Alien immigration

r eport in English. Neither Officer De Leon nor Villarreal testified at tri a l

. 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 s a l e s c o n tract in the Suburban. Javier Ni era, of J&R Auto Sales, in Laredo, Texas, properly authenticated the sales c ontract and testified that he sold the Suburban to Vasquez in working order, w i t h a single car battery. However, Niera testified that t h e 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 fou r o t h e r v ehicles, and during a previous visit, he had looked over the Suburban. Niera testified that the man did all t h e 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 o l d p lates 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 A g e n t , a s well as Dr. Xiu Liu, Ph.D., a forensic chemist with the United States Drug Enforcement Agen c y ( “ DEA”), testified that 10.25 kilograms of cocai n e has a street-value between $111,875 and $138,375 in Nuevo Laredo, Mexico; between $148,625 and $179,375 in

Du ring oral argum ent, Vasqu ez’s att orne y rep res ente d that Timo teo – wh o s e l a s t 1
nam e is unk now n to both Vasqu ez and the governm ent – pur chas ed, in cas h, the 1997 Chevrol et Suburban on or aboutM ay 14, 201 0 i n Vas quez’s nam e o nly. 4 Case: 10-41270 Document: 00511725656 Page: 4 Date Filed: 01/13/2012No. 10-41270

Laredo, Texas; between $225,500 and $266,500 in S a n Antonio, Texas; and between $266,500 and $287,00 0 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 eviden c e . This court reviews the district court's denial of a motion for acquittal de nov o . U n i t e d States v. Campbell , 52 F.3d 521, 522 (5th Cir. 1995). A motion for acquittal should be granted if the government fails t o p r e s e n t evidence sufficient for a reasonable jury to have found that each essential element of the offense was e s tablished b e y o n d a reasonable doubt. United States v. Ortega Reyna , 148 F.3d 540, 5 4 3 (5th Cir. 1998). This court considers the evidence in the light most favorable to the government, with all reasonab l e 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 , 7 4 F .3d 575, 577 (5th Cir. 1996) (emphasis supplied)).

“‘[C]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation , especially wh e n c orrob or at ed 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 s upplied)). Jurors may properly “‘use their common sense’" and “‘evaluate the facts in light of their

c o m mon knowledge of the natural tendencies and inclinations of hu m an b ein g s ’

. " 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: 01/13/2012No. 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 defe n dant 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 be f o r e t h e jury retires to deliberate. An opportunity must be given to o bj e c t o ut 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 fair n e s s , 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 defen d a nt’s claim that a jury charge was inappropriate is ‘whether the court’s charge, as a whole, is a correct statement of the law andwhether it clearly instructs jurors

as to the principles of law a p p l icable to the factual issues confronting them .’” United States v. Lara-Velasquez , 919 F.2d 946, 9 5 0 ( 5 t h Cir. 1990) (quoting United States v. Stacey , 896 F

. 2 d 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 es t ab lish a drug conspiracy, "the government must prove: 1) the existence of a n a gr eement between two or more persons to violate federal

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

narcotics la w s ; 2 ) t he 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
p ersons exist and the evidence supports their existence and the existence o f 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 s everal 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 t he conspiracy conviction is supported by the "large and valuable quanti t y o f cocaine," the installation of the Suburban's two fa l s e c a r -battery casings, and

3 Niera's testimony about the man who bought the Sub u rb an for Vasquez. ICE Agent Grubbs and the government's expert, Dr. Liu with the DEA testified that the street valu e o f t h e cocaine would have cost $111,875, at a minimum, in Nuevo Laredo, Mexico and a s m u c h a s $287,000 on the upper end in Texas’ C a p i t o l. Indeed, both Dr. Liu and ICE Agent Grubbs expressed opinions

This cour t mak es clea r that t h e governm ent’ s evide nce in the pr es ent ins tanc e wa s 2 both ci r c ums tant ial and cum ulative, wh ich sup por ts the infe renc e(s ) that can be dr aw n in ord er fort he jury t o d ecla re Vasqu ez gui lty of cons pir acy. Thejury m ay c ons ide r the amo unt of the cont raban d se ized“wh ich

. . . is enough to 3 just ify the infe renc e th a t m o r e t h an one per so n mus t be involved in mo ving it tow ard s its ulti mat e d i s p ers al. ” Uni ted States v. Barn ar d , 553 F.2d 389, 393 (5t h Cir. 1977) ; see also Uni ted States v. Gu tier rez -Fa ri as , 294 F.3d 657, 661 (5t h Cir. 2002) (“ To begin, the jury coul d have infe rre d fr omthe large quant ity and value of marijuana, and the dif fic ulty of

secr eti ng it in the ti res , thatt he othe rs wer e involvedin the sche me .” ); Uni ted States v. Haw kins , 547 F.3d 66, 72 (2d Cir. 20 0 8) ; Uni ted States v. Cohen , 427 F.3d 164, 170 (2d Cir. 2005) ; Uni ted States v . H

ow ar d , 966 F.2d1362, 1364 (1 0th Cir. 1992) (“ The huge quantit y of c rac k coc aine i nv o lved in this cas e per mi ts an infe renc e of cons pir acy, but by its elf this is not e n o u gh t o convic t def

enda nt. ”)

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

s ub s t i t u t e its own determination of credibility for that of the jury

. . .” Unit e d 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 , 83 5 F

. 2 d 79, 82 (5th Cir. 1987), t h e 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 d e l iberate ignorance instruction is given, a "balancing" instruction should be considered upon request of defendant. See U n i t e d 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 inst r u c t i on, nor did he
requ e s t a b al ancing 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 u s ed from time to time in these instructions, means that the act was done voluntarily and intentionally, not because of mis t ake or accident. You may find that a defe n d a n t h a d 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
m e r ely by demonstrating that the defendant was negligent, careless, o r foolish, knowledge can b e i n f e rred 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: 01/13/2012No. 10-41270

The deliberate ignorance instruction "does not lessen the governme n t's burden to show, beyond a reasonable doubt, that the knowledge elements of the

c r i m e s h ave been satisfied." United States v. Reveles , 190 F.3d 678, 686 n. 1 2 (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, I nc. v. SEB S.A. , 131 S.Ct. 2 0 6 0 (2011) (analyzing deliberate ignorance’s civil equivalent, willful blindness )

. A judge is cautioned that, in instructing on a statute which punishes "otherw i s e 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. 199 9). Vasquez, through his attorney, stated before the district court and argued

on appeal to this court that he did not k n o w ab out 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: 01/13/2012No. 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 t he 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 hesitat e i n t h e most important of your own affairs. The r e i s 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 subj e ctively aware of a high probability of the existence of the illegal conduct, and (2) purposely contrived to avoid le a r n i n g o f 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. 19 9 4)

. T he essential feature of deliberate ignorance "is the conscious action of the defenda n t — the defendant consciously attempted to escape confirmation of co n ditions or events he strongly suspected to exist." Mendoza-Medina , 346 F.3d at 133 (quoting Lara-Velasquez , 919 F.2d at 951). He re, 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 a t t r i al 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: 01/13/2012No. 10-41270

The evidence demonstrates that Vasquez owned and controlled the Suburban, which some unknown buyer purchased. Va s qu e z drove extremely slowly, and then had a nervous demeanor when CBP officers a n d 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 nece s s i t a t ing a check under the hood. Likewise, the ph o t o graphs 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 requ e s t e d th at a deliberate ignorance instruction be given, but nonetheless, the distri ct court’s instruction was supported by the evidence at trial and was a correct statement of the law. Conclusion T h i s c o u rt 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