1 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, 952,

960(b)(1), and 963.

2 21 U.S.C. §§ 952(a), 960(b)(1), and 18 U.S.C. § 2.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-7400

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ECCEHOMO VELGAR-VIVERO,

JOSE ANTONIO TORRES-TIRADO and

EULICES RIVAS-CORDOVA,

Defendants-Appellants.

Appeals from the United States District Court

For the Southern District of Texas

(November 17, 1993)

Before JOHNSON, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

For the second time, Eccehomo Velgar-Vivero, Jose Antonio

Torres-Tirado, and Eulices Rivas-Cordova appeal their convictions

of conspiracy to po ssess with the intent to distribute cocaine, 1

aiding and abetting the importation of cocaine, 2 aiding and

abetting the possession of cocaine on a vessel arriving in the3 21 U.S.C. §§ 955, 960(b)(1), and 18 U.S.C. § 2.

4 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.

5 18 U.S.C. § 924(c)(1).

6 The six men were the three defendants plus Alberto

Ortega-Mena, Denio Miguel Rengifo-Acosta, and a Columbian juvenile

who was later deported before indictments were returned.

2 United States, 3 aiding and abetting possession w ith the intent to

distribute cocaine, 4 and use of a firearm during a drug-trafficking

crime. 5 In the first appeal, we reversed their convictions because

of noncompliance with the Speedy Trial Act. U nited States v.

Ortega-Mena , 949 F.2d 156 (5th Cir. 1991). We now affirm the

convictions of Torres-Tirado, affirm the convictions and sentence

of Rivas-Cordova, but reverse the convictions of Velgar -Vivero

because of insufficient evidence.

I. Facts and Procedural History

Customs officials received information that THE SPRING BRIDE,

a cargo ship traveling from the Republic of Colombia to Galveston,

Texas, was being used to transport cocaine into the United States.

As the vessel entered the Port of Galveston, U.S. Customs frogmen

entered the water and approached the rudder hold of the vessel. As

they neared, six men 6 bailed out of the hold and attempted to flee.

Five were apprehended immediately, and the sixth, Velgar-Vivero,

hid under the dock and was caught three hours later.7 The three wallets and Rivas-Cordova's bag contained

Columbian identification cards linking them to the defendants.

8 The agents never executed controlled deliveries with the

remaining numbers because the successful interdiction had bec ome

locally newsworthy.

3 The rudder hold of the vessel is accessible only from the

water and is approximately 6' x 6'x 10'. In the rudder hold, the

officers disco vered 11 canvas bags containing approximately 850

pounds of cocaine, all secured to the wall with an elaborate rope

web. They also discovered personal effects in separate piles,

including food, bottled water, flashlights, and a bur lap bag

containing five loaded handguns. The agents also found five lists,

each of wh ich displayed several phone numbers: (1) a list from

Torres-Tirado's wallet; ( 2) a list from Rengifo-Acosta's wallet;

(3) a list from Ortega-Mena's wallet; (4) a list from RivasC ordova's bag; and (5) a list from an unidentified wallet. The

agents found no wallet or identification for Velgar-Vivero or the

juvenile. 7 The list from the unidentified wallet duplicated phone

numbers from the list found in Torres-Tirado's and Rengifo-Acosta's

wallets. The agents ultimately used the phone numbers from

Rengifo-Acosta's and Ortega-Mena's wallets to execute controlled

deliveries of the cocaine shipment. 8

When he was retrieved from the water, Rivas-Cordova had a sock

full of bullets in his shirt pocket. The agents placed the sock on

the dock but Rivas-Cordova grabbed the sock and pitched it into

Galveston Bay. Later, inside the Customs office, Rivas-Cordova9 None of the defendants testified at the first trial.

Further, the two stowaways who pled guilty did not testify at

either trial.

4 somehow regained possession of the list of phone numbers in his bag

and ate it.

The fiv e adult stowaways were indicted on five drug-related

charges. On the eve of the first trial in October 1990, OrtegaMena an d Rengifo-Acosta pled guilty to four counts of the

indictment. Velgar-Vivero, Torres-Tirado, and Rivas-Cordova were

convicted of all five counts in the indictment. We reversed in

February 1992 under the Speedy Trial Act. The defendants then were

re-indicted on the same five counts, and trial began in October

1992. Velgar-Vivero, who was the only defendant to testify in the

second trial, 9 stated that he stowed away on the vessel to come to

the United States to find work. He testified that he had been

working as a longshoreman loading bananas on to THE SPRING BRIDE

when he decided to stow away. He climbed into the dark rudder hold

and fell asleep. When he awoke, the vessel was underway.

The defendants again were convicted on all five counts.

Velgar-Vivero and Torres-Tirado were sentenced to concurrent

235-month sentences on the drug counts and a consecutive 60-month

sentence on the gun count. At sentencing, Rivas-Cordova received

an increase in his offense level for obstruction of justice. He

was sentenced to concurrent 292-month terms on the drug counts and

a consecutive 60-month sentence on the gun count. The defendants

timely appealed, contesting the sufficiency of the evidence to

support their convictions. Rivas-Cordova also contests the5

assessment at sentencing of the offense level increas e for

obstruction of justice.

II. Discussion

A. Standard of Review

When reviewing the sufficiency of the evide nce, we must

determine whether, viewing the evidence and the inferences

therefrom in a light most favorable to the jury's guilty verdicts,

a rational trier of fact could have found these defendants guilty

beyond a reasonable doubt. United States v. Rena

, 981 F.2d 765, 771

(5th Cir. 1993); United States v. Roberts , 913 F.2d 211, 217 (5th

Cir. 1990). Accordingly, we need not be persuaded that the

evidence excludes every reasonable hypothesis of innocence. U nited

States v. Brechtel

, 997 F.2d 1108, 1116 (5th Cir. 1993). Instead,

our function is to measure whether any rational jury could conclude

that the government proved beyond a reasonable doubt each element

of the offense. Rena , 981 F.2d at 770.

II. The Conspiracy Count

In a narcotics conspiracy, the government must prove beyond a

reasonable doubt that: (1) an agreement existed between two or more

persons to vi olate narcotics laws; (2) each alleged conspirator

k new of the conspiracy and intended to join it; and ( 3) each

alleged conspirator participated in the conspiracy. U nited States

v. Maseratti , 1 F.3d 330, 337 (5th Cir. 1993); U nited States v.

Guerra-Marez

, 928 F.2d 665 (5th Cir. 1991). In meeting its burden,

the government is permit ted to use direct or circumstantial

evidence, or both, to prove conspiracy. R ena

, 981 F.2d at 770.10 In Ortega-Mena , the defendants' first appeal, we stated

in a footnote that our rev ersal of the district court did not

preclude the government from re-prosecuting the defendants because

double jeopardy does not attach when a district court is reversed

for noncompliance with the Speedy Trial Act. O rtega-Mena

, 949 F.2d

at 160 n.4. Had we reversed for insufficient evidence, then double

jeopardy would have attached. S ee Burks v. United States

, 437 U.S.

1, 15-17, 98 S. Ct. 2141, 2149-50 (1978) (double jeopardy does not

attach when a conviction is reversed unless the reversal is based

on insufficient evidence); United States v. Mize

, 820 F.2d 118, 120

(5th Cir. 1987). To emphasize this point, we further indicated

that sufficient evidence existed at the first trial to convict

Velgar-Vivero of the firearms offense. That statement, which was

purely dicta, was intended to sanitize the appellate reversal from

a double jeopardy defense. It w as not intended to be the law of

the case, thereby preclud ing a second appeal from a second

convictio n. After all, our reversal for noncompliance with the

Speedy Trial Act essentially nullified the first trial. Thus, for

legal purposes, the instant appeal is the only appeal to date,

unaccompanied by law of the case baggage.

6 The jury certainly may consider the defendant's presence at the

crime scene, along with other evidence , in finding a conspiracy,

but presence, by itself, is insufficient to prove conspiracy.

United States v. Chavez

, 947 F.2d 742, 745 (5th Cir. 1987).

Granted, one's presence may trigger another's suspicions; but we

have stated o n numerous occasions that mere suspicion of

conspiratorial activity cannot support a guilty verdict. S ee

United States v. Sacerio

, 952 F.2d 860, 863 (5th Cir. 1992); United

States v. Jackson , 700 F.2d 181, 185 (5th Cir. 1983).

We find sufficient evidence to support the conspiracy

convictions of Torres-Tirado and Rivas-Cordova. 10 A conspiratorial

relationship between Torres-Tirado and the other narcotics

conspirators could have been established from both his presence and

his possession of a phone list that included the same number as the

list of another participant. Although no number on Torres-Tirado's1 1 We reject Rivas-Cordova's argument, with respect to both

the sufficiency and sentencing issues, that the agents' testimony

that he destroyed this evidence was incredible as a matter of law.

"We cannot declare testimony incredible as a matter of law unless

it is 'so unbelievable on its face that it defies physical laws.'"

United States v. Gardea Carrasco , 830 F.2d 41, 44 (5th Cir. 1987)

(quoting United States v. McKenzie

, 768 F.2d 602, 605 (5th Cir.

1985)). While we concede that it may have been difficult for a

handcuffed Rivas-Cordova to destroy evidence in the manner so stated, we do not find that it defies the laws of physics.

7 lis t was used to make a controlled delivery of the cocaine, the

agents did use phone numbers on Rengifo-Acosta's list to execute a

d elivery. Both lists included a number that matched that on the

unidentified participant's list, thereby implicating all the lists

and their possessors. From these facts, a jury reasonably could

have conclud ed that Torres-Tirado knowingly entered into an

agreement to violate narcotics laws.

Rivas-Cordova's conduct also is legally sufficient to support

a finding of conspiracy. He possessed ammunition of a caliber

identical to the caliber of the guns found in close proximity to

the drugs. Further, he destroyed the phone list found among his

possessions, 11 making it impossible for the agents to use that list

to establish his connection to the drugs or to the other

participants. His attempts to hinder the investigation support a

reasonable inference of guilty knowledge.

Velgar-Vivero's conspiracy conviction is much more troubling.

The government asks us to affirm Velgar-Vivero's convicti on with

evidence that shows only that he was present at the crime scene and

subsequently fled from it. We have rejected that argument before,

and we reject it again today. See United States v. DeSimone , 66012 W e note that the evidence demonst rated that there were

five guns found in the hold and five sets of phone numbers, leading

us to infer that one of the s ix persons found in the rudder hold

may not have been a participant in the narcotics offenses. The

government claims that, because the sixth stowaway was a juvenile,

the jury reasonably inferred that the five guns and phone lists

necessarily belonged to the five adults, including Velgar-Vivero.

The inference that today's juveniles are incapable of participating

in gun-related narcotics offenses is unreasonable, not to mention

naive.

8 F.2d 532, 537 (5th Cir. 1981); United States v. Lopez-Ortiz

, 492

F.2d 109, 115 (5th Cir. 1974). Evidence of presence and flight is

redundant: one necessarily involves the other. The government must

proffer something more, which it failed to do. The government

offered no evidence linking Velgar-Vivero to either the cocaine or

the guns. Further, the government failed to link him with the

phone numbers used to execute controlled deliveries. 12

Recognizing the dearth of evidence against Velgar-Vivero, the

government insists that the jury reasonably could infer that both

the unidentified wallet, which contained inculpatory phone numbers,

and the fifth gun belonged to Velgar-Vivero. This inference,

however, is based solely on Velgar-Vivero's presence in and flight

from the rudder hold, which are legally i nsufficient evidence to

establish guilt. While the jury obviously chose not to believe

Velgar-Vivero's stowaway defense, their disbelief is not tantamount

to proof beyond a reasonable doubt that he agreed to, knew about,

and participated in the conspiracy. The government was required to

meet that burden with more evidence than exists here. The evidence

establishing Velgar-Vivero's presence and flight creates only

suspicion. But "[i]t is not enough that the defendant merely9

associated with those participating in a conspiracy, nor is it

enough that the evidence places the defendant in a climate of

activity that reeks of something foul." U nited States v. Sacerio

,

952 F.2d 860, 863 (5th Cir. 1992). The jury's conclusion that the

government proved Velgar- Vivero's guilt beyond a reasonable was

unreasonable as a matter of law and, therefore, is reversed.

II. The Possession and Importation Counts

To conv ict for possession of cocaine with intent to

distribute, the government must prove beyond a reasonable doubt

that the defendant (1) possessed cocaine, (2) knowingly, and

(3) with the intent t o distribute. 21 U.S.C. § 841(a); U nited

States v. Vasquez

, 953 F.2d 176, 183 (5th Cir. 1992 )

. The

defendant's possession may be either actu al or constructive, the

latter being defined as "the knowing exercise of, or the knowing

power or right to exercise, dominion a nd control over the

proscribed substance." U nited States v. Gardea Carrasco

, 830 F.2d

41, 45 (5th Cir. 1987) (quoting United States v. Vergara

, 687 F.2d

57, 61-62 (5th Cir. 1982)). A conviction for possession of cocaine

on a vessel requires the government to prove that the cocaine

entered the U nited States aboard a vessel. 21 U.S.C. § 955.

Finally, to convict for importation of cocaine, the government must

prove that the defendant knowingly participated in bringing cocaine

from a foreign country into the United States. 21 U.S.C. § 952(a);

United States v. Diaz-Carreon , 915 F.2d 951, 953 (5th Cir. 1990).

Because we f ind the government's evidence insufficient to

convict Velgar-Vivero of narcotics conspiracy, we necessarily find10

the same evidence insuf ficient evidence to convict him of the

s u bstantive offenses, including the firearms offense. U nited

States v. Galvan

, 693 F.2d 417, 420 (5th Cir. 1982); United States

v. Gutierrez

, 559 F.2d 1278, 1282 (5th Cir. 1977). The government

has failed to introduce evidence, circums tantial or otherwise,

linking Velgar-Vivero with eith er the cocaine or the guns.

Therefore, we reverse all of his con victions of the substantive

offenses.

As to Torres-Tirado and Rivas-Cordova, the government

proffered sufficient evidence to convict them of the possession and

importation counts. The inculpatory phone lists support an

infer ence of constructive possession, i.e., dominion and control

over the cocaine. Further, their constructive possession of

several hundred pounds of cocaine justifies a conclusion of intent

to distribute. U nited States v. Prieto-Tejas

, 779 F.2d 1098, 1101

(5th Cir. 1986). As to the vessel-related and importation

convictions, the defendants, all Colombian nationals, were found in

possession of the cocaine on a vessel which had just recently left

Colombia and entered the United States.

III. The Firearms Count

To convict for use of a firearm during a drug trafficking

offense, the government must prove that the defendant (1) used or

carried (2) a firearm (3) during or in relation to a

drug- trafficking crime. 18 U.S.C. § 924(c); U nited States v.

Pigrum

, 922 F.2d 249, 255 (5th Cir. 1991). We interpret this

provision broadly. See United States v. Ivy , 973 F.2d 1184, 118911

(5th Cir. 1992); U nited States v. Raborn

, 872 F.2d 589, 5 95 (5th

Cir. 1989). The weapon need not be fired or even brandished; we

require only that the firearm be available to provide protection to

the defendant in the commission of his or her offense.

In this case, the guns were readily "available." They were

loaded and always within the defend ant's reach because of the

rudder hold's tight confines. In addition, Rivas-Cordova possessed

additional ammunition for the firearms. The government proffered

sufficient evidence such that a reasonable jury could find TorresTirado and Rivas Cordova guilty of § 924(c). But as the firearms

charge is collateral to the drug charges and thus cannot stand

independently, Velgar-Vivero's firearms conviction necessar ily

evaporates with our reversal of his drug count convictions.

IV. Rivas-Cordova's Sentence

The Sentencing Guidelines p rovide that a district court may

increase a defendant's offense level by two p oints if "the

defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice during the investigation,

prosecution, or sentencing of the insta nt offense." U.S.S.G. §

3C1.1. The increase is not discretionary. If the court finds the

defendant obstructed ju stice, it m ust impose the two point

increase. United States v. Roberson , 872 F.2d 597, 609 (5th Cir.

1989). The court's finding is factual, meaning we review it only

for clear error. U nited States v. Edwards , 911 F.2d 1031, 1033

(5th Cir. 1990). If sufficient evidence exists in the record to12 C:\opinions:92-7400p.jl\wjl support the district court's factual conclusion, we must affirm.

Id

.

At sentencing in this case, Rivas-Cordova's offense level was

increased for obstruction of justice based upon the agents'

testimony that he pitched the sock full of bullets into Galveston

Bay and chewed to a pulp the list of phone numbers found among his

possessions. The district court was entitled to credit the

testimony of the customs agents, id

., and sufficient evidence

exists in the record to buttre ss their version of events. We

accordingly find that the district court did not err in increasing

Rivas-Cordova's base offense level by two points.

For the foregoing reas ons we AFFIRM the convictions of Jose

Antonio Torres-Tirado and Eulices Rivas-Cordova, AFFIRM the

sentence of Rivas-Cordova, and REVERSE the convictions of Eccehomo

Velgar-Vivero.