1 Raul Valladares -Del Angel, Leonel Yanez-Trevino and Jose

Ignacio Lopez, who are not implicated in this appeal, were also

indicted in this count. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-60023

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAUL QUIROZ-HERNANDEZ, ALFONSO HERNANDEZ-LOPEZ

AND SERVANDO LOPEZ

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Texas

(March 16, 1995)

Before REYNALDO G. GARZA, GARWOOD AND DAVIS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

On February 16, 1993, a grand jury indicted several defendants

for drug activities occurring in McAllen, Texas. In count one of

the indictment, Raul Quiroz-Hernandez, Servando Lopez and Alfonso

Hernandez-Lopez (collectively the "Appellants") were charged for

conspiracy to possess with intent to distribute over five kilograms

of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and

846. 1 In count two, Raul Quiroz-Hernandez and Alfonso Hernandez-2 Raul Valladares-Del Angel and Leonel Yanez-Trevino were

indicted for this offense as well. The latter defendant was

convicted on both counts one and two.

3 R oland Garcia testified that Lorenzo Reyes was under

surveillance because he was a "known" drug dealer.

2 Lopez were charged for possession with intent to distribu te over

five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)( 1)(A) and 18 U.S.C. § 2. 2 Likewise, in count three,

Servando Lopez and Jose Ignacio Lopez were charged for possession

with intent to distribute over five kilograms of cocaine.

A jury convicted Raul Quiroz-Hernandez on counts one and two.

He was subsequently sentenced to 210 months imprisonment, followed

by a five yea r term of supervised release and a $100 special

assessment. The jury also convicted Alfonso Hernandez-Lopez on

these two counts. Accordingly, he was sentenced to 240 months

imprisonment, followed by a ten year term of supervised release and

a $100 special assessment. Servando Lopez was acquitted of the

conspiracy offense. However, he was convicted on count three and

was sentenced to 262 months confinement, followed by a ten year

term of supervised release and a $50 special assessment. The

Appellants appeal these convictions. For the reasons stated below

we affirm the district court.

FACTS

On December 17 , 1992, Drug Enforcement Administration (DEA)

Task Force Agent Rolando Garcia was familiarizing his new partner,

Anacleto Martinez, with suspected drug traffickers from the McAllen

area. The "targets" in question were identified as Lorenzo Reyes 33

and Ernesto Gamboa, Reyes' right- hand man. The targets were

followed by the agents to American Automotive, a business owned by

Reyes. At American Automotive the agents observed a new Lincoln

Town Car (Lincoln) with Mexican licen se plates. Suspecting that

the Lincoln's occupants m ight be a possible Mexican drug

connection, Agent Garcia phoned the U.S. Customs Serv ice and

learned that the vehicle had been in the United States since

October 9, 1992. After the Lincoln left the business, the agents

attempted to follow it but it was lost in heavy traffic. The

agents then returned to American Automotive where they observed an

individual, later identified as Ramon Olvera, conducting

count ersurveillance activities. Seeing no further activity, the

agents left the area.

Later that day, the agents returned to American Automotive

where they again enc ountered the Lincoln. The occupants were

standing outside the vehicle and looking in the direction of Ramon

Olvera, who was standing outside the business. Raul Valladares was

standing by the driver's door and appeared to be speaking to Ramon

Olvera. Raul Quiroz-Hernandez (Quiroz) was standing by the front

passenger door and Alfonso Hernandez-Lopez (Hernandez) was standing

near the rear passenger door. After several minutes the Lincoln

departed to a local Wal-Mart parking lot, where it stopped behind

a white Astro van. At that time, Hernandez and Leonel YanezTrevino exchanged places: Hernandez exited the Lincoln and sat on

the driver's side of the van and Yanez-Trevino exited the van and

entered the Lincoln. Once Hernandez was inside the van, Quiroz4 The circumstances of the arre st and the search of the van

will be discussed in more detail below.

5 While awaiting fo r trial, Raul Valladares escaped from

custody and remains a fugitive. The government depicts Valladares

as the ring-leader of the group.

4 app roached him to retrieve a cellular phone and exchange words.

Thereafter, the Astro van and the Lincoln left the parking lot.

Suspecting illegal activity, the agents followed the van and

called for a McAllen police unit to assist in stopping the vehicle.

Police of ficer Mitchell Reinitz responded to the call and pulled

the van over. After an exchange with the police officer, Hernandez

was arrested. 4 The Astro van was searched after a K-9 unit

detected contraband. A total of 23 bundles, with an approximate

weight of 462.7 kilograms, were recovered from the van. Among the

various items seized from the vehicle was a u tility bill for a

residence at 3604 North 27th Street.

Leonel Yanez-Trevino, Raul Valladares-Del Angel (Valladares), 5

and Raul Quiroz were arrested shortly thereafter when they returned

to American Automotive. Quiroz, the driver of the Lincoln, was

searched and was found to be in possession of $64 0. Valladares,

the front-seat passenger, was in possession of $8,000 and two

notecards with writing on them. One of these cards bore a notation

of "47" "2" and "94." Another card had "47 b ultos" (bundles)

written on it. A leather bag containing $43,450 was recovered from

the front seat of the vehicle. The leather bag also contained a

white index card with the following notation on it: "47 x 20K

=

940k." Below the "940K" was "22K" and below the latter figure was5

the sum of "962K."

On the following d ay, a search warrant was executed for

Valladares' residence. Ten pounds of cocaine, wrapped identically

to the cocaine found in the Astro van, were recovered from the

master bedroom. The agents also found: the title to the Astro van,

stacks of money totalling $194,336, a money counter and money

wrappers, a triple beam scale, a military identification with the

name Guadalupe Garza but bearing Valladares' photograph and a

second utility bill for the 3604 North 27th Street re sidence

addressed to Guadalupe Garza.

On January 6, 1993, surveillance was conduc ted at the

residence located on 3604 North 27th Street. During the

surveillance, agents twice noticed a gray Suburu drive through the

subdivision. On the second such occasion, Jose Ignacio Lopez-Moya

exited the vehicle and walked toward the residence. After several

minutes, the Suburu exited the subdivision wi th a Ford van

following clo sely behind. The agents attempted to stop both

vehicles but only the van stopped. The Suburu, driven by Servando

Lopez, led the officers on a high-speed chase before it was

successfully detained. Jose Ignacio Lopez-Moya was later

identified as the driver of t he van. A search of the Ford van

revealed 24 bundles of cocaine wrapped identically to those seized

from the Astro van. These bundles contained approximately 481

kilograms of cocaine.

A search of the residence itself revealed large rolls of

cellophane, rolls of duct tape and boxes of fabric softener, which6

is used to mask the scent of narcotics. Wrappings identical to

those found o n the previously seized bundles of cocaine were

d iscovered. A large bundle of cocaine, weighing 20.5 kilograms,

was also found in a bathtub. Agent Garcia offered testimony to

indicate that this residence was used as a stash house for

narcotics.

DISCUSSION

I. Alfonso Hernandez-Lopez

A.

In his first point of error, Hernandez argues that the

officers lacked reasonable suspic ion to make the initial stop of

the vehicle. Therefore, the initial stop and its fruits were

tainted. Absent this illegal evidence, there is insufficient

evidence to sustain his convictions.

Police officers may briefly detain individuals on the street,

even if there is no probable cause to arrest them, if they have a

reasonable suspicion that criminal activity is afoot. U nited

States v. Michelletti

, 13 F.3d 838, 840 (5th Cir.) (en banc), cert.

denied

, ---U.S.---, 115 S.Ct. 102 (1994 ). The Fourth Amendment

requires only some minimum level of objective justification for the

officers' actions--but more than a hunch--measured in light of the

totality of the circumstances. I d. Reasonable suspicion may be

s upported by particular and articulable facts, which, taken

together with ratio nal inferences from those facts, reasonably

warrant an intrusion. Id.

During trial, the government demonstrated that the DEA agents6 Since the vehicle was registe red in Mexico and it was not

being serviced at the business, the off icers reasonably believed

that it might be a possible drug supplier.

7 Hernandez failed to raise this issue when the evidence was actually elicited.

7 were conducting surveillance on two suspected drug traffickers and

that a Lincoln bearing Mexican license plates was observed twice at

American Automotive, 6 a bus iness associated with the narcotics

suspects. Furthermore, the officers noticed an individual

conducting what they deemed to be countersurveillance activity at

that establishment. Afterwards, the Lincoln was followed to a

parking lot where one of its occupants exchanged places with the

driver of a second vehicle. The second vehicle was a van, which

the offices knew from experience, was a type of vehicle commonly

used to transport narcotics. Pursuant to all these facts, they

decided to perform an investigatory stop of the Astro van. In

revie wing this evidence as a whole, this Court has no doubt that

the fa cts were sufficient to create a reasonable suspicion that

criminal activity was afoot, thus justifying the stop.

B.

Hernandez asserts that the lower court erred in denying his

motion to suppress evidence because he had possession of the van

and permission from Raul Vall adares, the alleged owner, to drive

it. During the suppression hearing, however, Hernandez failed to

show that the title owner of the van was in turn a co rporation

owned by Valladares. Nevertheless, he now claims that the

government unwittingly established this link at trial. 7 Therefore,8 In the alternative, Appellant contends that as an occupant of

the vehicle he still has standing to challeng e the stop and the

fruits of such stop.

9 The court ruled as follows:

The Court is going to deny the Moti on to Suppress on the

preliminary matter of fact that this clien t -- this defendant

cannot establish that on Decemb er 17, 1992, he had legitimate

permission from anyone who had a legitimate interest either through

ownership or otherwise of this particular van.

The Court is going to find that on December 17th, 1992, based

on the only evidence presented here, Mr. Valladares, a co-defendant

named in the indictment, asked Mr. Hernandez here to drive this

van. Mr. Hernandez is unaware of what, if anything, gave Mr.

Valladares any kind of interest whatsoever in this particular van.

In fact, the evidence here suggests or is conclusive that this

van is registered to a particular corporation as indicated by Mr.

Tittle earlier, and that nobody with that c orporation had, in

effect, given Mr. Valladares or anyone else permission to be

involved with regards to this particular van.

And, therefore, the Court is also finding that Mr. Hernandez

did indicate to the officers when he was stopped that he had stolen

the van. And, at that point, certainly, without even skipping over

the standing question, the officers would have every reason to be

able to go ahead and arrest him and to go ahead and search the van

or look into the van after he's told them it's stolen.

But, the Court doesn't even get -- need to get to the merits

of this motion here because it's going to find that he has not

established any legitimat e standing to be able to complain about

the van that is neither registered to him, nor has he presented any evidence that an owner or a person with legitimate interest in it

had given him permission to be driving this van.

8 he asserts a legal possessory interest in the van and thus contests

the search of the vehicle. 8

In the proceeding below, the court ruled that Hernandez did

not satisfy this burden because he failed to show a possessory

interest in the van. 9 Yet, this Court need not delve into the

merits of that ruling because we find that He rnandez voluntarily

abandoned the van. It is settled law in this Circuit that an

individual has no standing to complain of a search or seizure of

property that he has voluntari ly abandoned. U nited States v.1 0 In Alvarez

, the police had an arrest warrant for the

defendant for parole violation. While attempting to serve the

warrant outside his hotel room, the defendant backed up into his

room where he was finally arrested. The officers noticed a garment

bag to which defendant disclaimed ownership. The bag contained a

weapon. Because the defendant voluntarily abandoned the garment

bag he had no standing to object to the search thereof. See also

United States v. Piaget

, 915 F.2d 138, 140 (5 th Cir. 1990) (upon

opening the truck and questioning defe ndant about the bag, he

stated he knew nothing about it, thus abandoning the bag and

lea ving officers free to examine its contents); U nited States v.

Thomas

, 12 F.3d 1350, 1367 (5th Cir.), cert. denied

, ---U.S.---,

114 S.Ct. 1861 (1994).

11 Whether or not the police believed the van was stolen prior

to the investigatory stop is irrelevant. The van was stopped

because they had a reasonable suspicion that criminal activity was

9 Alvarez

, 6 F.3d 287, 289 (5th Cir. 1993) (citations omitted), cert.

denied , ---U.S.---, 114 S.Ct. 1384 (1994); 10 Barlow

, 17 F.3d at 88

("One cannot

. . . manifest a reasonable expectation of privacy in

an item once it has been abandoned."). It is clear, however, that

the abandonment must be voluntary and cannot be influence d by

i mproper police conduct. A lvarez

, 6 F.3d at 289. The legal

presence of the police for investigatory purposes or pursuit does

not render an abandonment involuntary. I d. Further, a lawful

a rrest does not amount to such compulsion so as to re nder an

o therwise voluntary abandonment involuntary. I d. at 289-90. We

must carefully review all the rel evant circumstances existing at

the time of the alleged abandonment. First, as discussed above,

the officers had reasonable suspicion to conduct an investigatory

stop. During the course of that detention, the officer requested

the registration papers. Initially, the driver began to produce

these papers but he suddenly raised his hands and exclaimed that

the van was stolen. 11 Appellant cannot possibly contend that theseafoot. Whether the van turned out to be stolen or not is

immaterial in this case.

12 The lower court hinted as much. See supra note 9.

10 actions were involuntary or the result of improper police conduct.

So, at that moment Hernandez effectively disclaimed a privacy

i nterest in the van, thus depriving him of standing to object to

subsequent searches.

Moreover, stating that the vehicle was stolen during the legal

stop created probable cause to arrest the driver and search the

vehicle, thereby disposing of the standing issue altoge ther. 1 2

Agent Garcia also detected a strong odor of fabric softener while

walking to the van and observed bundles covered by a sheet through

the van's windows. This further evidence unquestionably gave the

officers probable cause to search the van.

II. Servando Lopez

Servando Lopez (Lopez) claims that the evidence cannot sustain

his possess ion conviction since he never possessed the cocaine

found in the Ford van. The only evidence connecting Lopez to the

van was the testimony of Jose Ignacio Lopez-Moya (Moya), which

reflected that they were picking up the Ford van at the 3604 North

27th Street residence to collect a $2,300 debt owed to Lopez.

Thus, Appellant characterizes his actions as self-help repossession

in satisfaction of a debt.

Since decisions about the credibility of the evidence are the

province of the jury, we review both the evidence and the

inferences drawn from the evidence in the light most favorable to11

the government. United States v. Lopez , 979 F.2d 1024, 1028 (5th

Cir. 1992), c ert. d enied

, ---U.S.---, 113 S.Ct. 2349 (1993);

Glasser v. United States

, 315 U.S. 60, 77, 80 (1942). In weighing

the evidence we note that circumstant ial evidence is not

intrinsically different from testimonial evidence. L opez

, 979 F.2d

at 1028. "It is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt, provided a reasonable trier

of fact could find that the evidence establishes guilt beyond a

reasonable doubt." United States v. Bell , 678 F.2d 547, 549 (5th

Cir. 1982) (en banc), aff'd 462 U.S. 356 (1983). Thus, whether we

deal with testimonial or circumstantial evidence, the inquiry into

the suffi ciency of the evidence is whether the jury could

reasonably, logically and legally infer that the defendant was

guilty beyond a reasonable doubt. Lopez , 979 F.2d at 1028-29.

A conviction for possession of drugs with intent to

d istribute requires the government to prove that the defendant

knowingly posse s sed contraband with the intent to distribute.

United States v. Shabazz , 993 F.2d 431, 441 (5th Cir. 1993). The

government may prove actual or constr uctive possession by either

direct or circumstantial evidence. U nited States v. Rosas-Fuentes

,

970 F.2d 1379, 1382 (5th Cir. 1992). To show constructive

possession, the government must show that the defendant controlled,

or had the power to control, the vehicle or the contr aband; mere

proximity to the contraband is not enough. I d. ; Shabazz

, 993 F.2d

at 441. "Knowledge of the presence of contraband may ordinarily be12

inferred from the exercise of control over the vehicle in which it

is concealed." S habazz

, 993 F.2d at 441 (quoting United States v.

Garcia , 917 F.2d 1370, 1376-77 (5th Cir. 1990)).

The government's case against Lopez is solely circumstantial

since no evidence was presented that Lopez owned the van, possessed

keys to the van, had driven the van or been in the residence or

garage where it had been stored. Further, no evidence linked him

to the cocaine inside the van. The government did, however,

produce the testimony of Moya to incriminate Lopez.

Moya testified that he en tered the United States to borrow

$300 from his cousin, i.e., Lopez. Lopez allegedly told Moya that

he was receiving $2,300 to pick up a van and that he would loan

Moya the $300 needed sometime after they picked it up. Moya then

accompanied Lopez to the same Wal-Mart where the Lincoln met the

first van on December 17, 1992. At that location, Lopez spoke with

two people in a Ford van. After that meeting, Lopez drove Moya to

the stash house at 3604 North 27th Street to pick up the same Ford

van. Apparently armed with the knowledge that the keys would be in

the ignition, Lopez instructed his cousin to retrieve the van. The

cousin entered the garage, found the van with the keys in the

ignition, started it and followed Lopez out of the subdivision.

Agents immediately stopped the van but were unsuccessful in

detaining Lopez; he sped away and led the officers on a high speed

chase. Though evidence of flight is a factor from which a jury

could infer guilty knowledge, see United States v. Sanchez-Sotelo

,

8 F.3d 202, 210 (5th Cir. 1993), cert. denied

, ---U.S.---, 11413

S.Ct. 1410 (1994), Lopez contends that he fled out of fear because

it was dark a nd the agents were in unmarked vehicles. Thus,

Appellant claims he was not evading arrest.

Of course, the jury was free to weigh all these facts and make

any inferences therefrom. So, the jurors could indeed infer Lopez'

"power to control" the vehicle by asking his cousin to drive a van,

that had the keys in the ignition and which contained thousands of

dollars of cocaine, from an estab lished stash house.

Notwithstanding the Defen dant's arguments, the jurors could also

determine that the $2,300 that Lopez was to receive was actually a

payment for transporting the cocaine-laden van. S ee United States

v. Martinez-Mercado , 888 F.2d 1484, 1491 (5th Cir. 1989) (payment

of $300 to drive a truck is circumstantial evidence that is

unquestionably suspicious). The apparent evasion of law

enforcement officers also bolsters the jury's conclusion of guilt.

We find that the totality of the evidence, viewed in the light most

favorable to the government, could lead a rational jury to properly

conclude that Lopez "knowingly possessed" the cocaine. Due to the

large amount of narcotic seized, they could also determine that it

was not for personal consumption but for distribution.

III. Raul Quiroz

A.

Raul Quiroz argues that the evidence was insufficient to

sustain a conspiracy conviction. Quiroz admits to being in the

Lincoln on December 17, 1992, the day the Astro van was seized at

the Wal-Mart parking lot, but characterizes that and all other14

evidence connecting him to the other defendants as "innocent;" he

was merely running errands wi th Valladares. Furthermore, Quiroz

attacks the testimony which identified him as one of the

individuals who examined and leased the stash house on September 9,

1992. Without this evidence, the conspiracy charge against him

fails.

1.

To establish a drug conspiracy under 21 U.S.C. § 846, the

government must prove beyond a reasonable doubt (1) an agreement to

violate the narcotics laws, (2) that each alleged conspirator knew

of the agreement and intended to join the conspiracy, and (3) that

each alleged conspirator did voluntarily participate. U nited

States v. Lopez

, 979 F.2d 1024, 1029 (5th Cir. 1992), cert. denied

,

---U.S.---, 113 S.Ct. 2349 (1993). Concert of action can indicate

agreement and voluntary participation. I d. The surrounding

circumstances may establish knowledge of a conspiracy. Id. More

importantly, "no evidence of overt conduct is required. A

conspiracy agreement may be tacit, and the trier of fact may infer

an agreement from circumstantial evidence." U nited States v.

Thomas

, 12 F.3d 1350, 1356-57 (5th Cir.) (quoting United States v.

Hernandez-Palacios

, 838 F.2d 1346, 1348 (5th Cir. 1988)), c ert.

denied , ---U.S.---, 114 S.Ct. 1861 (1994).

It is undisputed that Quiroz accompanied Valladares when the

latter visited American Automotive and the Wal-Mart p arking lot.

While at the parking lot, DEA agents observed Quiroz approach the

van's driver- side window and retrieve a cellular phone. The1 3 The defense characterized this evidence as a simple notebook

with some drug related notes and some non-drug related notes. In

addition, Quiroz' sister testified that the telephone number in the

notebook was not her brother's number, and counsel argued that the

appearance of his name was insignificant because "Raul Quiroz" was

spelled "Raul Quiro s ." Thus, they allege it was not the

defendant's name or number. Of course, the credibility of the

witness and the weight of the evidence was duly considered by the

jurors before making their decision.

15 government argued to the jury that Quiroz' brief proximity to the

driver-side w indow allowed him to see the suspicious-looking

bundles and detect the strong odor of fabric softener. The

government also introduced into evidence the $43,450 taken from the

front sea t of the Lincoln. Although the money was not linked to

Quiroz, it was within his reach since he was driving the vehicle.

A notebook recovered from the Valladares residence wa s also

submitted into evidence. This notebook, which was characterized as

a drug ledger by the prosecutor, contained Quiroz' name and

telephone number. 13

Quiroz co unters by stating that his mere presence at the

parking lot and his association with a known drug organizer is not

enough to prove his guilt. Though Quiroz is correct that mere

presence at the scene of a crime or close association with others

will not alone support the inference of a conspiracy, presence is

still a significant factor to be considered within the context of

the circumstances under which it occurs. U nited States v. MontoyaOrtiz

, 7 F.3d 1171, 1177 (5th Cir. 1993). "Circumstances altogether

i nconclusive, if separately considered, may, by their number and

joint operation

. . . be sufficient to constitute conclusive proof"

of guilt. I d. (citation omitted). Therefore, we must examine the1 4 The record reflects the following exchange between the United

States Attorney and the witness:

Q. I would ask you to look around the courtroom today. Is there

anyone here in this courtroom who appear to be those two

individuals you met with?

A. Yes, sir.

Q. Could you point to the individuals and identify them by what

they're dressed in today?

A. The gentleman with the moustache over there and there's a

gentleman here that's writing with a pencil.

Q. Okay. There are two gentlemen on that side. Well, actually

there are three gentlemen on that side with a moustache. Which

on with the moustache?

A. The fourth gentleman.

Q. Okay. The one in the black shirt?

A. Yes, sir.

Q. And the other individual?

A. The gentleman that's here, the third one.

16 remaining circumstances to determine the propriety of the jury's

verdict.

The government identified the Defendan t as one of two

individuals who examined the stash house at 3604 North 27th Street

prior to its rental. Eduardo Yzaguirre, the real estate agent who

displayed the house, testified that he showed the property to two

young men for approximately twenty minutes. The individuals were

supposedly in terested in renting the house because they were

students at the local university. One of the individuals stated

that his grandfather, Guadalupe Garza, would be living with them.

When asked to identify these two individuals, Yzaguirre pointed out

Raul Quiroz and Leonel Yanez-Trevino. This identification

undoubtedly reinforces and seals th e government's case against

Quiroz. Understandably, Appellant now attacks such identification.

First, in a post-submission brief, Qui roz argues that the

record is unclear as to exactly who Yzaguirre identified. 1 4Q. Third one.

ATTORNEY : Your Honor --

THE COURT : The record will s how he's pointed out the Defendants

Raul Quiroz Hernandez and Servando Lopez.

ATTORNEY : Your honor, I believe that the other --

THE COURT : Oh, I'm sorry. That's Leonel Yanez-Trevino. I'm

sorry. ATTORNEY : Thank you, sir.

15 The following exchange took place between the United States

Attorney and Eduardo Yzaguirre:

Q. Are you sure that these two gentlemen that you've identified

here today are the two gentlemen that came to rent the house?

A. Yeah, I think so, sir.

1 6 The court corrected itself by stating that the witn ess had

pointed out Raul Quiroz and Leonel Yanez-Trevino. See supra note

14. Again, reviewing the record in its entirety clarifies that

this was the identification intended by the witness and this was

how it was understood at trial.

17 Alternatively, he states that the witness was equivocal at best in

identifying the individuals. 15 We find these contentions without

merit. Though Appellant claims the record is unclear as to who was

identified, no such confusion existed during trial. For example,

none of the defendants objected to the alleged misidentification or

requested a clarification from the court. Moreover, in closing

arguments the government stated t hat the witness "positively

identified Raul Quiroz and Leonel Yanez" as the two men posing as

students. No objection was made to that specific argument either.

In any event, the only arguable confusion relating to the

court's remarks did not even concern Quiroz, they only dealt with

the identity of Leonel Yanez-Trevino. That confusion, however, was

clearly rectified by the lower cour t. 1 6 Regarding Defendant's

second argument, he overlooks cross-examination testimony17 Defense counsel asked Eduardo Yzaguirre:

Q. And you're absolutely certain it's these two individuals here in

this courtroom?

A. Yes, sir.

1 8 "The credibility of a witness may be attacked by any party,

including the party calling the witness." Fed. R. E VID . 607.

18 conclusively establishing the identity of the individuals. 17

Quiroz also attempts to b olster his claim of innocence with

evidence adduced at trial. He offers his sister's testimony to

show he was in Mon terrey, Mexico, on the day the property was

shown. He points to the fact that no employee from the real estate

office, other than Eduardo Yzaguirre, could identify him as one of

the individuals renting the house. Furthermore, the Defendant

alerts this Court to the testimony of Aaron Javier Gonzalez-Garza

(Gonzalez), a government witness and former neighbor of Valladares,

who testified about the young men that accompanied Valladares the

day the lease was executed. He testified that Quiroz bore a

resemblance to one of the young men with Valladares but was

definitely not one of them.

The government responds that Gonzalez had previously

identified Quiroz as one of the persons present at the property

office during the rental. Any subsequent testimony to the contrary

was a falsehood prompted by fear. 18 However, this contradictory

testimony is not determinative of the issue since Gonzalez and

Eduardo Yzaguirre testified about two separate events. The first

event concerned the initial examination of the house. Raul Quiroz

was placed at the scene on that specific occasion. The fact that

he was not placed at the scene by Gonzalez or the realty office1 9 We do note, however, that the employee from the realty office

did not affirmatively state that Quiroz was not at the office, she

merely stated that the defendants did not look fami liar. As for

Gonzalez, his testimony may have been deemed a falsehood by the

jury. Thus, it may have concluded that Quiroz was in fact present

during the execution of the lease as well. Though this

determination is redundant at this point, it would clearly be

proper.

2 0 Appellant claims the government failed to establish exactly

which individual stated they were students and that their

grandfather, Guadalupe Garza, would be living with them. However,

the case does not hang in the balance because of this omission.

The witness testified that both of the individuals actively did the

talking. Thus, the important thing is that both individuals

knowingly participated in this subterfuge in order to rent a house

for storing and transporting narcotics.

19 employee at the time that Valladares, posing as Guadalupe Garza,

rented the house does not damage the government's c ase. It is

inconsequential whether Raul Quiroz was also present when the lease

was signed since his role in the subterfuge is crystal clear. 19

The evidence as a whole suppor ts the allegation that Quiroz

was one of the individuals who participated in renting the home.

The record reveals that he assisted in creating false stories to

facilitate the rental: the house would be used to att end a local

university and Guadalupe Garza, the grandfather, would also live

there. 20 The evidence at trial established that Guadalupe Garza,

which was the name on the lease agreement, was in fact Valladares.

This subterfuge supports the all egation that Quiroz knew of the

conspiracy and actively acted in furthera nce thereof. There was

also evidence that Raul Quiroz was present during the

transportation of the cocaine. The jury considered all this

evidence and determined that Appellant was a member of the

conspiracy. It was free to reject any testimony exonerating the20

Defendant since that evidence turned on the credibility of the

witnesses. Therefore, the conviction will stand.

2.

The D efendant also contests his possession conviction. As

explained above, the government must prov e that each defendant

knowingly possessed the cocaine with intent to distri bute to

sustain the conviction. Possession can be either actual or

constructi ve, joint among several defendants and established by

circumstantial evidence. United States v. Lopez , 979 F.2d 1024,

1031 (5th Cir. 1992), cert. denied

, ---U.S.---, 113 S.Ct. 2349

(1993). Co-conspirators may also be liable for the substantive

offenses committed by other members of the conspiracy in

furtherance of the common plan. L opez

, 979 F.2d at 1031.

Therefore, a defendant can be liable for a possession conviction on

the basis of both his constructive possession over the contraband

and his status as a co-conspirator. See id.

Since the jury found Quiroz to be an active member of the

co nspiracy, he could also be convicted for his co-conspirator's

(Alfonso Hernandez-Lopez) possession over the cocaine-laden Astro

van. Likewise, the jury could infer his joint control over the

contraband from his presence at the scene and all the events

leading to the Astro van 's exchange of drivers. The jury could

rationally co nclude that Raul Quiroz knowingly possessed the

cocaine and, in light of the large amount involved, that he planned

to distribute it.

B.21

Quiroz also claims that the trial court denied his right to a

fair and impa rtial jury due to its failure to ask the venire

members the specific questions requested by defense counsel. The

questions asked we r e allegedly too broad, effectively denying

counsel the opportunity to discover any prejudices. Therefore, it

impaired the ability to make intelligent peremptory challenges.

The trial judge has broad discretion in conducting voir dire

,

Knox v. Collins , 928 F.2d 657, 661 (5th Cir. 1991), including the

decision to submit proposed questions to prospective jurors.

United States v. Saimiento-Rozo

, 676 F.2d 146, 148 (5th Cir. 1982).

The exercise of that discretion, however, is limited by the

"essential demands of fairness." C ollins

, 928 F.2d at 661;

Aldridge v. United States

, 283 U.S. 308, 310 (1931). "A v oir dire

procedure that effectively impairs the def e ndant's ability to

exercise his challen g es intelligently is ground for reversal,

irrespective of prejudice." C ollins

, 928 F.2d at 661. Therefore,

the inquiry is "whether the procedure used for testing impartiality

created a reasonable assurance that prejudice would be discovered

if present." U nited States v. Nell

, 526 F.2d 1223, 1229 (5th Cir.

1976); Saimiento-Rozo , 676 F.2d at 148.

D uring the v oir dire proceeding, the trial court did the

following:

1. Informed the panel of the nature of the charges

against the defendants and the government's burden of

proof;

2. Specifically asked "is there anybody on the jury panel

who has anything from your personal experience or

background which makes you feel that you could not be

fair and impartial as a juror in the case;22

3. Specifically asked "[i]s there anybody on this panel

who has such views about the controlled substances law

or the drug laws in the United States--either you

think they're too strict or they're not strict enough-

-which would make you feel that if you were selected

as a juror in this case, you would base a decision

based on what you think the law ought to be rather

than what the Judge told you the law was;"

4. Asked whether any of the venire members were

acquainted with the parties or their attorneys or

witnesses in the case and asked about their prior

experience as jurors;

5. Asked the panel about their own and any close

relatives' employment in or business relationship with

law enforcement;

6. Asked whether they, or a close relative, had ever been

charged with a narcotics offense.

T he court then asked counsel for further suggestions. The

attorneys proposed the following:

1. Whether anybody was a member or attended any meetings

with war on drugs or similar organizations;

2. Whether anybody had any type of bumper stickers on

their vehicle with anti-drug messages;

3. If anybody had been active in the PTA or MADD or any

specific organization that had its main purpose the

education of children;

4. Whether anyone had been a candidate for public office

where the issue of enforcement of drug laws was placed

in issue.

These suggestions were refused because the court believed they had

been adequately covered by prior questions.

After voir dire was concluded and the jurors were excused, but

before the lawyers exercised their peremptory challenges, a school

teacher approached the court and stated her discomfort with the

case because she was "against anybody that uses

. . . drugs." The

prospective juror conceded that she had not expressed her concerns23

sooner because she had misunderstood the questions and because she

was too nervous. The court ultimately excused her because it found

her too nervous to serve on the jury. Appellant asserts on appeal

that this single event alerted the court to potential bias or

prejudice against the defendants. Thus, he argues that the court

should have further queried venire members about prejudices against

persons charged with drug offenses.

It is clear that a court may not inquire generally about a

prospective juror's impar tiality in a criminal case. S ee United

States v. Shavers

, 615 F.2d 266, 268 (5th Cir. 1980). Instead, the

court must reach the concerns high-light ed in the accused's

proposed questions to ensure revealing any latent prejudice. See

id. The proposed questions, however, must be reasonably necessary

to enable the accused to exercise his challenges and pertinent to

the inquiry. Id.

After reviewing the record, this Court believes that the lower

court's inquiry reasonably assured that any bias or prejudice

against the defendants would have been discovered if present. The

court below inquired into more than merely whether the prospective

jurors were fair and impartial; it specifically inquired into their

background and personal experiences. In fact, this specific query

proved effective since i t elicited an immediate response from a

venire member, who informed the court that her brother worked with

the FBI and thus she harbored resentment against drug dealers.

That query, in conjunction with q uestions on the prospective

jurors' views on the current drug laws and their ability to apply2 1 Though the prospective juror voiced her reservations later

than required, the fact still remains that she did. The court and

the parties seemed to agree that the only cause for her delay was

due to her nervous nat ure. No one suggested that the juror's

"confusion" was due to the court's inadequate questioning.

24 the law as explained by the court, sufficiently guaranteed the

defendants the fundamental fairness they demand.

More notably, the unasked questions failed to address any new

areas of concern. The court covered the "substance of the

necessary areas" in its own questions. N ell

, 526 F.2d at 1230 n.9

(a lower court need not ask every question requested by counsel).

Further, the fact that a single venire member was nervous and

confused during the proceedings is insufficient to taint the entire

jury selection process. 21

C.

Finally, Quiroz asserts an error in his sentencing. The total

amount of cocaine seized during the operation was approximately 965

kilograms . Appellant contends that he should not be held

accountable for that part of the cocaine seized after his arrest

since no evidence linked him to it and because it was not

"reasonably foreseeable" to him.

Under the Sentencing Guidelines, a defendant who participates

in a drug conspiracy is accountable for the quantity of drugs,

which is attributable to the conspiracy and reasonably foreseeable

to him. U nited States v. Mitchell

, 31 F.3d 271, 277 (5th Cir.)

(citing U.S.S.G. § 1B1.3(a)(1)(B)), cert. denied , ---U.S.---, 115

S.Ct. 455 (1994). "Reasonable foreseeability does not follow

automatically from proof that [the defendant] was a member of the25

con spiracy." U nited States v. Foy

, 28 F.3d 464, 476 (5th Cir.)

(quoting United States v. Puma

, 937 F.2d 151, 160 (5th Cir. 1991),

cert. denied ---U.S.---, 112 S.Ct. 1165 (1992)), cert. denied

, ---

U.S.---, 115 S.Ct. 610 (1994). Reasonable foreseeability requires

a finding separate from a finding that the defendant was a

conspirator. Id. Thus, for a sentencing court to attribute to a

defendant a certain quantity of drugs, the court must make two

separate findings: (1) the quantity of the drugs in the entire

operation and (2) the amount which each defendant knew or should

have known was involved in the conspiracy. U nited States v. PuigInfante

, 19 F.3d 929, 942 (5th Cir.), cert. denied

, ---U.S.---, 115

S.Ct. 180 (1994). These findings shall be upheld on appeal unless

clearly erroneous. Mitchell , 31 F.3d at 277.

The court below ruled as follows:

The net amount with regards to drugs is 964.2 kilograms.

It includes the 460 or so kilograms that were found in

the van on the date of the arrest of this particular

defendant. It includes the 400 and some kilograms that

were found in the van on the January 6th arrest with

regards to the co-defendant here in the case, codefendants. And, it also includes the 22 kilograms of

cocaine that were found inside the residence.

The Court is going to find that all those cocaine amounts

are involved in the same conspiracy. That they were in

furtherance of the conspiracy and were reasonably

foreseeable, as that term has been defined in the case

law, to this particular defendant.

This particular defendant was present when the house that

was involved in the second transaction was rented. There

was a subterfuge with re gard to the stories for the

purpose of the rental, including that this defendant was going to be a student. And, it was his grandfather who

was renting the property, who as it turns out, was not

his grandfather.

And, that on the date of the arrest, Mr. Valladares, who26

was in the same vehicle as this defendant, had 400 and

some

-- had the number of packages listed which is the

exact number of pac kages that were involved in both of

these dates as far as the transa ctions, including the

extra package that was found inside the residence.

The residence had packaging materials and scales and

other matters that are associated with drug transactions.

And therefore, the whole amount is attributable to him

under relevant conduct and the case law defined.

After fully reviewing the record, this Court finds these findings

to be free of error. To begin with, the evidence affirmatively

established Quiroz' involvement in the conspiracy, including the

"subterfuge" utilized in renting the stash house. Also, the

government offered evidence to show that by the time of Appellant's

arrest the goal of the conspiracy was to transport approximately

962 kilograms of cocaine. Evidence of that goal consists of a

notecard recovered from the Lincoln after the first van was seized.

The notations on the card were "47 x 20k

= 940k." Below the "940K"

was written "22K" for a total of "962k." Three separate seizures

of cocaine were made, totalling an amount almost equal to 962

kilograms. Another notecard was seized with "47 b ultos " or bundles

writ ten on it. Not coincidentally, 47 bundles of identically

wrapped cocaine were seized from the two vans. In view of this

evi dence, we cannot say that the lower court's findings were

clearly erroneous.

CONCLUSION

Having determined that none of Appellants' complaints present

reversible error, the judgment of the district court is affirmed.

AFFIRMED.