IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-8244

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

VICTOR CORDERO,

GUSTAVO PACHECO,

and

RUBEN PENALVER PICHARDO,

a/k/a RITO MOLINA,

Defendants-Appellants.

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Appeal from the United States District Court

for the Western District of Texas

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(April 4, 1994)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

Victor Cordero, Gustavo Pacheco, and Ruben Pichardo appeal

their convictions of possession with intent to distribute marihuana

and conspiracy to possess with intent to distribute marihuana, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Finding no error, we

affirm.
 

1 The Glasser standard applies because the defendants timely moved for

judgment of acquittal. United States v. Pruneda-Gonzalez, 953 F.2d 190, 195

(5th Cir.), cert. denied, 112 S. Ct. 2952 (1992).

2

I.

All three defendants challenge the sufficiency of the evidence

underlying their convictions. We consider the evidence in the

light most favorable to the verdict and determine whether a

rational jury could have found the essential elements of the

offense beyond a reasonable doubt, giving the government the

benefit of all reasonable inferences and credibility choices.1

Glasser v. United States, 315 U.S. 60, 80 (1942).

At trial, Drug Enforcement Administration ("DEA") agent Steven

Whipple testified that a defendant in another case, Brent Gilpin,

wished to cooperate with the government and arranged a meeting

between Whipple and some narcotics traffickers at a hotel in El

Paso. Shortly after Whipple and Gilpin arrived, Cesar Parra and

Jorge Varela arrived and were introduced to Whipple by Gilpin.

Whipple posed as someone with ties to organized crime who could

move large quantities of narcotics through his distribution

network.

Whipple negotiated with Parra, and Varela translated. Whipple

represented that he could move 2,000 pounds of marihuana through

his network on a weekly basis and stated that he was interested in

purchasing that quantity. It was agreed that the first transaction

would involve only 1,000 pounds. Later, they would supply 2,000

pounds on a weekly basis at a price of $700 per pound.

Parra and Varela told Whipple that they had 250 pounds of
3

marihuana on hand that they wished to show him. All four men

traveled to a location in northeast El Paso. There, Whipple was

introduced to two or three unknown men and to Pacheco. Whipple

asked, "Where's the marijuana?" Pacheco replied that it was in the

garage. Whipple was shown to the garage, where he was shown four

"pretty good size" boxes. One of the unidentified men helped

Whipple open one of the boxes, which contained compressed bricks of

"commercial grade" marihuana.

After Pacheco and several of the other men returned to the

house, Whipple discovered that there was only 150 pounds of

marihuana in the garage. When confronted, Pacheco, Parra, Varela,

and the unidentified men agreed to bring in another 100 pounds to

complete the initial 250-pound delivery. Whipple was advised that

the remaining 750 pounds would have to be obtained from other

sources.

Whipple agreed to return to his hotel room with Gilpin while

arrangements were made to obtain the additional 750 pounds. While

they waited, they had several telephone conversations and another

meeting with Parra and Varela. When Parra and Varela were unable

to make arrangements for delivery of the 750 pounds that day,

Whipple agreed to give them another day to put the deal together.

Whipple understood that Parra and Varela did not own the

marihuana that comprised the initial 1,000-pound delivery. Their

marihuana was still in Mexico. When Parra and Varela were unable

to deliver the additional quantity the next day, Whipple terminated

the negotiations and told them to keep trying to put the deal
4

together and to stay in touch with Gilpin. He would give them one

more chance.

Ten days later, Gilpin arranged another meeting at a hotel in

El Paso. Parra had 1,300 pounds of marihuana for sale. Parra

arrived, accompanied by Ramon Gonzales and Pacheco.

Gonzales was the translator. He stated that he had 300 pounds

at a location near his restaurant that he wanted to deliver that

night. Gonzales would front Whipple the 300 pounds and would take

him to another place where he had 800 pounds ready for delivery.

Once Whipple paid for the 800 pounds, an additional 250 pounds

would be brought in within 20 minutes, for a total quantity of

1,350 pounds at $700 per pound. The men agreed to meet at

5:00 a.m. at Gonzales's restaurant.

At the appointed hour, Whipple and Gilpin went to the

restaurant, where they found Gonzales, Parra, and Pacheco waiting.

After confirming the details of their agreement, all five men

traveled in Whipple's truck to a small house near the restaurant.

A person tentatively identified as Arnulfo Yanez was at the house.

Whipple was led to a bedroom by Gonzales and was shown marihuana,

which all of the men, including Pacheco, proceeded to weigh. The

total weight was 296 pounds. The men loaded the marihuana into the

truck that had been backed up to the front door.

It was agreed that the men would meet back at Whipple's hotel

room an hour later. When Gilpin arrived, Parra, Pacheco, and

Gonzales were waiting. When Whipple arrived later, only Pacheco

and Gilpin were present. Pacheco told Gilpin that the marihuana
5

had been grown in the mountains of Mexico. Whipple and Pacheco

engaged in small talk until Parra and Gonzales returned, accompanied by defendant Cordero.

Cordero was introduced by Gonzales as someone who had 300

pounds available for sale. Gonzales suggested that Whipple

accompany them to inspect the 300 pounds of marihuana; if it was

satisfactory, an additional quantity would be delivered. Whipple

agreed to this, and Gonzales had a conversation with Cordero in

Spanish.

Cordero pulled a baggie of marihuana from inside of his shirt

and handed it to Whipple. Gonzales told him it was a sample.

Whipple testified that each batch of marihuana was of the same

grade, "the same stuff."

Whipple agreed to purchase the additional marihuana if it was

the same quality as the sample. Whipple smiled at Cordero and gave

him a "thumbs-up" gesture; Cordero smiled back and gave Whipple a

thumbs-up gesture. Although these negotiations were primarily

between Gonzales, Cordero, and Whipple, the men spoke in a normal

tone that everyone could hear.

The men left the hotel and traveled some distance to another

location. Standing outside the house, speaking on a cellular

phone, was Pichardo. Whipple was introduced to Pichardo (identified in the transcript by his alias, Rito Molina), and Pichardo

invited everyone into the house. Another man, Silviano Cordova,

was inside the house.

Pichardo stated (through Gonzales as interpreter), "`I have
6

300 pounds across the street,' and said, `If you want that, if it's

good, I'll have another 280 pounds here within a couple of

minutes.'" Because Cordova's English was better than Gonzales's,

Cordova began to act as translator.

The men went to the house across the street, and Cordova

backed the truck up to the garage. Another man, Javier Chaves

Miramontes, came out of the house and helped direct the truck.

Miramontes took them to a bedroom that contained bags of marihuana,

which were weighed and totaled 298 pounds of the same quality as

the marihuana Whipple had previously been shown. Everyone but

Miramontes returned to the first house.

Whipple admitted on voir dire that the defendants were not

present in the second house with the marihuana. All three were

present, however, when Whipple was negotiating with Cordova.

Although Whipple is not fluent in Spanish, he has some knowledge of

the language and recognized the other men using the Spanish

pronunciation of the word marihuana and the slang term for

marihuana, "mota," at Pichardo's house. Everyone present participated, at some point, in the negotiations. It appeared to Whipple

that everyone had a "piece of the pie."

Whipple returned to the second house, where he told Cordova

that he wanted to purchase the marihuana. Cordova told Whipple

that he had an additional 280-to-300-pound quantity in a car

nearby; if he liked that, there was an additional 400 pounds on the

way. Whipple agreed to wait.

While the men were discussing the purchase price, Pichardo's
7

cellular phone rang, and Pichardo left the room to take the call,

then returned to say that the 280-pound quantity would be delayed.

The men agreed that Whipple should leave to get the purchase money.

Whipple told the others to load the marihuana into the truck while

he was gone.

After Whipple left, the decision was made to proceed with the

arrest. Cordero, Pacheco, Pichardo, Parra, Gonzales, and Cordova

were arrested at Pichardo's house; the marihuana was seized from

the back of Whipple's truck; Miramontes was arrested at the second

house; and Varela was arrested at another location.

II.

A.

In a drug conspiracy prosecution, the government must prove

beyond a reasonable doubt the existence of an agreement between two

or more persons to violate the narcotics laws and the defendant's

knowledge of, and voluntary participation in, the agreement.

United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992). To

convict for possession, the government was required to prove that

the defendants (1) knowingly (2) possessed marihuana with

(3) intent to distribute. United States v. Gonzalez-Lira, 936 F.2d

184, 192 (5th Cir. 1991).

"Possession may be constructive if the evidence indicated the

defendant[s'] ownership, dominion and control over the" marihuana.

United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1346 (5th Cir.

1994). Even without direct evidence of the defendants' ownership,
8

dominion, and control, conspirators are liable for the substantive

offenses of their co-conspirators while they are members of the

conspiracy. Accordingly, constructive possession may be found on

the basis of actual or constructive possession by another member of

the conspiracy. Id.

B.

Pacheco concedes the existence of a conspiracy but denies that

the evidence showed more than his mere presence. See United States

v. Skillern, 947 F.2d 1268 (5th Cir. 1991), cert. denied,

112 S. Ct. 1509 (1992). In Skillern, we found that testimony by an

undercover officer that confused the defendant with another coconspirator was insufficient to demonstrate the defendant's

knowledge of and participation in the conspiracy. Id. at 1273. We

found that the officer's testimony became purposefully vague in

places where the government's case was weak. Id.

In his testimony, Whipple often referred to the co-conspirators collectively and in general terms. There is evidence,

however, that Pacheco personally participated in the negotiations.

It was he who told Whipple where the marihuana was located in

response to his question "So okay, where's the marijuana?" Pacheco

was the one who told Gilpin that the marihuana had come from the

mountains of Mexico. Whipple testified that all of the coconspirators seemed to be involved in the transaction, had a "piece

of the pie," and had pulled together to do this large transaction.

Unlike the situation in Skillern, here there was evidence specifi-
9

cally linking Pacheco to the conspiracy, and it does not appear

that ambiguities in Whipple's testimony resulted from "artful

phrasing." See id.

Accordingly, the evidence is more than sufficient to prove

that Cordero and Pacheco voluntarily and knowingly conspired with

one another and with others to violate the narcotics laws.

Plainly, they knowingly intended to distribute marihuana. They

constructively possessed the marihuana because of the actual

possession of it by their co-conspirators.

III.

Pichardo contends that the district court committed reversible

error by admitting, over his objection, Whipple's hearsay testimony

that Pichardo was the source of the marihuana. See United States

v. Hernandez, 750 F.2d 1256 (5th Cir. 1985) (reversing conviction

where government introduced evidence that another government agency

had identified the defendant as a drug smuggler)). Pichardo's

record citation to page 298 of the trial transcript is inaccurate.

See United States v. Valdez, 861 F.2d 427, 432 (5th Cir. 1988),

cert. denied, 489 U.S. 1083 (1989) ("Without identifying any

statement by a particular declarant, Valdez makes a blanket hearsay

objection to four other witnesses' testimony. These references to

erroneous district court rulings are too vague to permit us to

address them."). The government surmises that Pichardo is

complaining about Whipple's statements regarding the additional

280-pound quantity that was to be delivered after Whipple inspected
 

2 The portion of the transcript cited by Pichardo contains an objection

not to hearsay but to the Assistant United States Attorney's statement, in

closing argument, that Whipple's Spanish comprehension was better than his

verbal skill.

10

and accepted the 300-pound quantity.

There was no contemporaneous objection to this testimony.2 In

the absence of an objection, the standard of review is "plain

error," i.e., "error which is obvious, substantial, and so basic

and prejudicial that the resulting trial lacks the fundamental

elements of justice." United States v. Casel, 995 F.2d 1299, 1308

(5th Cir.) (internal quotations omitted), cert. denied, 114 S. Ct.

472 (1993).

Relying upon United States v. Nazemian, 948 F.2d 522, 525-27

(9th Cir. 1991), cert. denied, 113 S. Ct. 107 (1992), and United

States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991), the government

argues that an interpreter's statement should be regarded as a

defendant's own statement. Although the question is res nova in

this circuit, in United States v. Batencort, 592 F.2d 916, 917 (5th

Cir. 1979), we held that customs agents' testimony regarding the

defendant's statements made through a translator was harmless where

the "translator," another customs agent, also testified and where

the translator's fluency was not at issue).

We find the reasoning of the Second and Ninth Circuits

persuasive, and we adopt it. "Except in unusual circumstances, an

interpreter is `no more than a language conduit and therefore his

translation [does] not create an additional level of hearsay.'"

Lopez, 937 F.2d at 724 (quoting United States v. Koskerides,
11

877 F.2d 1129, 1135 (2d Cir. 1989)) (brackets in original). In

Nazemian, where, as here, the review was for plain error in the

absence of an objection, the court concluded that (as here) the

defendant "has offered nothing to suggest that the interpreter

should not have been treated as a language conduit." 948 F.2d at

527. There is no plain error.

IV.

Cordero's attorney has moved for leave to withdraw as counsel

pursuant to Anders v. California, 386 U.S. 738 (1967). Anders

established standards for an appointed attorney who seeks to

withdraw from a direct criminal appeal on the ground that the

appeal lacks an arguable issue. After a "conscientious examination" of the case, the attorney must request permission to withdraw

and must submit a "brief referring to anything in the record that

might arguably support the appeal." Id. at 744. The attorney must

isolate "possibly important issues" and must "furnish the court

with references to the record and legal authorities to aid it in

its appellate function." United States v. Johnson, 527 F.2d 1328,

1329 (5th Cir. 1976). After the defendant has had an opportunity

to raise any additional points, the court fully examines the record

and decides whether the case is frivolous. Anders, 386 U.S. at

744.

Cordero's lawyer has satisfied Anders sufficiently to trigger

our obligation to examine the record. The attorney has briefed the

question of whether Cordero's convictions were based upon suffi-
12

cient evidence; Cordero has not filed a response.

The district court sustained two of Cordero's objections to

the presentence report ("PSR"). It reduced Cordero's offense level

to 26 because the quantity of marihuana attributed to Cordero by

the probation officer was too large. The district court also

determined that Cordero should not be assessed a two-level upward

adjustment for his rule as a leader of the conspiracy.

Cordero also argued that his offense level should be reduced

because of his minor role in the conspiracy. Although the record

does not contain a copy of the sentencing transcript, the district

court apparently overruled this objection. As is discussed more

fully above, Cordero negotiated for the delivery of several hundred

pounds of marihuana and stood to profit substantially. "Review of

sentences imposed under the guidelines is limited to a determination whether the sentence was imposed in violation of law, as a

result of an incorrect application of the sentencing guidelines, or

was outside of the applicable guideline range and was unreasonable." United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.

1991) (citing 18 U.S.C. § 3742(e)). Findings of fact are reviewed

for clear error. Id. The district court did not err by refusing

to characterize Cordero's role as minor or minimal.

Cordero was sentenced at the bottom of the guideline range to

concurrent terms of imprisonment of seventy months, concurrent

terms of supervised release of five years, and a special assessment

of $100. There is no appealable issue with respect to sentencing.

A review of the record has not uncovered any other issues worthy of
13

discussion.

V.

In summary, Pacheco's and Pichardo's convictions are AFFIRMED.

The motion by Cordero's attorney to withdraw is GRANTED, and

Cordero's appeal is DISMISSED.