* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 7, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-31153

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAMAR TOOKS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:04-CR-50-3

--------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Lamar Tooks argues that the evidence introduced at his jury

trial was insufficient to support his conviction for conspiracy

to import into the United States and to possess on board a vessel

arriving in the United States, more than five kilograms of

cocaine in violation of 21 U.S.C. §§ 952, 955, and 963. The

sufficiency of the evidence is reviewed to determine whether any

rational trier of fact could have found that the evidence
No. 04-31153

-2-

established guilt beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 318 (1979).

To establish a conspiracy to import cocaine or to possess

cocaine on a vessel arriving in the United States, the Government

had to prove beyond a reasonable doubt (1) an agreement between

two or more persons to violate the narcotics laws, (2) that each

alleged conspirator knew of the conspiracy and intended to join

it, and (3) that each alleged conspirator did participate

voluntarily in the conspiracy. See 21 U.S.C. § 963; United

States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir. 1994) “The

jury may infer any element of this offense from circumstantial

evidence.” United States v. Lechuga, 888 F.2d 1472, 1476 (5th

Cir. 1989). Thus, “[a]n agreement may be inferred from concert

of action, [v]oluntary participation may be inferred from a

collocation of circumstances, and [k]nowledge may be inferred

from surrounding circumstances.” Id. at 1476-77. A conspiracy

can also be inferred from a combination of close relationships or

knowing presence and other supporting circumstantial evidence. 

United States v. Brito, 136 F.3d 397, 409 (5th Cir. 1998).

There is no dispute in this case that a conspiracy existed

to import more than five kilograms into the United States on the

M/S CONQUEST in January 2004. Tooks argues that, like the facts

presented in United States v. DeSimone, 660 F.2d 532, 535-36,

537-38 (5th Cir. 1981), there was no evidence that he had
No. 04-31153

-3-

knowledge of the conspiracy or that he participated in the

conspiracy.

The evidence established that Paul Wilson conspired with

others to import drugs into the United States on the M/S

CONQUEST. The plan involved certain conspirators boarding the

cruise ship in New Orleans and importing drugs onto the ship when

it was docked in Jamaica. The drugs would then be given to a

crewman on the ship, who would deliver the drugs to other

conspirators who boarded the next cruise in New Orleans, and

those conspirators would leave the ship and deliver the drugs to

Wilson in New Orleans before the ship sailed again for Jamaica.

In January 2004, Wilson organized a group of people to

smuggle drugs onto the ship in Jamaica and to then import the

drugs into the United States; however, he had to replace at least

one of the original participants who was not available to carry

out the plan. Patricia Mitchell, a member of this January 2004

conspiracy, testified that Tooks was the replacement. The

evidence also indicated that Wilson paid for Tooks’s ticket onto

the ship and that Tooks was in telephone contact with Wilson on

the day that he flew into New Orleans and boarded the ship, where

he was introduced to Mitchell. When Mitchell told Tooks she was

on business for Wilson, Tooks replied “[m]e too” and stated that

he had also been on business in November 2003. On both the

November 2003 and January 2004 trips, Tooks got on and off the

ship three times in Jamaica, which a Customs officer testified
No. 04-31153

-4-

constituted suspicious behavior. Tooks was present when another

conspirator on the ship explained that one of the members of the

conspiracy would not be taking the drugs off of the ship. A

canine alerted to Tooks when he disembarked the ship in New

Orleans. Tooks then went to a local shopping area, called Wilson

several times, and, according to a surveilling officer, looked

around to see if he was being followed. 

After reviewing the record, we conclude that the foregoing

evidence, albeit circumstantial, is stronger than that presented

in DeSimone and other cases in which we have determined that

there was no evidence from which the jury could infer that the

defendant knew of and participated in the conspiracy. See

DeSimone, 660 F.2d at 535-36; see also United States v. Maltos,

985 F.2d 743, 746-49 (5th Cir. 1992); United States v. EspinozaSeanez, 862 F.2d 526, 538 (5th Cir. 1988); United States v.

Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987). Accordingly,

Tooks’s conspiracy conviction is AFFIRMED.