1Pursuant 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this opinion should not be published and is not precedent except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

For the Fifth Circuit

No. 95-40692

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARCOS ANTONIO SALINAS-GRIMALDO,

Defendant-Appellant.

_____________________________________________

Appeal from the United States District Court

For the Southern District of Texas

(M-94-CR-212-02)

_____________________________________________

November 20, 1997

Before REYNALDO G. GARZA, KING, and BENAVIDES, CIRCUIT JUDGES

PER CURIAM:1

This is an appeal from a decision of the United States

District Court for the Southern District of Texas, Judge Ricardo

Hinojosa, presiding. In this case, the Defendant-Appellant,

Marcos Antonio Salinas-Grimaldo (“Salinas”), was convicted on a

charge of conspiracy to possess 150 kilos of marijuana, with

intent to distribute. Upon review of the oral arguments,

pleadings, briefs, and record on file, we AFFIRM the decision of
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the district court.

Background

Defendant-Appellant Salinas was indicted on November 8,

1994, in the McAllen Division of the Southern District of Texas,

in a 3 count indictment. His brother, Luis Salinas (“Luis”) and

Jose Botello (“Botello”) were also included in this indictment. 

Count 1 charged the defendants with conspiring to possess 4 kilos

of cocaine with intent to distribute. Count 2 charged them with

conspiring to possess 150 kilos of marijuana, with intent to

distribute. Count 3 charged them with possessing 44 kilos of

marijuana with intent to distribute. Luis and Botello made plea

agreements, and pled guilty to some of the charges against them. 

Salinas went to trial. At that trial, Salinas moved for a

judgment of acquittal on all counts. Judge Ricardo Hinojosa

granted the motion as to counts 1 and 3. The case went to the

jury, and on February 21, 1995, after only a few hours of

deliberation, Salinas was convicted on count 2. On August 10,

1995, Judge Hinojosa sentenced Salinas to 41 months in prison, to

be followed by a three-year term of supervised release, and a $50

special assessment. 

Luis Salinas, brother of the Defendant-Appellant, was

arrested in May of 1994, when he was found in possession of 694

pounds of marijuana, after an investigation by the DEA, in which
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Agent Marvin Winham (“Agent Winham”) was a participant. After

this arrest, Luis was held in the Hidalgo and Starr County jails. 

However, Luis, a persistent fellow, still continued to manage his

drug operations from the jailhouse.

Agent Winham continued his investigation of Luis. He joined

with other members of the DEA and Agents Johnny Murad (“Agent

Murad”) and Joey Davidson (“Agent Davidson”), officers of the

Lincoln Parish Sheriff’s Department in Louisiana, to organize a

joint investigation and sting against Luis. A fictitious

character, “Johnny Davidson,” was created by the undercover

operatives in this sting, and Agent Winham instructed a jailhouse

informant, David Recio (“Recio”), to tell Luis that Johnny

Davidson was a ready buyer of drugs in Louisiana, and would

accept collect calls from Luis.

On September 22, 1994, Agents Murad and Davidson received a

package addressed to “John Davidson,” containing 44 kilos of

marijuana hidden inside an air compressor. The shipment was

arranged by Luis Salinas. The payment for this marijuana was

$55,000, $46,000 of which was payable in cash, and the balance

with the title for a 1988 Ford pickup truck. The first payment

of this was a $1500 payment to be given to a woman later to be

known as “Ana,” who was said to be Luis’ wife. On September 30,

1994, Agent Tony Santos (“Agent Santos”) gave the money to the

woman in the parking lot of a McAllen store. The woman sped off

before Agent Santos could speak with her. No one has ever quite
4

figured out who Ana was, or what happened to the $1500.

Over the following weeks, Luis and the agents had various

conversations regarding payment of the balance for the previous

transaction, and plans for future dealings. Various negotiations

ensued for further shipments. During these conversations, plans

for shipment of 119 pounds of marijuana and 3 to 4 kilos of

cocaine were made. A meeting was arranged between the agents and

associates of Luis at the Doubletree Hotel in McAllen, a location

the agents had staked out, for October 25, 1994. 

On that date, Luis called the agents at the Doubletree. He

said he was having problems finding someone to pick up the money,

and that someone would be there in a couple of hours. About 30

minutes after that call, Botello showed up at the appointed room. 

Botello had consumed a few quarts of beer, and appeared

intoxicated to the agents. Botello and the agents discussed

payment for the original transaction, and plans for the cocaine

deal. When the money was given to Botello, agents in the next

room, who were monitoring the meeting on video, burst in and

arrested him.

Shortly after Botello’s arrest, Agent Murad told Luis that

he had spoken to one of his men in McAllen, and that this man had

given the money to someone named “Joe” who had come to the hotel

room. Luis said he’d sent his friend “Marcos” to get the money. 

This was the first and only mention of a “Marcos” in some 15 to

20 conversations Agent Murad had with Luis over several weeks. 
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Luis asked if the money had been picked up, and he was told that

it was.

During this time, surveillance agents were monitoring the

Doubletree Hotel. These agents observed Botello walk from nearby

Archer Park to the Doubletree, and they attempted to locate the

vehicle in which he arrived. Officer Art Lopez (“Officer Lopez”)

noticed a red Cougar which had been seen in two different

locations. He saw it park, a man get inside of it, and then

proceed south towards the city of Mission, Texas. The car was

stopped, and the passengers were the Defendant-Appellant Salinas,

his wife, and their child. A DEA agent who arrived to assist

noticed that Salinas was the same suspicious person he noticed

standing by a park bench in Archer Park at the time of Botello’s

arrest.

Upon questioning, Salinas acknowledged that Luis was his

brother, and that he had given Botello a ride to McAllen. 

Salinas was asked what he was doing in Archer Park, and he

replied that he was at the park walking for exercise. The

officers noticed that he was wearing sandals, and questioned his

choice of exercise footwear. Salinas said he always wore

sandals, including when walking for exercise. He was then

arrested.

Botello testified at the trial that on the date in question

he went to an auto shop where he saw his friend Salinas. He said

Salinas asked him to help bring a broken-down car to the shop,
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and Botello agreed. Botello says that on the way to McAllen, the

plans changed. Salinas said they were going to the Doubletree

Hotel, and that he wanted Botello to get $46,500 from a man named

“Chris” (“Chris” was the undercover name of one of the

operatives). Salinas repeated these instructions as Botello

drank his quarts of beer. Salinas also reportedly told Botello

to say that Luis sent him, and that Botello would get $200-300

for this.

Botello testified that he never met Luis, and that he never

asked Salinas why he was being asked to get the money. He did

say that because of the amount of money involved, he figured it

was for marijuana, though he never asked. The government states

in its brief that he seemed knowledgeable about the details of

the marijuana and cocaine deliveries in the videotaped meeting

with the undercover agents at the Doubletree. Botello testified

that when they arrived in McAllen, they stopped at Archer Park,

where Salinas repeated the instructions. Botello then went to

the room, and as stated previously, was arrested.

Standard of Review and Elements of Proof

The standard for review for reviewing the sufficiency of

evidence supporting a jury’s verdict in this Circuit is as

follows:

In our review of the sufficiency of the evidence

supporting a jury’s verdict, we determine whether,
7

viewing the evidence and the inferences that may be

drawn from it in the light most favorable to the

verdict, a rational jury could have found the essential

elements of the offenses beyond a reasonable doubt. We

recognize that the jury was free to choose among all

reasonable constructions of the evidence, and accept

all credibility choices that tend to support the jury’s

verdict. We view the evidence, though direct and

circumstantial, as well as all reasonable inferences

from that evidence, in the light most favorable to the

verdict. Moreover, we determine only whether the jury

made a rational decision, not whether its verdict was

correct on the issue of guilt or innocence. However,

we must reverse a conviction if evidence construed in

favor of the verdict gives equal or nearly equal

circumstantial support to a theory of guilt and a

theory of innocence of the crime charged.

United States v. Dean, 59 F.3d 1479, 1484 (5th Cir.

1995)(citations and quotation marks omitted), cert. denied, 116

S.Ct. 748 (1996); see also U.S. v. Broussard, 80 F.3d 1025, 1030-

1031 (5th Cir. 1996), cert. denied, 117 S.Ct. 264 (1996); U.S. v.

Jamarillo, 42 F.3d 920, 922-923 (1994), cert. denied, 514 U.S.

1134 (1995).

The elements of a drug conspiracy are: (1) the existence of

an agreement between two or more persons to violate narcotics

law; (2) the defendant’s knowledge of the agreement; (3) the

defendant’s voluntary participation in the agreement. U.S. v.

Pena-Rodriguez, 110 F.3d 1120, 1122 (5th Cir. 1997), cert.

denied, WL 562076 (1997); see also U.S. v. Gonzalez, 76 F.3d

1339, 1346 (5th Cir. 1996). Mere presence at a crime scene is

not enough alone to support an inference of participation in a

conspiracy, but presence is one factor the jury may rely on. 
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U.S. v. Maltos, 985 F.2d 743, 747 (5th Cir. 1992). On a related

note, while a conviction cannot be based solely on the existence

of a familial relationship between the defendant and a criminal,

inferences from such a fact may be combined with other

circumstantial evidence to support a conspiracy conviction.

Broussard, 80 F.3d at 1031. Also, because secrecy is the norm in

an illicit conspiracy, the elements of the offense may be proven

by circumstantial evidence. U.S. v. Greenwood, 974 F.2d 1449,

1457 (5th Cir. 1992). However, the court will not lightly infer

a defendant’s knowledge or participation in a conspiracy, and the

government may not prove up a conspiracy merely by placing the

defendant in “a climate of activity that reeks of something

foul.” Maltos, 985 U.S. at 746.

Further, one may be guilty as a co-conspirator even if he

plays a minor role, and that person need not know all the details

of the illicit enterprise. Greenwood, 974 F.2d at 1457. An

explicit agreement to join the conspiracy is not needed, tacit

agreement will suffice. Id. Also, so long as it is not facially

insubstantial or incredible, the uncooborated testimony of a coconspirator, even one who has chosen to cooperate with the

prosecution in return for leniency, may be constitutionally

sufficient evidence to convict. Id. Testimony is incredible as

a matter of law only if it relates to facts that the witness

could not possibly have observed or to events which could not
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have occurred under the laws of nature. Pena-Rodriguez, 110 F.3d

at 1123; see also U.S. v. Bermea, 30 F.3d 1539, 1552 (5th Cir.

1994), cert. denied, 115 S.Ct. 1825 (1995).

Discussion and Analysis

It was rational for the jury to convict Salinas. While it

is true that guilt-by-association is not an acceptable reason for

conviction, the prosecution had far more evidence than a “mere

presence” argument. The jury apparently believed that it was

more than just a coincidence that: (1) Salinas (by his own

admission) drove Botello to a hotel, (2) where a known drug

dealer (Salinas’ brother) had arranged a meeting between a minion

named “Marcos” (Salinas’ first name) and undercover agents who

were posing as drug dealers, (3) that Salinas told Botello

(according to Botello’s testimony, which is not incredible as a

matter of law) all along the way that he was to retrieve a large

sum of money (which Botello thought to be consistent with a drug

deal), and (4) that it was no coincidence that these people and

events crossed paths with each other in space and time at the

Doubletree Hotel in McAllen.

On the issue of the sum of money and Botello’s involvement,

this Circuit has previously held that “drug traffickers are

unlikely to entrust a large portion of the proceeds from their

illicit trade to an outsider, especially when the outsider is
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aware of the valuable nature of the merchandise he is carrying.” 

U.S. v. Gallo, 927 F.2d 815, 821 (5th Cir. 1991). Further,

regarding the use of Botello as a courier, this Circuit has held

that the payment of a large sum of money for a simple errand may

be considered suspicious. U.S. v. Quiroz-Hernandez, 48 F.3d 858,

865 (5th Cir. 1995); U.S. v. Martinez-Mercado, 888 F.2d 1484,

1491 (5th Cir. 1989). Also, the recruitment of another to do an

illegal act does not relieve the recruiter from criminal

liability. U.S. v. Gonzalez-Rodriguez, 966 F.2d 918, 921 (5th

Cir. 1992). It would be a reasonable inference for the jury to

think that Salinas did not want to take the risk of retrieving

the drug money himself, so he brought Botello along. While any

of these things alone would not have been enough to convict

Salinas, the weight of the events, all stacked together, would

allow a reasonable jury to convict him, and such inferences pass

muster under the precedents set by this Circuit.

As previously stated, under the standard of review of this

Circuit, we are to affirm the decision of the jury as long as it

is rational. The only caveat is if the evidence gives equal or

near-equal evidence of innocence. The evidence does not do so in

this case. The alternate story is that Salinas was simply going

for a walk in Archer Park, by chance gave Botello a ride to where

a drug deal (arranged, again by chance, by Salinas’ brother) was

going on, which Salinas was unaware of, and that Botello was
11

lying about their conversation they had on the ride to McAllen. 

This seems far less credible than the story supporting

conviction, and does not rise to the level of equal or near-equal

evidence of innocence. Therefore, we will not disturb the

verdict of the jury or the sentence imposed.

Conclusion

The prosecution met its burden in providing evidence linking

Salinas to the drug conspiracy. The jury’s decision was

rational, and was not based on improper inferences or prejudices. 

Therefore, the decision of the district court and the conviction

of Salinas is AFFIRMED.

AFFIRMED.