United States Court of Appeals

Fifth Circuit

FILED

December 20, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-30881

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MANUEL PEÑALOZA-DUARTE,

also known as Miguel Peñaloza-Duarte,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana, New Orleans

USDC No. 2:04-CR-273-2

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Manuel Peñaloza-Duarte (“Peñaloza”) was convicted by a jury of

aiding and abetting the possession of methamphetamine with the

intent to distribute. On appeal, he argues that the evidence is

insufficient to convict him beyond a reasonable doubt because it

fails to show that he had any criminal intent to advance the crime.

Indeed, he contends, the evidence showed hardly more than that he

was a passenger in the vehicle with the knowledge that contraband

was present. Furthermore, he argues, evidence of criminal intent

is especially lacking when considered in the light that he had no

criminal record and that he was a confidential informant for local

California police. We agree and hold that there is insufficient
1Miranda v. Arizona, 384 U.S. 436 (1966).

2

evidence to support the verdict. We therefore REVERSE and VACATE

Peñaloza’s conviction and RENDER a judgment of acquittal.

I

On Tuesday, August 24, 2004, Louisiana State Police (LSP)

Trooper Ryan Midkiff stopped a white Crown Victoria with California

license plates for failing to signal a lane change. The driver was

later identified as Jesus Bermudez-Pineda (“Bermudez”). Peñaloza

was seated in the passenger seat of the vehicle. Bermudez told

Midkiff that the passenger was his cousin. When asked where he was

going, Peñaloza said that he and his brother (Bermudez) were going

to Florida to visit family.

Bermudez gave Midkiff consent to search the car. During the

search, Midkiff discovered seven tape-wrapped packages containing

methamphetamine hidden under the glove compartment. At trial it

was stipulated that the methamphetamine weighed 876.8 grams with a

purity level of 92 percent and that one kilogram of methamphetamine

was worth approximately $40,000. No clothes, luggage, or weapons

were in the vehicle. 

Peñaloza and Bermudez were placed under arrest, read their

Miranda1 rights, placed in the backseat of the same car, and

transported to the police substation. At the substation, after

being placed in a different interview room from Bermudez, Peñaloza

first told an LSP Trooper that he was working for the police.
2Trooper Noto testified that he does not speak Spanish; the

evidence at trial was that Peñaloza speaks Spanish and has only a

“very poor understanding” of English.

3This conversation appears to have been conducted using a

mixture of English and Spanish. Agent Drasutis testified that

Peñaloza appeared to have “a very poor understanding of English”

and that he himself spoke Spanish “very poorly. I would say

3

Peñaloza showed Trooper Thomas Noto, who specializes in Narcotics

Trafficking, the business cards of Detective Mario Garcia of the

Costa Mesa (California) Police Department and of Drug Enforcement

Administration (DEA) Task Force Officer Dana Potts. He indicated

in English2 that he was working for Detective Garcia.

Peñaloza told Noto that while en route to Orlando, Florida,

Bermudez told him that there were drugs in the car. Peñaloza

stated that Garcia did not know about the drugs, but that he had

planned to call Garcia at the next opportunity. Noto then

contacted the local DEA office and was told that they knew nothing

about the situation; Noto, however, did not call either Garcia or

Potts. He later acknowledged that the two business cards Peñaloza

provided proved to be legitimate.

While Peñaloza was still at the substation, DEA Special Agent

David Drasutis arrived to assist in the investigation. He took

custody of the suspects’ personal effects, including their pay

stubs, which showed that Peñaloza and Bermudez worked for the same

employer. Drasutis then interviewed Peñaloza, who stated that he

worked for the DEA in California and that Garcia was his control

officer.3 Peñaloza told Drasutis that he intended to contact
tourist level.”

4Agent Reidell testified that they spoke in both Spanish and

English, that he is “proficient in the Spanish language” and that

he often acts as a translator during interrogations.

4

Garcia to inform him about the drugs and repeatedly asked to be

permitted to contact Garcia, but was not allowed to do so.

Drasutis contacted Garcia and confirmed that Peñaloza was a

documented confidential informant (“CI”) for the Costa Mesa Police.

Drasutis, who had confiscated Peñaloza’s cell phone, reviewed the

call list and determined that Peñaloza had recently placed a call

to Garcia.

At some point, Senior Special Agent Robert Donald Reidell, who

was with the United States Department of Homeland Security,

Immigration and Customs Enforcement, arrived at the substation and

then transported Peñaloza from the substation to the jail in Amite,

Louisiana. During the trip, Peñaloza told Reidell that he had

worked on and off for a police officer in Costa Mesa, California

named Mario.4 Reidell reminded him of his Miranda rights.

Peñaloza then told Reidell that he knew the drugs had been placed

in the car in Santa Ana, California, that he knew the people who

placed the drugs in the car, and that the drugs were destined for

Orlando. He stated that he did not know who was to receive the

methamphetamine, but that Bermudez did. He told Reidell that he

believed that the drugs came across the border in San Ysidro,

California, in trucks.
5

II

In due course Peñaloza was indicted, pleaded not guilty and

went to trial. His defense was that he was a CI, that he had no

intent to violate the drug laws at any time and that the government

had failed to prove that he possessed the methamphetamine with the

intent to distribute. 

At trial, Detective Garcia confirmed that Peñaloza was a CI

and had been so for two years. Garcia testified that he used CIs

to gather information and evidence of narcotics traffickers and to

make controlled buys and deliveries of narcotics. Garcia said that

before a purchase or delivery was contemplated, the control officer

always spoke with his CI.

Garcia stated that he had instructed Peñaloza that during the

course of any undercover operation, he (Peñaloza) should give him

any information "right away," be truthful, and remain in constant

contact. Garcia and Peñaloza had exchanged cellular telephone

numbers. Garcia and Peñaloza also discussed procedures to be

employed when a controlled purchase was contemplated. Peñaloza was

instructed that such purchases were always done in conjunction with

police supervision and that he was not to conduct such purchases by

himself. Garcia testified that Peñaloza understood these

procedures and that he had made at least five purchases prior to

August 2004. Garcia testified that although he and Peñaloza

conducted undercover purchases in other states, such purchases were
6

done “only by phone.” Garcia also stated that he “never sent

[Peñaloza] out of state to make purchases.”

Garcia testified that he spoke with Peñaloza on the night of

Saturday, August 21. At that time, Peñaloza told Garcia that there

were "some people coming up from Mexico and that he was providing

them with a ride up north." Peñaloza stated that "once up north

they were going to meet a guy" and discuss business. Peñaloza told

Garcia that he would drive back after the meeting and tell Garcia

what had occurred. Garcia asked Peñaloza if the meeting involved

any drugs or money. Peñaloza told Garcia "no" and that it was a

meeting only. Garcia instructed Peñaloza to call him when he

returned. Garcia did not speak with Peñaloza again. However,

phone records showed that Peñaloza called Garcia at 3:15 p.m. on

Sunday, August 22. Garcia did not answer and Peñaloza did not

leave a voice message. 

Garcia further testified that Peñaloza never mentioned

transporting methamphetamine to Florida with Bermudez. Nor did

Garcia authorize Peñaloza to become involved in such a transaction.

Garcia stated that Peñaloza "came highly recommended from the

detective who had handled him before" and that Peñaloza had proven

himself to be dependable and reliable. Garcia’s testimony was that

Peñaloza had provided approximately a hundred tips and leads

regarding drug trafficking and that Peñaloza knew "a lot of people

in Southern California." Typically, when Peñaloza came to Garcia

with a lead that someone was "in on a drug trade," Garcia would
7

tell Peñaloza "to get in good" with that person, "[t]ake a ride

with that person, go out to eat with that person, do whatever it

[took] to glean the information." Garcia told the jury that

although Peñaloza was not a DEA informant at the time of his

arrest, he (Garcia) had contacted DEA Agent Potts and filled out

various forms early in 2004 in order to start the process of having

Peñaloza confirmed as an official DEA informant.

Peñaloza was sentenced to 121 months in prison. He then filed

this timely appeal.

III

Peñaloza challenges the sufficiency of the evidence to uphold

his conviction. The sufficiency of the evidence is reviewed to

determine whether any rational trier of fact could have found that

the evidence established guilt beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979). Because Peñaloza properly

preserved this issue by moving for a judgment of acquittal at the

close of the Government's case and at the close of all evidence,

this issue is reviewed de novo. See United States v. Izydore, 167

F.3d 213, 219 (5th Cir. 1999). In evaluating the sufficiency of

the evidence, we view all evidence and all reasonable inferences

drawn from it in the light most favorable to the Government.

United States v. Gourley, 168 F.3d 165, 168-69 (5th Cir. 1999).

Review of the sufficiency does not include review of the weight of

the evidence or of the credibility of the witnesses. United States

v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993). 
8

As we have noted, Peñaloza’s conviction was for aiding and

abetting the possession of methamphetamine with the intent to

distribute. To convict a defendant for possession of

methamphetamine with intent to distribute, the Government must

prove that the defendant (1) knowingly (2) possessed

methamphetamine (3) with the intent to distribute it. United

States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). To prove that

a defendant aided and abetted, the Government must prove that the

three elements of the substantive offense occurred and that the

defendant associated with the criminal venture, purposefully

participated in the criminal activity, and sought by his actions to

make the venture succeed. See United States v. DelagarzaVillareal, 141 F.3d 133, 140 (5th Cir. 1997); 18 U.S.C. § 2.

“Association” means that the defendant shared in the principal’s

criminal intent. United States v. Jaramillo, 42 F.3d 920, 923 (5th

Cir. 1995). “Participation” means that the defendant engaged in

some affirmative conduct designed to aid the venture or to assist

the perpetrator of the crime. Id. Thus, “to aid and abet, a

defendant must share in the intent to commit the offense as well as

play an active role in its commission.” United States v. Lombardi,

138 F.3d 559, 561 (5th Cir. 1998). It is not enough to show that

he engaged in otherwise innocent activities that just happened to

further the criminal enterprise. United States v. Beckner, 134

F.3d 714, 718-19 (5th Cir. 1998).
5As long as a knowing possession occurred, a defendant charged

with aiding and abetting may be convicted of the offense of

possession with intent to distribute a controlled substance even if

he did not have actual or constructive possession of the substance.

See United States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997).

9

Turning to the instant case, the jury could reasonably have

concluded that a knowing possession occurred because

methamphetamine was found in Bermudez’s car, in which Peñaloza was

a passenger.5 The jury could have also reasonably inferred, due to

the large quantity of methamphetamine seized, that the

methamphetamine was intended for distribution. See United States

v. Quiroz-Hernandez, 48 F.3d 858, 868 (5th Cir. 1995). Thus,

Peñaloza’s conviction for aiding and abetting must be upheld if he

knowingly associated himself with and engaged in some affirmative

conduct designed to aid the criminal venture.

The Government contends that circumstantial evidence leads to

inferences sufficient to satisfy these elements because (1)

Peñaloza was familiar with the drug trade; (2) Peñaloza told Garcia

he was headed “up north” from California instead of due east toward

Florida and failed to contact him while en route to Florida; (3)

Peñaloza failed to inform Trooper Midkiff promptly of the existence

and location of the methamphetamine; (4) Peñaloza was acting

contrary to procedures established with Detective Garcia and his

trip to Florida was not authorized; and (5) Peñaloza told different

stories about his involvement before admitting to Agent Reidell he

had known the drugs were in the car.
10

The difficulty in concluding that this evidence establishes

Peñaloza’s guilt beyond a reasonable doubt is that all of the

Government’s proof is equally consistent with Peñaloza’s credible

defense that he was a longstanding CI who did not want to reveal

himself to the driver and the lack of evidence that he knew where

the car was destined when it left California. There was no

evidence that showed Peñaloza loaded or witnessed loading of the

drugs into the car, nor that he drove the car or otherwise advanced

the criminal enterprise. See Jaramillo, 42 F.3d at 924 (holding

that the defendant had participated by driving with the principal

to the site of the drug transaction and carrying a large empty

purse, presumably to stash money); United States v. HernandezBeltran, 867 F.2d 224, 227 (5th Cir. 1989) (finding that a

defendant who drove an individual possessing cocaine to the border,

let him cross on foot, met him on the other side, and drove him to

a meeting had indeed aided and abetted). Close association with

suspected drug traffickers, standing alone, is insufficient to

sustain a conviction for aiding and abetting. See HernandezBeltran, 867 F.2d at 226. This principle is especially compelling

when the defendant operates as a CI and has no criminal

convictions.

Moreover, as we have indicated, the fact that Peñaloza failed

to tell the LSP Troopers immediately that there was methamphetamine

in the car is not necessarily affirmative conduct designed to

further the criminal enterprise. It equally reflects Peñaloza’s
11

consistently-offered defense that he would expose himself as a CI

if he said anything before he was separated from Bermudez. In

addition, Peñaloza’s statements at the time of the stop raise

questions related to linguistic difficulties. The evidence at

trial indicated that the LSP Troopers spoke very little Spanish and

that Peñaloza had a very poor understanding of English. The first

officer Peñaloza met who spoke Spanish was DEA Agent Reidell.

During their ride to the jail in Amite, Peñaloza was able to get

across his full story regarding his work for Detective Garcia and

his knowledge of the Florida trip.

While the Government argues that Peñaloza’s story changed, it

is also true that his story became clearer and more developed the

easier it became for him to communicate with the police, both

linguistically and because the driver Bermudez was not present.

Furthermore, there is no inherent contradiction between the stories

Peñaloza told Noto (the first officer with whom he spoke outside of

Bermudez’s presence) and Reidell (the first officer with whom he

shared a common language). Although he communicated additional

details to Reidell about the drugs being placed in the car in Santa

Ana, no evidence indicates that he assisted in or witnessed any of

this activity. We note further that the information Peñaloza

provided to Reidell appears to have been the same type he regularly

provided to Detective Garcia when in California.

We are required to reverse a conviction “if the evidence

construed in favor of the verdict gives equal or nearly equal
6Peñaloza argues one theory of innocence: the evidence is

insufficient for a reasonable jury to believe beyond a reasonable

doubt that he is guilty. In addressing this single theory urged,

we have evaluated the evidence in a light most favorable to the

Government. That evidence is, at best, in equal balance and on

that basis no reasonable jury could have found Peñaloza guilty. We

therefore see no tension between this case and our holding in

United States v. Bell, which reminds that “[i]t 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.” 678 F.2d

547, 549 (5th Cir. 1982) (en banc).

12

circumstantial support to a theory of guilt and a theory of

innocence of the crime charged.” Jaramillo, 42 F.3d at 923

(quotation marks and citation omitted).6 It appears clear in this

case that the circumstantial evidence on which the government

relies gives equal support to the theory offered by Peñaloza,

namely that he was a trusted CI, with no criminal convictions, who

wanted to protect his cover and who found himself a passenger in an

automobile very far from home with no affirmative association in

the criminal venture.

Thus, because the circumstantial evidence equally supports a

theory of innocence of the crime charged, we find that it is

insufficient to sustain the jury’s verdict of guilt.

IV

For the foregoing reasons, the conviction is REVERSED and

VACATED and a judgment of acquittal is RENDERED.

REVERSED, VACATED, and RENDERED.