IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51146

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ELIZAR SAUCEDO MADRID; PEDRO SAUCEDO MADRID, 

 Defendants - Appellants

Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:15-CR-122-2

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.

PER CURIAM:*

A jury convicted two brothers of conspiring to possess controlled 

substances with intent to distribute, possessing firearms in furtherance of that 

drug crime, and felon in possession of a firearm. They challenge the sufficiency 

of the government’s evidence, and one additionally argues that the government 

violated its Brady duty. Because we find the evidence sufficient to support the 

convictions and the Brady argument without merit, we affirm.

 

* 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

January 25, 2017

Lyle W. Cayce

Clerk

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I.

Pedro Saucedo Madrid, Elizar Saucedo Madrid, and Albert Prieto, Jr.,

were indicted for conspiracy to possess controlled substances with intent to 

distribute. The Madrids were further indicted for possession of firearms in 

furtherance of that drug crime and felon in possession of a firearm. Prieto pled 

guilty and testified against the Madrids, hoping for sentencing leniency. The 

charges against the Madrids went to trial. The government’s trial evidence 

showed as follows:

Before the events of this case, Prieto had been arrested for drug 

possession. As a result, he briefly acted as an informant for Homeland Security. 

The investigation into the Madrids began when Prieto was caught with drugs 

again and informed Homeland Security that he had gotten the drugs from the 

Madrid brothers. That tip led investigators to the defendants, eventually 

resulting in their arrest and trial.

Pedro and Elizar Madrid were brothers who went by the names “Kiko” 

and “Chiquito,” respectively. They lived together at a trailer park on Big Valley

Road in Odessa, Texas. Prieto testified that he initially met the defendants 

through Facebook, where he reached out to them seeking to act as their dealer.

Elizar Madrid asked if Prieto “wanted to work,” which Prieto interpreted as 

asking whether he wanted to sell drugs. The government offered Facebook 

records reflecting this conversation. After that, Prieto would go to the Madrids’ 

Big Valley trailer park approximately every other day to get meth from the 

defendants. Though Prieto himself was a heavy meth user, he primarily 

“distribute[d]” the meth that he bought throughout Pecos, Texas. He would 

purchase the meth from the defendants on a “front,” meaning that he would 

take the drugs without paying, then repay the defendants with the proceeds of 

his subsequent sales. When he would repay the front, he would give the money 

either to Pedro or Elizar Madrid. He started out buying only quarter ounces, 

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but later began to buy full ounces at a time—a distribution amount according 

to the government’s witness DEA Agent Hutchison.

Prieto testified that when he would go to the Big Valley property, Elizar 

Madrid had guns with him “[m]ostly all the time,” and Pedro Madrid had a gun 

“24/7.” He described specific guns that each defendant carried. The defendants 

typically stashed their weapons under the bed in “trailer 3” of the Big Valley 

property,1 the trailer out of which they always fronted meth to Prieto. Both 

Madrids had pictures on Facebook of themselves brandishing semiautomatic 

handguns, an assault rifle, and a shotgun. A search of the Big Valley property 

turned up a semiautomatic handgun and an assault rifle in trailer 3, and 

distribution amounts of cocaine, heroin, and meth in a nearby shed. When 

Pedro Madrid was arrested, he was a passenger in a vehicle where officers 

found three handguns and a sawed-off shotgun.

The defendants were tried together, and the jury convicted them both on 

all counts. All issues on appeal were preserved in the district court. They timely 

appealed.

II.

We begin with Elizar Madrid’s contention that his convictions should be 

overturned because the government withheld exculpatory evidence from him.

Under the rule established by Brady v. Maryland,2 prosecutors have a 

constitutional duty to disclose exculpatory and impeachment evidence to 

criminal defendants even absent a request.3 There are three elements of a 

Brady violation: “The evidence at issue must be favorable to the accused, either 

because it is exculpatory, or because it is impeaching; that evidence must have 

 

1 Here, we adopt the numbered labels of each trailer on the government’s exhibit 6, a 

diagram of the defendants’ trailer park.

2 373 U.S. 83 (1963).

3 Strickler v. Greene, 527 U.S. 263, 280 (1999).

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been suppressed by the State, either willfully or inadvertently; and prejudice 

must have ensued.”4 This court reviews alleged Brady violations de novo.5

The Brady violation that Madrid alleges was the government’s late 

disclosure of the fact that Prieto, the government’s key witness, had previously 

been arrested for possession of meth and cooperated with Homeland Security 

as a confidential informant as a result. Defense counsel learned this 

information on the first morning of trial during HSI Agent Carl’s testimony. 

Madrid used the information during his cross-examination of Prieto and 

closing argument. The government acknowledges that its late disclosure of this 

information was “suppression” of impeachment evidence within the meaning 

of the first two Brady elements. However, it argues that Madrid was not 

prejudiced at trial because it promptly corrected its oversight. Madrid contends 

that he was prejudiced by the late disclosure because he may have planned his 

trial strategy differently and may have used the information in his opening 

statement.

We find that the government’s late disclosure of the impeachment 

evidence did not prejudice Madrid. Madrid “received the material in time to 

put it to effective use at trial”6 by cross-examining Prieto about the prior arrest 

and cooperation with Homeland Security and then using the information in his 

closing argument. We are not persuaded that counsel would have done 

anything differently if the information were disclosed earlier; Madrid deferred 

his opening statement at the beginning of trial, then waived opening altogether 

at the start of his case-in-chief (when he had the information). It is not clear 

that he would have chosen to present an opening statement if he had the 

information prior to trial or that doing so would have been helpful to him. This 

 

4 Id. at 281-82.

5 United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).

6 United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985).

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demonstrates that Madrid suffered no prejudice as a result of the government’s 

late disclosure. Therefore, we reject Elizar Madrid’s Brady argument.

III.

We turn to the defendants’ challenges to the sufficiency of the 

government’s trial evidence. Both defendants challenge their convictions for 

conspiracy to possess controlled substances with intent to distribute and 

possession of firearms in furtherance of that drug crime. Pedro Madrid alone 

challenges his conviction for felon in possession of a firearm.

This court reviews the denial of a motion for judgment of acquittal de 

novo.7 If the evidence presented at trial, viewed in the light most favorable to 

the government, was sufficient to allow a reasonable jury to find all of the 

essential elements beyond a reasonable doubt, then the conviction must be 

affirmed.8

A.

Both defendants argue that the government presented insufficient 

evidence to support their convictions for conspiracy to possess controlled 

substances with intent to distribute. To prove conspiracy to possess with intent 

to distribute, the government must establish three elements: “(1) the existence 

of an agreement between two or more persons to violate narcotics laws, (2) 

knowledge of the conspiracy and intent to join it, and (3) voluntary 

participation in the conspiracy.”9

Both defendants devote their entire argument to negating a conspiracy 

with Prieto, who was initially their co-defendant, but testified against them 

hoping for leniency. They ignore that the jury could have found them to have 

 

7 United States v. Olguin, 643 F.3d 384, 393 (5th Cir. 2011).

8 United States v. Romans, 823 F.3d 299, 311 (5th Cir. 2016).

9 United States v. Nieto, 721 F.3d 357, 367 (5th Cir. 2013) (quoting United States v. 

Turner, 319 F.3d 716, 721 (5th Cir. 2003)).

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conspired with each other, a conclusion that would support a guilty finding, as 

the government notes. The evidence supports that conclusion: the defendants 

are brothers who worked together, routinely selling jointly from the same 

location. Tools associated with drug distribution were found in Pedro Madrid’s 

truck at the time of his arrest. Elizar Madrid continued to try to distribute 

drugs after his brother was arrested. That the jury could have rationally found 

them to have conspired with each other is an independent reason to reject both 

of their sufficiency challenges to this conviction.

Even so, their argument that they did not conspire with Prieto fails as 

well. Both defendants contend that a mere buyer–seller relationship is 

insufficient to establish conspiracy to possess with intent to distribute, and 

they are correct.10 However, the government’s evidence here showed that both 

defendants had more than a mere buyer–seller relationship with Prieto; they 

had a supplier–dealer relationship. Prieto described himself as a “drug-dealer.” 

Though he was a user himself, he would buy meth from the defendants on a 

“front,” resell it, then repay the defendants the proceeds. The first contact that 

Prieto ever had with the defendants was a Facebook message in which Prieto 

said that he needed to make money and meth was selling well. When Prieto 

would get meth from the defendants, he would get it in ounce quantities, which 

is a distribution amount. Prieto would resell the meth in Pecos, Texas. After a 

search of Prieto’s car resulted in the confiscation of an ounce of meth, Pedro 

Madrid went to Prieto’s home with a gun and demanded payment for that 

ounce. This court has found the fronting of drugs to establish more than a 

buyer–seller relationship.11 Moreover, the fact that Prieto purchased from the 

 

10 United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993) (“[A] buyer-seller 

relationship, without more, will not prove a conspiracy.” (citing United States v. Hughes, 817 

F.2d 268, 273 (5th Cir. 1987))).

11 United States v. Thomas, 690 F.3d 358, 367 (5th Cir. 2012).

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defendants every other day surely put the defendants on notice that Prieto was 

doing more than using the drugs personally.

All of their stray arguments fail as well. Elizar Madrid points out that 

Prieto was an unreliable witness because he was a drug user and was dishonest 

with investigators. But this court does not weigh evidence or credibility on 

sufficiency review.12 Arguments about what investigators did incorrectly or 

could have done better miss the point because they do not negate the evidence 

that the jury heard from which it could have inferred an agreement to possess 

with intent to distribute. The alternate narrative that Elizar Madrid advances 

in his brief: that his relationship with Prieto was limited to selling him chrome 

rims, was rejected by the jury by its guilty finding. Remaining arguments, such 

as the possibility that Prieto planted the drugs recovered in the search, are 

speculative.

In sum, sufficient evidence supports both defendants’ convictions for 

conspiracy to possess controlled substances with intent to distribute.

B.

Both defendants also challenge their convictions for possessing firearms 

in furtherance of a drug crime. These charges are predicated on the drug crime 

discussed above: conspiracy to possess with intent to distribute. Both 

defendants’ only argument on this point is that if we reverse their convictions 

for the underlying drug crime, we must also reverse their convictions for 

possessing firearms in furtherance of it. Perhaps, but for the reasons discussed, 

we reject the defendants’ challenge to the underlying drug crime, so we reject 

this challenge as well.

 

12 United States v. Tovar, 719 F.3d 376, 388 (5th Cir. 2013).

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C.

Finally, Pedro Madrid contends that the government presented 

insufficient evidence to support either of his convictions for felon in possession 

of a firearm. Madrid was charged with two counts of this crime: Count Five for 

December 5th and Count Seven for February 7th.

To establish felon in possession of a firearm, the government must show 

“(1) that the defendant previously had been convicted of a felony; (2) that he 

possessed a firearm; and (3) that the firearm traveled in or affected interstate 

commerce.”13 For both counts, Madrid does not dispute the convicted-felon or 

interstate-commerce elements, but disputes that he possessed the charged 

firearms. “[P]ossession can be established by (1) actual, physical possession of 

the firearm, (2) sole control and occupancy of a place where a firearm is found, 

or (3) joint occupancy of a place where a firearm is found, combined with some 

evidence of the defendant's access to and knowledge of the firearm.”14 When a 

single count in an indictment charges possession of multiple firearms, the 

evidence need only be sufficient as to possession of one of the firearms charged 

to sustain the conviction.15

Count Five – December 5th Possession

Count Five of the indictment charges Pedro Madrid with possessing “a 

Springfield .40 caliber semiautomatic handgun . . . and a Windham Weaponry 

.223 caliber semiautomatic assault rifle” on or about December 5, 2014. These 

were the weapons discovered in the search of the Big Valley property. The jury 

convicted.

Madrid’s conviction under Count Five can be affirmed either under an 

actual-possession theory or constructive-possession theory. The government 

 

13 United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).

14 United States v. Anderson, 559 F.3d 348, 353 (5th Cir.2009).

15 See United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996).

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presented evidence to the jury that Madrid actually possessed the weapons 

charged. Prieto testified that Madrid carried a handgun “24/7” and that Madrid

showed him an assault rifle in trailer 3 (where the charged assault rifle was 

discovered). A reasonable jury could have found that Madrid actually 

possessed either of the weapons discovered in trailer 3 based on that testimony.

Madrid’s conviction on Count Five is also sustainable on a constructivepossession theory. Prieto testified that he had meth fronted to him out of trailer 

3 roughly every two days and frequently saw the brothers in trailer 3—facts 

from which the jury could have inferred that Madrid had at least joint control 

over trailer 3 where the weapons were found. Prieto testified that he saw Pedro 

Madrid store drugs under the bed in trailer 3, where the handgun was found, 

so the jury could have inferred that he was aware of it. Madrid was also likely 

aware of the assault rifle, as he is pictured on Facebook standing next to his 

brother, who is holding it.

Madrid’s arguments against the sufficiency of the government’s evidence 

are unavailing. He argues that the government cannot establish the “temporal 

limitation” in the indictment. But the date in the indictment, December 5, 

2014, was the date of the search that revealed the weapons, and is not an 

essential element of the crime.16 Prieto observed Madrid possessing the 

firearms in question in the two-and-a-half months leading up to the day of the 

search referenced in the indictment. Moreover, a Facebook photo uploaded 

eight days before the search shows Madrid holding a handgun. The jury could 

have reasonably inferred that the photo was taken shortly before it was

uploaded, and that the handgun in Madrid’s hand in the photo was the same 

 

16 United States v. Girod, 646 F.3d 304, 316 (5th Cir. 2011) (“In this Circuit, ‘an 

allegation as to the time of the offense is not an essential element of the offense charged in 

the indictment and, “within reasonable limits, proof of any date before the return of the 

indictment and within the statute of limitations is sufficient.”’” (quoting Russell v. United 

States, 429 F.2d 237, 238 (5th Cir. 1970))).

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one that Prieto testified he always carried. Madrid further argues that his 

brother was the one who had control over the weapons in trailer 3. But 

“[constructive] possession may be joint, in that two or more persons can share 

[a firearm].”17

We find the trial evidence sufficient to support Madrid’s conviction under 

Count Five of the indictment.

Count Seven – February 7th

Count Seven of the indictment charges Pedro Madrid with possessing “a 

Ruger Model P89DC 9mm semiautomatic handgun . . . ; a Jiminez Arms Model 

J.A. Nin 9mm semiautomatic handgun . . . ; a KelTec Model PF9 9mm 

semiautomatic handgun . . . and a Winchester 12 gauge shotgun” on or about 

February 7, 2015. These were the weapons discovered in the truck that Madrid

was riding in when he was arrested. The jury convicted.

At the time of Madrid’s arrest, all of the weapons charged in Count Seven 

of the indictment were found in the truck with him, covered by a jacket. Madrid

was the passenger at the time of the arrest, but the driver testified that Madrid 

had picked him up in the truck, then they swapped at Madrid’s request. This 

testimony gives rise to the inference that the weapons found the truck belonged 

to Madrid. Moreover, Madrid is featured in two different Facebook pictures 

holding a shotgun like the one recovered from the truck.

We also find the evidence sufficient to support Madrid’s conviction under 

Count Seven of the indictment.

IV.

For the reasons described, the trial court’s judgments of conviction of 

both defendants are affirmed as to all counts.

 

17 United States v. Virciglio, 441 F.2d 1295, 1298 (5th Cir. 1971).

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