*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

1

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-11126 

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT ARROYO,

ALBERTO RENDON and TOMAS VASQUEZ, 

Defendants-Appellants.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

(4:95-CR-057-E)

____________________________________________________

December 13, 1996

Before GARWOOD, DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

Appellants challenge their convictions and sentences on drug

trafficking charges. Finding no reversible error, we affirm.

I.

In March of 1995, an employee of Southwest Motor Transport

notified Dallas area police officers that he was delivering a
2

suspicious crate to Southwest Motor’s Dallas terminal. The crate

was addressed to “Arroyo’s Body Shop.” Upon its arrival in Dallas,

police officers on the scene arranged to have a narcotics detection

dog sniff the crate. After the dog alerted on the crate, the Drug

Enforcement Agency (“DEA”) was notified, and the officers began

obtaining a search warrant. During this waiting period, appellants

Rendon and Arroyo arrived to pick up the crate and they were

detained and questioned. When the officers opened the crate they

found approximately 200 pounds of marijuana. The officers then

questioned Arroyo and Rendon further. Arroyo told Agent Lugo and

Officer Ross that Vasquez, an acquaintance of his, offered him $400

to pick up a crate containing “dope.” Similarly, Rendon admitted

that he was hired by Vasquez for $300 to assist Arroyo in picking

up a crate of marijuana and delivering it to Vasquez’s house in

Fort Worth to be “cut up.” Arroyo and Rendon also told the

officers that Vasquez led them to Southwest Motor Transport, but

had remained a block away during the attempted pick up. The

officers then obtained a search warrant for Vasquez’s residence in

Fort Worth. At Vasquez’s residence, the officers questioned

Vasquez on his role in the crime, and searched his home. Vasquez

admitted that he knew the crate contained marijuana. During the

search, the officers discovered handwritten notes evidencing

earlier drug transactions.

A grand jury indicted Arroyo, Rendon and Vasquez on three

counts: conspiracy to distribute marijuana (count 1); possession
3

with intent to distribute marijuana (count 2); maintaining a place

to distribute marijuana (count 3). 

At trial, the issue of whether the appellants knew the crate

contained drugs was hotly contested. The defendants all testified

in their defense. Their testimony was essentially the same; each

defendant testified he believed the crate contained auto parts, not

marijuana, and he never told the police otherwise. Vasquez

testified that he asked Arroyo and Rendon to assist him because,

“El Negro”, to whom Vasquez owed a favor, had offered Vasquez $700

to pick up a crate containing auto parts being delivered to Dallas,

and that he could not carry out the job without Arroyo and Rendon’s

help. Arroyo and Rendon testified they accepted Vasquez’s offer

without questioning the contents of the crate. 

After a three day trial, Arroyo and Rendon each were convicted

on counts 1 and 2, and acquitted on Count 3. Vasquez was convicted

on all three counts. This appeal followed.

II.

On appeal, the appellants raise several arguments which we

will discuss below. 

A.

Vasquez and Arroyo both argue that the government produced

insufficient evidence to support their convictions. Arroyo

contends that the evidence was insufficient to prove that he had

the requisite knowledge or intent to sustain his convictions on
 

1 To establish a drug conspiracy, the government must prove: “(1)

the existence of an agreement between two or more persons to

violate federal narcotics laws; (2) that the defendant knew of the

agreement; and (3) that the defendant voluntarily participated in

the agreement.” United States v. Broussard, 80 F.3d 1025, 1031

(5th Cir. 1996), cert. denied, Merritt v. United States, 117 S.Ct.

264 (1996).

 

2"A conviction for the offense of possession of marijuana with

the intent to distribute requires proof that the defendant (1)

knowingly (2) possessed marijuana (3) with the intent to distribute

it.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996),

cert. denied, 116 S.Ct. 1867 (1996).

 

3The judge instructed the jury that it could only find the

defendant guilty of maintaining a residence for the purpose of

distributing marijuana if the defendant acted knowingly.

4

counts 11 and 2.2 Vasquez argues that the prosecution failed to

prove the knowledge element of the three counts for which he was

convicted.3

We review the sufficiency of the evidence in a light most

favorable to the verdict. United States v. McCord, 33 F.3d 1434

(5th Cir. 1994), cert. denied, Haley v. United States, 115 S.Ct.

2558 (1995). The conviction should be upheld if a rational trier

of fact could have found the defendant guilty beyond a reasonable

doubt. Id. 

1.

We consider first Arroyo and Vasquez’s argument that the

credible testimony and evidence is insufficient to support their

conspiracy conviction because the evidence failed to show that they

knew that the substance in the crate was marijuana. 

With respect to Vasquez, he admitted his knowledge of the
5

crate's contents to Agent Lugo. Vasquez also told Lugo that he

hired Arroyo and Rendon to keep himself out of trouble. Even if

the jury did not believe this testimony, they knew that Vasquez had

agreed to pay Arroyo and Rendon $700 to pick up a crate in Dallas

and transport it to Fort Worth. The jury was entitled to infer

that this was an inordinate sum for this service. The jury also

heard testimony that Vasquez led Arroyo and Rendon to the freight

terminal, but remained approximately a block away from the pick up

site. The jury also knew that the crate was addressed to a nonexistent company and the identity of the shipper was unknown. The

government produced ample evidence to support the jury's conclusion

that Vasquez knew the substance he hired Arroyo and Rendon to pick

up and transport to his home was marijuana. 

With respect to Arroyo, when Ross interviewed him, Arroyo

stated that he believed the crate contained some type of illegal

drug. Arroyo later told Special Agent Lugo that Vasquez offered

him $400 for a few hour's work to pick up a box that contained

"dope". Arroyo stated that he and Rendon followed Vasquez's blue

Mitsubishi automobile to the warehouse in Dallas where Arroyo was

instructed to go into the warehouse and ask for a delivery for

"Arroyo’s Body Shop" and use a number he was given to pick up the

crate. The evidence outlined above is sufficient to establish that

Arroyo knew that the crate contained marijuana.

 2. 

Vasquez next argues that the evidence was insufficient to
6

sustain his conviction for possession of marijuana and maintaining

a place for the purpose of distributing marijuana.

As outlined above, the evidence demonstrated Vasquez's

personal participation in retrieving the marijuana from the freight

company. Furthermore, Vasquez's guilt for the substantive offense

may be established by evidence of offenses committed by his coconspirators, Arroyo and Rendon, during the course of the

conspiracy. See Pinkerton v. United States, 328 U.S. 640 (1946);

United States v. Garcia, 917 F.2d 1370, 1377 (5th Cir. 1980). The

evidence demonstrated that the substantive offenses of which

Vasquez was convicted were committed in furtherance of the

conspiracy while Vasquez was a member.

Vasquez argues that nothing was found in his house to

incriminate him and therefore the evidence is insufficient to

support his conviction for maintaining a place for the purpose of

manufacturing marijuana. We disagree. The evidence was sufficient

to demonstrate that Vasquez instructed Arroyo and Rendon to deliver

the crate of marijuana to his Richmond Avenue home in Fort Worth.

Also, evidence of records of marijuana prices and poundages were

found in his home. 

For the reasons stated above, appellants’ challenges to the

sufficiency of the evidence are meritless. 

B.

Rendon, Vasquez and Arroyo argue next that the district court

abused its discretion by giving the jury a deliberate indifference
 

4The district court instructed the jury that:

You may find that the defendant had knowledge of a fact if you

find that the defendant deliberately closed his eyes to what

would otherwise have been obvious to him. While knowledge on

the part of the defendant cannot be established merely by

demonstrating that the defendant was negligent, careless or

foolish, knowledge can be inferred if the defendant

deliberately blinded himself to the existence of a fact.

7

instruction.4 The standard of review for challenges to jury

instructions is “whether the court’s charge, as a whole, is a

correct statement of the law and whether it clearly instructs

jurors as to the principles of law applicable to the factual issues

confronting them.” United States v. Lara-Verasquez, 919 F.2d 946,

950 (5th Cir. 1990). The court’s charge must be both legally

accurate and factually supportable. Id. Thus, the district court

“‘may not instruct the jury on a charge that is not supported by

evidence.’” Id.(quoting United States v. Ortega, 859 F.2d 327, 330

(5th Cir. 1988)). 

 The deliberate ignorance instruction is appropriate only if

the evidence raises two inferences: “(1) the defendant was

subjectively aware of a high probability of the existence of the

illegal conduct; and (2) the defendant purposely contrived to avoid

learning of the illegal conduct.” Lara-Verasquez, 919 F.2d at 952.

Arroyo, Rendon and Vasquez argue that the evidence failed to

raise the required inferences. 

Ross and Lugo's testimony that Arroyo, Rendon and Vasquez

admitted knowing the crate contained drugs is sufficient to raise
8

an inference that each was “subjectively aware of the high

probability of the existence of illegal activity.” See LaraVerasquez,919 F.2d at953(holding that prong one of the deliberate

ignorance test ordinarily will be satisfied by the “same evidence

that will raise an inference that the defendant had actual

knowledge of the illegal conduct. . . .”). The evidence presented

at trial is also sufficient to raise an inference that each

defendant “purposefully contrived to avoid learning of the illegal

conduct.” First, with regard to Arroyo and Rendon, the evidence

revealed the following relevant facts: both were asked by Vasquez,

who was not in the auto parts business, to pick up a package

allegedly containing auto parts; the package was addressed to

“Arroyo’s Body Shop,” a fictitious company; the money Vasquez

agreed to pay these men equaled their weekly salary even though the

assigned pick up was at most a one day job; Vasquez led them to the

pick up site, but instead of accompanying them to pick up the

package, watched safely from the street. Despite these suspicious

circumstances, both Arroyo and Rendon testified that they did not

question Vasquez's assertions that the crate contained auto parts.

The circumstances of Arroyo and Rendon’s involvement were

sufficiently suspicious that their failure to question these

circumstances raised an inference that they purposefully contrived

to avoid guilty knowledge. 

The evidence also supports the charge as to Vasquez. First,

Vasquez contended he did not question the suspicious circumstances
 

5 The “dope notes” were exhibits 7, 8, and 9 at trial. These

exhibits are handwritten notes found at Vasquez’s residence

evidencing earlier drug transactions.

9

presented by a visit from a man he had met only once asking him to

pick up a package of auto parts. The jury was entitled to infer

that Vasquez sought to avoid knowledge of the illegal conduct by

hiring Arroyo and Rendon to retrieve the package while he watched

safely from the street. Moreover, Agent Lugo testified Vasquez

told him he hired Arroyo and Rendon to “stay out of trouble.” This

evidence was sufficient to support the instruction. 

C.

Arroyo and Rendon argue next that the district court erred in

refusing to give the requested limiting instruction they requested

concerning the “dope notes”5 found at Vasquez’s residence. 

We review the district court’s refusal to include the

requested instruction for abuse of discretion; the court is

afforded substantial latitude in formulating its instructions.

United States v. Storm, 36 F.3d 1289, 1294 (5th Cir. 1994), cert.

denied, 115 S.Ct. 1798(1995). The district court’s refusal to

include the requested limiting instruction will constitute

reversible error only if: (1) the requested instruction is

substantially correct; (2) the actual charge given to the jury did

not substantially cover the content of the proposed instruction;

and (3) the omission of the instruction would seriously impair the

defendant’s ability to present his defense. Id. at 1294.
 

6 The defendants submitted the following instruction:

You are instructed that the Government’s Exhibits 7, 8, and 9

were admitted only against the defendant Thomas Vasquez, and

you may not consider Government’s Exhibits 7, 8, nor 9 against

the defendants Robert Arroyo or Alberto Rendon for any

purpose.

10

At trial, Arroyo and Rendon both objected to the introduction

of the “dope notes”. Their objection was overruled, but the court

stated it would give the jury a limiting instruction regarding the

notes as part of the jury charge. 

The court then included the following instruction in its

charge:

A separate crime is charged against one or more of the

defendants in each count of the indictment. Each count and

the evidence pertaining to it should be considered separately

and individually. In this regard, you consider against each

defendant only that evidence which has been shown to have some

connection with that defendant.

Arroyo and Rendon requested their own instruction6 and objected to

the court's failure to give it. 

The instruction the court gave adequately instructed the jury

to consider only the evidence related to Arroyo and Rendon. The

district court did not err in refusing to give appellants'

proffered instruction.

D.

Arroyo argues next that the district court committed

reversible error by overruling his objection to a portion of

Rendon’s closing argument. Rendon’s counsel analogized Officer
11

Ross and Agent Lugo to an umpire who makes a bad call but refuses

to admit his mistake even after viewing replays that establish he

was wrong because, right or wrong, the call was made and the game

is over. Arroyo objected to this statement because he contends the

statement was inconsistent with the central argument of his

defense--that the officers' testimony regarding his confession is

not credible and must be disregarded. This argument, although

different from Arroyo's argument that the officers were liars,

nonetheless asks the jury to reach the conclusion sought by Arroyo-

-that the officers' testimony is not credible and should be

disregarded. The district court did not abuse its discretion in

allowing this argument.

E.

We have also considered Arroyo's argument that the district

court committed reversible error by refusing to grant a motion for

new trial after the court was informed that a juror inadvertently

saw Arroyo being escorted by deputy U.S. Marshals out of the

restroom. The defendant was not in hand cuffs and the district

court did not err in concluding that this incident did not operate

to defendant's prejudice. Moreover, the court's charge effectively

removed any possibility of bias from this event. The district

court therefore did not err in denying Arroyo's motion for

mistrial.

F.

We also conclude that the district court did not abuse its
12

discretion in refusing to admit prior statements of Officer Ross

which were offered by Rendon following his cross-examination of

this officer. The district court was entitled to find that the

officer's earlier statement was not inconsistent in any significant

respect. Additionally, the officer did not deny making the

statements. 

G.

Vasquez argues finally that the district court erred in

finding that he was a leader or an organizer in the offense of

conviction pursuant to U.S.S.G. S 3B1.1(c). This finding resulted

in a two-level increase under the sentencing guidelines. The

evidence established that Vasquez was in charge of the receipt of

200 pounds of marijuana; that he hired others to pick up the

marijuana and that he was responsible for instructing and paying

those who helped him. The evidence therefore supports the district

court's finding which is not clearly erroneous.

III.

For the above reasons, the district court's judgment and

sentence as to each defendant is affirmed.