IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20675

UNITED STATES OF AMERICA

Plaintiff/Appellee,

versus

HAROLD TORRES PEDROZA,

Defendant/Appellant.

Appeal from the United States District Court

for the Southern District of Texas

March 11, 1996

Before KING, STEWART, and PARKER Circuit Judges.

CARL E. STEWART, Circuit Judge:

Harold Torres Pedroza appeals the district court’ s judgment sentencing him to concurrent

145-month prison

t erms plus five years supervised release and fining him $10,000. Pedroza also

challenges the court’s ruling denying his motion to sever his trial from his codefendant, Henry

Gonzalez Perez. We have thoroughly reviewed the record. Finding no error, we affirm the district

court’s decisions.

FACTS

Harold Torres Pedroza and Henry Gonzalez Perez were charged with conspiring to possess

cocaine with intent to distribute and aiding and abetting each other with the drug possession. During

a t wo-day trial, the government presented testimony regarding surveillances conducted on bo t h

Pedroza and Perez.

Officer Rick Ashwood testified about a surveillance he conducted on the apartment located

in the 6100 block of Tiswell in North Houston on September 14, 1993. Perez was seen leaving the

apartment in a maroon Grand Am. Perez was followed to two other apartments. Perez exited one

of the apartments with an African-American male who carried a plastic bag. When Perez returned2

to the Tiswell apartment, he carried several plastic b a gs from the trunk of the Grand Am into the

apartment.

Officer Daniel Fern testified regarding a surveillance conducted on Perez on September 22,

1993. Perez left the Tiswell apartment and went to a Target Store to use a pay phone. He then drove

to a house on Log Cradle Street. Fern had to abandon the surveillance to avoid exposure, and Officer

Hammons continued the surveillance.

Hammons testified that he observed Perez and an Hispanic male exit the Log Cradle Street

house. They drove around the block to check for any possible surveillances and immediately returned

to the house. Both men went into the house. When they returned to the car, the Hispanic male was

carrying a suitcase which he put in the trunk of Perez’s car. Hammons testified that both men were

nervously looking up and down the deserted street as they approached the car. The Hispanic male

went ba ck inside the house, and Perez drove away. Hammons initially followed Perez but was

ordered to return to the Log Cradle Street address in order to continue surveying the Hispanic male

who had placed the suitcase in the trunk. Hammons saw two people leave the house; however, he

did not follow their car because neither of them was the Hispanic male who had placed the suitcase

in Perez’s trunk. Minutes later, the Hispanic male left the house in a white Mitsubishi. Hammons

received a report that Perez had been stopped and t hat 10 kilograms of cocaine was found in the

suitcase. The Hispanic male, Pedroza, was stopped. Pedroza had on the clothes that Hammons had

described on the Hispanic male who brought the suitcase to Perez’s trunk.

The government also adduced testimony from Officer Ted Bell, who appeared at the Perez

and Pedroza arrest scenes. Bell testified that Perez consented to a search of the Grand Am and his

apartment. A woman was found in the apartment; however, Perez said that she was not involved.

Bell also testified that Perez said that “El Gordo” put the suitcase in his trunk. Bell further testified

that he went to the spot where police stopped Pedroza, and that Pedroza denied putting a suitcase

in Perez’s trunk.3

None of the government’s evidence demonstrated t hat Pedroza was “El Gordo.” Neither

defendant presented evidence after the government rested.

Based on the above evidence, the jury convicted both men. Pedroza received concurrent 145-

month prison terms and five years supervised release. He was also fined $10,000. Pedroza appeals

his convictions and the trial court’s denial of his motion to sever his trial from Perez’s trial.

DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

.

P e droza argues that the evidence was insufficient for a reasonable juror to conclude that

Pedroza knew of the conspiracy or that he intended to join it. Pedroza contends that the evidence

was insufficient to establish that he knew of Perez’s intention to possess cocaine or that he intended

to aid and abet Perez to possess it. Pedroza was seen for the first t ime after the government had

surveyed Perez for several days. Pedroza asserts that the government’s evidence of his involvement

is limit ed to the following: he got in Perez’s car, drove around the block with Perez, went back into

the house, and returned t o t he t runk of the car where Pedroza supposedly placed a suitcase.

Moreover, Pedroza argues that “[s]imply placing the suit case in Perez’s car fails to establish that

Pedroza knew what was in the suitcase.” Pedroza maintains that these actions may raise a suspicion

of guilt, they do not prove it beyond a reasonable doubt.

The government counters that it presented sufficient evidence. It claims that Pedroza’s intent

to distribute contraband can be infe rred fro m t he possession of a large amount (10 kilograms) of

co nt raband. The government argues that because it used the “aiding and abetting” theory, the

government did not have to prove actual possession; it needed only to prove Pedroza’s association

with, par t icipat io n in, or actions to further the possession and distribution of drugs. Further, the

circumstances surrounding the transaction support a finding that Perez and Pedroza had agreed to

possess cocaine and intended to distribute it. Moreover, the circumstances allowed the jury to infer

that Pedroza knowingly participated.4

We must determine whether the government produced sufficient evidence under the standard

of review which is well established in this circuit. The standard for reviewing the sufficiency of the

government’s evidence is whether a “reasonable trier of fact could have foun d that the evi dence

established the appellant’s guilt beyond a reasonable doubt.” U nited States v. Ruggiero

, 56 F.3d 647,

654 (5th Cir.), cert. denied

, 116 S.Ct. 486 (1995); and U nited States v. Jaramillo , 42 F.3d 920, 922-

23 (5th Cir.), cert. denied

, 115 S.Ct. 2014, 131 L.Ed.2d 1013 (1995). We must review the evidence

in the light favorable to the guilty verdict, that is, in the light most favorable to the government. S ee

United States v. Tan nehill , 49 F.3d 1049, 1054 (5th Cir.), c ert. denied

, 116 S.Ct. 167 (1995).

Further, we must consider all reasonable inferences arising from the evidence in the light most

favorable to the government. Id.

1. Sufficiency Of The Evidence Presented On The Conspiracy Count.

We must determine whether the govern m ent presented enough evidence that a reasonable trier

of fact would believe that the government proved, beyond a reasonable doubt, all the elements of a

conspiracy c harge. To sustain a conviction of drug conspiracy the government had to produce

evidence sat isfying the following three elements: (1) the existence of an agreem ent to possess

contraband with intent to distribute, (2) knowledge of the agreement, and (3) voluntary participation

in the agreement. United States v. Polk , 56 F.3d 613, 619 (5th Cir. 1995); United States v. Scott

,

48 F.3d 1389, 1392 (5th Cir. 1995); and United States v. Quiroz-Hernandez

, 48 F.3d 858, 865 (5th

Cir. 1995). The evidence did not have “to exclude every reasonable hypothesis of innocence or is

wholly inconsistent with every conclusion except guilt.” R uggiero

, 56 F.3d at 654. Further, the jury

was free t o infer a conspiracy from circumstantial evidence, such as the Pedroza’s presence or

association. See United States v. Fierro , 38 F.3d 761, 768 (5th Cir. 1994), cert. denied , 115 S.Ct.

1431, 131 L.Ed.2d 312 (1995).

We find that the governmen t pro duced enough evidence to satisfy the elements of a drug

conspiracy. Pedroza attempts to portray himself as someone merely present at the scene. He cites1 Pedroza cites United States v. Gardea Carrasco , 830 F.2d 41 (5th Cir. 1987) (insufficient

evidence was found although the defendant drove in the car with a codefendant to make

arrangements regarding the transport of marijuana and also helped carry suitcases containing

marijuana into the plane) and United States v. Sacerio , 952 F.2d 860 (5th Cir. 1992) (the

convictions of both defendants were reversed although Rubio drove a car containing cocaine,

Rubio called Sacerio for assistance and Sacerio flew to New Orleans, Sacerio rented a hotel room

from which calls were made to two codefendants and in which a bag of cocaine was found).

5 cases 1 in which this court has reversed convictions because the go vernment proved only that the

defendants were present, but did not prove the defendants’ guilt beyond a reasonable doubt. Here,

however, we conclude that Pedroza’s participation exceeds the “merely present” threshold. Perez

called Pedroza’s house from a pay phone and had a lengthy conversation. When Perez arrived at

Pedroza’s house, Perez did not call for Pedroza; instead, Perez met him at the curb. The two men

drove around the block, which is a recognized practice among drug traffickers to detect surveillances.

B oth men returned to the Log Cradle Street house and went inside. When Perez and Pedroza

emerged from the house, Pedroza carried a suitcase. The two men looked up and down the deserted

street nervously until they reached the car, and Pedroza put the suitcase in the trunk. If Pedroza was

unaware of the transaction taking place, there woul d be no explanation for his participating in the

bizarre activity of driving around the block in his own neighborhood, and he would have no reason

to look nervously up and down the street. Pedroza’s nervousness is indicative of his guilty

knowledge. See United States v. Garza , 990 F.2d 171, 174 (5th Cir. 1993). We hold that enough

evidence appears in the record for a reasonable juror to find, beyond a reasonable doubt, that Pedroza

knew of a drug conspiracy agreement and voluntarily agreed to participate in it.

2. Sufficiency Of The Evidence Presented On The Aiding And Abetting Count.

Although we find that the government presented sufficient evidence on the conspiracy count,

we must also evaluate whether the government introduced enough evidence to convict Pedroza on

the aiding and abetting count. To sustain a conviction of aiding and abetting a drug possession with

intent to distribute the government had to produce e vidence sat isfying the elements for drug

possession and for aiding and abetting. The elements for possession of drugs with intent to distribute6

are as follows: (1) knowledge of the contraband, (2) possession of the contraband, and (3) intent to

distribute the contraband. See Polk , 56 F.3d at 619-20; and Quiroz-Hernandez , 48 F.3d at 865.

The aiding and abetting aspect of Pedroza’s charge required the following proof: (1)

Pedroza’s association in th e criminal act ivity, (2) his participation, and (3) his action to help the

activity succeed. See United States v. Salazar , 66 F.3d 723, 729 (5th Cir. 1995); Polk

, 56 F.3d at

620; and Fierro

, 38 F.3d at 768. “Association means that the defendant shared in the criminal intent

of the principal.

. . . Participation means that the defenda n t engaged in some affirmative conduct

designed to aid the venture.

. . . Although relevant, mere presence and association are insufficient to

sustain a conviction of aiding and abetting.” Salazar , 66 F.3d at 729 (citations omitted).

We find that the government produced enough evidence to establish Pedroza’s guilt regarding

the drug possession with intent to distribute and the aiding and abettin g. Hammons provided

uncontroverted testimony that Pedroza was the man who emerged from the Log Cradle Street house

carrying the suitcase and who placed the suitcase in Perez’s trunk. Pedroza therefore exercised

possession and control over the suitcase, which contained $18,000 and $20,000 worth of cocaine.

We hold that this was sufficient for the jury to find that Pedroza actually possessed the cocaine and

to infer Pedroza’s intent to distribute the cocaine.

Likewise, we conclude that the evidence allowed the jury to f ind that Pedroza agreed to

participate in the drug transaction. He met Perez at the car, drove around the block, and carried the

suitcase to the car while nervously checking for surveillances. In the aggregate, these actions show

that Pedroza agreed to possess the drugs and agreed the help distribute the drugs.

Finally, the evidence established that Pedroza knowingly participated. Pedroza gave several

erroneous answers when questioned by police and engaged in actions inconsistent with those of an

innocent person. First, he claimed he was a citizen of Puerto Rico when he really was a citizen of

Colombia. Second, Pedroza denied residing at the Log Cradle Street address although he possessed

the keys to the house. Finally, Pedroza nervously looked up and down the street when carrying the

suitcase to the car. This evidence allowed a jury to conclude that Pedroza knew what was going on7

and knowingly participated. Thus, Pedroza’s arguments that the government did not prove that he

knew the contents of the suitcase are meritless when looking at all the circumstances surrounding the

transaction. We hold therefore that the government presented sufficient evidence on the aiding and

abetting count.

B. DENIAL OF THE MOTION TO SEVER

.

Pedroza argues that the denial of his motion to sever prevented him from elicit ing testimony

regarding statements Perez made to the government that Pedroza did not look like the man with

whom he met at the Log Cradle Street address. The government’s letter explains Perez’s statements

as follows:

Pursuant to the government’s obligation under B rady

, this letter will advise t hat

Henry Gonzalez-Perez debriefed, pursuant to a proffer letter, last December at our

offices. At that time, he said: 1) the person he drove around the block on 9/22/93

looked different from your client; and, 2) after showing Gonzalez-Perez your client’s

photo, he said that the person we arrested was definit ely not the same person he

picked up at the Log Cradle residence.

Pedroza apparently contends that the letter suggests that he was not the Hispanic male participating

in the drug transaction. Pedroza claims he was prevented from admitting Perez’s statements because

rule 410 of the Federal Code of Criminal Procedure disallows a defendant’s plea nego tiation

statements. Also, he was precluded from cross-examining government witnesses regarding Perez’s

statements. He maintains that the statements are not hearsay because he would not have used them

for the tru t h o f t he st atements, but rather to show that Hammons’ identification of Pedroza was

wrong.

The government counters that the record is void of any indicati o n that Perez would have

testified on Pedroza’s behalf if the trials were separated or that Pedroza made any efforts to secure

Perez’s testimony. Further, the government argues that Perez’s statements elicited from government

witnesses are inadmissible hearsay because the truth of the statements would be needed to disprove

Hammons’ identification.

The standard guiding review of a denial of a motion to sever is abuse of discretion. United

States v. Neal

, 27 F.3d 1035, 1045 (5th Cir. 1994). The district court abuses its discretion by failing8

to sever a trial properly joined under Federal Rule of Criminal Procedure 8(a) only if a specific trial

right of a defendant will be compromised or if the joinder will prevent the jury from making a reliable

decision regarding a defendant’s guilt. I d. In determining whet her the district court abused its

discretion, we must evaluate whether Pedroza satisfied his burden regarding the severance. Pedroza

had to satisfy the following elements to justify a severance based on the need to produce exculpatory

evidence from a co-defendant: (1) a need for the testimony, (2) the substance of the codefendant’s

t estimony, and (3) the exculpatory nature and effect of the testimony, and (4) the co defendant ’s

willingness to testify at trial. U nited States v. Ramirez

, 954 F.2d 1035, 1037 (5th Cir.), cert. denied

,

505 U.S. 1211, 112 S.Ct. 3010, 120 L.Ed.2d 886 (1992).

We fin d t hat Pedroza failed to satisfy his burden for establishing the need for severance.

Pedroza failed to clearly establish Perez’s willingness to testify on his behalf. Pedroza responds only

that he did not necessarily need Perez to testify if he could have cross-examined the government

witnesses regarding Perez’s statement. Unfortunately for Pedroza, this testimony would have been

inadmissible hearsay because he could not discredit Hammons’ identification without relying on the

truth of Perez’s statements. Thus, Pedroza co uld not use the exculpatory evidence unless Perez

personally testified regarding his statements. Pedroza has presented no concrete evidence that Perez

would, in fact, have testified on his behalf if the trial judge had severed the trials. We hold that the

trial court did not abuse its discretion by denying Pedroza’s motion to sever.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment sentencing the defendant

to 145-month prison terms plus five years supervised release and fining him $10,000. Similarly, we

AFFIRM the denial of the defendant’s motion to sever his trial from his codefendant’s trial.