United States v. Campos-Ayala

105 F.4th 235

UNITED STATES of America, Plaintiff—Appellee, v. Victor Manuel CAMPOS-AYALA; Martin Moncada-De La Cruz, Defendants—Appellants.

No. 21-50642

United States Court of Appeals, Fifth Circuit

FILED June 7, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 4:21-CR-38-2, Walter David Counts, III, U.S. District Judge

Joseph H. Gay, Jr., Richard Louis Durbin, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Shane O'Neal, O'Neal Law, Alpine, TX, for Defendant-Appellant Victor Manuel Campos-Ayala.

Philip J. Lynch, Law Offices of Phil Lynch, San Antonio, TX, for Defendant-Appellant Martin Moncada-De La Cruz.

Before Richman, Chief Judge, Jones, Smith, Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, Circuit Judges.

Jerry E. Smith, Circuit Judge, Joined By Jones, Stewart, Southwick, Haynes^*, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, and Ramirez, Circuit Judges:

Victor Campos-Ayala and Martin Moncada-De La Cruz were found guilty by a jury of possession with intent to distribute one hundred kilograms or more of marihuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). They appealed. Finding the evidence insufficient, a panel, over a dissent, reversed. 70 F.4th 261 (5th Cir. 2023). This court granted en banc rehearing, thus vacating the panel opinion. 81 F.4th 460 (5th Cir. 2023) (per curiam). Because the evidence is sufficient, and there is no other reversible error, we affirm the judgments of conviction.

I

The panel majority aptly recounted many of the salient facts. 70 F.4th at 264-65. We first set forth the facts that the panel relied on. Then we present, from the record, additional facts that must be considered in order for the en banc court to rule on all the issues.

The day after aliens Campos and Moncada crossed illegally from Mexico, they were given a ride for a considerable distance in a car that contained no contraband. Before reaching their destination, the driver dropped them off at a roadside park, promising to return. When he did so about thirty minutes later, the car was packed full of large bundles of marihuana. The defendants helped rearrange the bundles to provide room to ride in the crowded vehicle.

Troopers, who stopped the vehicle, discovered the passengers and the marihuana. The panel dissent, 70 F.4th at 270 (Oldham, J., dissenting), included the following picture of the bundles, amounting to 283 pounds of marihuana:

Image materials not available for display.

In addition to the defendants, the occupants included the driver—a male juvenile—and another passenger with her child.

The juvenile driver was immediately taken away in handcuffs. The defendants were questioned at the scene by Border Patrol agents, then taken to a station, where they were interrogated by DEA agents. The panel majority helpfully set forth its recitation of the salient details:

Agent Ramos asked Campos-Ayala and Moncada-De La Cruz, "Do you know what you're on?" One of them responded, "uh" or "no." Agent Ramos asked, "the weed, right" or "that's marijuana," to which one of them nodded in the affirmative and the other state[d], "yes."

Campos-Ayala and Moncada-De La Cruz were removed from the vehicle shortly after. While frisking Campos-Ayala, Agent Ramos asked, "Why did you help with the drugs?" Campos-Ayala responded, "I didn't." While escorting Campos-Ayala to the transport van, Agent Ramos asked, "Why did you cross with the drugs?" Campos-Ayala responded, "I didn't, I just helped."

Campos-Ayala, Moncada-De La Cruz, and another passenger in the vehicle were transported to a station with agents from the Drug Enforcement Administration (DEA). At the station, all three gave the same basic story.

The passengers were strangers but crossed the border together and flagged down a random car in hopes of travelling further into the United States. There were no drugs in the vehicle when they first accepted the ride. After they had been on the road for some time, the driver dropped the passengers off at a roadside park and told the passengers he would come back for them. When the driver returned, the car was loaded with the large bundles of marihuana.

Agents Kettani and Bustamante testified that Moncada-De La Cruz said "he helped rearrange [the bundles of marihuana] so that everybody could fit inside the vehicle, because it's a small vehicle." Agent Bustamante elaborated that the agents believed, in doing so, Moncada-De La Cruz "was possessing the marijuana inside the vehicle."

DEA Agent Kettani testified that Campos-Ayala "ma[de] a statement that he would understand what his charge was," stating, "He understood why he had been arrested. And in Spanish he said . . . Well, I guess that's how it goes. Yes, I was in possession of the marijuana." Agent Bustamante confirmed that Agent Kettani was asking Campos-Ayala if he "understood why he was being arrested," and "what charges [were] being pressed against him," to which Campos-Ayala responded in Spanish slang, "That's just the way things are and I was in possession of the marijuana." Bustamante also testified that Campos-Ayala said, "I guess that's just the way things happen," and that "he understood that he was in possession of the marijuana."

Id. at 264-65 (some paragraph breaks inserted; alterations in original).

II

The matter proceeded to trial. Both defendants moved for acquittal at the close of the government's case; neither renewed that motion at the close of all the evidence. After three hours of deliberation, the jury found both defendants guilty, and they appealed.¹

On appeal, the appellants raise three issues. First, both question the sufficiency of the evidence. Second, both claim the government removed, to Mexico, a witness who had material evidence favorable to the defendants. Third, they assert a Miranda violation during the questioning by law enforcement. Because the panel majority decided the evidence was insufficient, it saw no need to consider the other two issues. We will address all three in turn.

III

A

To convict under 21 U.S.C. § 841(a)(1) and (b)(1)(B)—possession of a controlled substance with intent to distribute—the government must prove "(1) knowledge, (2) possession, and (3) intent to distribute." United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir. 2017) (citation omitted). The panel aptly set forth the governing standards, 70 F.4th at 266: Possession "may be actual or constructive." United States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006) (citation omitted). A defendant has actual possession if he "knowingly has direct physical control over a thing." United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012) (citation omitted). A person has constructive possession by "(1) ownership, dominion or control over the item itself or (2) dominion or control over the premises." Id. "[T]he government must establish [an] adequate nexus between the accused and the prohibited substance." United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994). "Mere presence in the area where drugs are found is insufficient to support a finding of possession." United States v. Cordova-Larios, 907 F.2d 40, 42 (5th Cir. 1990). The evidence of possession is insufficient where it "has shown only that the defendant ran with bad company." United States v. Sandoval, 847 F.2d 179, 185 (5th Cir. 1988). The determination of constructive possession "employ[s] a common sense, fact-specific approach." Meza, 701 F.3d at 419 (citation omitted).

B

Campos introduced no evidence, so he was not required to renew his motion for a directed acquittal. That means we review his sufficiency challenge de novo, considering the evidence and all reasonable inferences in the light most favorable to the verdict, to determine whether any rational jury could have found the essential elements beyond a reasonable doubt. United States v. Delgado, 984 F.3d 435, 446 (5th Cir. 2021).

Because Moncada did call a witness before failing to renew his motion for acquittal, we review his sufficiency issue under a more demanding standard: To prevail on appeal, he must show that the record is "devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking." United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc) (cleaned up).

C

The panel majority summarized, as follows, its finding of insufficient evidence:

Based on the available evidence, the jury could not reasonably conclude Campos-Ayala or Moncada-De La Cruz possessed the marihuana with the intent to distribute it. Moncada-De La Cruz's statement that he rearranged the bundles, while showing more than mere presence, does not establish an adequate nexus sufficient to enable a reasonable jury to find possession. Campos-Ayala's statements that he "just helped" and "understood" he was in possession after Agent Kettani explained the charges to him are similarly insufficient for a reasonable jury to find he possessed the marijuana.

70 F.4th at 266-67 (footnote omitted).

By so reasoning, the panel confined its factual observations to the actions of the defendants—who were the two male passengers—inside and immediately outside the car crammed with marihuana. But that is not all the pertinent evidence that the jury heard that well could have influenced its verdict and could explain how that verdict was reached.

That additional evidence centers on two groups of facts that were presented at trial. First, we need to consider the involvement of a female passenger who was not charged. Second, a fair evaluation of sufficiency requires consideration of all the facts leading up to the defendants' getting into the subject vehicle in the first place.

First, there is the person whom the panel majority referred to only cursorily as "another passenger in the vehicle." 70 F.4th at 264. She is Karina Castro-Hernandez, an adult female who crossed...