from the United States District Court for the Eastern
District of Texas
SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.
E. SMITH, Circuit Judge
convicted Salvador Ocampo-Vergara, Gustavo Ortiz-Salazar, and
Ricardo Ortiz-Fernandez of conspiracy to possess with intent
to distribute heroin. They raise various challenges to their
convictions. We affirm.
government introduced testimony from several of the
coconspira-tors. Daniel Castrejon testified about the
structure of the drug-trafficking organization. He explained
that the Beltran-Levya cartel controlled drug distribution in
the Mexican states of Morelos, Guerrero, and Puebla.
Castrejon worked for the cell of a cartel in the
Beltran-Levya alliance. He knew that a man called "La
Chula" also worked for the cartel and that La
Chula's job was to send shipments of heroin to the United
States. Castrejon's job was to
find drivers who were willing to transport drugs into the
United States. He reached an arrangement with Ocampo-Vergara
whereby Castrejon would pay Ocampo-Vergara 30, 000 pesos for
each courier he recruited. Couriers were paid $15, 000 plus
$5, 000 expense money for each trip. To reduce suspicion,
they were required to register and insure the cars in their
own names. The couriers were generally not informed of the
type or quantity of the drugs they were transporting. The
drugs were concealed in hidden compartments, and, depending
on the type of vehicle, each shipment of heroin was between
six and fifteen kilograms.
was in charge of receiving and unloading the cars and then
distributing the drugs. He operated out of Chicago and was
responsible for distributing drugs to Chicago, New York, and
Texas. Shipments would arrive in Chicago at least once a
week; for each kilogram of heroin that arrived in Chicago,
Ortiz-Fernandez was paid $1, 000. Proceeds from sale of the
heroin were then sent to Mexico in the same vehicles used to
transport the drugs. Castrejon estimated that he and
Ortiz-Fernandez received 100 kilograms of heroin and returned
between three and five million dollars to Mexico.
couriers for the organization corroborated Castrejon's
description of Ocampo-Vergara's and Ortiz-Fernandez's
roles. Several of the couriers also described how
Ortiz-Salazar participated in driving shipments of drugs and
money. Alejandro Rodriguez, Araceli Gonzalez, and Daniel
Vargas described trips they made with Ortiz-Salazar on behalf
of the organization.
an eight-day trial, a jury convicted Ocampo-Vergara,
Ortiz-Salazar, and Ortiz-Fernandez-who had been indicted
along with four other defendants not parties to this
appeal―of conspiracy to possess
with intent to distribute one kilogram or more of heroin.
They raise several issues regarding the convictions.
contends that there was insufficient evidence for conviction.
But he did not properly preserve that issue. Although he
joined a motion for judgment of acquittal at the close of the
government's case-in-chief, he did not renew the
challenge at the close of all evidence. Where no such challenge was made, a
defendant, to establish insufficiency, must show that the
record is "devoid of evidence pointing to guilt" or
is "so tenuous that a conviction is
prove a drug conspiracy, the government must prove that (1)
two or more persons, directly or indirectly, reached an
agreement to possess with the intent to distribute a
controlled substance; (2) the defendant knew of the
agreement; (3) the defendant voluntarily participated in the
agreement; and (4) the overall scope of the conspiracy
involved the drug amount in the charged
crime." "A reasonable jury may
infer the existence of a conspiracy from the presence,
association, and concerted action of the defendant with
others."Moreover, we must
view all evidence in the light most favorable to the
government, giving it the benefit of all reasonable
inferences and credibility choices.
from being "devoid of evidence, " the record is
replete with evidence that points to Ocampo-Vergara's
guilt. Four conspiracy members testified that Ocampo-Vergara
recruited them to be couriers and explicitly informed them
that they would be transporting drugs. In addition, Castrejon
said that he entered an agreement with Ocampo-Vergara whereby
Castrejon would pay Ocampo-Vergara 30, 000 pesos for each
courier whom he recruited. So, although evidence of an
express agreement is not required to prove a conspiracy,
the record shows that Ocampo-Vergara
entered express agreements to distribute heroin.
couriers also testified that they delivered vehicles to
Ocampo-Vergara in Mexico. Ocampo-Vergara then directed the
return of those vehicles for trips into the United States;
heroin was discovered in several of the vehicles. A jury
could reasonably infer that Ocampo-Vergara knew that heroin
was concealed inside the cars between the time he received
them and the time the couriers retrieved them. Indeed, when
one of the couriers noticed a white residue on her returned
vehicle and asked Ocampo-Vergara about it, he instructed her
to wash it and spray it with perfume. His answer implies
knowledge of the drugs.
Ocampo-Vergara has not overcome the high bar of showing that
the evidence was "obviously insufficient."
Delgado, 672 F.3d at 331 (emphasis omitted). His
sufficiency claim fails.
asserts that the district court erred by permitting the
government to introduce "guilt-by-association"
evidence. He points to (1) testimony about other conspiracy
members' arrests; (2) testimony that couriers drove
consistent types of vehicles and had similar concealment
methods; (3) testimony that Ortiz-Salazar was from the same
area of Mexico as several other coconspirators; and (4)
questions from the government, in which it described certain
witnesses as "known" ...