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United States v. Ocampo-Vergara

United States Court of Appeals, Fifth Circuit

May 19, 2017

SALVADOR OCAMPO-VERGARA, Also Known as Salvador Ocampo, Also Known as Chava; GUSTAVO ORTIZ-SALAZAR, Also Known as Daniel, Also Known as Gus, Also Known as Gustabo, Defendants-Appellants, UNITED STATES OF AMERICA, Plaintiff-Appellee,
RICARDO ORTIZ-FERNANDEZ, Also Known as Alex, Defendant-Appellant.

         Appeals from the United States District Court for the Eastern District of Texas

          Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge. [*]

          JERRY E. SMITH, Circuit Judge

         A jury 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.


         The 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.[1] 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.

         Ortiz-Fernandez 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.

         Multiple 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.

         After 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[2]―of conspiracy to possess with intent to distribute one kilogram or more of heroin. They raise several issues regarding the convictions.


         Ocampo-Vergara 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.[3] 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 shocking."[4]

         "To 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."[5] "A reasonable jury may infer the existence of a conspiracy from the presence, association, and concerted action of the defendant with others."[6]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.[7]

         Far 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, [8]the record shows that Ocampo-Vergara entered express agreements to distribute heroin.

         Numerous 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.

         In sum, 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.


         Ortiz-Salazar 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" ...

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