The defendant’s convictions arose from a series of drug transactions which began when a certain person contacted another person and informed the latter that he had heroin for sale. The former was unaware that the latter was a confidential informant for the Drug Enforcement Administration (DEA). The parties and co-defendant agreed that the former would sell the informant 25 ounces of heroin for $6,000 per ounce. While the co-defendant was in Mexico he ran into the defendant who offered to drive him to Texas. He agreed and the two men drove to the border. As they approached the border the co-defendant told the defendant that he wished to walk across the border and would meet the defendant on the United States side. The defendant drove the vehicle across the border while co-defendant walked across carrying the one gram sample of heroin.
A Houston Heroin Possession Lawyer said that, the defendant and his co-defendant drove to the informant’s apartment where they met the informant and an Agent outside the apartment. The defendant and the Agent remained outside in their respective vehicles while co-defendant and the informant went inside. When the two men left the apartment the Agent saw co-defendant hand informant a piece of paper later found to contain .12 grams of heroin. The informant gave the paper to the Agent. Co-defendant, the informant and the Agent then discussed the purchase of a test ounce and the full 25 ounce shipment. The defendant drove the co-defendant to another apartment where he met with the certain John doe while the defendant remained outside in the vehicle.
Later that evening co-defendant and the informant took one ounce of heroin to the Agent’s motel room and sold it to him for $5,000 cash. Co-defendant returned to Mexico where he processed the remaining ounces of heroin. The defendant came into the apartment while this processing was being done. The next morning co-defendant secreted heroin in the stereo speaker of his vehicle. After doing so he asked the defendant for help in replacing the screws. The two men then drove to the informant’s apartment in the United States. While en route into town co-defendant advised the defendant that what he was doing was not honest and that he should not get involved in similar “deals”. When co-defendant and the defendant arrived at the informant’s apartment the defendant carried the heroin into the apartment. Later the three men left for the Agent’s motel with the defendant driving. Co-defendant, believing they were being followed, directed the defendant to return to the informant’s apartment. Co-defendant and the informant then drove to the Agent’s motel to deliver the heroin and the defendant left. Co-defendant was arrested as he delivered the heroin to the Agent. Defendant was arrested near Hidalgo, Texas.
A Lawyer said that, defendant was indicted on four counts: 1) conspiracy to possess heroin with the intent to distribute; 2) possession of one gram of heroin with intent to distribute; 3) possession of one ounce of heroin with intent to distribute, and 4) possession of 16 ounces of heroin with the intent to distribute. All of the substantive counts also charged the defendant with aiding and abetting the crimes. A jury convicted the defendant on all but the conspiracy charge. The court sentenced the defendant to three concurrent five-year sentences and a four-year special-parole term.
The issues in this case are: whether the evidence was insufficient to support defendant’s convictions; and whether the district court erred in concluding that a minimum four-year imprisonment was statutorily required.
The Court in deciding the first issue which is the sufficiency of the evidence said that the defendant asserts that the evidence was insufficient to support his convictions. In evaluating the sufficiency of the evidence, the reviewing court must consider the evidence in the light most favorable to the government with all reasonable inferences and credibility choices made in support of the jury’s verdict. The defendant did not put on any evidence and requested a judgment of acquittal at the close of the government’s case. It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.
In order to sustain a conviction for possession of heroin with intent to distribute, the government must prove three elements: (1) knowing, (2) possession, (3) with specific intent to distribute. The intent to distribute may be inferred from the possession of a large quantity of the drug. A conviction for aiding and abetting requires proof that the defendant aided and abetted in both the possession and distribution of the drug. The government must prove that the defendant associated with the criminal venture and participated in an act with intent to further the venture. Mere presence and association alone are insufficient to sustain a conviction for aiding and abetting; however, they are factors to be considered. To determine whether the evidence was sufficient to support the defendant’s convictions we must determine whether the government proved each of the elements of possession or aiding and abetting with respect to each substantive count. To do so we will analyze each conviction separately.
1. Possession with Intent to Distribute 16 Ounces
The evidence is clearly sufficient to sustain this count. The defendant accompanied co-defendant to the informant’s home. While in Mexico he had helped co-defendant replace the screws in the speaker cabinet, thereby concealing the package containing the heroin before they crossed the border and helped loosen the speaker screws and remove the package at the informant’s house. He entered the home and later went out and carried the heroin into the apartment.
Possession was clearly established. The jury was entitled to infer intent to distribute from the quantity of narcotics possessed. Knowledge was also sufficiently proved. Circumstantial evidence may be used to prove knowledge. The circumstances, including the hiding of a package in the speaker panel, were sufficient for the jury to infer knowledge. The evidence was, therefore, sufficient to support the defendant’s conviction for possession with intent to distribute 16 ounces of heroin.
2. Possession with Intent to Distribute One Gram
Co-defendant testified that he ran into the defendant after returning to Mexico to pick up a one gram sample of heroin. The defendant wished to go into town and offered to drive co-defendant to the United States. As they approached the border he told the defendant that he wished to walk across and would meet him in the parking lot on the United States side. The two waited on the United States side for approximately 30 minutes. The defendant was physically present near the area where the sample was distributed, but he never left the truck.
The question is, do the factors above constitute proof beyond a reasonable doubt that the defendant aided and abetted the knowing possession with intent to distribute the sample. Co-defendant testified that he had not discussed heroin with the defendant and that he made an excuse, the nature of which he did not recall, as to why he wished to walk across. His behavior was suspicious, but the defendant’s mere presence around suspicious activity ” ‘will not support an inference of participation’ in the criminal activity.” Nonetheless, from his behavior at the border crossing, the wait after the crossing, and the drive to the informant’s apartment and the meetings to which defendant drove him, the jury could have inferred that the defendant had knowledge of his purpose and chose to aid him in it. The evidence, viewed in the light most favorable to the government, was sufficient to support the defendant’s conviction for possession with intent to distribute one gram of heroin.
3. Possession with Intent to Distribute One Ounce
The defendant was not involved in the sale of the ounce to the Agent. The delivery was made by co-defendant and the informant. There is no evidence connecting the defendant with this count. The only connection between the defendant and this count is that he aided and abetted co-defendant in delivering the sample which preceded this sale. However the government did not introduce direct proof that the defendant knew what, or how much, co-defendant was carrying on that first trip; nor was there any evidence that the defendant knew at the time that this transaction was intended to lead to a series of transactions. Further, the meeting at which the parties planned the sale of the ounce occurred after the defendant had returned to Mexico. Because the government produced no evidence linking the defendant to the one ounce sale, the evidence is insufficient to support the defendant’s conviction for possession with intent to distribute one ounce of heroin.
On the second issue, the district court sentenced the defendant to three concurrent five-year sentences on the three counts. At the sentencing hearing, the district judge stated that although Hernandez-Beltran was a minor participant in the crimes he was bound by statute to impose a minimum sentence of five years imprisonment. 21 U.S.C. Sec. 841(b)(1)(B). The defendant asserts that the mandatory minimum sentence was not required because the court failed to instruct the jury that, on the 16 ounce count, the government had to prove that the defendant possessed at least 100 grams of heroin. The defendant did not object to the omission at trial; therefore, review is for plain error.
The uncontroverted evidence at trial demonstrated that the last transaction involved 376.4 grams of heroin. (The indictment alleged a transaction of approximately 16 ounces or 494 grams.) Section 841(b)(1)(B) mandates a minimum sentence of five-years imprisonment for a person convicted of a violation of Sec. 841(a)(1) involving 100 grams or more of a mixture containing a detectable amount of heroin. We have not directly addressed this issue. Both the Eighth and Tenth Circuits, however, have stated that, where the indictment alleges an amount greater than 100 grams and the uncontroverted proof at trial is that the amount involved is greater than 100 grams, the district court must sentence under Sec. 841(b)(1)(B). The Court agrees with the decisions of our sister circuits. Where, as here, an indictment alleges that a transaction involves an amount greater than 100 grams and the uncontroverted proof at trial supports that allegation, the district court must sentence under Sec. 841(b)(1)(B). The trial court did not err in sentencing the defendant.
In view of the foregoing, the Court held that the evidence in this case was sufficient to support the defendant’s conviction for possession with intent to distribute 16 ounces of heroin and his conviction of possession with intent to distribute 1 gram of heroin. The Court affirmed these convictions. The evidence was not sufficient, however, to support the defendant’s conviction for possession with intent to distribute one ounce of heroin. The Court therefore, reversed this conviction and the sentence imposed for it. Finally, the Court affirms the other sentences imposed on the defendant by the district court.
If you feel that the evidence used against you is insufficient to support your conviction of the crime of possession with intent to distribute heroin, you need the help of a Houston Intent to Distribute Attorney and Houston Heroin Possession Attorney in order to have your conviction reversed. Houston Criminal Attorney will stand by you and defend your case. Call us at Stephen Bilkis and Associates for free consultation.