Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60598
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO SALAZAR,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(September 26, 1995)
Before KING, SMITH, and STEWART, Circuit Judges.
PER CURIAM:
On March 31, 1994, following a jury trial, Juan Antonio
Salazar was convicted of assisting the escape of a federal
prisoner and aiding and abetting the knowing use of a firearm
during a crime of violence. Salazar appeals his conviction on
the firearm charge, arguing that the evidence was insufficient.
We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 1994, a second superseding indictment was
returned against Salazar, charging him with assisting the escape

of a person under arrest for a felony in violation of 18 U.S.C. ง
752(a) (count two), and aiding and abetting the knowing use of a
firearm during a crime of violence in violation of 18 U.S.C. งง
2, 924(c)(1) (count three). Following a jury trial, Salazar was
convicted on counts two and three on March 31, 1994. After the
government rested, Salazar's attorney presented a motion for
acquittal with regard to count three, on the ground that the
government failed to present evidence of Salazar's use of a
firearm. The court denied the motion. Following his conviction
and sentence, Salazar filed a timely notice of appeal.
Raul Valladares-Del Angel ("Valladares") was incarcerated on
charges related to his involvement with over 1000 pounds of
cocaine when he escaped from jail on April 18, 1993. Salazar was
not present and did not participate in the actual escape.
However, the Government produced evidence that Salazar helped
plan the escape. The evidence adduced at trial demonstrated the
following:
In late March or early April 1993, Alfonso Ibanez
("Ibanez"), an attorney practicing in Hidalgo County, was
contacted by a Mexican attorney on behalf of the family of
Valladares, who wished to retain him to represent Valladares on
drug charges for which he was being detained at the Hidalgo
County Jail in Edinburg, Texas. Ibanez visited Valladares in
jail and learned that the case involved over 1000 pounds of
cocaine, and that Valladares was already represented by Bobby Joe
Yzaguirre. Ibanez obtained Yzaguirre's permission to join the
2

defense team, and he communicated to Valladares's family that he
would require a $100,000 retainer to represent Valladares, and
also that he would require Valladares's personal agreement for
him to participate in the defense. The family agreed to pay the
retainer, but needed time to obtain it.
Over the next few weeks, Ibanez visited Valladares in jail
two or three times, after working hours, to inquire if Valladares
would hire him. Normal visiting hours were 8 a.m. to 8 p.m. on
weekends, but attorneys were allowed to visit at any time.
Ibanez would call jail personnel before he arrived so that they
could find Valladares and bring him to the front of the jail.
Ibanez testified that during these visits, Valladares never
mentioned Salazar.
On April 18, 1993, Ibanez arrived home from church about 8
p.m.. His son or daughter told him that Raul Valladares, Jr.
("Valladares, Jr."), with one or two other men, had stopped by
Ibanez's home to talk about Valladares. About thirty minutes
later, Valladares, Jr. returned with one or two other persons and
Ibanez met them outside his home. Ibanez tentatively identified
Salazar as the individual accompanying Valladares, Jr., but
claimed that he could not positively identify him because he did
not get a very close look. Ibanez's son, Jaime Ibanez, also
testified that Salazar resembled the man who had accompanied
Valladares, Jr.. Valladares, Jr. asked Ibanez to tell his father
that the man who wanted to buy their ranch was in Reynosa with
the money and to inquire what Valladares, Jr. should do about the
3

real estate sale. Because Ibanez believed that the sale of the
ranch was for the purpose of obtaining his retainer, he agreed to
visit Valladares at the jail that evening.
Ibanez and his wife, Gloria Ibanez, arrived at the jail
about 8:30 or 8:45 that evening. While Mrs. Ibanez stayed in the
car, Ibanez entered the building, showed his identification and
requested to see Valladares. Ibanez described the entrance to
the jail as a glass and metal unlocked door which led into a
waiting room. The waiting area contained a glass window at which
persons could speak to jail personnel about visiting a prisoner.
When coming to see a client, Ibanez would approach this window,
identify himself as an attorney, and request that his client be
brought to the meeting room. A sliding glass door connected the
waiting area to the attorney/prisoner meeting room. This door
was operated from the control room and would open and close
slowly. The control room was surrounded by windows, enabling its
occupants to see into the waiting area and the attorney/prisoner
meeting room. The attorney/prisoner meeting room was one room
containing small cubicles where attorneys could meet with their
clients, a bathroom, and two public phones. The attorneys were
not separated from the prisoners by glass or any other type of
partition. A separate heavy metal door led from the meeting room
into the secured area of the jail, which was also operated from
the control room, through which the prisoner was escorted to meet
with his attorney.
4

Ibanez entered the attorney/prisoner meeting room through
the sliding glass door, and Valladares was escorted in the
meeting room through the heavy metal door on the other side.
They sat at a table in one of the cubicles. Ibanez relayed the
message about the sale of the ranch, but Valladares did not seem
to be familiar with the sale. Ibanez tried to call Valladares,
Jr. from the public phone in the meeting room, but he could not
locate him. Valladares then complained to Ibanez about his new
cell arrangements.
Having concluded their meeting, Ibanez and Valladares
approached the window to the control room to tell the deputy
sheriff they were done. While they waited to be noticed, Ibanez
saw a person, later identified as Jose Angel Hernandez-Ochoa
("Hernandez"), enter the building from outside. This person
exchanged gestures with Valladares, both men shrugging their
shoulders with palms upraised as if to say "what is going on?".
Ibanez asked Valladares if he knew this person; Valladares
answered that yes, he was a friend. While Valladares and
Hernandez were talking through the window, the sliding glass door
opened to allow a deputy and a person in civilian clothes to pass
through the meeting room and into the waiting area. While the
door was open, Hernandez slipped inside the meeting room. Ibanez
directed Valladares and Hernandez (who remained unidentified) to
follow him to one of the cubicles, where they continued talking.
Deputy Alvarez, who was manning the control room, did not
recognize Hernandez, so he called Deputy Perez to watch the
5

control room. Deputy Alvarez entered the meeting room and asked
Ibanez if the new individual was a lawyer or investigator with
him. Because he was not with Ibanez, the deputy ordered
Hernandez to leave the meeting room. At that time, the deputy,
Ibanez, Valladares, and Hernandez moved toward the sliding glass
door.
As Hernandez moved through the sliding glass door, he told
Valladares, "vente," meaning "come on." Valladares then ran
through the glass door and followed Hernandez toward the general
exit. The deputy and Ibanez tried to grab Valladares as he ran
through the glass door, but with no avail. Deputy Alvarez then
followed Valladares out the sliding glass door and into the
waiting area. As he tried to apprehend Valladares near the
general exit, Hernandez pointed a black handgun at him. Deputy
Alvarez dropped to the floor and took cover behind a bench. When
he looked up, he saw another unidentified man, identified at
trial by Hernandez as La Zota, pull what looked like a Coke can
out of his left boot, pull the pin, drop it, and exit. Tear gas
permeated the room. From the meeting room, Ibanez had lost sight
of the men, but he heard a hissing sound, then saw and felt the
tear gas coming from the waiting area. The tear gas infiltrated
the entire jail, requiring an evacuation. Ibanez had no further
contact with Valladares or Valladares, Jr. after the escape.
Ibanez testified that the unidentified individual (identified at
trial as Hernandez) was not Salazar, and he also averred that he
did not see Salazar at the jail on the night of the escape.
6

Deputy Alvarez also testified that he did not see Salazar at the
jail on the night of the escape.
While waiting in the car in the jail parking lot, Mrs. Ibanez
heard someone say "suete" or "subete," which means "get in." She
looked up and saw two men in plain clothes and a man in an orange
prison uniform approaching the parking lot. The three men drove
away in a black, mid-sized car, heading for Highway 281.
Hernandez testified on behalf of the government at trial.
He explained that he had previously pled guilty to assisting the
escape of Valladares, and carrying a weapon, and that he was
testifying in order to ameliorate the recommendation for his
sentencing. Hernandez identified himself as the person who
entered the meeting room and led Valladares out of the jail. He
stated that he pointed the gun at Deputy Alvarez, but that it was
not loaded, although Valladares, Jr. had given him bullets for
the gun. He also testified that the man who released the tear
gas was called La Zota. After the escape, Hernandez, La Zota and
a third man drove Valladares to the Texas-Mexico border, where
Pedro Garcia picked him up on a motorcycle. Hernandez met with
Valladares and Valladares, Jr. about 15 days later, but did not
get paid the remainder of his fee for assisting the escape.
Hernandez testified extensively as to the planning stages of
the escape. He stated that in March 1993, Jaime Ruiz introduced
him to Valladares, Jr., who wished to hire some people to perform
an unidentified job. Hernandez, Ruiz, and Valladares, Jr. first
met at a hotel in Reynosa; Luis Valladares, Pedro Sosa, Manuel
7

Alvarez, Maria Del Carmen, and Cesar Hernandez were also present
at this meeting. Valladares, Jr. offered those present $40,000
each to assist in getting Valladares out of jail. Manuel Alvarez
drove them to the Hidalgo County Jail on that day, but they did
not go inside. The next day, the group met Salazar at his
automobile accessory business, and Salazar drove Hernandez and
two others to the Hidalgo County Jail, and took them inside to
show them the floor plan of the jail. Salazar asked the men if
they understood how the sliding glass door to the attorney/
prisoner meeting room worked and told them that a guard had
already agreed to open the door.
The men hired to perform the escape stayed in a hotel in
Reynosa for four weeks. They met several (ten to fifteen) times
to discuss plans for the escape, either at the hotel or at
Salazar's business. Salazar and Valladares, Jr. instructed the
other men how to carry out the escape. The plan was to free
Valladares during a contact visit in the attorney/prisoner
meeting room, set off tear gas in the jail to prevent a chase,
and drive Valladares to Mexico, changing cars two or three times
along the way. Hernandez testified that Salazar gave him
blueprints indicating the layout of the jail, and that Salazar
purchased the tear gas cans which were used in the escape and
gave them to Valladares, Jr..
Hernandez testified that, in Salazar's presence, Valladares,
Jr. talked about using weapons in the escape. The participants
in the escape obtained a .38 calibre handgun, a Colt .45, and two
8

machine guns. The evidence does not indicate whether Salazar
personally participated in obtaining any of the firearms.
Hernandez first saw the weapons at a shop, which Hernandez
believed to be managed by Salazar and connected to Salazar's
business. He testified that Salazar saw the weapons on many
occasions at the shop, and that he warned Hernandez and the
others to be careful with the guns. The group made several
unsuccessful attempts to free Valladares before April 18. On at
least one occasion, Hernandez went to Salazar's shop and Salazar
told him that everything was set for him to visit Valladares.
Hernandez then went to the jail and visited with Valladares in
the attorney/prisoner meeting room.
On April 18, 1993, the persons involved in the escape met at
the shop, including Salazar. Salazar sent for a locksmith
because the keys to the car containing the tear gas, the gun and
clothes for Valladares were locked inside the shop. The
locksmith opened the shop, then the group waited until one of
their members, Manuel Alvarez, notified them that Ibanez was on
his way to the jail to visit Valladares. Valladares, Jr. told
Hernandez that he and Salazar had asked Ibanez to go to the jail
to visit Valladares. Hernandez, La Zota, and their unnamed
driver got lost on the way to the jail, but Salazar and
Valladares, Jr. led them there in another car. After the
escape, Hernandez met with Salazar one time in McAllen, Texas, to
get some things for the Valladareses out of the shop. Salazar
told Hernandez at that meeting that the escape had come out fine,
9

but that he was going to stay in Reynosa because he was in
danger.
Ernest Baca, Criminal Investigator with the United States
Marshal Service, testified as to his investigation of the escape.
On April 19, 1993, he executed a federal warrant to search
Valladares's home in Mission, Texas, where he seized a hand-drawn
map of Hidalgo County Jail with "Operation Mongoose" scribbled on
it, and a letter addressed to "Juan Antonio" (Salazar)
instructing him to pay $1500 to two men identified as "Mr.
Salinas," and "Edelmiro Flores," a guard at the jail. These two
items were admitted into evidence.
Upon learning that Salazar was the occupant and caretaker of
Valladares's house, Baca interviewed Salazar at his business
"Suburban Auto Accessories," on April 20. Baca testified that
Salazar's business also operated a shop, where the work which was
ordered at "Suburban Auto Accessories" was performed. Salazar
waived his Miranda rights and gave a written statement denying he
had received any letter from Valladares. The next day, Salazar,
accompanied by his attorney, gave another written statement to
Baca retracting the first statement. Salazar's second statement
admitted that Valladares had written him a letter instructing him
to give cash to certain persons at Hidalgo County Jail. Salazar
said he had accompanied Valladares, Jr. to the jail and had given
a guard an envelope containing money. He attempted at another
time to pay Mr. Salinas, the chief jailer, a "campaign
contribution," but Mr. Salinas would not accept. Later, however,
10

Salazar left the money on Salinas's desk at Valladares's further
instruction. Valladares, Jr. provided the money for both
payments. Salazar also stated that on the day of the escape, he
and Valladares, Jr. went to Ibanez house and left word with
Ibanez's son. They then went to the jail to see Valladares, but
did not wait for him to be brought to the front. Instead, they
returned to Ibanez's house, where Valladares, Jr. and Ibanez
spoke in private while Salazar waited in the car. Salazar stated
that he went straight home from Ibanez's house, and cut off
communication with Valladares, Jr. two days later. Both written
statements made by Salazar were admitted into evidence.
III. STANDARD OF REVIEW
The scope of our review of the sufficiency of the evidence
after conviction by a jury is narrow. We must affirm if a
reasonable trier of fact could have found that the evidence
established the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United State v. Harris, 25 F.3d 1275, 1279 (5th Cir.) cert.
denied, 115 S.Ct. 458 (1994); United States v. Mergerson, 4 F.3d
337, 341 (5th Cir. 1993), cert. denied, 114 S.Ct. 1310 (1994).
We must consider the evidence, all reasonable inferences drawn
therefrom, and all credibility determinations, in the light most
favorable to the verdict. United States v. Resio-Trejo, 45 F.3d
907, 911 (5th Cir. 1995); United States v. Pigrum, 922 F.2d 249,
253 (5th Cir.), cert. denied, 500 U.S. 936 (1991). The evidence
11

need not exclude every reasonable hypothesis of innocence or be
wholly inconsistent with every conclusion except that of guilt,
and the jury is free to choose among reasonable constructions of
the evidence. Pigrum, 922 F.2d at 254. On the other hand, if
the evidence, viewed in the light most favorable to the verdict,
gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence, we must reverse the conviction.
United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert.
denied, 113 S.Ct. 330 (1992).
III. DISCUSSION
Salazar challenges his conviction on count three (aiding and
abetting the knowing use of a firearm during a crime of violence
in violation of 18 U.S.C. งง 924(c)(1) and 2 on the basis that
the Government failed to present sufficient evidence of the
offense. Specifically, Salazar contends that the Government did
not prove that Salazar aided and abetted Hernandez's use of a
firearm during the escape because it did not present evidence
that Salazar "associated" with Hernandez's use of a firearm or
that he took affirmative action designed to aid the use of a
firearm.
To establish an offense under ง 924(c)(1), the Government
must prove: (1) that the defendant knowingly used or carried a
firearm, and (2) the use or carrying of the firearm occurred
during and in relation to a crime of violence. United States v.
Laury, 49 F.3d 145, 151 (5th Cir. 1995), petition for cert.
12

filed, (U.S. Jun. 21, 1995) (No. 94-9810). Salazar does not
contest that assisting the escape of a federal prisoner in
violation of 18 U.S.C. ง 752(a) is a crime of violence under ง
924(c). To prove the use or carrying of a firearm, the
government need not show that the defendant used or brandished
the weapon in an affirmative manner; it is sufficient for the
government to prove that the "firearm facilitated or had a role
in the crime, such as emboldening an actor who had the
opportunity or ability to display or discharge the weapon to
protect himself or intimidate others." United States v.
Contreras, 950 F.2d 232, 241 (5th Cir. 1991), cert. denied, 504
U.S. 941 (1992). Deputy Alvarez and Hernandez testified that
Hernandez pointed a black gun at Alvarez to enable Hernandez and
Valladares to exit the building without Alvarez giving chase.
Although Hernandez testified that the gun was not loaded, "[t]he
fact that a weapon is `unloaded' or `inoperable' does not
insulate the defendant from the reach of section 924(c)(1)."
Contreras, 950 F.2d at 241. Therefore, the Government presented
sufficient evidence by which the jury could find that Hernandez
knowingly used or carried a firearm during and in relation to a
crime of violence. To convict Salazar, the government must have
further presented evidence that Salazar aided and abetted
Hernandez's use of a firearm in the course of the escape.
A person who aids or abets the commission of a crime is
punishable as a principal. 18 U.S.C. ง 2. To prove aiding and
abetting, the Government must show that Salazar (1) associated
13

with the criminal venture; (2) participated in the venture; and
(3) sought by action to make the venture succeed. Laury, 49 F.3d
at 151; Harris, 25 F.3d at 1279. Association means that the
defendant shared in the criminal intent of the principal. United
States v. Martiarena, 955 F.2d 363, 366 (5th Cir. 1992).
Participation means that the defendant engaged in some
affirmative conduct designed to aid the venture. Id. at 366-67.
Although relevant, mere presence and association are insufficient
to sustain a conviction of aiding and abetting. Id. at 367.
This circuit has not considered aider and abettor liability
under ง 924(c)(1) when the defendant was not present during the
commission of the crime in which the firearm was used. However,
this court has considered aider and abettor liability in the
context of a ง 924(c) violation. See Laury, 49 F.3d. at 151;
Harris, 25 F.3d at 1279; United States v. Williams, 985 F.2d 749,
754 (5th Cir.), cert. denied, 114 S.Ct. 148 (1993). This court
has never imposed a requirement that an individual be physically
present when the gun is used to be convicted of aiding and
abetting under ง 924(c)(1). To convict Salazar for aiding and
abetting Hernandez's use of a firearm during the escape, the
jury was required to find that Salazar knew that the gun was at
least available to Hernandez, see Williams, 985 F.2d at 755, and
that Salazar took some action which assisted Hernandez's use of
the gun. See Martiarena, 955 F.2d at 366-67.
Hernandez testified that Salazar was involved in the
planning of the escape, but that he was not present during the
14

actual escape. Hernandez's testimony was sufficient to
demonstrate that Salazar knew that a weapon was available to
Hernandez and that Salazar took affirmative action to aid in the
use of the weapon during the escape. Hernandez testified that
Salazar was present when Valladares, Jr. discussed using weapons
with the group. Hernandez saw the firearms, including the black
handgun which was actually used, being stored at Salazar's
business. Hernandez testified that, during a meeting at
Salazar's shop when the guns were present, Salazar warned
Hernandez to be careful with the weapons. From this statement,
the jury could have reasonably inferred that Salazar knew that
using a weapon was part of the escape plan and that Hernandez
would carry a gun during the escape. The jury could also have
considered the evidence that the weapons were stored at Salazar's
place of business as an affirmative act aiding the use of the
weapon. Salazar also assisted Hernandez by getting a locksmith
to unlock his shop in which the keys to the car that contained
the gun and was used in the escape were located. Therefore, the
Government presented sufficient evidence by which the jury could
find that Salazar aided and abetted Hernandez's use of a firearm
during the escape.
IV. CONCLUSION
Because the evidence was sufficient to convict Salazar for
aiding and abetting the use of a firearm during a crime of
15

violence under งง 924(c)(1) and 2, we AFFIRM his conviction and
sentence.
16