United States of America v. Efren Patino-Prado, also known as Amado Martinez, also known as Efrain Amador

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20900
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EFREN PATINO-PRADO, also known as Amado Martinez, also known as
Efrain Amador
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Efren Patino-Prado was convicted by a jury of conspiring to possess with
intent to distribute marihuana and cocaine in violation of federal drug laws. On
appeal he argues that there was insufficient evidence to sustain his conviction
for the cocaine-related conspiracy and that improper jury instructions permitted
the jury to convict him without unanimously agreeing as to the precise object of
the alleged conspiracy. We find no error and affirm the conviction and sentence.
United States Court of Appeals
Fifth Circuit
F I L E D
June 25, 2008
Charles R. Fulbruge III
Clerk

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I. Facts and Procedural Background
A. The Conspiracy
There is evidence in the record to support the following version of events.
In the summer of 1997, Patino-Prado approached Rafael Dominguez, Jr., about
transporting a load of drugs from Texas to Chicago, Illinois. Unfortunately for
Patino-Prado, the Federal Bureau of Investigation suspected that Dominguez Jr.
was involved in drug trafficking from Mexico to the United States and had
already begun an investigation into his activities. This investigation entailed
the use of, among other things, court-authorized wiretaps and confidential
informants. In early September 1997, the FBI began intercepting phone
conversations between Dominguez Jr. and his father, Rafael Dominguez, Sr.,
regarding a large shipment of drugs from Texas to Chicago.
In mid-September, Patino-Prado, Dominguez Jr., and Dominguez Sr. met
in Houston, Texas, to plan the transportation of the drugs. Patino-Prado agreed
that one of his associates would drive the drugs from Texas to the outskirts of
Chicago. Dominguez Jr. would arrange for a local driver to take the drug-laden
tractor-trailer into the city and secure a warehouse where the truck could be
unloaded. The drugs would be hidden in a load of imported limes. Both
Dominguezes testified that Patino-Prado only discussed a “marihuana shipment”
at this meeting; no one mentioned cocaine. The Dominguezes insist that they
never agreed to transport cocaine.
After the meeting, Dominguez Jr. directed his aunt and uncle, who,
unknown to him, were FBI informants, to make arrangements for a warehouse
in Chicago. Dominguez Sr. arranged for a small market in Chicago to place an
order for the limes. The use of the market enabled him to obtain a bill of lading
that would permit the limes to pass through United States customs. Patino-
Prado approved these arrangements and told Dominguez Sr. that he would place
just under one ton of marihuana on the truck with the limes. Dominguez Jr.

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hired Michael Cavazos to meet Patino-Prado’s driver on the outskirts of Chicago
and drive the tractor-trailer to the warehouse.
On September 27, the tractor-trailer bearing the limes departed for
Chicago from Hidalgo, a south Texas town joined to Mexico by a bridge over the
Rio Grande. On September 28, Dominguez Jr. flew to Chicago along with his
aunt and uncle. On September 29, Patino-Prado met Dominguez Jr. at a
restaurant in Chicago. During this meeting, Patino-Prado stated that he
believed he was under surveillance. That belief caused Patino-Prado later in the
day to inform Dominguez Jr. that he was leaving Chicago and that a person
named “Leonel” would close the transaction in his stead. On September 30,
Leonel contacted Dominguez Jr. and arranged a meeting for the next day.
On October 1, Leonel met Dominguez Jr. and took him to the tractor-
trailer which was parked at a hotel on the outskirts of Chicago. Leonel gave
Dominguez Jr. the keys to the truck and a partial payment for the warehouse.
Dominguez Jr.’s driver, Cavazos, then took the truck from the hotel to an
industrial park. After Dominguez Jr. inspected the warehouse and found it
satisfactory, Cavazos drove the truck into the city. However, Cavazos had a
difficult time maneuvering the tractor-trailer into the warehouse. Dominguez Jr.
stopped traffic while Cavazos tried to back into the warehouse.
While assisting Cavazos’s efforts to maneuver the tractor-trailer,
Dominguez Jr. noticed a white vehicle drive past multiple times. Suspicious that
the car was driven by law enforcement officers, Dominguez Jr. fled the scene
along with his father and Leonel. Dominguez Jr. called Patino-Prado and told
him what had happened. Patino-Prado advised him to leave the area. Later
that day, the FBI searched the tractor-trailer and warehouse and seized 915
kilograms of marihuana and 245 kilograms of cocaine. After verifying that the
warehouse had been raided, Dominguez Jr. informed Patino-Prado that the load
of drugs had been seized. Patino-Prado requested proof of the seizure.

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On October 2, news sources in Chicago carried reports of the warehouse
raid and drug seizure. Leonel watched a television report and became concerned
because the report noted only that marihuana was seized, making no mention
of the cocaine. Leonel called Dominguez Jr. to inquire about the cocaine that
had been hidden in the tractor-trailer. Dominguez Jr. told Leonel that he did
not know anything about cocaine having been stashed in the truck. According
to Dominguez Jr., Leonel responded with some surprise: “Efren [Patino-Prado]
never told you?” Dominguez Jr. responded, “He never told me,” and then ended
the conversation out of fear that he was under surveillance.
On October 5, Dominguez Jr. met with Patino-Prado in Houston, Texas.
Dominguez Jr. provided a newspaper clipping to prove that the drugs were
seized and confronted Patino-Prado about the placement of cocaine in the
tractor-trailer. According to Dominguez Jr., Patino-Prado apologized for not
telling either of the Dominguezes about the cocaine. Apparently, Dominguez Jr.
was not so much concerned about having transported cocaine as he was upset
that he had done so unknowingly; he would have demanded a higher fee.
Two days later, Patino-Prado met Dominguez Jr. again and asked if he
would be interested in moving some more cocaine. Dominguez Jr. said that he
was. Patino-Prado said that he knew where he could get 25 kilograms of
cocaine, but he had to check on the price. Dominguez Jr. reiterated that he was
interested in transporting the cocaine. The two never met again; Dominguez Jr.
never transported a second load of cocaine for Patino-Prado.
B. Indictment and Trial
In May 1998, a federal grand jury indicted Patino-Prado and five other
individuals, including both Dominguezes, each on one count of conspiring to
possess with intent to distribute marihuana and cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), & 846. For reasons that are not entirely clear, Patino-
Prado was not immediately arrested. In fact, he did not make an initial

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appearance before the district court until May 2005. The Dominguezes both pled
guilty to the conspiracy charge. Patino-Prado pled not guilty. During his jury
trial, a number of law enforcement agents testified regarding their investigation
of Patino-Prado and his co-conspirators. Dominguez Jr. and Dominguez Sr. also
testified against him. The jury returned a verdict of guilty. The district court
denied Patino-Prado’s motions for a judgment of acquittal made at the close of
evidence and again after the verdict.
Patino-Prado was sentenced to 240 months in prison, the maximum
sentence for conspiring to possess with intent to distribute an unspecified
quantity of cocaine under 21 U.S.C. § 841(b)(1)(C). He was also given a three-
year term of supervised release and ordered to pay $5,100 as fine and special
assessment. Patino-Prado timely appealed his conviction and sentence.
II. Discussion
Patino-Prado’s appellate arguments may be summarized this way: (A)
there was insufficient evidence to support a conviction for the cocaine-related
conspiracy; (B) the jury instructions improperly permitted the jury to convict
him without unanimously agreeing whether the object of the conspiracy involved
marihuana or cocaine; and (C) alternatively, because the jury was not required
to agree unanimously about the object of the conspiracy, his sentence must be
reformed to the maximum length permissible for a marihuana-related
conspiracy.
We will follow that order in analyzing the issues presented.
A. Sufficiency of the Evidence
Because Patino-Prado raises a challenge to the sufficiency of the evidence
after having properly moved for a judgment of acquittal, we consider whether a
rational jury could have found the essential elements of the offenses beyond a
reasonable doubt. United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).
We view the evidence and the inferences that may be drawn in the light most

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favorable to the verdict. Id. Credibility determinations, being the province of
jurors, also are reviewed in the light most favorable to the verdict. Id. A “jury
is free to choose among reasonable constructions of the evidence,” even if some
constructions are not “wholly inconsistent with every conclusion except that of
guilt. . . .” Id. However, if the evidence “gives equal or nearly equal
circumstantial support to a theory of guilt or innocence,” the court should
reverse because “under these circumstances a reasonable jury must necessarily
entertain a reasonable doubt.” United States v. Ramos-Garcia, 184 F.3d 463,
465 (5th Cir. 1999) (citations and some internal quotation marks omitted).
Federal law criminalizes possession with intent to distribute a “controlled
substance.” 21 U.S.C. § 841(a)(1). The essential elements of a violation of
Section 841(a)(1) include: (1) knowledge, (2) possession, and (3) intent to
distribute the controlled substance. United States v. Delgado, 256 F.3d 264, 274
(5th Cir. 2001). Drug type is not an element of Section 841(a)(1). United States
v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003).
To establish a conspiracy to violate Section 841(a)(1), the government must
prove beyond a reasonable doubt: (1) the existence of an agreement between two
or more persons to violate narcotics laws, (2) the defendant’s knowledge of the
agreement, and (3) his voluntary participation in the conspiracy. United States
v. Valdez, 453 F.3d 252, 256-57 (5th Cir. 2006). “[A] defendant may be convicted
on the uncorroborated testimony of a coconspirator who has accepted a plea
bargain unless the coconspirator’s testimony is incredible.” Id. at 257 (quotation
marks omitted). “Testimony is incredible as a matter of law only if it relates to
the facts that the witness could not possibly have observed or to events which
could not have occurred under the laws of nature.” Id. (quoting United States v.
Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994)).
At trial, Patino-Prado conceded his participation in a conspiracy to possess
and distribute marihuana, but argued that he never agreed with anyone to

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No. 06-20900
1 During opening argument at trial, defense counsel made the following statements:
“Mr. Patino-Prado was involved in a marihuana conspiracy. There is no doubt about it. He
accepts responsibility for that. . . . Mr. Patino-Prado, yes, he was involved in a marihuana
conspiracy. He had nothing to do with the cocaine, he didn’t know the cocaine was there until
after it was found by the police.”
7
possess cocaine with intent to distribute and had no knowledge that the tractor-
trailer contained cocaine.1 On appeal, he argues that the government adduced
no evidence that the object of the conspiratorial agreement was cocaine. The
Government counters that there was overwhelming evidence of a cocaine-related
conspiracy between Patino-Prado and others charged in the indictment.
The parties’ dispute regarding cocaine is irrelevant as to whether there
was sufficient evidence to sustain Patino-Prado’s conviction for conspiracy under
21 U.S.C. §§ 841(a)(1) and 846. This court has recognized that to obtain a
conviction under Section 841(a)(1), “the government is not required to prove that
a defendant knew the exact nature of the substance with which he was dealing;
it is sufficient that he was aware that he possessed some controlled substance.”
United States v. Gonzalez, 700 F.2d 196, 200 (5th Cir. 1983). In United States
v. Fragoso, 978 F.2d 896 (5th Cir. 1992), we extended that rationale to the crime
of conspiring to possess with intent to distribute a controlled substance in
violation of 21 U.S.C. § 846. Id. at 902. Under Section 846, the government
must demonstrate beyond a reasonable doubt that the defendant conspired to
possess with intent to distribute some controlled substance. See id.
Here, the indictment charged Patino-Prado with conspiring to possess with
intent to distribute marihuana and cocaine. Patino-Prado conceded his
involvement in a marihuana-related conspiracy at trial and has not sought to
undo that concession on appeal. Therefore, the government has proven – in fact,
it is undisputed – that Patino-Prado conspired with at least one other person to
possess with intent to distribute one of the controlled substances (marihuana)

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No. 06-20900
2 The government argues that Patino-Prado invited any error that may have produced
a less-than-unanimous jury verdict (as to which particular controlled substance was the object
of the conspiracy) because he opposed a unanimity instruction following the special
interrogatories. According to the government, Patino-Prado may not ask this court to correct
an error which he induced the district court to commit. See United States v. Lopez-Escobar, 920
F.2d 1241, 1246 (5th Cir. 1991). Patino-Prado’s counsel did, in fact, oppose the placement of
a sentence on the verdict form reiterating that the jury must be unanimous in its answers to
the special interrogatories. His stated reason for doing so was a concern that jurors may
believe the placement of a reiterating instruction would suggest that jurors must be
unanimous as to a “no” answer as well as a “yes” answer. The district court heeded Patino-
Prado’s request and removed the objected-to portion of the verdict form. However, Patino-
Prado did properly object to the instruction that we set forth in the text above. It is this
instruction and objection on which he bases his appeal. Because Patino-Prado properly
preserved his allegation of error, we must review it on appeal.
8
alleged in the indictment. The elements of conspiracy under Section 846 to
violate Section 841(a)(1) have been sufficiently proven.
B. Jury Unanimity as to Object of Conspiracy
At trial, Patino-Prado objected to the following instruction:
The government must prove beyond a reasonable doubt that the
defendant conspired to possess with intent to distribute some
controlled substance, but need not prove that the defendant knew
which particular controlled substance was involved.
The district court overruled his objection. This instruction was taken from this
court’s pattern criminal jury instructions. Fifth Circuit Pattern Jury
Instruction: Criminal § 2.89 (Note). We preview, as an aid to clarity, that there
is an important pair of special interrogatories that were given the jurors on the
verdict form that did require them to determine whether marihuana, cocaine, or
both were the object of the conspiracy. Those interrogatories were to be used
only after a finding of guilt of the more general-object conspiracy and are
therefore primarily relevant as to the sentencing issue we will discuss below.2
Patino-Prado argues that this and related jury instructions were flawed
because they did not require unanimous agreement as to the precise object of the
charged conspiracy. This argument draws directly from the argument on
evidentiary sufficiency that we have already discussed, but we review it

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separately if not without some overlapping analysis. We review Patino-Prado’s
challenge to the jury instructions for an abuse of discretion. United States v.
Clayton, 506 F.3d 405, 410 (5th Cir. 2007). “A district court has broad discretion
in framing the instructions to the jury and this Court will not reverse unless the
instructions taken as a whole do not correctly reflect the issues and law.” Id.
We have already shown that Patino-Prado need not have known that he
possessed both controlled substances alleged in the indictment in order to be
convicted under Section 841(a). In one precedent, we approved a supplemental
instruction to the effect that the jury “could convict [the defendant] for
possession of heroin if it believed beyond a reasonable doubt that he knew there
was some controlled substance in the car, whether or not he knew it was actually
heroin or some other drug or narcotic. . . .” Gonzalez, 700 F.2d at 200 (internal
quotation marks omitted). The knowledge required for guilt is that the
defendant knew he possessed a controlled substance, regardless of whether he
was right, wrong, or unaware regarding which substance. Similarly, jury
unanimity must be about the accused’s general knowledge – since that is what
guilt is based upon – regardless of what version of the alternatives each
individual juror might accept.
Patino-Prado relies on numerous cases holding that when the government
charges a defendant with a “multi-object conspiracy,” the jury must unanimously
agree as to at least one object of the conspiracy in order to return a conviction.
See United States v. Capozzi, 486 F.3d 711 (1st Cir. 2007); United States v.
Sharpsteen, 913 F.2d 59 (2d Cir. 1990); United States v. Fisher, 106 F.3d 622
(5th Cir. 1997) abrogated on other grounds by Ohler v. United States, 529 U.S.
753 (2000); United States v. Pierce, 479 F.3d 546 (8th Cir. 2007). But all of these
cases involved indictments alleging multi-object conspiracies where the
defendants were accused of conspiring to violate multiple statutes by a single
course of action. In this case, Patino-Prado is accused of conspiring to violate a

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single federal drug statute. The single object of the alleged conspiracy was the
possession with intent to distribute a controlled substance; both marihuana and
cocaine are controlled substances. As noted above, there is overwhelming and
undisputed evidence to support Patino-Prado’s conviction for a marihuana-
related conspiracy.
In one precedent relied upon by Patino-Prado, one of the legal theories
submitted to the jury as a basis for a conspiracy conviction under federal wire
fraud statutes was flawed because the statute did not extend to the facts of the
case. United States v. Brown, 459 F.3d 509, 517 (5th Cir. 2006). We reversed
the conviction because the general jury verdict left open the possibility that the
defendants were convicted on the basis of this impermissible theory. Id. at 519-
23. Such a defect does not exist in Patino-Prado’s conviction.
In another cited case, the defendant’s sentence was vacated under Section
841(b)(1)(B)’s cocaine-related maximum where a general verdict did not clearly
reveal that the jury found the defendant guilty of conspiring to possess both
marihuana and cocaine. United States v. Dale, 178 F.3d 429, 432-34 (6th Cir.
1999). Dale did not reverse the judgment of conviction. The relevant sentencing
issue will be discussed in the last section of our opinion. Dale is not implicated
because of specific findings made by the jurors here.
The cases cited by Patino-Prado do not stand for the proposition that, if the
government alleges that a defendant conspired to possess several controlled
substances, the jury must unanimously agree about each of the several
controlled substances the defendant’s conspiracy was actually aimed at
possessing. See United States v. Toliver, 351 F.3d 423, 431 (9th Cir. 2003) (“The
jury’s inability to determine the quantity or type of drugs involved in the
conspiracy did not justify an acquittal; it only prevented the district court from
imposing a sentence that exceeded 20 years, the maximum allowable sentence
under section 841(b)(1)(C) when the offense involves an unknown quantity of

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No. 06-20900
3 After Apprendi, courts have required that drug quantities be alleged in the indictment
and proven beyond a reasonable doubt at trial before a defendant may be subjected to the
enhanced penalties under 21 U.S.C. § 841(b)(1)(B). United States v. Doggett, 230 F.3d 160,
164-65 (5th Cir. 2000).
11
drugs.”). To the contrary, to obtain a conviction under the knowledge element
of Section 846, the government is only required “to show that the defendant
knew that the substance was a controlled substance.” United States v.
Cartwright, 6 F.3d 294, 303 (5th Cir. 1993).
We also note that this case is a peculiarly inappropriate one for
challenging the precedents involving the scope of jury unanimity on controlled
substance conspiracies. Because of the jury interrogatories that we analyze in
the next section, we have the jurors’ acknowledgment that they were unanimous
both as to the cocaine and the marihuana conspiracies.
C. The Sentence
We turn now to Patino-Prado’s final argument, that his sentence should
be vacated or reformed. As we have noted, Patino-Prado was indicted for
conspiracy to possess with intent to distribute marihuana and cocaine. No
specific amounts were alleged in the indictment and the jury was not instructed
to make any findings as to the particular amount of narcotics involved in the
conspiracy. Likely because the indictment was filed prior to the Supreme
Court’s decision Apprendi v. New Jersey, 530 U.S. 466 (2000), it did not allege
that any specific amounts of marihuana and cocaine were the object of the
conspiracy.3 The trial court rejected a jury instruction proposed by the
government that would have required findings as to the amount of drugs
involved in the offense. Thus, Patino-Prado cannot be subjected to the quantity-
specific enhanced penalties under Section 841(b)(1)(B). See United States v.
Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000).
Even without a jury finding of a specific quantity of a drug, a defendant
may receive up to a five-year sentence for conspiring to possess with intent to

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distribute an unknown quantity of marihuana. See 21 U.S.C. § 841(b)(1)(D); see
United States v. Allen, 302 F.3d 1260, 1268 n.32 (11th Cir. 2002). The maximum
sentence for conspiring to possess with intent to distribute an unknown quantity
of cocaine is twenty years. See 21 U.S.C. § 841(b)(1)(C).
Patino-Prado was sentenced under Section 841(b)(1)(C) to 240 months (or
twenty years) in prison. He argues, that even if his conviction stands, his
sentence must be either vacated or reformed to five years, the maximum penalty
permissible for conviction of a marihuana-related conspiracy under 21 U.S.C. §
841(b)(1)(D). According to Patino-Prado, this is necessary because it is unclear
whether the jury unanimously found that cocaine was one of the objects of
Patino-Prado’s conspiracy.
Though our analysis regarding conviction discussed the acceptable
ambiguity regarding which of the controlled substances was actually involved
in a conspiracy, the rule as to sentencing is different. On the verdict form, jurors
were instructed that if they determined Patino-Prado was guilty of the general
conspiracy, they were then required also to mark on the verdict form their
answers to these questions about which controlled substances were the object of
the conspiracy:
If you found the Defendant Efren Patino Prado GUILTY of Count
One of the Superseding Indictment, you must answer the following
questions.
1. Do you find beyond a reasonable doubt that the conspiracy
alleged involved a mixture or substance containing a
detectable amount of cocaine?
2. Do you find beyond a reasonable doubt that the conspiracy
alleged involved a mixture or substance containing a
detectable amount of marihuana?
The foreman recorded the jury’s answer as “yes” to both of these questions. The
jurors had in other parts of the instructions been told that their “verdict must
be unanimous” and that “[t]he foreperson will write the unanimous answer of
the jury in the space provided for in each count of the Superseding Indictment,

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either guilty or not guilty.” We find no doubt that jurors would have understood
that unanimity was required for the interrogatory answers as well.
We will presume that jurors understand and follow their instructions,
abandoning that presumption only when there “is an overwhelming probability
that the jury will be unable to follow the instruction and there is a strong
probability that the effect is devastating.” United States v. Barksdale-Contreras,
972 F.2d 111, 116 (5th Cir. 1992). Patino-Prado has offered no sound reason for
this court to reject the presumption that the jury unanimously agreed on the
answer for each of the special interrogatory questions.
In addition, the government presented sufficient evidence to support the
jury’s verdict. We are mindful that a conspiratorial agreement to possess a
controlled substance “may be implicit” and “[t]he jury may rely on presence and
association, along with other evidence” in reaching its verdict. United States v.
Montgomery, 210 F.3d 446, 449 (5th Cir. 2000). “[P]roof of an overt act in
furtherance of the conspiracy is not required.” Id. There was evidence that
Patino-Prado’s coconspirators were aware that cocaine was being transported
along with the marihuana. Dominguez Jr. testified regarding his post-seizure
confrontation with Patino-Prado about the presence of cocaine in the tractor-
trailer and Patino-Prado’s apologetic response. Dominguez Jr. also testified that
Patino-Prado made a direct overture to him regarding transporting cocaine in
the future and that he (Dominguez Jr.) agreed to do so. There was also
circumstantial evidence that Dominguez Jr. knew he was transporting both
marihuana and cocaine from Texas to Chicago. The circumstantial evidence
includes Dominguez Jr.’s “paranoid” behavior in Chicago, which the government
argues was an indication that he knew he was dealing with more than mere
marihuana. Further, there was evidence that drug traffickers often hide more
serious drugs, such as cocaine, in loads of marihuana and that Dominguez Jr.
was familiar with this practice.

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For these reasons, we find that the district judge did not err in
determining that the jury found Patino-Prado guilty beyond a reasonable doubt
of conspiring to possess with intent to distribute both marihuana and cocaine.
As such, the district judge selected the correct statutory maximum sentence for
an unknown quantity of cocaine – twenty years under Section 841(b)(1)(C).
We AFFIRM the conviction and the sentence.

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