United States v. Jose Zapata , 583 F. App'x 357 ( 2014 )

Case: 13-41326 Document: 00512814757 Page: 1 Date Filed: 10/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41326
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 24, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE ZAPATA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-210-2
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Jose Zapata was convicted by a jury of conspiracy
to commit murder and sentenced to life imprisonment. Zapata contends that
there was insufficient evidence to convict him of the charge because there was
no proof that he agreed to kill the victim with premeditation and malice
aforethought. He asserts that the government’s witnesses, a majority of whom
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-41326
were fellow inmates looking for a sentence reduction, were not credible. He
also asserts that there was no DNA evidence linking him to the murder.
As the government argues, Zapata did not move for a directed verdict
based on insufficient evidence at the close of the government’s case or at the
close of all the evidence. Therefore, the sufficiency of the evidence is reviewed
for a manifest miscarriage of justice. See United States v. Salazar, 542 F.3d
139, 142 (5th Cir. 2008); see also United States v. Delgado, 672 F.3d 320, 328-
31 (5th Cir. 2012) (en banc). We will reverse only if “the record is devoid of
evidence of guilt or . . . the evidence is so tenuous that a conviction is shocking.”
Salazar, 542 F.3d at 142 (internal quotation marks and citation omitted).
Conspiracy to commit murder is defined as two or more persons
conspiring to violate the murder statute, “and one or more of such persons
do[ing] any overt act to effect the object of the conspiracy.” 18 U.S.C. § 1117.
The requisite mental state is that required for the substantive offense. United
States v. Harrelson, 754 F.2d 1153, 1172 (5th Cir. 1985). First degree murder
under 18 U.S.C. § 1111(a) is premised upon the common-law concept of “first
degree murder, which in addition to malice aforethought requires a killing with
premeditation and deliberation[,] . . . involv[ing] a prior design to commit
murder.” United States v. Shaw, 701 F.2d 367, 392 (5th Cir. 1983).
There was ample evidence presented for a rational jury to find that
Zapata conspired with other members of the Mexican Mafia to kill a member
of another group with malice aforethought and premeditation. See United
States v. Agofsky, 516 F.3d 280, 282 n.2 (5th Cir. 2008). To the extent Zapata
argues that his testimony was more credible than the government’s witnesses’
testimony, “the weight and credibility of the evidence is within the exclusive
province of the jury.” United States v. Johnson, 381 F.3d 506, 508 (5th Cir.
2004). Further, Zapata fails to show that the testimony of his coconspirators
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No. 13-41326
relates to facts outside their observation or knowledge. See United States v.
Valdez, 453 F.3d 252, 257 (5th Cir. 2006). Because the record is not devoid of
evidence establishing Zapata’s guilt, his conviction and sentence are
AFFIRMED. See Salazar, 542 F.3d at 142-43.
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