UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-40678
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO N. COVARRUBIAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
August 12, 1996
Before KING, JONES, and EMILIO M. GARZA, Circuit Judges:
PER CURIAM:
Defendant Alejandro N. Covarrubias (“Covarrubias”)
appeals his conviction for knowingly and willfully attempting to
export weapons from the United States to Mexico without obtaining
a license from the Office of Defense Trade Controls in violation of
22 U.S.C. §§ 2778(b)(2) and (c) and 22 C.F.R. §§ 121.1, 123.1, and
127.1(a)(1). Because this court concludes that the evidence
presented at trial was sufficient to support the jury’s guilty
verdict, Covarrubias’s conviction is AFFIRMED.
FACTUAL BACKGROUND
Covarrubias was pulled over by Robstown, Texas, Police
Officer Albert Stout (“Stout”) on March 19, 1995 for failing to
display a front license plate and for a malfunctioning taillight on
his late model Chevrolet dually pickup truck.1 As Stout approached
the vehicle, he noticed a gas filler hose protruding from near the
left double-rear tires of the truck and also detected the odor of
fresh paint in this area.
Officer Stout began to inquire about Covarrubias’s truck
and his destination; the two conversed primarily in Spanish. Stout
immediately noticed that Covarrubias was very nervous, gripping the
steering wheel tightly with both hands, avoiding eye contact, and
speaking in a low, stammering voice. Furthermore, Covarrubias
responded inconsistently to Stout’s inquiries regarding his
destination. For instance, Covarrubias initially responded that he
was traveling from Dallas, Texas to Matamoros, Mexico, to visit his
father; subsequently, however, he claimed that he was actually
traveling to visit his brother in Mexico and that his father had
been dead for five years. Covarrubias also assured Stout during
their conversation that his truck had been painted over a year ago,
that it had working dual fuel tanks, and that the hose protruding
from the truck was merely a homemade valve designed to fix the
truck’s broken fuel switch. When asked to demonstrate the use of
1
Covarrubias was stopped on Highway 77, which comes within
approximately one-half mile from the American border with Mexico.
2
this homemade valve, Covarrubias suggested that the makeshift fuel
switch was not yet operational.
Confronted with a myriad of inconsistent and suspicious
information, Stout requested that Covarrubias step outside his
pickup as Stout prepared a citation for the vehicle violations.
After giving Covarrubias the citation, Stout informed Covarrubias
that he was free to leave, but also sought consent to search the
pickup truck, expressing misgivings about what Covarrubias might be
carrying. Covarrubias provided both oral and written consent to
the search.
Officer Stout’s search of the vehicle revealed that the
gas tank hose was not connected to the left tank and that this tank
sounded solid when hit. After securing the assistance of a wrecker
service, Stout and another officer, Danny Flores (“Flores”),
supervised the mechanic’s removal of the left fuel tank from the
truck. When the tank was opened, the officers discovered a
camouflage flak jacket, ammunition, several firearms,2 and various
weaponry paraphernalia.
The officers read Covarrubias his constitutional rights
and placed him under arrest. While in transit to the police
station, Covarrubias offered the explanation that he was traveling
2
During trial, the parties stipulated that the following firearms
found in the gas tank are listed on the United States Munitions List and require
an individual to obtain a permit from the Office of Defense Trade Controls before
exporting such weapons: a Commando Arms .9 millimeter rifle; an Interarms .22
caliber; a Springfield .22 caliber rifle; a Smith & Wesson .357 caliber revolver;
as well as .25 caliber, .357 caliber, .44 caliber, and .38 caliber ammunition.
3
to Mexico in order to give the firearms to relatives because his
girlfriend would no longer tolerate the guns in their house.
Later that afternoon, Covarrubias waived his rights and
agreed to an interview with Customs Special Agent Monte Price
(“Price”). Stout was present during the interview and testified
that Price asked Covarrubias if he knew that it was illegal to move
the firearms to Mexico, and Covarrubias answered that “he knew that
it was illegal to cross them without notifying the proper
authorities,” both in the United States and Mexico. Stout further
testified that Covarrubias explained that he had no intention of
reporting the firearms to any border authorities whatsoever, and
that he had hidden the weapons in the fuel tank in order to conceal
them “from the Mexican and American police.” Covarrubias also
expressed relief that he was arrested in the United States, since
he feared retribution from Mexican law enforcement.
One of the translators assisting in Price’s interview of
Covarrubias was Police Officer Jesse Garcia (“Garcia”). Garcia
testified that Covarrubias explained during the interview that he
had resided in the United States for approximately fifteen years
and that he had not been in Mexico during the last eight to ten
years. Covarrubias also represented that he owned the pickup truck
in which the weapons had been concealed and that he had purchased
these firearms in Grand Prairie, Texas, and in Dallas. Garcia
4
further testified that Covarrubias told Price that he had hidden
the firearms in the fuel tank “[b]ecause he knew it was illegal to
transport the weapons across into Mexico and he didn’t want to get
caught . . . [since] it was illegal under U.S. law.” Garcia
recalled that Covarrubias, who “kept repeating that it was against
the law to transport [the firearms] out of the country,” stated
that he did not intend to declare the firearms to authorities at
either border and admitted that he did not have a permit which
would enable him to transport the weapons out of the United States.
Although Garcia testified that the interview included
references to the licensing requirements under American law, he
admitted that Covarrubias was not shown the official Munitions
List, detailing those items for which an export permit from the
Office of Defense Trade Controls is required. Rather, as Garcia
explained, “[t]he only thing that we, I asked him was one of the
questions that Agent Price asked him and it was if he knew it was
against the law and that he needed to declare [the weapons] . . .
and he said yes, he knew it was against the law . . . .” However,
Garcia also testified that Covarrubias understood the illegality of
transporting the weapons to Mexico, noting that Covarrubias “stated
that . . . he knew it was against the law to just transport the
weapons out of the country into Mexico.”
Agent Price corroborated the testimony of the other
officers, explaining that Covarrubias admitted that he did not
5
intend to declare the concealed firearms at the U.S. border because
“he knew it was against the law for him to take the weapons into
Mexico and he did not want to be hindered in his attempts to get
the guns into Mexico.” Covarrubias also acknowledged that he did
not have approval from any American authorities to transport the
firearms into Mexico and that “[h]e knew it was against . . . U.S.
law not to declare these weapons to U.S. Customs.”
Other evidence adduced at trial demonstrated that,
despite his claim that he had not traveled to Mexico during the
last eight to ten years, Covarrubias owned another vehicle that had
crossed into Mexico four times in March of 1993 and once in March
of 1994. At each of those border crossings, signs were prominently
displayed that both explained the requirement to declare to the
U.S. Customs Service all firearms, firearm hardware, and ammunition
and warned that it would be unlawful to export such items without
obtaining the required license or written approval.
After the government rested its case against Covarrubias,
he moved for judgment of acquittal contending that the government
had failed to prove that he had the requisite knowledge of the
statutory duty to obtain a license or written approval before
attempting to leave the United States with weapons listed on the
Munitions List. The district court denied the motion and, after
the jury convicted Covarrubias, sentenced him to serve 15 months of
imprisonment.
6
DISCUSSION
Covarrubias contends that the evidence was insufficient
to sustain his conviction for willfully attempting to export
without a license firearms on the United States Munitions List
because the government did not demonstrate that he had knowledge of
the duty to obtain such authorization. As this court has
frequently explained, when considering the sufficiency of the
evidence underlying a conviction,
[i]t 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.
United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc),
aff’d, 462 U.S. 356, 103 S. Ct. 2398 (1983). The evidence and
reasonable inferences drawn from the evidence are viewed in the
light most favorable to the government. Id.
To sustain a conviction under 22 U.S.C. § 2778, the
government must prove beyond a reasonable doubt that the defendant
willfully exported or attempted to export defense articles that are
on the United States Munitions List without a license. See United
States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir. 1985); United
States v. Murphy, 852 F.2d 1, 6 (1st Cir. 1988). Hence, the
statute requires the government to prove that the defendant acted
with specific intent to violate a known legal duty. United States
7
v. Hernandez, 662 F.2d 289, 292 (5th Cir. 1981).
Covarrubias contends that the government has not
sufficiently proved that he acted with specific intent because the
government’s evidence demonstrates only a general awareness of the
illegality of his conduct and falls short of establishing that he
was aware of the United States Munitions List or of the duty to
obtain a license in order to export the items listed on it. To
buttress this contention, Covarrubias relies on this court’s
decision in Hernandez. In that case, this court reversed the
defendant’s conviction for willfully exporting weapons on the
Munitions List because the government had failed to prove that the
defendant had voluntarily and intentionally violated a known legal
duty; put differently, the government did not demonstrate specific
intent. Hernandez, 662 F.2d at 291-92. We concluded that the
evidence was not sufficient to demonstrate specific intent, and
emphasized that “[w]hile it is true that Hernandez’ concealment of
the weapons possibly supported a jury finding that he knew his
conduct was unlawful, such a finding falls short of deciding that
he knew he was unlawfully exporting weapons on the Munitions List.”
Id. at 292 (citations omitted).
But Covarrubias’s reliance on Hernandez is misplaced.
Unlike in Hernandez, the jury in the instant case had ample
evidence from which it could have reasonably concluded that
Covarrubias knowingly attempted to export weapons on the Munitions
8
List without obtaining either the required license or
authorization.3 For instance, the government presented extensive
and uncontroverted evidence detailing Covarrubias’s efforts to
conceal the weapons in a gas tank of his truck. Furthermore,
Covarrubias made several inconsistent and incriminating statements
before, during, and after his arrest that demonstrate his knowledge
that export of the concealed weapons was unlawful. Covarrubias
also admitted that he had no intention of declaring the weapons
concealed in the gas tank of his truck to authorities on either
side of the border because he knew that it was illegal to transport
the weapons into Mexico. Finally, despite his insistence to the
contrary, Covarrubias owned a vehicle that had crossed the border
at regulated ports of entry on at least five occasions since 1993.
The government proved at trial that the United States Customs
Service displays large signs at these ports of entry that detail
the requirement that a license or other form of express
authorization is needed before articles on the United States
Munitions List can be exported to Mexico. Viewing this evidence
and the other evidence adduced at trial as well as the reasonable
inferences in the light most favorable to the government, the
evidence was sufficient to support the jury’s conclusion that
3
In Hernandez, the only evidence the government introduced at trial
demonstrated that the defendant had purchased several weapons from dealers in El
Paso, had concealed them under the hood of his car, and had attempted to cross
the Stanton Street International Bridge into Juarez, Mexico with the hidden
weapons. Hernandez, 662 F.2d at 290-91.
9
Covarrubias knew that either a license or other form of
authorization was required before he could transport the weapons
hidden in his gas tank into Mexico.4
CONCLUSION
For the foregoing reasons, the evidence is sufficient to
support the jury’s verdict and Covarrubias’s conviction is
AFFIRMED.
4
The district court reached a similar conclusion when it denied the
defendant’s motion for acquittal, observing that the evidence at trial was
sufficient to “give to the jury enough basis upon which they could find that
[Covarrubias] was aware of his known legal duty.”
10