UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40977
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS MONCIVAIS, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(L-96-CR-5-ALL)
_________________________________________________________________
December 4, 1997
Before KING and JONES, Circuit Judges and KENDALL, District Judge.*
EDITH H. JONES, Circuit Judge:**
Santos Moncivais, Jr. was convicted of possession with
intent to distribute marihuana and of conspiring to possess with
intent to distribute marihuana pursuant to 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 846. Moncivais appeals the district court’s denial
*
District Judge for the Northern District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
of his motions for judgment of acquittal on the ground that there
was insufficient evidence to support his conviction. We affirm.
I. FACTUAL BACKGROUND
At trial, the government presented evidence to establish
that on December 21, 1995, Moncivais was stopped at the I-35 Border
Patrol checkpoint north of Laredo on a trip to Houston in a tractor-
trailer he owned and operated. Inside the cab, Border Patrol agents
found approximately 190 pounds of marihuana.
When questioned by Border Patrol agents, Moncivais
appeared nervous and avoided eye contact with the officers. He told
the Border Patrol agents that an unidentified individual in Nuevo
Laredo had contacted him, and the two had agreed to trade
Moncivais’s 1976 pick-up truck for the marihuana, which the
unidentified individual would deliver to a pick-up location in the
United States. Moncivais claimed that he picked up the marihuana
at the agreed location, stored the drugs for a few days, and then
loaded them into his tractor-trailer for transportation to an exact
location he would not disclose.
At trial, Moncivais testified that he had no knowledge of
the marihuana until it was discovered by the Border Patrol agents.
He claimed that, without his knowledge, Elias Robledo had loaded the
marihuana into his tractor-trailer. Moncivais testified that he
made up the story he told the Border Patrol agents at the checkpoint
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because he feared that Robledo might seek retribution against him
or his family. He testified that Robledo would often accompany him
on trips and that Robledo had keys to his tractor-trailer.
According to Moncivais, Robledo had planned to accompany Moncivais
to Houston. Moncivais stated that Robledo had suggested on several
past occasions that they make money by transporting marijuana.
II. ANALYSIS
When reviewing a district court’s denial of a motion
for judgment of acquittal, this court views the evidence and the
inferences therefrom in the light most favorable to the
government to determine if a reasonable trier of fact could find
that the evidence establishes guilt beyond a reasonable doubt.
See United States v. Willis, 38 F.3d 170, 178 (5th Cir. 1994).
This court’s review “does not extend to weighing the evidence or
assessing the credibility of witnesses.” United States v. Lopez,
74 F.3d 575, 577 (5th Cir.), cert. denied, 116 S. Ct. 1867
(1996). “The evidence 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.” Id.
A. Conspiracy to possess with intent to distribute
In order to establish a narcotics conspiracy under 21
U.S.C. § 846, the government must prove beyond a reasonable doubt
that (1) there existed an agreement between two or more persons
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to violate narcotics laws; (2) the defendant had knowledge of the
agreement; and (3) the defendant voluntarily participated in that
agreement. See United States v. Simmons, 918 F.2d 476, 483-84
(5th Cir. 1990). The government need not prove the existence of
a formal agreement, but only that two or more persons in some way
or manner, positively or tacitly, came to a mutual understanding
to try to accomplish a common and unlawful plan. See id. at 484.
Considering the evidence presented at trial, a
reasonable juror, while dismissing Moncivais’s “drug-for-truck”
trade story, could have believed that Moncivais voluntarily
conspired with either an unidentified individual in Mexico or
Elias Robledo to transport drugs to Houston for distribution.
Moncivais’s claims of picking up the drugs at a drop-off point,
storing them near his home, and then possessing them in the cab
of his tractor-trailer all point to Moncivais as a player in a
drug distribution scheme. He was arrested carrying approximately
190 pounds of marihuana, an amount unlikely to be for personal
use, packaged in 28 7-pound bags from Laredo to Houston, a major
drug distribution hub. A Border Patrol agent testified at trial
that one person could not have singlehandedly loaded all of the
marihuana into the tractor-trailer. Looking at the facts in the
light most favorable to the government, it was reasonable for the
jury to believe that Moncivais did not grow, package, or intend
to distribute the drugs himself. The jury could reasonably
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conclude that Moncivais conspired to transport and distribute
drugs in the United States.
Moncivais also argues that his conspiracy conviction
rests only upon his uncorroborated statements to Border Patrol
agents at the checkpoint. An accused may not be convicted on his
own uncorroborated confession. See Smith v. United States, 348
U.S. 147, 152 (1954). However, “[t]he corroborative evidence
alone need not prove the defendant’s guilt beyond a reasonable
doubt, nor even by a preponderance, ‘as long as there is
substantial independent evidence that the offense has been
committed, and the evidence as a whole proves beyond a reasonable
doubt that the defendant is guilty.’” United States v. Garth,
773 F.2d 1469, 1479 (5th Cir. 1985) (quoting Smith, 348 U.S. at
156). The facts of this case and the reasonable inferences
therefrom provide substantial independent evidence of Moncivais’s
participation in a conspiracy.
B. Possession with intent to distribute
A conviction for the offense of possession of marihuana
with intent to distribute under 21 U.S.C. § 841(a)(1) requires
proof beyond a reasonable doubt that the defendant (1) knowingly
(2) possessed marihuana (3) with intent to distribute it. See
Lopez, 74 F.3d at 577. The elements of possession with intent to
distribute may be established by circumstantial evidence. See
United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993).
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Knowledge may be inferred from the circumstances of the
case. See United States v. Steen, 55 F.3d 1022, 1032 (5th Cir.
1995) (stating that knowledge can be inferred from suspicious
circumstances that demonstrate consciousness of guilt, including
nervousness and inconsistent, implausible, or fabricated
explanations for the defendant's possession of the drugs); United
States v. Shabazz, 993 F.2d 431, 441 (5th Cir. 1993) (holding
that knowledge of the presence of contraband may ordinarily be
inferred from the exercise of control over the vehicle in which
it is concealed). Possession may be actual or constructive. See
United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992). One
who owns or controls a vehicle that contains contraband can be
deemed to possess. See id. Intent to distribute may be inferred
from a large quantity of illegal narcotics and the value and
quality of the drug. See Cardenas, 9 F.3d at 1158.
Moncivais admitted knowledge of the marihuana at the
checkpoint. He appeared nervous and avoided eye contact with
officers. He told Border Patrol agents an implausible story
regarding a “drug-for-truck” trade. Moncivais was the owner of
the tractor-trailer and in sole control of it on the night he was
arrested. Border Patrol agents testified that the smell of
marihuana permeated the cab and that it was readily apparent that
the bunk in Moncivais’s tractor (which was located directly
behind the driver’s seat) did not fit properly because of the
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marihuana underneath it. Finally, 190 pounds of marihuana with
a street value of between $38,000 and $150,000 is significantly
more that an amount signifying personal use.
Looking at the facts in the light most favorable to the
government, it was reasonable for the jury to conclude the
Moncivais possessed the marihuana with the intent to distribute.
III. CONCLUSION
Having considered all of the arguments Moncivais
presents in his brief, we conclude that the district court was
correct in denying Moncivais’s motions for judgment of acquittal.
The government’s evidence of conspiracy and possession with
intent to distribute was sufficient to support the guilty
verdict.
AFFIRMED.
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