IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 97-40142
____________________________
UNITED STATES,
Plaintiff-Appellee,
versus
JESUS ORTEGA REYNA,
Defendant-Appellant.
_____________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_____________________________________________________
July 28, 1998
Before JOLLY, WIENER, and STEWART, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jesus Ortega Reyna (“Ortega”) was
convicted by a jury on charges of possession with intent to
distribute over 400 grams of heroin and 7,000 grams of
amphetamines, in violation of 21 U.S.C. § 841 (a)(1). On appeal,
Ortega argues that the district court erred in denying his motion
for acquittal, asserting that Plaintiff-Appellee the United States
(“the government”) failed to produce sufficient evidence that his
possession of the illegal drugs was “knowing.” After thoroughly
reviewing the record, the arguments of counsel, and the applicable
law, we agree that no reasonable jury could have concluded beyond
a reasonable doubt that Ortega’s possession of the drugs was
knowing. Accordingly, we reverse his conviction.
I
FACTS AND PROCEEDINGS
Accompanied by his wife and two children, Ortega, who is a
native of Mexico and resident alien of the United States, was
driving a pickup truck north from the Mexican border when he came
to and entered the Border Patrol checkpoint at Falfurrias, Texas.
Border Patrol Agent Oziel Puente noticed that the truck was
“leaning to one side,” and that the right rear tire was larger than
the rest. When Puente asked Ortega if he was aware of the truck’s
condition, Ortega responded that the truck was not his, but
belonged to a friend in Roma, Texas. According to Puente, he was
told by Ortega that he and his family were going to El Campo,
Texas.
While the truck remained at the primary checkpoint, Puente
inspected its undercarriage and noticed several balancing weights
on the right rear tire, indicating to him that the tire might
contain hidden compartments for the transport of drugs. After
obtaining Ortega’s consent to search the vehicle further, Puente
had Ortega move the truck to a secondary inspection area. There
Puente released air from the tire but was not able to detect any
odor of marijuana.
Agent Armando Diaz, a K-9 handler, arrived to assist in the
search. When his drug-sniffing dog alerted the agents to the
larger tire, they cut it open and discovered over sixteen pounds of
amphetamines and fourteen ounces of heroin. Puente testified that
Ortega did not appear to be nervous, and Diaz confirmed that Ortega
“didn’t appear to be very interested” in the search. Shortly
2
thereafter, Puente took Ortega inside and advised him of his
rights.1 Puente then showed him one of the bundles found in the
tire and asked “if he had any knowledge of it.” Puente states that
Ortega glanced down, paused for “around 15 seconds,” repeated that
the car was not his, and responded that he “had no knowledge” of
the presence of the drugs.
Some time later, Elizabeth Gonzales, an officer with the
Corpus Christi Police Department and a member of the DEA Task
Force, interviewed Ortega in more detail and also spoke with his
wife and older son. According to Gonzales, Ortega told her that
“he was from Houston and he had been in the Valley area because his
father had been sick so he had to go to Monterrey to see his
father.” Gonzales also recalled Ortega’s stating that he “had been
in the Valley area for about a month and while he was in Miguel
Aleman, which is a small town across [the border] from Roma,
[Texas] that his truck had broken down so he had borrowed this
truck to come home in.” Ortega indicated to Gonzales that he was
returning to Houston to enroll his children in school. He
initially gave the name of the friend from whom he had borrowed the
truck as simply “Jesus,” later providing the last name “Barrera”
and ultimately giving the full name as “Jesus Aleman Barrera.”
Gonzales asked Ortega how he was going to return the truck to
1
The record shows that Puente read Ortega his rights in
Spanish but does not reflect whether the rest of Puente’s
questioning of Ortega was in Spanish or English. The record does
show that Ortega neither reads nor writes either English or
Spanish, but is not clear whether he speaks any English at all.
The record does show that Ortega used an interpreter at trial.
3
Barrerra. Ortega answered that Barrerra was planning to retrieve
the truck in Houston. When Gonzales inquired as to whether
Barrerra knew where in Houston Ortega lived, he said that he did
not know whether Barrerra had this information. At trial, however,
Ortega explained that although he did not know if Barrerra knew
precisely where to find him in Houston, he assumed that Barrerra
would locate him through Barrerra’s mother-in-law, who also lives
in Houston and knows Ortega’s sister, with whom he would be staying
while in Houston. In addition, Ortega acknowledged that he did not
have an address or telephone number for Barrerra. He further
testified, however, that Barrerra lived in the same neighborhood in
Miguel Aleman where Ortega sometimes stays with his family, and
that, even though the houses do not have street numbers, he knew
where to find Barrerra’s house and could communicate those
directions to others.
At the time of his arrest, Ortega was carrying $731 in cash.
When Gonzales asked him if “he had been working,” Ortega responded
that he “had done some odd jobs”; but Gonzales failed to ask him
where or for whom. At trial, Ortega explained that the $731 was
all that remained of approximately $1500 that he had received as a
tax refund, and produced a copy of his tax return, which
substantiated this statement.
During her interrogation, Gonzales failed to ask Ortega
whether he had any luggage with him, but she and the other agents
testified at trial that they did not recall seeing any with Ortega
or in the vehicle. Although each officer testified that someone
4
with the border patrol always conducts a thorough, written
inventory of any vehicle stopped for a drug violation, the
government failed to introduce a copy of an inventory of the truck
Ortega had driven. In contrast to this testimony of customary
checkpoint procedure and the absence of physical evidence of such
an inventory, both Ortega and his wife testified unequivocally that
they had a large suitcase with them in the truck.
Ortega was indicted on charges of possession with intent to
distribute over 400 grams of heroin (count one) and over 7,000
grams of amphetamines (count two), in violation of 21 U.S.C. § 841
(a)(1). After a two-day trial —— and three days of deliberation ——
a jury found Ortega guilty of both counts. The district court
sentenced him to 130 months in the custody of the Bureau of Prisons
and a four-year term of supervised release. Ortega timely
appealed.
II
ANALYSIS
A. Standard of Review
As Ortega moved for a judgment of acquittal at the close of
all the evidence, we must determine whether any reasonable trier of
fact could have found that the evidence established the essential
elements of the crime beyond a reasonable doubt.2 We consider the
evidence in the light most favorable to the government, drawing
“all reasonable inferences and credibility choices made in support
2
United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996).
5
of the verdict.”3 “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.”4 If the evidence
tends to give “equal or nearly equal circumstantial support” to
guilt and to innocence, however, reversal is required: When the
evidence is essentially in balance, “‘a reasonable jury must
necessarily entertain a reasonable doubt.’”5
B. Applicable Law
To prove Ortega’s guilt of the charged offense in this case,
the government was required to prove three elements beyond a
reasonable doubt: (1) knowing (2) possession of the drugs in
question (3) with intent to distribute them.6 Only the first
element —— knowledge —— is at issue in this appeal, i.e., whether
the evidence is sufficient to satisfy the scienter element beyond
a reasonable doubt.
As a general rule, a jury may infer knowledge of the presence
of drugs from the exercise of control of a vehicle containing such
3
United States v. Ivy, 973 F.2d 1184, 1188 (5th Cir. 1992),
cert. denied, 507 U.S. 1022 (1993).
4
United States v. Lopez, 74 F.3d 575, 577 (5th Cir.), cert.
denied, 517 U.S. 1228 (1996).
5
Id. (quoting United States v. Sanchez, 961 F.2d 1169, 1173
(5th Cir.), cert. denied, 506 U.S. 918 (1992) (emphasis omitted)).
6
United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.
1995); United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir.
1990).
6
contraband.7 When the drugs are secreted in hidden compartments,
however, “this Court has normally required additional
‘circumstantial evidence that is suspicious in nature or
demonstrates guilty knowledge.’”8 This requirement stems from our
recognition that, in hidden compartment cases, there “is at least
a fair assumption that a third party might have concealed the
controlled substances in the vehicle with the intent to use the
unwitting defendant as the carrier in a smuggling enterprise.”9
This assumption is heightened when, as here, the vehicle is a
“loaner” or has otherwise been in the possession of the suspect for
only a short time.10
Among the types of behavior that we have previously recognized
as circumstantial evidence of guilty knowledge are:
(1) nervousness;11 (2) absence of nervousness, i.e., a cool and calm
demeanor;12 (3) failure to make eye contact;13 (4) refusal or
7
Resio-Trejo, 45 F.3d at 911.
8
Id. (quoting United States v. Anchondo-Sandoval, 910 F.2d
1234, 1236 (5th Cir. 1990)).
9
Diaz-Carreon, 915 F.2d at 954.
10
During his interview with Gonzales, Ortega explained that
after he borrowed the truck from Barrerra but before he left for
Houston, Barrerra and another person told him they needed to use
the truck briefly. They took the truck and returned it shortly, in
time for the Ortegas to leave, as scheduled, a few hours later.
11
See, e.g., United States v. Crooks, 83 F.3d 103, 107 (5th
Cir. 1996); United States v. Casilla, 20 F.3d 600, 607 (5th Cir.
1994), cert. denied by 513 U.S. 892 (1994) and 513 U.S. 899 (1994)
and 513 U.S. 949 (1994); Diaz-Carreon, 915 F.2d at 954; United
States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988).
12
See, e.g., Resio-Trejo, 45 F.3d at 913 (relying on Resio’s
“calm demeanor and indifference while the agents dismantled the gas
7
reluctance to answer questions;14 (5) lack of surprise when
contraband is discovered;15 (6) inconsistent statements;16
(7) implausible explanations;17 (8) possession of large amounts of
cash;18 and (9) obvious or remarkable alterations to the vehicle,
especially when the defendant had been in possession of the vehicle
tanks on his truck” as circumstantial evidence of guilt).
13
See, e.g., United States v. Price, 869 F.2d 801, 803 (5th
Cir. 1989).
14
See, e.g., id.; United States v. Muniz-Ortega, 858 F.2d 258,
259 (5th Cir. 1988) (“Appellant was . . . hesitant to answer
questions.”).
15
See, e.g., Price, 869 F.2d at 803; United States v. Romero-
Ortega, 867 F.2d 834, 836 (5th Cir. 1989).
16
See, e.g., Casilla, 20 F.3d at 606 (stating that defendant’s
“trial testimony was also inconsistent with the varying stories
that he had earlier told the customs agents, which were in turn
contradicted by the physical evidence”); Diaz-Carreon, 915 F.2d at
955 (noting that defendant gave agents contradictory statements
regarding his destination and place of residence); Anchondo-
Sandoval, 910 F.2d at 1237 (pointing out that defendant made
inconsistent statements to the customs and DEA agents concerning
“his motivations for traveling and his intended destinations”).
17
See, e.g., Casilla, 20 F.3d at 606 (“Casilla offered an
implausible explanation that he was hired as a chauffeur who lacked
a driver’s license for a trip to California by way of Texas,
Mexico, and Guatemala.”); Diaz-Carreon, 915 F.2d at 955 (finding
implausible defendant’s story that a man named Ruben, whom
defendant had know only for a couple of days, had loaned him a
truck so he could find employment, as defendant did not know where
Ruben lived or where he would retrieve the truck); Richardson, 848
F.2d at 513 (finding “inherent implausibility in [defendant]’s
flying to Los Angeles to see his sick mother without enough money
to return, and then leaving at two o’clock the next morning in a
mysterious rent car,” which was left by a mysterious benefactor
“without any announcement whatever except dropping the ignition key
through the mail slot”).
18
See, e.g., Crooks, 83 F.3d at 107.
8
for a substantial period of time.19
C. Evidence of Mens Rea
To prove the requisite scienter, the government relies on the
following circumstantial evidence, which it maintains is
“suspicious in nature and demonstrates guilty knowledge”:
(1) Ortega’s non-verbal behavior at the checkpoint, including the
absence of nervousness and his momentary delay and downward glance
when, immediately after hearing the Miranda warning, he was asked
the “$64,000 question” about his awareness of the presence of
contraband; (2) his statements regarding the origin and destination
of his trip, which the government characterizes as inconsistent;
(3) the absence of luggage; (4) his possession of over $700 in
cash; and (5) the condition of the truck. When we review the
sufficiency of circumstantial evidence to prove mens rea beyond a
reasonable doubt, we must examine the defendant’s behavior from his
perspective, here an illiterate, poverty-level Mexican national who
performs odd jobs in this country for a living, and who is
traveling through a part of Texas where immigration and drug
enforcement personnel are numerous and properly suspicious of
19
See, e.g., Resio-Trejo, 45 F.3d at 913 (“The evidence of the
recent alterations and the fresh marihuana, considered together
with the evidence of Resio’s possession and control of the truck in
the ten months preceding his arrest . . . provide a sufficient
basis for the inference that Resio knew the marihuana was concealed
in his truck.”); see also United States v. Inocencio, 40 F.3d 716,
724 (5th Cir. 1994) (noting that “the bed of the vehicle was higher
than normal” and finding suspicious the “discovery of fresh paint
(on a brand new truck)”); Anchondo-Sandoval, 910 F.2d at 1235
(noting that defendant’s “vehicle, a 1978 Thunderbird bearing
expired Arizona plates, ‘met a good profile’ for closer scrutiny
because it was in poor condition and thus could readily be
junked”).
9
person’s meeting Ortega’s profile. We remain mindful as well that
in Ortega’s native culture, where there is no Fourth Amendment,
relatively minor abuses of power by the authorities are not
unexpected and are best accepted without protest.
After examining each piece of evidence from that perspective,
we conclude that, like Newton’s Third Law, for every inference of
guilt that may be drawn from the evidence, there is an equal and
opposite benign inference to be drawn. This in turn places the
evidence in equipoise and thus makes it incapable, as a matter of
law, of serving as the basis of a jury finding that Ortega’s
possession of illicit drugs was “knowing” beyond a reasonable
doubt.
i. Non-verbal Responses
We consider first the evidence of Ortega’s non-verbal behavior
at the scene of the search from which the government argues that a
jury could have inferred the existence of guilty knowledge. For
openers, the government would have us infer guilt from Ortega’s
lack of nervousness; in contrast, Ortega would have us draw a
contrary inference. We have ourselves allowed that an inference of
guilty knowledge may be drawn from the presence, as well as from
the absence, of nervousness.20 Evidence of Ortega’s composure thus
provides equal circumstantial support for a finding of either guilt
or innocence.
Then there is Ortega’s failure to object or appear concerned
when the agents started slicing open the oversized tire. Again, we
20
See supra notes 10 and 11 and accompanying text.
10
are unconvinced. We speculate that, had Ortega vehemently objected
to the agents’ actions, the government would have argued that
Ortega’s behavior justified an inference of guilty knowledge with
respect to the contents of the tire. Similar to the evidence of
Ortega’s maintained calm, the inferences to be drawn from his
failure to protest the destruction of the tire are twofold--an
inference of guilt and an inference of innocence--and they are
nearly equally balanced.
The government also emphasizes that when asked whether he was
aware of the presence of the drugs, Ortega hesitated —— for an
estimated fifteen seconds —— before answering that the truck did
not belong to him. Such a momentary delay is truly indicative of
nothing in this context. Ortega’s single hesitation and downward
glance fall well short of the generalized hesitancy to answer
questions or delayed responses that we accepted as circumstantial
evidence of guilty knowledge in such cases as Muniz-Ortega.21 The
government nevertheless proffers the inference that Ortega was
stalling while he confected an answer to cover his guilt. But an
equally plausible inference is that an innocent person, astonished
by the agents’ discovery of hidden contraband in his vehicle and
confronted with such a question, would take a few seconds to calm
his nerves and formulate his answer, lest he inadvertently trip
over some inculpatory nuance.
We do not take lightly the limitations of our review in that
we must consider the evidence in the light most favorable to the
21
See 858 F.2d at 259.
11
government; still, we conclude that all of Ortega’s non-verbal
behavior at the border patrol checkpoint was at least as consistent
with innocence as with guilt. Indeed, both a drug “mule” and an
innocent resident alien might well behave as Ortega did, both
before and after the discovery of contraband in a hidden
compartment of a borrowed vehicle.
ii. Verbal Responses
The government also points to those of Ortega’s oral responses
that it views as inconsistent and thus as circumstantial evidence
of guilty knowledge. For instance, Ortega told Puente that he was
traveling to El Campo, but told Gonzales that he was on his way to
Houston. Given Ortega’s plausible explanation at trial, however,
these statements are not necessarily inconsistent. Ortega
testified that he planned to stop in El Campo, which is directly on
the way from Roma to Houston, to pick up barbecue “disks,” and then
to continue on to Houston to enroll his children in school.
Similarly, while Ortega was telling the agents that he and his
family were coming from Miguel Aleman, Mrs. Ortega was telling them
that the family was on its way from Roma, Texas. Again, as with
the purported inconsistency in their destination, any perceived
inconsistency in the Ortegas’ statements about their point of
departure evaporates when it is recognized that Miguel Aleman,
Mexico, and Roma, Texas, are simply sister cities on opposite sides
of the Rio Grande River —— two municipalities comprising a single
metropolitan area, which is separated by but one natural and one
artificial boundary. The most direct route north from Miguel
12
Aleman is across the international bridge to and through Roma, and
from there to the checkpoint.22
iii. Luggage
The government next argues that if Ortega had been in Mexico
for an extended family visit and was returning to Houston to put
his children in school —— as he contends —— rather than on a drug
run, he would have had luggage with him. As noted, each of the
government’s agents testified that they did not recall seeing
luggage either in Ortega’s possession or in the truck itself. Each
also testified, however, that he was not charged with taking an
official inventory. Furthermore, even though the agents asserted
that standard procedure would call for the taking of a full,
written inventory of the borrowed vehicle at the checkpoint, the
government —— curiously —— chose not to produce such a writing at
trial, thus failing to adduce affirmative documentary evidence that
the Ortegas did not have luggage and thereby settle this contested
fact.23 For their part, both Mr. and Mrs. Ortega stated
22
Compare Diaz-Carreon, 915 F.2d at 955. In that case, we
determined that the defendant had told inconsistent stories because
“Diaz-Carreon first told customs officials that he was traveling to
Canutillo, Texas, and later told [them] that he was traveling to
Anthony, New Mexico,” a town about six or seven miles from
Canutillo and a straight shot along Interstate 10. The facts in
Diaz-Carreon are distinguishable from those in this case, however,
as the court found additional support for a finding of guilty
knowledge in the defendant’s nervous behavior at the stop
(“[B]efore being told that the agents had discovered marijuana in
the pickup truck, Diaz-Carreon volunteered, ‘If the truck is
loaded, I didn’t know about it.’”) and in his implausible story
about being loaned a truck by a man he met only a few days earlier
and known only as “Ruben.” Id. at 954-55 (emphasis omitted).
23
See Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046
(5th Cir. 1990) (citing 2 Wigmore on Evidence § 285, at 192
13
unconditionally that they were carrying a large suitcase in the
truck. But even if we assume arguendo that the jury exercised its
credibility prerogative and chose to believe the agents rather than
the Ortegas on the luggage question, the mere absence of luggage
would not make the explanation of a month-long family visit
“implausible,” given Ortega’s uncontradicted testimony that (1) he
had a house in Miguel Aleman, (2) he lived semi-permanently with
his sister in Houston, and (3) his children had clothes there.
iv. Possession of Funds
Then there is Ortega’s possession of over $700 in cash at the
time of his arrest. We remain mindful, of course, of our prior
pronouncements to the effect that possession of large amounts of
cash may be circumstantial evidence of guilt. Considering Ortega’s
possession of the cash and his description of his employment, a
jury might well question his ability to accumulate this much cash
while supporting his family with odd jobs. In the context of this
case, however, the government’s contention that the $731 is
circumstantial evidence that Ortega was participating in a drug run
is contradicted by his explanation, fully documented, that the
(Chadbourn ed. 1970):
The failure to bring before the tribunal some
circumstance, document, or witness, when either the party
himself or his opponent claims that the facts would
thereby be elucidated, serves to indicate, as the most
natural inference, that the party fears to do so; and
this fear is some evidence that the circumstance or
document or witness, if brought, would have exposed facts
unfavorable to the party.
14
money was what was left of a tax refund of more than twice that
amount. As Ortega’s tax return shows that the $1500 refund
constituted nearly 15 percent of his expected annual salary, it is
reasonable that he would be unlikely to have spent it all at once.
v. Condition of the Truck
Finally, the government would make much of the condition of
the vehicle. The sole discrepancy noted, however, is that the old,
borrowed truck’s right rear tire was larger than the other three,
causing the truck to “list” to the left. The government did not
contradict Ortega’s testimony, however, that the truck drove
normally and that he noticed no problems with its handling.
Our point is not to question that a Border Patrol inspector
would be suspicious of the oversized tire on the borrowed truck.
Rather, it is to note that Ortega, borrowing a vehicle for a one-
way trip with his family, would not have been likely to examine the
teeth of his gift horse. More significantly, the relatively minor
discrepancy of one larger tire on the borrowed truck is properly
distinguishable from more significant discrepancies like the
obvious alterations that we have accepted as evidence of guilty
knowledge in such cases as Resio-Trejo.24
Although readily recognizing that the government does not have
to refute every possible inference pointing to innocence, we also
remain faithful to our complementary rule of decision that, when
circumstantial evidence and the reasonable inferences to be drawn
from it permit conclusions of both guilt and innocence that are
24
See supra note 19 and accompanying text.
15
essentially in balance, there has to be reasonable doubt. When
that is the case, we have no choice but to reverse the conviction.
Our review of the record convinces us that —— whether viewed
separately or globally —— the evidence that Ortega knowingly
possessed the drugs in question fails to satisfy the constitutional
standard of guilt beyond a reasonable doubt.
III
CONCLUSION
The evidence presented at trial does not the support the
jury’s finding that Ortega knowingly possessed the illegal drugs
found in the hidden compartment of the borrowed truck’s tire beyond
a reasonable doubt. Accordingly, we hold that the district court
erred in denying Ortega’s motion for acquittal and that Ortega’s
conviction must be —— and therefore is ——
REVERSED.
16