United States v. Almanzar

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-50030

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RITA ALMANZAR

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas
(EP-97-CR-358-1-DB)

March 9, 1999
Before HIGGINBOTHAM, BENAVIDES, DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*

Defendant-appellant Rita Almanzar (“Almanzar”) was convicted

by a jury of one count of knowingly and intentionally importing

marijuana into the United States from Mexico, in violation of 21
U.S.C. §§ 952(a) and 960(a)(1); and one count of knowingly and

intentionally possessing marijuana with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1). On appeal, Almanzar challenges

her conviction with the sole argument that the Government failed to

present sufficient evidence that Almanzar knew that the car she was

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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
driving had marijuana hidden in a secret compartment, an element

necessary to prove both the importation and the possession charges.

Based on our thorough review of the evidence presented to the jury,

we conclude that the evidence as a whole viewed in the light most

favorable to the prosecution gives equal or nearly equal

circumstantial support to a theory of innocence and a theory of

guilt, so that any reasonable juror necessarily must have

entertained reasonable doubt. Hence, the Government failed to meet

its burden of proof, so Almanzar’s conviction must be reversed.
I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 5:10 a.m. on April 9, 1997, Almanzar, a 40-

year-old female U.S. citizen, drove a 1985 Honda Prelude into the

primary inspection lane at the Paso Del Norte port of entry in El

Paso, Texas. Almanzar was the sole occupant of the vehicle. The

bridge at the port of entry connects El Paso to Ciudad Juarez,

Mexico. Immigration inspector Gilbert Madriles (“Madriles”)

testified at trial that when he asked Almanzar for a declaration,

he received no answer. When he asked Almanzar her citizenship, she

told him she was a United States citizen. Madriles then asked
Almanzar who owned the car, and she told him that it belonged to a

friend. Madriles requested identification, and Almanzar said that

she had none. When Madriles asked Almanzar if there was anything

in the trunk of the car, she said no. Madriles admitted that he

did not smell marijuana or air freshener in the car.

Madriles testified that Almanzar was “nervous” and that her

behavior was “out of the ordinary.” Specifically, he stated that

2
when he asked Almanzar for a declaration, “she hesitated to roll

the window down.” Madriles also testified that he saw “some eye

contact” between Almanzar and the driver of a station wagon parked

in the secondary inspection area ahead of her. Madriles admitted,

however, that although the report that he prepared within one hour

after Almanzar’s arrest stated that she appeared nervous, his

report did not give any reasons for this conclusion. Madriles also

admitted that Almanzar maintained eye contact with him throughout

his questioning. He could not recall whether Almanzar’s hands were
shaking.

Madriles testified that he asked Almanzar to open the trunk

for a routine inspection, and inside the trunk he saw new rubber

molding and fresh paint applied to Bondo or fiberglass, leading him

to believe that the trunk had been altered. Madriles sent the car

to the secondary inspection area, where a drug-sniffing dog alerted

to the trunk.

Rolando Picazzo (“Picazzo”), a canine enforcement officer with

the U.S. Customs Service, testified that he opened the trunk and

saw that the spare tire well was covered by sheet metal. When he
drilled into the metal and then withdrew the drill bit, it was

covered with a green leafy substance that field-tested positive for

marijuana.

Maria Ramirez (“Ramirez”), a U.S. Customs inspector, testified

that she searched Almanzar and found no contraband or weapons.

According to Ramirez, Almanzar asked her “what was going on because

she had to go to work that day.” Ramirez also testified that a

3
team from the National Guard used a saw to remove the sheet metal

from the trunk, a procedure that took possibly as long as 45

minutes. Ramirez told the jury that under the sheet metal, agents

found 13 bundles of marijuana weighing 51.5 pounds wrapped in clear

plastic.

Ruben Atedero-Lopez (“Atedero-Lopez”), a special agent with

the U.S. Customs Service, testified that before Almanzar’s arrest,

he had been investigating the station wagon, which was known as a

load or spotter vehicle for drug smuggling. Atedero-Lopez
testified that he had placed a lookout record on the Treasury

Enforcement Communications System (“TECS”) computer, requesting

that the inspectors send the station wagon to secondary inspection

and “also look for any associated vehicles that may be carrying a

load.” When Atedero-Lopez received notice that the station wagon

had been spotted at the port of entry, he went to the customs

headhouse, where he read Almanzar her Miranda rights and

interrogated her.

Atedero-Lopez testified that Almanzar told him that at 11:00

p.m. the previous night, she had taken a taxi to Ciudad Juarez, and
that she went to the Vertigo nightclub to meet her boyfriend of two

months, Sergio Segura. Almanzar told the agent that she did not

know where Segura lived and that she had no means of communicating

with him other than meeting him at nightclubs. Atedero-Lopez also

testified that Almanzar said that she had lost her purse, but she

did not say when or how. Atedero-Lopez told the jury that Almanzar

said that she had been “partying all night” with Segura, and that

4
at approximately 5:00 a.m. he had given her the key to his car so

that she could drive back to El Paso because she was worried about

going to work. He also testified that Almanzar said that she had

placed the car key on the key ring with her house key. Atedero-

Lopez admitted that he did not ask Almanzar whether she and Segura

had made arrangements to return the Honda to him.

Atedero-Lopez testified that in a second conversation with

Almanzar after her arrest, she told him that she had met Segura at

the XO nightclub in Ciudad Juarez. He did not ask Almanzar why she
initially said that she had met Segura at the Vertigo nightclub.

He also told the jury that he asked Almanzar’s daughter, Cynthia

Jimenez, to bring him identification for her mother, and that

Cynthia gave him an expired Texas driver’s license, a health

insurance card and a Social Security card. Atedero-Lopez admitted

at trial that he did not take fingerprints from inside the trunk or

from the plastic wrap covering the marijuana. He told the jury

that during the interrogation Almanzar insisted that she had

“nothing to do with this.”

Maria Sepulveda (“Sepulveda”), an office manager at Mid-
American Electro-Cords, where Almanzar had been employed as an

assembler since 1995, testified that Almanzar’s last day of work

was Saturday, April 5, 1997, and that she had unexcused absences on

April 7, 8 and 9. Sepulveda told the jury that a 24-hour written

warning was sent to Almanzar on April 11, and that if Almanzar had

responded within 24 hours, she would not have been fired.

Sepulveda said that because Almanzar never received the warning

5
letter, and did not respond, she was terminated on April 14, 1997,

effective retroactive to April 10, 1997. Sepulveda testified that

she had known Almanzar for a long time and considered her to be a

good employee.

Maribel Jimenez (“Maribel”), Almanzar’s daughter, testified

that her mother told her that she borrowed the Honda Prelude from

a friend she met in a nightclub in Ciudad Juarez. Maribel stated

that she had never heard of Sergio Segura.

Almanzar’s other daughter, Cynthia Jimenez (“Cynthia”), who
lives with Almanzar, testified that her mother previously had dated

men in Ciudad Juarez and that, although she had never heard of

Segura, she is usually familiar only with her mother’s steady

boyfriends. Cynthia also told the jury that when Agent Atedero-

Lopez asked her to bring him her mother’s identification, she gave

him her mother’s driver’s license, Social Security card and health

insurance card taken from her mother’s dresser drawer, not from her

purse. Cynthia testified that she too had been to the Vertigo and

XO nightclubs, which are only a block apart, and that it was

customary that if one club closed early, patrons could get into the
other club free by showing a wristband from the closed club.

Almanzar did not testify at trial and the defense presented no

witnesses. Almanzar moved for a judgment of acquittal at the end

of the government’s case-in-chief and at the close of evidence;

these motions were denied. The jury found Almanzar guilty on both

counts. The district court sentenced Almanzar to two concurrent

sentences of 24 months and three years of supervised release.

6
Almanzar appealed.

II. STANDARD OF REVIEW

In reviewing challenges to the sufficiency of the evidence, we

review the evidence, whether direct or circumstantial, in the light

most favorable to the government, “drawing ‘all reasonable

inferences and credibility choices made in support of the

verdict.’” United States v. Ortega Reyna, 148 F.3d 540, 543 (5th

Cir. 1998) (quoting United States v. Ivy, 973 F.2d 1184, 1188 (5th

Cir. 1992), cert. denied, 507 U.S. 1022 (1993)). This standard of
review inquires whether any reasonable trier of fact could have

found that the evidence established the essential elements of the

crimes beyond a reasonable doubt. United States v. Anchondo-

Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990). “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.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir.),

cert. denied, 517 U.S. 1228 (1996). “If the evidence tends to give

‘equal or nearly equal circumstantial support’ to guilt and to
innocence,” however, a “‘reasonable jury must necessarily entertain

a reasonable doubt,’” so that reversal is required. Ortega Reyna,

148 F.3d at 543 (quoting United States v. Sanchez, 961 F.2d 1169,

1173 (5th Cir.), cert. denied, 506 U.S. 918 (1992)); Lopez, 74 F.3d

at 577.

III. DISCUSSION

A. General Principles

7
 To sustain a conviction for the offense of possession of

marijuana with intent to distribute, the Government must prove

beyond a reasonable doubt that the defendant: (1) knowingly (2)

possessed marijuana (3) with intent to distribute it. Lopez, 74

F.3d at 577. In order to prove the crime of importation of

marijuana, the Government must establish that the defendant

knowingly played a role in bringing the marijuana into the country.

Id. To establish either crime, the Government must adduce

sufficient evidence of “guilty knowledge.” Id. Almanzar
challenges only the “knowledge” element, contending that the

Government failed to prove that she knew marijuana was concealed in

the car she was driving.

Rarely can the Government prove by direct evidence the

“knowledge” element of the crimes of possession or importation of

illicit drugs. Id. However, knowledge of the presence of

narcotics often may be inferred from the exercise of control over

the vehicle containing illegal drugs. Id. “[C]ontrol of the

vehicle will suffice to prove knowledge only where the drugs ‘are

clearly visible or readily accessible.’” United States v.
Pennington, 20 F.3d 593, 598 (5th Cir. 1994) (quoting United States

v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988)).

In secret compartment cases, however, generally the knowledge

element may not be inferred solely from the defendant’s control of

the vehicle in which the contraband is hidden because 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

8
unwitting defendant as the carrier in a smuggling enterprise.’”

United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)

(quoting United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir.

1990)). This assumption is heightened when, as here, the vehicle

is a “loaner” or otherwise has been in the possession of the

suspect for only a short time. Ortego Reyna, 148 F.3d at 544.

Therefore, in hidden compartment cases, “‘this Court has normally

required additional “circumstantial evidence that is suspicious in

nature or demonstrates guilty knowledge.”’” Id. (quoting Resio-
Trejo, 45 F.3d at 911 (quoting Anchondo-Sandoval, 910 F.2d at

1236)).

The Government presented no direct evidence that Almanzar knew

that marijuana was concealed in the car, such as Almanzar’s

fingerprints on the packets of marijuana or inside the trunk.

Instead, the Government relied solely on circumstantial evidence to

establish Almanzar’s guilty knowledge.

On appeal, the Government argues that the following

circumstantial evidence provides ample support for the jury’s

finding beyond a reasonable doubt that Almanzar acted with
consciousness of guilt: (1) Almanzar appeared nervous when

initially approached by the customs inspector at the primary

inspection point; (2) Almanzar made frequent eye contact with the

driver of the station wagon being detained at the secondary

inspection point, a vehicle known by law enforcement officials to

have been a load and spotter car; (3) Almanzar had no

identification in her possession; (4) Almanzar provided conflicting

9
stories about which nightclub she had just left; (5) Almanzar was

worried about getting back to El Paso and her job, but her employer

reported that she had been missing without explanation for three

days prior to her arrest; (6) Almanzar claimed that the car

belonged to her boyfriend of two months, but she could not or would

not provide his address or phone number.

B. Circumstantial Evidence of Guilty Knowledge

1. Nervousness

Nervous behavior at an inspection station frequently
constitutes persuasive evidence of guilty knowledge. Diaz-Carreon,

915 F.2d at 954. Nervousness, however, also may be “a normal

reaction to circumstances which one does not understand,” and being

stopped at the border is certainly one of those situations. United

States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir. 1986).

Evidence of nervousness is insufficient to support a finding of

guilty knowledge in the absence of facts suggesting that the

defendant’s nervousness or anxiety was other than a “normal

reaction to circumstances which one does not understand.” Id.;

United States v. McDonald, 905 F.2d 871, 874 (5th Cir.), cert.
denied, 498 U.S. 1002 (1990).

Immigration inspector Madriles testified that Almanzar acted

“nervous” at the primary inspection checkpoint. In a report

written one hour after the seizure, however, Madriles did not

document any reasons for his belief that Almanzar was “nervous.”

At trial, he admitted that Almanzar maintained eye contact with him

throughout the questioning. See Richardson, 848 F.2d at 511

10
(inferring guilty knowledge in part from testimony that an “agent

observed that Richardson was ‘very uneasy, he wouldn’t look at me,

he wouldn’t make any type of eye contact with me.’”). Inspector

Madriles could not recall whether Almanzar’s hands were shaking.

See United States v. Galberth, 846 F.2d 983, 985 (5th Cir.)

(physical signs of nervousness include shaking, quivering voice and

throbbing artery in neck), cert. denied, 488 U.S. 865 (1988).

Moreover, there was no testimony that Almanzar’s nervousness

increased as the search progressed. See McDonald, 905 F.2d at 873
(McDonald was nervous when the inspector looked at the back seat,

he relaxed when the inspector found nothing, and then his

nervousness returned when the inspector turned his attention to the

gas tank); Diaz-Carreon, 915 F.2d at 952 (“[a]s the customs

inspector continued her questioning, Diaz-Carreon’s previously

friendly demeanor deteriorated into extreme and noticeable

nervousness. He became increasingly agitated and unable to

communicate”).

In explaining Almanzar’s “nervousness,” Madriles told the jury

that “she hesitated to roll the window down” and “kept looking at
the other fellow from secondary who was driving the station wagon.”

An equally plausible inference to be drawn from these facts is that

an innocent woman, who had been driving a borrowed car for only a

brief period, hesitated momentarily while trying to locate the

button or the handle to lower the window. See Ortega Reyna, 148

F.3d at 545 (defendant’s “single [15 second] hesitation and

downward glance fall well short of the generalized hesitancy to

11
answer questions or delayed responses that we [have] accepted as

circumstantial evidence of guilty knowledge”).

There was no testimony showing that the agents asked if

Almanzar knew the driver of the station wagon or if the driver knew

Almanzar. There was no evidence that any contraband was found in

the station wagon, or that the driver was arrested for suspected

criminal activity. The only “connection” between Almanzar and the

driver was fleeting “eye contact.” The Government presented no

evidence of “connecting factors” recognized by this court as
permitting an inference that two cars are traveling in tandem, with

the first car acting as a “lead” or “spotter” car for the “load”

car carrying contraband. Such “connecting factors” include the

presence of two-way radios, similar license plates, or two vehicles

traveling near each other in a sparsely populated area. See United

States v. Barnard, 553 F.2d 389, 392 & n.6 (5th Cir. 1977); United

States v. Villalobos, 161 F.3d 285, 290 (5th Cir. 1998). In the

absence of such factors, Almanzar’s eye contact with the driver of

the station wagon was at least as consistent with innocence as with

guilt.1 In sum, there is no evidence that Almanzar’s nervousness
or anxiety derived from an underlying consciousness of criminal

behavior.

2. Implausible Explanations

1
It is just as reasonable to conclude that Almanzar’s
attention was directed to the station wagon because it was
immediately in front of her. Observing law enforcement officials
question the driver of another vehicle, in the absence of any other
connection between the two drivers, is at least as likely to be a
case of “rubbernecking.”

12
 “‘[A] less than credible explanation’ for a defendant’s

actions is ‘part of the overall circumstantial evidence from which

possession and knowledge may be inferred.’” Diaz-Carreon, 915 F.2d

at 955 (quoting United States v. Phillips, 496 F.2d 1395, 1398 n.6

(5th Cir. 1974), cert. denied, 422 U.S. 1056 (1975)). The

Government argues that Almanzar’s story that her boyfriend of two

months loaned her his car containing a large amount of contraband,

without making arrangements for returning the car, is not credible.

Significantly, however, no one asked Almanzar if she and Segura had
a plan for returning the car to him. Customs agent Atedero-Lopez

simply asked Almanzar if she knew how to contact Segura.

Furthermore, Atedero-Lopez testified that he could not remember if

Almanzar told him whether Segura knew how to get in touch with her.

Had Segura known where Almanzar lived or worked, he could have

picked up the car himself or arranged for others to do so without

requiring Almanzar to contact him. Such an explanation was found

to be plausible in Ortega Reyna, in which the defendant explained

at trial that, although he did not know the address or phone number

of the truck’s owner, they had made arrangements for the owner to
pick up the truck in Houston. Ortega Reyna, 148 F.3d at 542-43.

In contrast, in Diaz-Carreon, the defendant told customs officials

that a man that he had met a few days earlier named “Ruben” had

loaned him a truck so that he could find employment in New Mexico.

Diaz-Carreon, 915 F.2d at 953. Unlike Almanzar, Diaz-Carreon

testified at trial that he could not explain how “Ruben” would

recover the pickup truck. Id. Unlike Diaz-Carreon, who borrowed

13
a truck from a virtual stranger he had met a few days earlier,

Almanzar had been dating Segura for two months. It is not

implausible that Segura loaned Almanzar his car for the short trip

back to El Paso so that she could get to work on time.

This case also is distinguishable from United States v.

Molina-Iguado, in which the driver of a vehicle containing nine

kilograms of marijuana concealed inside a tire in the trunk told

customs officials that her boyfriend, whom she refused to identify,

had borrowed her car while she was in Mexico. United States
Molina-Iguado, 894 F.2d 1452, 1456 (5th Cir.), cert. denied, 498

U.S. 831 (1990). In Molina-Iquado, agents also found additional

marijuana of the same “texture and color” inside personal effects

in the car driven by the defendant.2 Id. at 1457. The court

concluded that this “additional quantity of very similar marihuana

found concealed inside women’s clothing in a totebag in the car,”

together with the defendant’s “inability to verify in any way her

story about her boyfriend,” was indicative of knowing possession.

Id. Unlike Molina-Iguado, Almanzar identified her boyfriend by

name and told customs agents the nightclubs that he frequented;
moreover, no marijuana was found on Almanzar or inside the

passenger compartment of the car that might have permitted an

inference that she knew about the marijuana hidden in the trunk of

2
Similarly, in United States v. Olivier-Becerril, customs
agents found a small quantity of cocaine in the defendant’s wallet,
an additional factor considered by this court in concluding that
the defendant knew that cocaine was hidden in a secret compartment
in the trunk. United States v. Olivier-Becerril, 861 F.2d 424, 427
(5th Cir. 1988).

14
the car.

Without any evidence that Almanzar could not explain how the

vehicle would be returned to Segura, Almanzar’s story that her

casual boyfriend loaned her his car for the short trip across the

border to El Paso, so that she could get to work on time, is at

least as consistent with innocence as guilt.

The Government also argues that Almanzar’s story that she was

worried about getting back to work is implausible given that she

had three unexcused absences from work immediately before her
arrest. However, Almanzar’s employer’s office manager, Sepulveda,

testified that Almanzar missed work on April 7, 8 and 9; Almanzar

was arrested on the morning of April 9. Sepulveda also testified

that the company’s attendance policy provided that after three

consecutive absences without notification, a written warning would

be given, and if the employee responded within 24 hours, he or she

would not be fired. Thus, it is entirely plausible that although

Almanzar had missed work for three days, she knew that she could

keep her job if she reported to work within the 24-hour period.

Therefore, Almanzar’s statement that she was concerned about
getting back to work is not implausible. The Government also

suggests that Almanzar’s three-day absence from work was connected

to drug-trafficking activity. No evidence supports this assertion.

In the absence of evidence that Almanzar could not have

explained how Segura’s car would be returned, and in light of the

testimony that Almanzar could have kept her job had she returned to

work on the morning she was arrested, the circumstances surrounding

15
Almanzar’s borrowing of her boyfriend’s car to return to work after

a date are not implausible.2

3. Inconsistent Statements

This court has declared that “perhaps the strongest evidence

of a criminal defendant’s guilty knowledge is inconsistent

statements to federal officials.” Diaz-Carreon, 915 F.2d at 954-55

(citing Richardson, 848 F.2d at 513; Williams-Hendricks, 805 F.2d

at 501). Because inconsistent statements are inherently

suspicious, a fact finder reasonably could conclude that they mask
an underlying consciousness of guilt. Id. at 955. The Government

argues that Almanzar’s initial statement that she went to the

Vertigo nightclub, and her later statement that she went to the XO

nightclub, provide circumstantial evidence of guilty knowledge.

The Government did not ask Almanzar to explain why she

initially told customs officials that she had been to Vertigo, and

2
In comparison, this court has rejected as implausible the
following dubious explanations given by defendants. In Resio-
Trejo, the defendant told customs officials that someone had taken
his truck without his knowledge, spent several days constructing
secret compartments in the gas tanks, loaded these compartments
with $130,000 worth of marijuana, and then returned the truck to
him. Resio-Trejo, 45 F.3d at 913. In Richardson, this court found
“clearly suspicious” the defendant’s story that on the day he
arrived in Los Angeles to visit his ill mother, he “ran into” a
female named “Rhonda” whom he had known for four or five years, but
whose last name he could not recall. Richardson, 848 F.2d at 512.
Richardson told a DEA agent that because he did not have enough
money to fly back to Dallas, he asked “Rhonda” to rent him a car.
Id. The evidence showed that someone named “Cassandra Rodney” paid
a cash deposit of $370 for the rental car; a return ticket to
Dallas would have cost only $60. Id. Richardson claimed that
“later that evening someone dropped off a car in front of his
mother’s house and dropped the key to it through the mail slot,”
and he returned to Dallas at 2 o’clock the morning after his
arrival. Id. at 512, 513.

16
later told them that she had been to XO. Almanzar’s daughter

testified that the two clubs are across the street from each other

in the same block and that when one club closes, patrons often walk

across the street to the other club using the same wristband to

gain free admission. Almanzar’s statements are not necessarily

inconsistent because it is possible that she may have gone to both

neighboring nightclubs with Segura that evening. In Ortega-Reyna,

148 F.3d at 547, the defendant first stated that he was going to El

Campo and later said he was traveling to Houston; however, we
concluded that these statements were not inconsistent given his

explanation that he planned to pick up equipment in El Campo and

continue to Houston to enroll his children in school. Similarly,

Ortega Reyna’s statement that he was coming from Miguel Aleman,

Mexico, and his wife’s statement that they were coming from Roma,

Texas, were not inconsistent because these were “simply sister

cities on the opposite sides of the Rio Grande River – two

municipalities comprising a single metropolitan area.” Id. at 546.

In contrast, in Anchondo-Sandoval, the defendant initially

told authorities that he had been in Mexico visiting friends or
relatives, and that he was returning to Phoenix, Arizona to look

for work as a field hand; he later stated that he was in Mexico to

live cheaply while looking for work in El Paso, Texas and that he

intended to return to Albuquerque, New Mexico to look for work in

construction. Anchondo-Sandoval, 910 F.2d at 1237. See also

United States v. Del Aguila-Reyes, 722 F.2d 155, 156 (5th Cir. 1983)

(defendant initially told customs officials that this was the first

17
time that his brother had accompanied him on a trip to the United

States, but he later said that his brother had accompanied him on

a previous trip to Miami); United States v. Martinez-Mercado, 888

F.2d 1484, 1491 (5th Cir. 1989) (defendant initially told customs

officials that an unidentified “they” had loaned him the truck to

cross the border to look for work, even though he had no work

permit; later, defendant asserted that “they” had paid him $300 to

drive the truck to the United States to retrieve a semitrailer).

Unlike these defendants’ stories, Almanzar’s two statements were
not necessarily inconsistent because both could be true.

4. Exclusive Possession and Control

For a Lengthy Time and Over a Great Distance

This court has permitted an inference of guilty knowledge when

a defendant has possessed and controlled a vehicle containing

hidden contraband for a long period of time and over a considerable

distance, reasoning that the defendant likely would have detected

the contraband. For example, in Resio-Trejo, this court concluded

that a jury reasonably could infer that the defendant knew that

marijuana was concealed in the gas tanks of a truck he was driving
in part because the defendant had possession and exclusive control

of the truck for ten months preceding the discovery. Resio-Trejo,

45 F.3d at 912. Likewise, in Richardson, 848 F.2d at 512, 514 n.4,

we declared that “[t]he fact that Richardson had exclusive

possession of the car, driving it alone [for seventeen hours] on a

trip of over a thousand miles, is some evidence from which it might

ordinarily be inferred that he was aware of the some two pounds of

18
cocaine in the wrapped packages sitting in the trunk.” See also

McDonald, 905 F.2d at 874 (“McDonald owned the car and had had

possession for some time, facts which can suggest guilty

knowledge”).

The evidence indicated that Almanzar’s boyfriend loaned his

car to her in Ciudad Juarez at approximately 5:00 a.m., and that

Almanzar was stopped at the Paso Del Norte port of entry in El Paso

at approximately 5:10 a.m. In ten minutes, Almanzar drove only a

short distance in crossing the bridge separating the border cities
of Ciudad Juarez and El Paso. The Government presented no proof of

ownership of the Honda. Because Almanzar possessed and controlled

the Honda for a very brief period and she traveled a very short

distance, no inference can be drawn that Almanzar was aware of

marijuana hidden in the trunk of the vehicle. See United States v.

Tolliver, 780 F.2d 1177, 1184 (5th Cir. 1986) (noting the “paucity

of evidence indicating awareness by [the defendants] of the

contraband’s presence in a vehicle they did not own and were not

shown to have controlled for more than a brief period”), vacated

and remanded on other grounds, 479 U.S. 1074 (1987).
5.Odor of Marijuana or Scent Masking Odor

In Lopez, this court held that, although the bulk of the

evidence adduced at trial was at least as consistent with innocence

as it was with guilt3, an inspector’s testimony that he smelled a

strong odor of marijuana in the vehicle “must tip the scales in

3
This additional evidence in equipoise in Lopez was: (1)
changing lanes prior to inspection; and (2) appearing nervous when
asked to open the car trunk. Lopez, 74 F.3d at 578.

19
favor of providing a basis for affirming the verdict.” Lopez, 74

F.3d at 578 (”a reasonable jury could rationally infer beyond a

reasonable doubt that [the defendant] had knowledge of the hidden

marijuana because its odor was present in the passenger compartment

of the car he was driving”). See also United States v. Gomez, 776

F.2d 542, 549 (5th Cir. 1985) (“renting and driving the truck,

loaded with over a thousand pounds of marijuana, smelling of

marijuana and having marijuana debris on the tailgate[,] suffice to

allow an inference that [the defendant] was aware of the presence
of marijuana”).

In Olivier-Becerril, 861 F.2d at 427, this court found that

coffee and a fresh garlic wreath placed in a trunk to mask the odor

of narcotics permitted an inference that the defendant was aware of

the presence of marijuana in the vehicle. See also Del Aguila-

Reyes, 722 F.2d at 156 (noting that “perfume is often used to mask

the odor of drugs”); Phillips, 496 F.2d at 1398 (moth balls

concealing scent of marijuana).

Inspector Madriles testified that there was no odor of

marijuana in the Honda and that he did not recall smelling air
freshener. Thus, the Government has produced no such “additional

indicia that [Almanzar] was aware of the presence of drugs.” See

Lopez, 74 F.3d at 577-78.

6. Possession of Large Amounts of Cash

Possession of large amounts of cash may be circumstantial

evidence of guilty knowledge, indicating that a defendant might

have been compensated for his role in the attempt to smuggle

20
contraband into the country. Ortega Reyna, 148 F.3d at 548; see

also United States v. Crooks, 83 F.3d 103, 107 (5th Cir. 1996) (when

stopped, defendant had $1,400 in cash); Del Aguila-Reyes, 722 F.2d

at 156 ($900 in cash); Olivier-Becerril, 861 F.2d at 425 ($500 in

cash).

The Government presented no evidence that agents found any

cash on Almanzar or in the Honda when she was stopped at the

border. Thus, no inference can be made that she was being paid to

smuggle marijuana into the United States. Indeed, the lack of
evidence that Almanzar had cash when she entered the checkpoint

tends to support her story that she borrowed her friend’s car to

return to El Paso. If Almanzar had money, she could have returned

to El Paso as she had arrived, by taxi cab.

7. Obvious or Remarkable Alterations to the Vehicle

This court has permitted an inference of guilty knowledge of

hidden contraband when the alterations to the vehicle are so

obvious or remarkable that they easily would be discovered by a

person in possession or control of the vehicle.

In Resio-Trejo, this court concluded that because the border
patrol agent discovered secret compartments built in the fuel tank

of a vehicle “simply by inserting a coat hanger in the gas tank, .

. . the jury could reasonably infer that Resio would have made a

similar discovery during his daily inspections or while refueling

his truck [in the ten months that he possessed the vehicle].”

Resio-Trejo, 45 F.3d at 913. See also Martinez-Mercado, 888 F.2d

at 1491 (knowing possession inferred in part from “the fact that

21
the unusual nature of the fuel tanks and their special fittings

were observable on exterior inspection”).

Immigration inspector Madriles, who had 14 years experience,

testified that when he opened the trunk, he saw new rubber molding

and fresh paint applied to Bondo or fiberglass, leading him to

believe that the trunk had been altered. Canine enforcement

officer Picazzo testified that in order to reach the marijuana, he

had to drill through sheet metal covering the spare tire well.

Customs inspector Ramirez testified that a National Guard team took
as long as 45 minutes to cut through the sheet metal with a saw.

Thus, considering the short time that Almanzar was in

possession of the vehicle, the hidden compartment beneath freshly

painted Bondo and sheet metal in the trunk was not necessarily

obvious or readily accessible to her. Furthermore, the Government

presented no evidence that Almanzar was familiar with the

construction of the trunk of a Honda Prelude so that she would

notice the alteration, if indeed she ever looked inside the trunk

at all. In Diaz-Carreon, 915 F.2d at 954 n.4, this court rejected

the Government’s argument that the defendant should have suspected
that the atypical freshly painted and swollen sideboards of the

pickup truck concealed contraband because “the Government failed to

introduce at trial any evidence demonstrating that Diaz-Carreon

himself was familiar with the type of stake bed truck involved in

this case.”

Moreover, Almanzar did not admit that she knew that the trunk

had been altered, or that she knew that “something” was in the

22
hidden compartment. See McDonald, 905 F.2d at 873 (after the

inspectors found marijuana in the gas tank, the defendant admitted

that “he had known ‘something’ was in the tank”); United States v.

Miller, 146 F.3d 274, 281 (5th Cir. 1998) (defendant “admitted that

he was aware that the bed [of the motor home] under which the drugs

were later found had been modified”).

In sum, the alterations to the trunk were not so obvious, or

the hidden compartment so readily accessible, that an inference

could be drawn that Almanzar had discovered the marijuana during
the ten minutes that she drove the vehicle from Ciudad Juarez to El

Paso.

8. Other Alleged Evidence of Guilty Knowledge

The Government argues that Almanzar’s lack of identification

permits an inference of guilty knowledge. Almanzar told customs

officials that she had no identification because her purse had been

lost and the Government offered no evidence that this statement was

false or implausible.4 Finally, the Government suggests that

Almanzar was lying when she said that the Honda belonged to her

boyfriend, pointing out that the Honda key was found on Almanzar’s
key ring. However, the Government did not present any evidence as

to the ownership of the Honda. Furthermore, it is just as

reasonable to infer that Almanzar placed a loose key on her own key

4
Agent Atedero-Lopez testified that Almanzar’s daughter gave
him her mother’s expired driver’s license for identification after
Almanzar’s arrest, which her daughter said she found in her
mother’s dresser drawer, and not in her purse. This evidence tends
to confirm Almanzar’s statement that she lost her purse, which
presumably would contain her current driver’s license.

23
ring to avoid losing it.

IV. CONCLUSION

Although we recognize that our review is limited to

considering the evidence in the light most favorable to the

Government, we conclude that the circumstantial evidence presented

by the Government as a whole would support an equal or nearly equal

theory of guilt and a theory of innocence5, so that a reasonable

jury must necessarily entertain a reasonable doubt. See Sanchez,

961 F.2d at 1173. Hence, as a matter of law, the evidence is
insufficient to support a jury’s finding beyond a reasonable doubt

that Almanzar had knowledge of the marijuana in the hidden

compartment of the vehicle she was driving. See Ortega Reyna, 148

F.3d at 545, 547.

Accordingly, Almanzar’s conviction must be reversed.

REVERSED.

5
“[F]or every inference of guilt that may be drawn from the
evidence, there is an equal and opposite benign inference to be
drawn.” Ortega Reyna, 148 F.3d at 545.

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