Case: 10-40263 Document: 00511335615 Page: 1 Date Filed: 12/29/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 29, 2010
No. 10-40263
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE M. GALLOSO-HURTADO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-982-1
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose M. Galloso-Hurtado appeals his jury-trial conviction for possession
of, with intent to distribute, 100 kilograms or more of marijuana, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B). Galloso contends the evidence was insufficient
to support his conviction, claiming the Government failed to show he knew there
was marijuana in the trailer of his tractor-trailer truck when he drove it to a
Border Patrol checkpoint.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40263
A district court’s denial of a motion for judgment of acquittal is reviewed
de novo. E.g., United States v. Campbell, 52 F.3d 521, 522 (5th Cir. 1995).
Galloso’s motions for judgment of acquittal, made at the close of the
Government’s case and at the close of the evidence, preserved his challenge to
the sufficiency of the evidence. E.g., United States v. Mendoza, 226 F.3d 340,
343 (5th Cir. 2000). Accordingly, the jury’s verdict will be upheld if a reasonable
trier of fact could conclude from the evidence that the elements of the offense
were established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979). Along this line, the evidence, both direct and circumstantial, is
viewed in the light most favorable to the jury’s verdict. E.g., United States v.
Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).
As noted, the sole issue raised is Galloso’s knowledge of the marijuana, an
element necessary for his convictions. See United States v. Garza, 990 F.2d 171,
174 (5th Cir. 1993). That “element [for] a possession case can rarely be
established by direct evidence”. United States v. Mendoza, 522 F.3d 482, 489
(5th Cir. 2008) (internal quotation marks and citation omitted). Accordingly, “[a]
jury may infer knowledge from the defendant’s control over a vehicle containing
contraband unless the drugs are hidden in compartments, in which case proof
of the defendant’s knowledge depends on inference and circumstantial evidence”.
United States v. Garcia-Flores, 246 F.3d 451, 454 (5th Cir. 2001).
The evidence demonstrates that Galloso initially told Border Patrol Agent
Centeno that he had picked up a loaded trailer in McAllen, Texas, and was
hauling it to New York. Galloso’s story changed post-arrest, however, when he
told Agent Centeno and Drug Enforcement Agency Task Force Officer Gutierrez
the following: on 5 November 2009, he picked up another load in Laredo, Texas;
he was called back to Laredo for picking up the wrong trailer; he returned it to
Laredo; and then traveled, without a trailer, from Laredo to McAllen where he
picked up the correct trailer. The trailer Galloso brought to the checkpoint,
however, was his own trailer, and his story to Officer Gutierrez did not explain
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No. 10-40263
where he left his trailer when he picked up the wrong trailer in Laredo. When
questioned by Agent Centeno, Galloso could not explain what routes he had
taken to Laredo and McAllen. Galloso’s log-book entries, which were in his
possession at the time of his arrest, did not provide any indication he had picked
up a trailer in Laredo, and the trucking company owner testified the load
Galloso picked up in Pharr, Texas, near McAllen, never originated in Laredo and
was not arranged until 6 November 2009. Consequently, the load Galloso picked
up in Pharr could not have been related to the alleged incorrect trailer Galloso
stated he picked up in Laredo.
Finally, it was reasonable for the jury to infer Galloso would not have been
entrusted to possess the 715 pounds of marijuana (with a value of more than
$500,000) without knowledge of it. See id. at 455. Although Galloso maintains
there are innocent explanations for his statements and for the implausibility of
his story, the totality of the evidence was sufficient for a reasonable juror to infer
that Galloso knew marijuana was in the trailer. See id. at 454-55; United States
v. Ramos-Garcia, 184 F.3d 463, 466-67 (5th Cir. 1999).
For the first time on appeal, Galloso asserts: the Government was
obligated, but failed, to prove he knew the drug quantity involved, making the
evidence insufficient to support his conviction; and the jury instructions were
erroneous because the district court did not instruct the jury on such obligation.
Galloso concedes these related drug-quantity issues are foreclosed by United
States v. Betancourt, 586 F.3d 303 (5th Cir. 2009), cert. denied, 130 S. Ct. 1920
(2010), and raises them solely to preserve them for possible further review.
AFFIRMED.
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