UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-50930
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EZEQUIEL CHAVEZ-SALCIDO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(P-98-CR-74-2)
_________________________________________________________________
November 5, 1999
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Having been convicted for importation and possession of
marijuana with intent to distribute, in violation of 21 U.S.C. §§
952(a), 960(a)(1), and 841(a)(1), Ezequiel Chavez-Salcido contests
the sufficiency of the evidence (claims not aware of marijuana
hidden in vehicle in which a passenger) and being denied a “minor
or minimal role” sentencing downward adjustment (claims only
“courier” status). We AFFIRM.
I.
At approximately 6:00 p.m. on Friday, 3 April 1998, Customs
Inspector Insley, inspecting traffic entering the United States
from Mexico at the Presidio, Texas, port of entry, stopped an
*
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this opinion should not be published and is not precedent except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.
automobile in which Chavez was a passenger. The driver, Chavez’s
codefendant Luis Contreras-Lara, told the Inspector that he and
Chavez were headed to El Paso; Chavez nodded, indicating agreement.
Because Contreras had to lower his head to answer questions through
the open window and appeared nervous, the Inspector directed the
vehicle to the secondary inspection point. (At trial, the
Inspector testified that the vehicle was “a regular sized car” — “I
think it was a four door Chrysler Labaron” — but that, in order to
respond to the Inspector, Contreras, instead of just looking over
and responding, as “most people” do, had to “lower his head a
little bit and crank it out”; that this, again, “was a little
unusual. I remember him kind of cranking his head ... underneath
the roof a little bit like he was cramped for space.”)
When the Inspector rejoined Chavez and Contreras at the
secondary inspection point, they had exited the vehicle; and
Contreras had opened the trunk to show it was empty. The Inspector
testified that this was unusual, because in such situations, people
usually remain in their vehicles. Customs Inspector Seward
testified that, while at the secondary inspection point, Contreras
and Chavez told him they were going to El Paso (consistent with
what Inspector Insley had been told).
While examining the interior of the vehicle, which was
registered under Contreras’ name, Inspector Insley noticed that the
floorboard was elevated; he lifted the carpet and discovered a
hatch. When a drug-detecting dog alerted, the Inspector had the
vehicle searched.
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Inspector Insley testified that, when he sat in the driver’s
seat, his knees were elevated “like [he] was sitting on a phone
book”. Special Agent McGraw , a criminal investigator located at
the port of entry, testified that the entire floorboard had been
raised about eight inches, and the passenger seat was “tilted”.
Customs Agents discovered four trap doors leading to a hidden
compartment: one door near the passenger’s feet, one near the
driver’s feet, and two in the back seat floor. They found 62
pounds of marijuana, and seized from Contreras what appeared to be
a drug ledger. (Contreras later pleaded guilty to possession of
the marijuana, and received a 12-month prison sentence, referenced
in part II.B., infra, concerning denial of the downward adjustment
for Chavez.)
As was customary after a drug seizure, Special Agent McGraw,
referenced supra, was immediately dispatched to the scene. Around
6:30 that same evening, Chavez was given a form (in Spanish)
advising him of his rights, which Chavez read, signed, and
indicated he understood. With the assistance of Special Agent
Koker, who had been trained in Spanish, Special Agent McGraw
interviewed Chavez. The Special Agents testified that, during the
interview, Chavez was “extremely nervous”, spoke rapidly, and took
rapid breaths.
Special Agent Koker testified that Chavez told the Special
Agents: that Contreras had approached him the night before
(Thursday night) while Chavez was at work in Chihuahua City, asked
him to go to Denver with him to pick up an income tax refund at a
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mountain resort where Contreras had worked, and offered to pay for
the trip; that he had known Contreras for about a year; that they
planned to return to Chihuahua City by Sunday morning, because
Chavez had to work that night; and that he (Chavez) was going to
Denver to visit his girlfriend (initially, Chavez could not
remember her last name, not recalling it until an hour later).
Immigration Inspector Cook, who processed Chavez for
deportation at the port of entry around 8:30 that same evening,
testified that Chavez was very inquisitive about what was going to
happen to him; and that Chavez’s questions (in Spanish) translated
into “what happens if I knew it was there”. The Inspector also
testified that, when he asked Chavez whether he knew the marijuana
was in the vehicle, Chavez hesitated, looked down, and swallowed
nervously, before stating that he did not know.
At trial, Chavez testified that Contreras was going to Denver
to purchase an automobile and needed him to return the other
vehicle to Chihuahua City; that, en route to the port of entry, he
(Chavez) did not drive the vehicle or notice anything unusual about
its interior, because he had left work around 5:00 a.m. and had
slept all the way to the port of entry; that he did not take a
change of clothes, because they were not going to stay overnight;
and that he did not bring any money, because his work check had not
been deposited. Chavez denied that either he or Contreras told the
Customs Inspectors that they were going to El Paso.
Chavez moved for judgment of acquittal at the close of the
Government’s case and at the close of all the evidence. A jury
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convicted him of both importing and possessing marijuana with
intent to distribute.
At sentencing, Chavez made only one objection to the
presentence report (PSR): that he should receive a downward
adjustment for his mitigating role in the offense. The district
court denied the adjustment, adopted the PSR’s findings and
recommendation, and sentenced Chavez, inter alia, to two concurrent
terms of 27 months’ imprisonment.
II.
A.
For the sufficiency challenge, Chavez having timely moved for
judgment of acquittal, we must determine “whether, viewing the
evidence in the light most favorable to the government, a rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt”. United States v. Greer, 137
F.3d 247, 249 (5th Cir. 1998) (citing United States v. Bell, 678
F.2d 547, 549 (5th Cir. 1982) (en banc)); see United States v.
Pankhurst, 118 F.3d 345, 351-52 (5th Cir. 1997). All reasonable
constructions of the evidence are available to the jury, and
neither elimination of each reasonable theory of innocence nor
contradiction of all conclusions other than guilt is required. See
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996) (citations
omitted). In short, we must give credence to “all credibility
choices that tend to support the jury’s verdict”. United States v.
McKenzie, 768 F.2d 602, 605 (5th Cir. 1985) (citations omitted).
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To convict on both charges, the Government had to prove that
Chavez knowingly brought the marijuana into the United States, and
possessed it with the intent to distribute it. See United States
v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990) (citing United
States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir. 1986)).
The elements of both offenses may be established by circumstantial
evidence. See United States v. Cardenas, 9 F.3d 1139, 1158 (5th
Cir. 1993) (possession with intent to distribute); United States v.
Manotas-Mejia, 824 F.2d 360, 367 (5th Cir. 1987) (importation).
Although several defendants can jointly possess a proscribed
substance, either actually or constructively, Cardenas, 9 F.3d at
1158 (citing United States v. Molinar-Apodaca, 889 F.2d 1417, 1423
(5th Cir. 1989)), the Government must establish an adequate nexus
between the drugs and the defendant. United States v. Cardenas,
748 F.2d 1015, 1020 (5th Cir. 1984) (citing United States v. Ferg,
504 F.2d 914 (5th Cir. 1974)). Accordingly, mere presence in a
vehicle where drugs are found, or association with the person who
controls the drugs or vehicle, alone, are not sufficient to
establish possession. Id. (quoting United States v. Stephenson,
474 F.2d 1353, 1355 (5th Cir. 1973)). Therefore, for “hidden
compartment cases”, like the one at hand, the Government must
produce “additional evidence indicating knowledge – circumstances
evidencing a consciousness of guilt on the part of the defendant”.
Diaz-Carreon, 915 F.2d at 954 (citations omitted; emphasis in
original).
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Chavez contests the sufficiency of the evidence on only one
element for each of the two offenses — he claims he was not aware
of the concealed marijuana. But, based upon our “commonsense,
fact-specific” review of the earlier described evidence, see United
States v. Smith, 930 F.2d 1081, 1086 (5th Cir. 1991), including
viewing that evidence in the light most favorable to the Government
(as required by our standard of review), a rational juror could
have concluded, beyond a reasonable doubt, that Chavez knowingly
played a role in bringing the marijuana into the United States and
possessed it with intent to distribute it.
For example, the jury was shown a videotape, produced by Agent
McGraw, in which an Agent, approximately the same height as Chavez,
sat in the front seat of Contreras’ vehicle and stated that his
head was touching the vehicle’s ceiling. A rational juror could
reasonably infer that, at some point en route to the border, Chavez
would have asked about the vehicle’s unmistakably altered
dimensions. In short, the jurors were entitled to reject Chavez’s
testimony that he slept the entire trip to the port of entry and
never noticed the elevated seats. See United States v. Mulderig,
120 F.3d 534, 547 (5th Cir. 1997) (quoting United States v. Ayala,
887 F.2d 62, 67 (5th Cir. 1989) (permissible for jurors to “rely on
their ‘common sense’ and ‘knowledge of the natural tendencies and
inclinations of human beings’”)).
Other evidence supporting Chavez’s knowing about the marijuana
included: his contradictory statements regarding his destination
(first El Paso, then Denver); his story that he was traveling to
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Denver to see his girlfriend, in the light of his inability to
remember her last name and failure to bring money or a change of
clothing; the difficulty of making a round trip between Friday and
Sunday, as Chavez claimed, and still being able to spend time with
his girlfriend in Denver, given the estimated 15-20 hour drive from
Chihuahua City, Mexico, to Denver, Colorado; his nervous appearance
when questioned; his hesitation before denying knowledge of the
drugs; and his repeated inquiries about the consequences if he had
known about the drugs’ presence. See Diaz-Carreon, 915 F.2d at
954-55 (nervousness, conflicting statements to inspection
officials, and implausible story may adequately establish
consciousness of guilt); United States v. Pennington, 20 F.3d 593,
598 (5th Cir. 1994) (“circuitous route” and timing of trip
supported conclusion defendants possessed marijuana).
Again, Chavez claims, for his sufficiency challenge, only non-
awareness of the marijuana. In short, this is a classic jury
issue. For example, as discussed, two Government witnesses
testified that Chavez had indicated (to one) and stated (to the
other) that his destination was El Paso (not Denver); in his
testimony, Chavez denied doing so. As stated, viewing the
evidence, as we must, in the light most favorable to the
Government, a rational juror could have found, beyond a reasonable
doubt, that Chavez was aware of the marijuana.
B.
In claiming entitlement to the minor or minimal participation
adjustment under Guideline § 3B1.2, Chavez states that the
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commentary applies to this case, § 3B1.2 commentary, n.2
(suggesting adjustment “where an individual was recruited as a
courier for a single smuggling transaction involving a small amount
of drugs”); and notes that Contreras, who owned the vehicle and
admitted ownership of the marijuana, received a significantly
lesser sentence than he.
But, to qualify for the adjustment, Chavez had to show that he
was “substantially less culpable than” Contreras. Id. at
background n.; see, e.g., United States v. Buenrostro, 868 F.2d
135, 138 (5th Cir. 1989) (Ҥ 3B1.2 turns upon culpability, not
courier status”) (emphasis added). Factual determinations
regarding Chavez’s role are reviewed only for clear error. E.g.,
United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994)
(citation omitted).
At sentencing, Chavez contended that, because Contreras
accepted responsibility for, and claimed ownership of, the
marijuana, Contreras was primarily to profit from it; that, at
most, Chavez was only along to help drive; that it was unfair for
him to receive a sentence twice as long as Contreras’; that he had
no history of drug trafficking or other criminal involvement; and
that he had steadfastly maintained his innocence.
The district court considered this evidence, as well as (1)
Contreras’ statement to the probation officer (included in Chavez’s
PSR) that Chavez was aware of the drugs, and (2) the jury’s similar
finding concerning Chavez’s awareness. The district judge found no
differentiation between the roles of Chavez and Contreras.
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Based on our review of the record, the court did not clearly
err in finding that Chavez was not “substantially less culpable”
than Contreras. The downward adjustment denial must stand.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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