IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-51160
Summary Calendar
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALFREDO TEJADA-ORNELAS
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Pecos Division
P-99-CR-226-ALL-FB
_________________________________________________________________
October 26, 2000
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Alfredo Tejada-Ornelas was convicted by
a jury on one count of importation of marijuana into the United
States from Mexico in violation of 21 U.S.C. §§ 952(a) and
960(a)(1) and one count of possession of marijuana with intent to
*
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that this opinion should not be published and is not precedent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.
distribute in violation of 21 U.S.C. § 841(a)(1). Tejada-Ornelas
argues that the evidence was insufficient to support his
convictions. Reviewing the sufficiency of the evidence under the
manifest miscarriage of justice standard, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 9, 1999, Tejada-Ornelas, a 59-year-old truck driver,
drove into the United States at the Presidio Port of Entry in
Texas in a cattle truck, as he did regularly. He spoke with
Customs Inspector Richard Martinez, who knew Tejada-Ornelas from
his almost daily border crossings. Tejada-Ornelas warned the
officer to “keep an eye on Rodriguez Trucking Company.” Martinez
spoke to his fellow officers about the warning, in part concerned
that it was an attempt to divert suspicion from Tejada-Ornelas
himself.
The following day, Tejada-Ornelas again drove into the
Presidio Port of Entry, but this time in an unfamiliar tractor-
trailer. Because they had never seen this particular vehicle and
because of the previous warning, the customs inspectors decided
to conduct a canine inspection of the tractor-trailer. After the
dog indicated the presence of narcotics in the rear tires of the
tractor portion of the vehicle, the inspectors conducted a more
thorough search of the tractor-trailer, including the use of a
2
“buster”1 to check the density of the tires. When asked if the
vehicle could be searched, Tejada-Ornelas made comments to the
effect of “Go ahead. There is nothing there.” According to the
officers, he appeared very calm when they began their
inspections, but became increasingly nervous after the dog
“alerted”2 and they began their more thorough search.
Canine Enforcement Officer Lawrence Gardea requested that
Tejada-Ornelas disconnect the trailer from the tractor. Tejada-
Ornelas responded that he could not do so because the crank did
not work and stated, “There’s nothing there, really. You can
inspect the trailer.”3 After a few more requests, Tejada-Ornelas
disconnected the trailer, and the tractor was driven to a local
service station.4 The rim of each tire was cut off with a
blowtorch, and 194.4 pounds of marijuana was discovered in sealed
1
A buster is used to measure the density of an item, in
this case, a tire. The officers take the density reading of the
object and compare it to a chart that indicates its normal
density reading. If the density reading is too high, it suggests
that the substance is thicker than it should be, indicating that
there is something inside other than air.
2
As Gardea explained, an alert “is a readable behavior
the dog throws when the possible presence of narcotics is there.”
3
Tejada-Ornelas actually consented to a search of “la
trucka,” but pointed to the trailer. The government argues this
was an attempt to divert their attention from the tractor, where
the marijuana was eventually discovered, to the trailer.
4
According to Gardea, this was the first time Tejada-
Ornelas had ever hesitated to do anything that had been asked of
him.
3
containers attached to the rims inside the interior rear tires of
the tractor.
Tejada-Ornelas was taken to the Customs offices at the rear
of the Port of Entry and advised of his rights in Spanish. At
the time of his arrest, he had only $38, consistent with his
story that he had begun the trip with $50 and had spent $12 to
pay the crossing fare at the Presidio check point. He
voluntarily spoke with the Customs officials, informing them that
he was driving the tractor-trailer for Victor, whose last name he
did not know, but later remembered as Enriquez. Tejada-Ornelas
explained he had been hired to take the truck to a warehouse,
drop it off, and walk back to Mexico where he would be paid. He
also stated that Enriquez, who had exited the truck at the
border, had not driven the truck into the United States because
he did not have a commercial driver’s license.
When questioned about his statements to Martinez, he
originally denied having made them, but later admitted that he
had. Special Agent Joshua Whatmough, who participated in the
questioning, testified that he felt Tejada-Ornelas was evasive,
failed to answer some questions, and provided incomplete answers
to others. However, he also testified that many of the
statements and explanations given were later found to be true.
During the question, Tejada-Ornelas also made several statements
regarding his financial situation. For example, he stated that
he was the sole provider for his family, that he had numerous
4
bills to pay, and that he was afraid his phone was going to be
cut off.
Tejada-Ornelas’s attorney moved for judgment of acquittal at
the end of the government’s case based on the government’s
failure to prove the requisite element of knowledge. That motion
was denied. There is, however, no evidence in the record that he
renewed the motion at the end of the trial or after the verdict.
Tejada-Ornelas was convicted on both counts. Following
sentencing and entry of judgment, he timely appealed.
II. DISCUSSION
Tejada-Ornelas argues on appeal that the evidence was
insufficient to establish his guilt beyond a reasonable doubt.
Normally, the standard of review for sufficiency challenges is
“‘whether a reasonable trier of fact could have found that the
evidence established the essential elements of the crime beyond a
reasonable doubt.’” United States v. Reveles, 190 F.3d 678, 686
(5th Cir. 1999) (quoting United States v. Ortega Reyna, 148 F.3d
540, 543 (5th Cir. 1998)). Under this standard, the evidence and
all reasonable inferences from it are viewed in the light most
favorable to the verdict. See id. However, reversal is required
“[i]f the evidence tends to give ‘equal or nearly equal
circumstantial support’ to guilt and to innocence” because then
“‘a reasonable jury must necessarily entertain a reasonable
5
doubt.’” Ortega Reyna, 148 F.3d at 543 (quoting United States v.
Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).
Yet, the standard for a sufficiency challenge differs when
the defendant fails to renew his motion for a judgment of
acquittal at the end of trial. When that occurs, the standard is
whether there was a “manifest miscarriage of justice.” United
States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998).5 “‘Such a
miscarriage would exist only if the record is devoid of evidence
pointing to guilt, or . . . because the evidence on a key element
of the offense was so tenuous that a conviction would be
shocking.’” Id. at 369 (quoting United States v. Pierre, 958
F.2d 1304, 1310 (5th Cir. 1992)). “In making this determination,
the evidence, as with the regular standard of review of
insufficiency of evidence claims, must be considered in the light
5
While we recognize that a prior decision of this court
raised the question of whether there is a difference between the
“sufficiency of the evidence” standard and the plain error
“miscarriage of justice” standard, that opinion expressly noted
it “need not reach the issue of whether the standards are the
same.” United States v. Pennington, 20 F.3d 593, 597 n.2 (5th
Cir. 1994). However, only the court sitting en banc can reverse
precedent, and Fifth Circuit precedent both before and after that
opinion has consistently found that the “manifest miscarriage of
justice” standard is applicable to a sufficiency of the evidence
claim when the defendant has failed to make a motion for
acquittal at the end of trial. See, e.g., United States v.
Rivas, 157 F.3d 364, 368-69 (5th Cir. 1998); United States v.
Laury, 49 F.3d 145, 151 (5th Cir. 1995); United States v. Resio-
Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995); United States v.
Inocencio, 40 F.3d 716, 724 (5th Cir. 1995); United States v.
McCarty, 36 F.3d 1349, 1358 (5th Cir. 1994); United States v.
Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994); United States v.
Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992).
6
most favorable to the government, giving the government the
benefit of all reasonable inferences and credibility choices.”
United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994)
(citing United States v. Thomas, 12 F.3d 1350, 1358-59 (5th Cir.
1994)).
Tejada-Ornelas contends that there was not enough evidence
to support a finding that he knew of the existence of the
marijuana in the tractor-trailer. To support a conviction for
importation of marijuana into the United States from Mexico in
violation of 21 U.S.C. §§ 952(a) and 960(a)(1), the government
must prove “that the defendant knowingly played a role in
bringing the marijuana into the country.” United States v.
Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Similarly, “[a]
conviction for the offense of possession of marijuana with intent
to distribute [in violation of 21 U.S.C. § 841(a)(1)] requires
proof that the defendant (1) knowingly (2) possessed marijuana
(3) with intent to distribute it.” Id. Knowledge, therefore, is
an element of both offenses.
Knowledge of the presence of contraband may ordinarily be
inferred from the exercise of control over a vehicle containing
such contraband. See Ortega Reyna, 148 F.3d at 544; see also
Lopez, 74 F.3d at 577-78; United States v. Resio-Trejo, 45 F.3d
907, 911 (5th Cir. 1995); Inocencio, 40 F.3d at 724; United
States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994). However,
control over the vehicle is not always sufficient to establish
7
guilty knowledge, particularly when the contraband is well
hidden.
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.’” 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.” This assumption is heightened when . . .
the vehicle is a “loaner” or has otherwise been in the
possession of the suspect for only a short time.
Ortega Reyna, 148 F.3d at 544 (footnotes omitted); see also
Lopez, 74 F.3d at 577-78; Resio-Trejo, 45 F.3d at 911; Inocencio,
40 F.3d at 724-25; Pennington, 20 F.3d at 598.
For example, this court has relied upon “(1) nervousness;
(2) absence of nervousness . . . ; (3) failure to make eye
contact; (4) refusal or reluctance to answer questions; (5) lack
of surprise when contraband is discovered; (6) inconsistent
statements; (7) implausible explanations; (8) possession of large
amounts of cash; and (9) obvious or remarkable alterations to the
vehicle” as circumstantial evidence of a defendant’s guilty
knowledge. Ortega Reyna, 148 F.3d at 544 (footnotes omitted)
(collecting cases). See, e.g., Rivas, 157 F.3d at 368-69; United
States v. Crooks, 83 F.3d 103, 106-07 (5th Cir. 1996); Lopez, 74
F.3d at 577-78; Resio-Trejo, 45 F.3d at 911-13; Inocencio, 40
F.3d at 725. But see United States v. Reveles, 190 F.3d 678,
686-90 (5th Cir. 1999); Ortega Reyna, 148 F.3d at 544-47.
8
As evidence of Tejada-Ornelas’s knowledge of the marijuana,
in addition to his control over the vehicle, the government
relies on the following behavior: (1) his nervousness once the
dog “alerted” to the rear tires; (2) his atypical unwillingness
to cooperate with the customs agents as evidenced by his initial
failure to disconnect the tractor when requested to do so; (3)
his attempt to divert suspicion by suggesting the agents keep an
eye on Rodriguez Trucking Company and his reluctance to admit he
had made the statement during questioning; (4) his statement that
he did not know Victor’s, the truck owner’s, last name and his
subsequent recall of it; (5) his implausible excuse, that
Enriquez did not have a commercial driver’s license, for Enriquez
having exited the truck in Mexico and planning to meet him later
in the United States; (6) his evasive responses during
questioning; and (7) his comments about the dire financial
situation of his family. From this evidence, the government
argues that there is a sufficient basis for a reasonable jury to
find his nervousness, failure to cooperate, evasive responses,
implausible explanations, and inconsistent statements sufficient
to prove his guilty knowledge.
The defendant argues that the evidence is in “equipoise,”
and therefore, the jury could not have found guilt beyond a
reasonable doubt. Because we must decide this case using the
manifest miscarriage of justice standard, not the sufficiency of
the evidence standard, we need not reach whether the evidence of
9
guilt and innocence is in fact equal in this case. But, were we
to accept Tejada-Ornelas’s argument that the evidence is in
equipoise, we note that a record that would support such a
finding is necessarily not so devoid of evidence pointing to
guilt that a conviction based on it is a manifest miscarriage of
justice.
Viewing the evidence in the light most favorable to the
government, we neither find the record “‘devoid of evidence
pointing to guilt’” nor find “‘the evidence on a key element of
the offense . . . so tenuous that a conviction would be
shocking.’” Rivas, 157 F.3d at 369 (quoting Pierre, 958 F.2d at
1310).
III. CONCLUSION
For the reasons stated above, the convictions of Tejada-
Ornelas are AFFIRMED.
10