IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51121
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS SOTOMAYOR-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-99-CR-140-All
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January 15, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus Sotomayor Garcia argues that the district court erred
in giving a jury instruction on “deliberate ignorance” because
there was no evidence presented to show that he was aware that he
was engaged in illegal activity or that he purposely contrived to
conceal his knowledge.
The district court should give a jury instruction on
deliberate indifference “‘only when the defendant claims a lack
of guilty knowledge and the proof at trial supports an inference
of deliberate ignorance.’” United States v. Lara-Velasquez, 919
*
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that this opinion should not be published and is not precedent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.
No. 99-51121
-2-
F.2d 946, 950 (5th Cir. 1990). Garcia denied any knowledge of
the presence of drugs in the Suburban, but the evidence indicated
that Garcia was subjectively aware that he was engaging in
illegal activities. The evidence did not reflect that Garcia was
“duped” into carrying the drugs or that he was in possession of
the drugs as a result of negligence or carelessness.
However, the evidence did not indicate that Garcia
“deliberately blinded” himself to the presence of drugs in the
vehicle. The drugs were concealed in the floor of the vehicle,
and the alterations to the vehicle were not apparent to a casual
observer. Even assuming that the district court erred in giving
the deliberate ignorance instruction, the error was harmless
because the evidence reflected Garcia’s actual knowledge of
misconduct. United States v. Threadgill, 172 F.3d 357, 369 (5th
Cir.), cert. denied, 120 S. Ct. 172 (1999). The presence of the
large amount of drugs in the vehicle considered in connection
with Garcia’s demeanor and his inconsistent statements concerning
the ownership of the vehicle and the events preceding the stop at
the checkpoint gave rise to a reasonable inference that Garcia
possessed actual knowledge of the criminal activity. Thus, any
error in giving the “deliberate ignorance” instruction was
harmless.
Garcia also argues that the evidence was insufficient to
support his conviction for possession with intent to distribute a
quantity of marijuana, in an amount in excess of 100 kilograms
but less than 1000 kilograms. “Knowledge of the presence of
contraband may ordinarily be inferred from the exercise of
No. 99-51121
-3-
control over the vehicle in which it is concealed.” United
States v. Garcia, 917 F.2d 1370, 1376-77 (5th Cir. 1990).
However, “additional circumstantial evidence that is suspicious
in nature or demonstrates guilty knowledge” is required when the
drugs are secreted in a hidden compartment. United States v.
Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998) (internal
citation and quotation marks omitted).
Garcia does not dispute that over 500 pounds of marijuana
was concealed in the vehicle that he was operating. Viewing the
additional evidence in the light most favorable to the verdict,
it showed that Garcia exhibited nervousness when he was initially
questioned by the agent, that he gave inconsistent statements
concerning the ownership of the Suburban, and that he changed his
story about his prior border crossing after his initial
explanation was contradicted by the computer records. This
behavior indicated that Garcia’s assertions of innocence were not
credible and that he was aware that he was in possession of a
large amount of marijuana when he crossed into the United States.
See United States v. Casilla, 20 F.3d 600, 606 (5th Cir. 1994).
Further, after hearing the testimony of the agents and Garcia’s
testimony, the jury made a credibility choice in determining
Garcia’s guilt, a determination which should not be disturbed on
appeal. United States v. Bell, 678 F.2d 547, 549 (5th Cir. 19820
(en banc). Garcia’s argument that the evidence was insufficient
to support his conviction is without merit.
AFFIRMED.