IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50578
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JESSICA COVARRUBIA
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
No. DR-99-CR-757-2
_________________________________________________________________
July 24, 2001
Before KING, Chief Judge, BARKSDALE, Circuit Judge, and NOWLIN,
District Judge.*
PER CURIAM:**
Defendant-Appellant Jessica Covarrubia appeals her
conviction on one count of conspiracy to import marijuana,
*
Chief Judge of the Western District of Texas, sitting by
designation.
**
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that this opinion should not be published and is not precedent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.
challenging the sufficiency of the evidence. For the following
reasons, we AFFIRM.
“We review the sufficiency of the evidence by examining all
the evidence in the light most favorable to the verdict.” United
States v. Guerrero, 234 F.3d 259, 261-62 (5th Cir. 2000). “We
will affirm if the evidence is such that a rational trier of fact
could have found the requisite elements of the offense beyond a
reasonable doubt.” Id. at 262.
Covarrubia was convicted of conspiracy to import marijuana
in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), (b)(4). To
prove a drug conspiracy, the Government must establish: (1) the
existence of an agreement between two or more persons to violate
federal narcotics laws (e.g., to import marijuana); (2) the
defendant’s knowledge of the agreement; and (3) the defendant’s
voluntary participation in the agreement. See United States v.
Paul, 142 F.3d 836, 839-40 (5th Cir. 1998); United States v.
Brito, 136 F.3d 397, 409 (5th Cir. 1998); United States v.
Pofahl, 990 F.2d 1456, 1467-68 (5th Cir. 1993). These elements
need not be proven by direct evidence. United States v. Maltos,
985 F.2d 743, 746 (5th Cir. 1992). The agreement and the
defendant’s knowledge and participation in the conspiracy may be
inferred from the “development and collocation of circumstances.”
Id. (internal quotations and citation omitted). Although mere
association or presence by themselves are insufficient to prove
knowing participation in the agreement, see id.; United States v.
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Vergara, 687 F.2d 57, 61 (5th Cir. 1982), when combined with
other relevant circumstantial evidence, these factors may
constitute sufficient evidence to support a conspiracy
conviction. See United States v. Williams-Hendricks, 805 F.2d
496, 503 (5th Cir. 1986). Inconsistent statements and
implausible explanations may constitute circumstantial evidence
of a defendant’s guilty knowledge. See United States v. Cano-
Guel, 167 F.3d 900, 905 (5th Cir. 1999); see also United States
v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir. 1999).
A rational trier of fact could have found that the evidence
established the existence of an agreement to import marijuana,
Covarrubia’s knowledge of that agreement, and her voluntary
participation in that agreement. On November 6, 1999, Covarrubia
was a passenger in a 1993 Buick LeSabre driven by Alex Gallegos,
which was stopped at the Eagle Pass Port of Entry in Texas. Upon
inspection, forty-seven pounds of marijuana were found concealed
in the gas tank of the LeSabre.
When originally stopped at the Port of Entry, prior to the
discovery of the marijuana, Gallegos and Covarrubia both stated
that they had driven from San Antonio, Texas to Piedras Negras,
Mexico that morning to do some shopping; that they had not
purchased anything; and that they were headed back to San
Antonio. However, after the marijuana was discovered, United
States Special Agent Enemencio Torres interviewed Covarrubia.
During this interview, she stated that Gallegos had asked her to
3
go cruising with him that morning1 and that she had agreed
without knowing where they were going, but that they had
eventually arrived in Piedras Negras. Regarding their visit to
Mexico, Covarrubia claimed that they stayed in Mexico about
fifteen to twenty minutes, during which time she never left the
car. She stated further that, in Piedras Negras, Gallegos saw
someone he recognized, that Gallegos stepped out of the car to
speak to this individual, and that the conversation lasted for
about ten minutes. Finally, she stated that when Gallegos got
back into the car, they returned to Eagle Pass, intending to
continue on to San Antonio. Based on Covarrubia’s statements
that she went to Piedras Negras to shop, but spent only fifteen
minutes in the country, did not leave the car, and did not
purchase anything, a jury could reasonably infer that her
statements were inconsistent and implausible.
Furthermore, although Covarrubia stated that she never left
the car while it was in Mexico, the inspectors noted that the
straps which held in the gas tank were bolted to the car with
very shiny bolts and that an eight-by-ten-inch rectangular trap
door had been cut into the top of the gas tank. The trap door
was covered with a black substance that, at the time of the
inspection, was still “very moist [and] very sticky.” Because it
1
Additionally, an agriculture inspector testified that he
saw Covarrubia at the Eagle Pass Port of Entry on November 5,
1999, the day before Covarrubia stated she left San Antonio.
4
is extremely unlikely that anyone would have driven a car loaded
with forty-seven pounds of marijuana from San Antonio to Piedras
Negras and back, a jury could reasonably infer that the marijuana
had been placed in the car in Mexico. In addition, because
Covarrubia stated that she never left the car, it is reasonable
to assume that she would have noticed the concerted activity
involved in placing the marijuana in the gas tank.
Finally, in addition to the marijuana discovered in the
LeSabre, the customs agents also discovered a license plate in
the trunk of the car which did not belong to the LeSabre. It, in
fact, belonged to a 1992 Honda Prelude. Notably, Covarrubia’s
husband, Arturo Sanchez,2 was also seen by a customs inspector at
the Eagle Pass Port of Entry on November 6, 1999, driving a 1992
Honda Prelude. Furthermore, although no press releases regarding
the seizure had been issued and no one outside the customs office
had been informed that the seizure had occurred, Special Agent
Torres received two phone calls from individuals inquiring about
Covarrubia while Covarrubia was being detained, one claiming to
be a female friend of Covarrubia and the other claiming to be
Covarrubia’s husband. A jury could reasonably infer that this
evidence further supported the existence of an importation
2
We refer to Sanchez as Covarrubia’s husband because he
was referred to as such during the trial and in Covarrubia’s
statement; however, we note that the Presentence Investigation
Report states that Covarrubia and Sanchez have never been legally
married but have “been together” for five years and have one
child together.
5
conspiracy and Covarrubia’s knowledge of and voluntary
participation in the conspiracy.
Covarrubia’s conviction and sentence are AFFIRMED.
6