IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40674
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO LOPEZ-JIMENEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-19-1
September 6, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alberto Lopez-Jimenez appeals from his conviction for
possession with intent to distribute cocaine in violation of 21
U.S.C. §§ 841(a)(1) & 841(b)(1)(A). Lopez-Jimenez argues that the
evidence is insufficient to support the jury's finding of the
knowledge element of the charge and that the district court erred
in giving a deliberate ignorance instruction.
*
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this opinion should not be published and is not precedent except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.
In reviewing a challenge to the sufficiency of the evidence,
we must determine whether a rational jury could have found that the
evidence established guilt beyond a reasonable doubt on each
element of the offense, drawing all reasonable inferences from the
evidence and viewing all credibility determinations in the light
most favorable to the verdict.1 We do not evaluate the weight of
the evidence or the credibility of the witnesses.2 If this review
of the evidence gives equal or nearly equal circumstantial support
to a theory of guilt and a theory of innocence of the offense
charged, we are required to reverse.3 On the other hand, the
evidence presented need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt, and we have noted that the jury is free to choose
among reasonable constructions of the evidence.4
Although the cocaine was found in a hidden compartment of the
Ford Expedition Lopez-Jimenez was driving, there was sufficient
other direct and circumstantial evidence that supports a finding of
guilty knowledge.5 The jury heard evidence that Lopez-Jimenez
1
United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001).
2
United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir.
2001).
3
Barton, 257 F.3d at 439.
4
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998).
5
See United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th
Cir. 1999).
2
confessed to knowing there was contraband in the Expedition and
even to knowing there were hidden drugs, but claimed to be ignorant
of what kind of drug. This is direct evidence in support of a
finding of knowledge which the jury was free to believe, despite
Lopez-Jimenez's explanation at trial that he was just telling the
Border Patrol and DEA agents what they wanted to hear.
Moreover, the jury could have found that Lopez-Jimenez's
alleged ignorance of the drugs in the face of suspicious
circumstances, i.e., driving a virtual stranger's new vehicle
across the border to a vaguely-described hotel from which he was to
call someone to discuss arrangements for the vehicle, was
implausible.6 Likewise, the jury could rationally have found
implausible Lopez-Jimenez's explanation of his trip to San Antonio,
since he was being paid $1,500 to make the trip and traveling over
the border without luggage or arrangements for returning to Nuevo
Laredo for an important business meeting the next morning.7
The government also argues that the sheer quantity of drugs in
the new, specially-outfitted Expedition render unreasonable the
claim that Lopez-Jimenez was entrusted with the vehicle to cross
the border without his awareness of the contraband. We have found
6
See id. at 466.
7
See id.; see also United States v. Mendoza, 226 F.3d 340,
345 (5th Cir. 2000).
3
this supports a finding of knowledge under similar circumstances.8
Moreover, Lopez-Jimenez's nervousness during the search and his
failure to watch the search may also constitute circumstantial
evidence in support of a finding of guilty knowledge.9 Finally,
Lopez-Jimenez's apparent lack of surprise upon the discovery of the
contraband also supports a finding of guilty knowledge.10
On the basis of this direct and circumstantial evidence, we
find the evidence sufficient to support an inference by the jury
that Lopez-Jimenez knew that the Expedition contained drugs.
Lopez-Jimenez also challenges the district court's deliberate
ignorance instruction. We review challenges to jury instructions
for abuse of discretion and will find a jury instruction was
erroneous only if the court's charge, as a whole, is not a correct
statement of the law and does not clearly instruct the jurors as to
the principles of the law applicable to the factual issues
confronting them.11 The district court has broad discretion in
framing the instructions.12
8
See Ramos-Garcia, 184 F.3d at 466; see also United States
v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir. 2001).
9
See Ramos-Garcia, 184 F.3d at 466-67; Ortega Reyna, 148
F.3d at 544.
10
See Ortega Reyna, 148 F.3d at 544.
11
United States v. Dien Duc Huynh, 246 F.3d 734, 738 (5th
Cir. 2001).
12
Id.
4
A deliberate ignorance instruction is appropriate where a
defendant denies knowledge of the presence of drugs and the proof
at trial supports an inference of deliberate indifference.13 Here,
Lopez-Jimenez denied knowing of the presence of the drugs. We have
further held that the evidence supports an inference of deliberate
indifference "'where the evidence shows (1) subjective awareness of
a high probability of the existence of illegal conduct, and (2)
purposeful contrivance to avoid learning of the illegal conduct.'"14
As we have held in past cases, this defendant's repudiation of
inculpatory statements, his admission to the agents that he knew
something was in the vehicle, his previously-discussed implausible
explanation for his trip to San Antonio, and the evidence
supporting a finding of willful ignorance in the face of suspicious
circumstances, discussed above, lead us to conclude that there was
no error in giving the instruction in this case.15 Under these
circumstances, and since the district court phrased his instruction
in accordance with a version we have previously approved warning
against substituting negligence for the knowledge requirement,16
13
United States v. Peterson, 244 F.3d 385, 395 (5th Cir.
2001).
14
Id. (quoting United States v. Threadgill, 172 F.3d 357, 368
(5th Cir.), cert. denied, 528 U.S. 871 (1999)).
15
See United States v. Farfan-Carreon, 935 F.2d 678, 680-81
(5th Cir. 1991); United States v. McDonald, 905 F.2d 871, 876 (5th
Cir. 1990).
16
See Farfan-Carreon, 935 F.2d at 680 & n.4.
5
Lopez-Jimenez's fear that the deliberate ignorance instruction
allowed the jury to convict him on the basis of mere negligence is
unfounded. Moreover, Lopez-Jimenez admitted actual knowledge to a
DEA agent, and this evidence renders any error in giving the
deliberate ignorance instruction harmless.17
AFFIRMED.
17
See Threadgill, 172 F.3d at 369.
6