IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50770
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCTAVIO RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-00-CR-133-2-F
September 27, 2001
Before GARWOOD, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Octavio Rodriguez appeals his convictions for aiding and
abetting the importation and possession with intent to distribute
of cocaine. Appellant contends that the evidence was insufficient
to sustain the convictions because the Government did not prove
beyond a reasonable doubt that he knew of the cocaine concealed on
the person of his codefendant and that he intended to import the
*
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opinion should not be published and is not precedent except under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.
cocaine from Mexico into the United States for distribution. He
argues that the evidence gives equal or nearly equal circumstantial
support to a theory of innocence as well as to a theory of guilt.
The evidence was sufficient for the jury to conclude beyond a
reasonable doubt that appellant aided and abetted the possession of
cocaine with the intent to import and distribute it. See United
States v. Williams, 985 F.2d 749, 753-54 (5th Cir. 1993); United
States v. Velgar-Vivero, 8 F.3d 236, 241 (5th Cir. 1993). The
evidence showed that Rodriguez and his codefendant passenger
offered implausible and inconsistent statements to explain their
trip to Mexico in Rodriguez’s car and the subsequent discovery of
cocaine concealed on the person of the codefendant. The jury could
infer Rodriguez’s guilty knowledge from these implausible
explanations. See United States v. Diaz-Carreon, 915 F.2d 951,
954-55 (5th Cir. 1990). Witnesses testified to Rodriguez’s unusual
demeanor during the Customs inspection and nervousness and
evasiveness during subsequent questioning; such testimony provides
further evidence from which guilty knowledge may be inferred. See
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998).
A customs agent testified that the quantity of cocaine was
consistent with an intent to distribute, and, in light of the
evidence of Rodriguez’s guilty knowledge, the evidence was
sufficient to prove that Rodriguez knowingly assisted in importing
the cocaine from Mexico to the United States. See United States v.
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Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988); Velgar-
Vivero, 8 F.3d at 241. Although Rodriguez presented testimony
supporting his theory of innocence, the jury was free to reject
this testimony, as it is the sole province of the jury to determine
the weight and credibility of the evidence. United States v.
Casilla, 20 F.3d 600, 602 (5th Cir. 1994). Under these
circumstances, it cannot be said that the evidence gives equal or
nearly equal circumstantial support to guilt and to innocence. See
Ortega Reyna, 148 F.3d at 543.
AFFIRMED.
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