IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41221
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO VILLARREAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-01-CR-22-ALL
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June 20, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Mario Alberto Villarreal appeals his conviction for
possession with intent to distribute more than 1,000 kilograms of
marijuana. Villarreal challenges the sufficiency of the
evidence. He asserts that the Government did not prove that he
had knowledge of the marijuana that was hidden by produce in the
trailer of the truck that he was driving from Texas to New York.
Villarreal also asserts that we should review his
sufficiency challenge under the “rationality” standard of review
*
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that this opinion should not be published and is not precedent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. 01-41221
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rather than for “plain error.” He contends that his not-guilty
plea should serve as a motion for judgment of acquittal.
Villarreal concedes that he did not move for a judgment of
acquittal at the close of the Government’s case or at the close
of the evidence. Circuit precedent thus requires that we
restrict our review to whether Villarreal’s conviction resulted
in a “manifest miscarriage of justice.” United States v. Smith,
203 F.3d 884, 887 (5th Cir. 2000). A manifest miscarriage of
justice exists only if the record “is devoid of evidence pointing
to guilt or if the evidence on a key element of the offense is so
tenuous that a conviction would be shocking.” Id.
A conviction for possession with intent to distribute
marijuana “requires proof that the defendant (1) knowingly
(2) possessed marijuana (3) with intent to distribute it.”
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)
(citation omitted). Possession may be shown by direct or
circumstantial evidence. United States v. Brown, 29 F.3d 953,
958 (5th Cir. 1994). The intent to distribute may be inferred
from possession of a quantity of drugs that is too large for any
purpose other than distribution. See United States v. Sanchez,
961 F.2d 1169, 1176 (5th Cir. 1992).
The parties stipulated that marijuana was discovered in the
trailer that Villarreal was driving. It is not disputed that
after the truck was loaded, Villarreal was the sole person in the
truck, that he had sole control of the key that unlocked the
No. 01-41221
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trailer doors, and that the trailer contained a net weight of
1,036 kilograms of marijuana.
In a case such as this one, knowledge cannot be inferred
solely from the fact that the defendant had control over the
vehicle. See United States v. Resio-Trejo, 45 F.3d 907, 911 (5th
Cir. 1995) (citation omitted). Additional circumstantial
evidence was necessary to establish guilty knowledge. See id.
Such evidence may include implausible explanations and
inconsistent or contradictory statements. See id.
The truck was empty prior to the loading of the produce, the
loading dock was too busy for anyone to conceal a large quantity
of marijuana, and the loading took place in daylight under
supervision. The truck did not remain at the loading dock long
enough for someone to place over 1,000 kilograms of marijuana on
the truck.
Villarreal testified that he personally locked the trailer
doors after the truck was loaded, he kept the key on his person,
no one could have gotten the key while he was napping, and no one
could have opened the trailer without the key. Villarreal’s
account at trial of the twelve hours that passed from loading
until the traffic stop conflicted with his account as provided by
the Government’s witness. Villarreal provided no explanation for
the time discrepancies.
The produce had been loaded evenly; yet, it was not even
when Villarreal was stopped, and Villarreal offered no
No. 01-41221
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explanation for the difference. Villarreal testified that he was
personally responsible for the condition of the load; yet, he
testified that he did not inspect it. Villarreal was driving a
load of perishables, for which he was responsible, from Texas to
New York, but he had no concern for the time that elapsed during
his route.
The record is not devoid of evidence pointing to guilt, and
the evidence on Villarreal’s knowledge of the marijuana is not so
tenuous that a conviction would be shocking. See Smith, 203 F.3d
at 887. The district court’s judgment is AFFIRMED.