IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50680
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN AYALA-CARRILLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-1964-ALL-DB
February 27, 2003
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Ayala-Carrillo (“Ayala”) appeals his conviction,
following a jury trial, of importation of 100 kilograms or more of
marijuana and possession of 100 kilograms or more of marihuana with
intent to distribute, in violation of 21 U.S.C. §§ 860 and 841(a).
The district court sentenced Ayala to concurrent 78-month prison
*
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opinion should not be published and is not precedent except under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.
terms and four-year terms of supervised release.
Ayala contends that the district court erred in denying his
request that the jury be instructed that “general nervousness
alone” is insufficient to prove guilty knowledge. He maintains
that such an instruction was supported by the evidence that, he
argues, reflected no connection between his nervousness and any
consciousness of guilt.
We review for abuse of discretion the district court’s refusal
to give a jury instruction requested by the defense. United States
v. John, 309 F.3d 298, 304 (5th Cir. 2002). “A court commits
reversible error where (1) the requested instruction is
substantially correct; (2) the requested issue is not substantially
covered in the charge; and (3) the instruction ‘concerns an
important point in the trial so that the failure to give it
seriously impaired the defendant’s ability to effectively present
a given defense.’” Id. (citation omitted).
It is true, as Ayala argues, that “[i]n the absence of facts
which suggest that the defendant’s nervousness or anxiousness
derives from an underlying consciousness of criminal behavior,
evidence of nervousness is insufficient to support a finding of
guilty knowledge.” United States v. Diaz-Carreon, 915 F.2d 951,
954 (5th Cir. 1990). Nonetheless, the instruction on nervousness
requested by Ayala was incomplete, because the court in Diaz-
Carreon also stated that “[n]ervousness behavior at an inspection
2
station frequently constitutes persuasive evidence of guilty
knowledge.” See id. The instructions submitted to the jury
substantially covered the issue of Ayala’s nervousness, directing
the jury to consider all “facts and circumstances in evidence which
indicate [Ayala’s] state of mind,” and permitting the jury to draw
any number of inferences from evidence of Ayala’s nervous behavior.
The jury was also told that it was permitted “to draw such
reasonable inferences” from the evidence “as you feel are justified
in the light of common experience” and to “make reasonable
deductions and reach conclusions that reason and common sense lead
you to draw from the facts which have been established by the
evidence.” Ayala, therefore, remained free to argue, and did in
fact argue, consistently with Diaz-Carreon, that his nervousness
was simply a normal reaction to the circumstances of his
interrogation. See, e.g., Diaz-Carreon, 915 F.2d at 954 (noting
that “[n]ervousness . . . is ‘a normal reaction to circumstances
which one does not understand.’”). The evidence showed that Ayala
was extremely nervous when subjected to initial routine questioning
at the primary U.S. Customs inspection area on entering the United
States at the Bridge of the Americas. There is no evidence that
such an initial, routine questioning was an event that Ayala did
not understand.
Finally, the trial evidence was more than sufficient to
establish that Ayala’s nervousness “derived from an underlying
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consciousness of criminal behavior.” See id. The jury was
authorized to infer Ayala’s knowledge of the presence of the
marihuana from the following circumstances, viz: his exercise of
sole control over the unlocked and unsealed trailer in which it was
concealed;1 his fingerprints being found on both a package of
adhesive numbers found within the trailer and on the actual numbers
that had been affixed to the trailer, suggesting both that he was
personally involved in attempting to disguise the marihuana
shipment as a cargo of televisions and that he had entered the
trailer; the fact that on entry the trailer smelled of marihuana;
the inconsistent and implausible statements made by him to the
authorities, including that he did not know the address of the
establishment to which he was assertedly to deliver the purported
load of televisions; and the fact that the trailer handled as if it
was not loaded.2
Accordingly, the district court did not abuse its discretion
in declining to instruct the jury on “general nervousness alone.”
See John, 309 F.3d at 304.
The judgment of the district court is AFFIRMED.
1
See United States v. Jones, 185 F.3d 459, 464 (5th Cir.
1999).
2
The only evidence presented by the defense was testimony of
a Public Defender’s Office investigator as to the importance of
securing the crime scene and that numbers on trailers were not
official Department of Transportation numbers.
4