United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 4, 2004
Charles R. Fulbruge III
Clerk
No. 03-41371
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN PADILLA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(L-03-CR-216-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Martin Padilla appeals his conviction after a jury trial for
possession with intent to distribute in excess of five kilograms of
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).
Primarily, Padilla claims the evidence was not sufficient to prove
he knowingly possessed the cocaine with the intent to distribute.
Because Padilla failed to renew his motion for a judgment of
acquittal at the close of the evidence, his sufficiency challenge
is reviewed only for a manifest miscarriage of justice. E.g.,
*
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this opinion should not be published and is not precedent except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.
United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). “[T]he
record must be devoid of evidence of guilt or the evidence must be
so tenuous that a conviction is shocking.” Id.
Padilla was found with 6.35 kilograms of cocaine hidden in a
compartment within the radiator of a vehicle he owned. The
compartment obstructed approximately half of the radiator’s
capacity. The value of the drugs ranged from a low of
approximately $70,000 in Laredo, Texas, to a high of $171,000 in
Chicago, Illinois, Padilla’s destination. Padilla never questioned
the delay in the search while border patrol agents dismantled his
radiator. Although Padilla testified that he had stayed in
Monterrey, Mexico, the night before his arrest because of
automobile trouble and that a mechanic in Monterrey rebuilt his
alternator, there was no evidence of a receipt for the repair work
and there was no receipt found for a motel in Monterrey, even
though other motel receipts were found in the vehicle.
There was testimony that the blockage in the radiator
precluded the vehicle from traveling more than 40 to 45 miles per
hour and that the vehicle would not be expected to make it from
Monterrey to Laredo at higher speeds; however, Padilla testified
that he drove 55 to 60 miles per hour and that the vehicle did not
overheat. The jury could have inferred that Padilla’s story was
implausible and found incredible any alternative explanation for
how the drugs came to be in Padilla’s radiator without his
2
knowledge. The evidence of Padilla’s knowledge and intent is not
so tenuous that his conviction is shocking, and affirmance of the
conviction would not result in a manifest miscarriage of justice.
See Avants, 367 F.3d at 449; United States v. Villarreal, 324 F.3d
319, 324 (5th Cir. 2003); United States v. Cano-Guel, 167 F.3d 900,
905 (5th Cir. 1999); United States v. Resio-Trejo, 45 F.3d 907, 913
(5th Cir. 1995).
Padilla conclusionally asserts that a government witness
failed to meet the requirements of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), to testify as an
expert. This issue is deemed abandoned due to inadequate briefing.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R.
APP. P. 28(a)(9).
Padilla argues that his trial counsel rendered ineffective
assistance by stipulating to the type and quantity of the substance
seized. We decline to review this issue on direct appeal. See
United States v. Brewster, 137 F.3d 853, 859 (5th Cir. 1998).
AFFIRMED
3