United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 23, 2004
Charles R. Fulbruge III
Clerk
No. 02-50884
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN CERVANTES-MOSCOSO;
GUADALUPE JAVIER HERNANDEZ-TENORIO,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-01-CR-409-2-OG
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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Martin Cervantes-Moscoso and Guadalupe Javier Hernandez-
Tenorio appeal their convictions for conspiracy to import,
possession with intent to distribute, and importation of more
than five kilograms of cocaine and more than 100 kilograms of
marijuana. They argue that the evidence is insufficient to
support their convictions in that the Government did not present
sufficient evidence to establish that they had knowledge that the
cocaine and marijuana were hidden in a secret compartment of 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this opinion should not be published and is not precedent except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.
No. 02-50884
-2-
bus that they were driving. After Hernandez-Tenorio presented
evidence on his behalf and rested his case, he did not renew his
motion for a judgment of acquittal at the close of all of the
evidence and did not file a posttrial motion for judgment of
acquittal. Therefore, review of his claim is limited to
determining whether there was “a manifest miscarriage of
justice.” United States v. Green, 293 F.3d 886, 895 (5th Cir.
2002). Even if his claim is reviewed under the usual standard of
review applicable to Cervantes-Moscoso’s claim, viewing all of
the evidence in the light most favorable to the verdict, a
rational trier of fact could have found that the evidence
established beyond a reasonable doubt that they conspired to
import, possessed with intent to distribute, and imported more
than five kilograms of cocaine and more than 100 kilograms of
marijuana. See United States v. Villarreal, 324 F.3d 319, 322
(5th Cir. 2003).
The Government presented sufficient evidence to establish
that the men knew the drugs were hidden in the bus, that they
knowingly and willingly participated in the conspiracy, and that
they knowingly and willingly possessed and imported the drugs.
They did not know the location of the hotel in San Antonio,
Texas, where they were supposed to pick up a group of people.
They gave inconsistent stories to customs officials concerning
their prior entries into the United States, the bus’s itinerary,
and their ultimate destination. See United States v. Ramos-
No. 02-50884
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Garcia, 184 F.3d 463, 466 (5th Cir. 1999)(inconsistent statements
and implausible explanations are evidence of guilty knowledge).
During the course of an interview by United States Customs
Inspector Daniel Silva, the men’s demeanor changed from polite to
shaking and being unable to answer. Customs Inspector Michael
Pena observed that during an interview conducted while the bus
was screened by the Vehicle and Cargo Inspection System using
gamma radiation, Hernandez-Tenorio started stuttering and
murmuring and beads of sweat broke out on his forehead. See
United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir.
2002)(nervous behavior is evidence of guilty knowledge), cert.
denied, 537 U.S. 1114 (2003). A Customs official went to the
hotel in Dallas, Texas, where the bus was scheduled to stop and
found that a large luxury bus such as the one driven by
Hernandez-Tenorio and Cervantes-Moscoso would have great
difficulty getting into this hotel’s parking lot because the
surrounding streets were very narrow and angled. The extensive
use of air fresheners on the bus was extremely unusual. Further,
the large amount of cocaine and marijuana hidden on the bus was
worth approximately $35 million dollars. A reasonable jury could
conclude that Hernandez-Tenorio and Cervantes-Moscoso would not
have been entrusted with millions of dollars of drugs if they
were unknowing, innocent drivers. See United States v. White,
219 F.3d 442, 447-48 (5th Cir. 2000); United States v. Martinez-
Moncivais, 14 F.3d 1030, 1035-36 (5th Cir. 1994).
No. 02-50884
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AFFIRMED.