United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-50623
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAY HEREDIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CR-287-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Ray Heredia appeals his conviction for aiding and abetting
the possession of less than 50 kilograms of marijuana with intent
to distribute. Heredia argues that the district court abused its
discretion when it admitted evidence concerning two of Heredia’s
prior convictions and that the evidence was not sufficient to
prove he knowingly possessed marijuana.
Through a letter mailed to the clerk of this court after
appointed counsel had filed an appellate brief on Heredia’s
*
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this opinion should not be published and is not precedent except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. 05-50623
-2-
behalf, Heredia has moved this court for an order relieving
counsel and allowing Heredia to proceed pro se on appeal. As
Heredia’s motion was filed after his counsel filed an appellate
brief, the motion was untimely and is denied. See United States
v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998); see also
Martinez v. Court of Appeal of California, 528 U.S. 152, 163
(2000).
Evidence of Heredia’s prior felony convictions was
admissible under Fed. R. Evid. 404(b) to show Heredia’s knowledge
and intent, which were placed at issue by Heredia’s “not guilty”
plea. See United States v. Walker, 410 F.3d 754, 759 (5th Cir.
2005); United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc). The evidence possessed considerable probative
value that was not substantially outweighed by undue prejudice
under Fed. R. Evid. 403. Beechum, 582 F.2d at 911.
Heredia properly preserved his challenge to the sufficiency
of the evidence by moving for a judgment of acquittal at the
close of the Government’s case and at the close of all evidence.
Therefore, this court reviews his conviction to determine whether
a rational trier of fact could have found that the evidence
established the essential elements of the offense beyond a
reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540,
543 (5th Cir. 1998). This court considers the evidence in the
light most favorable to the Government, drawing all reasonable
inferences and credibility choices made in support of the
No. 05-50623
-3-
verdict. Id. The court looks to whether the trier of fact made
a rational decision, rather than to whether it correctly
determined the defendant’s guilt or innocence. United States v.
Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995).
The elements of possession of marijuana with intent
to distribute are “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). Heredia challenges only
the knowledge element. “The knowledge element for possession . .
. of drugs can rarely be proven by direct evidence.” Lopez, 74
F.3d at 577. Knowledge “can be inferred from control of the
vehicle in some cases; when the drugs are hidden, however,
control alone is not sufficient to prove knowledge.” United
States v. Pennington, 20 F.3d 593, 598 (1994).
“[A]dditional circumstantial evidence that is suspicious in
nature or demonstrates guilty knowledge is required.” United
States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999). Such
evidence “may include nervousness, conflicting statements to law
enforcement officials, and an implausible story.” Id.
Heredia was transporting approximately 55 pounds of
marijuana with a value of $44,000. The substantial value of the
marijuana being transported is circumstantial evidence that is
probative of Heredia’s knowledge. See United States v.
Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). The jury could
reasonably have inferred that Heredia would not have been
No. 05-50623
-4-
entrusted with such valuable cargo if he was not part of the
trafficking scheme. Villarreal, 324 F.3d at 324.
When questioned by government agents, Heredia stated that he
was homeless, that he had arrived in the area the day before to
visit a friend in Presidio, Texas, and that he was on his way
home, across the state, to Amarillo, Texas. However, he could
not provide the last name of his friend. Further, at the time of
his arrest, Heredia had $114.68 but no luggage or toiletries,
though he had an extra pair of underwear and socks. Moreover,
although he never mentioned being in Mexico, a toll certification
recovered from the truck indicated that Heredia had crossed the
United States-Mexico border approximately one hour before he
entered the checkpoint. Heredia’s inconsistent and incredible
story to government agents provided further circumstantial
evidence of his guilt. See Jones, 185 F.3d at 464.
Border Patrol agent Borrero indicated that Heredia was
nervous, hesitated, and avoided eye contact when answering
questions and looked away from his truck while it was being
searched. Given the other circumstantial evidence, the jury
reasonably could have interpreted his nervousness as another
indication that he knew the marijuana was in the truck. Ortega
Reyna, 148 F.3d at 544.
Based on the foregoing evidence, the jury reasonably could
have inferred that Heredia knowingly possessed marijuana. See,
e.g., Ortega Reyna, 148 F.3d at 543 (it is not necessary that
No. 05-50623
-5-
every reasonable hypothesis of innocence be excluded); United
States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)
(reasonable inferences are to be resolved in favor of the
verdict); Pennington, 20 F.3d at 598-99 (issue is whether jury
made a rational decision to convict or acquit based on the
evidence).
For the foregoing reasons, Heredia’s conviction is affirmed.
MOTION DENIED; CONVICTION AFFIRMED.