United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 1, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-41438
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER ADOLFO ROEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Docket No. 2:05-CR-288
Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Javier Adolfo Roel appeals his conviction for possession
of cocaine with intent to distribute. Finding that there was
sufficient evidence to support the conviction, we AFFIRM.
I. Background
On April 19, 2005, Roel was stopped at a Border Patrol
checkpoint in Sarita, TX. At the checkpoint, one Border Patrol
agent noted that Roel’s demeanor was abnormally conversational;
when another agent approached Roel’s car with a canine unit, Roel’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opinion should not be published and is not precedent except under the limited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.
demeanor changed, and he began watching the dog from his rearview
mirror. The dog alerted to the presence of drugs or people
concealed in the front of Roel’s car, and Roel was instructed to
park in the secondary inspection area, a task he had difficulty
doing.
Roel eventually got out of his car, and the dog again
alerted. The two Border Patrol agents examined Roel’s car, and
noticed abnormalities in the front fender area, portions of which
appeared to have been recently removed. The agents also noticed
fresh paint and that a piece of sheet metal had been affixed to the
car’s cowling using Bondo. After chiseling into the sheet metal
and opening a secret compartment in the car, the agents discovered
4.491 kilograms of cocaine, worth approximately $400,000, concealed
behind a layer of fresh foam insulation. The cocaine was, in
short, elaborately hidden.
Following his arrest, Roel was interviewed by the DEA.
He told the DEA agent that he was in the business of buying cars in
the Houston area for sale in Mexico. The way in which this
business allegedly operated was unconventional at best: Roel stated
that his buyer in Mexico, Manuel Sol, would send drivers to Houston
to take selected cars to Mexico. Roel would follow the drivers in
his car, and deliver the vehicles’ paperwork to Sol in Reynosa,
across the Mexican border. Roel would then return to Houston and
wait for a call from Sol, who was responsible for taking the cars
from Reynosa to Monterrey and selling them. Once the cars had been
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sold, Roel would drive from Houston to Monterrey, where he would
receive his share of the proceeds. The DEA agent asked Roel why,
in an era of Federal Express and wire transfers, Roel felt the need
to make frequent drives from Houston, as such trips entailed
substantial fuel, food, and lodging costs, to say nothing of the
six hour travel time in each direction. Roel claimed that his
buyer did not wish to pay wire transfer fees, and that in any
event, he liked traveling and being away from home.
As to the chain of events surrounding his arrest, Roel
stated that he had followed cars to Mexico on April 18, but had
forgotten the paperwork for one of them, and that he had to return
to Houston, where he spent the night.1 He returned to Mexico the
next day and delivered the paperwork to Sol. He stated that he had
driven his car2 to Mexico, and that he had told Sol of his plan to
change its oil and have it washed before returning to Houston. One
of Sol’s associates, unknown to Roel, washed the car while the two
men ate lunch. The car was gone for roughly three hours. When it
was returned to him, Roel claimed, he noticed the presence of fresh
scuff marks and an odor of paint thinner. In spite of these
1
The fact that Roel had been issued a traffic citation in the early
morning hours of April 17 heading north to Houston contradicted his timeline;
Roel stated that he must have been mistaken as to certain dates when confronted
with the citation.
2
In another inconsistency, when confronted with another receipt, Roel
told investigators that he kept a car in Mexico, solely so that he would not have
to drive his primary vehicle, a recently purchased Dodge Neon, across the border.
He nevertheless drove the Neon across the border, as he had done at least three
other times since December 30, 2004, to meet with Sol.
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changes, he said nothing, and began his drive back to Texas, where
he was ultimately stopped and arrested. At trial, Roel essentially
reiterated his story, and was convicted.
II. Discussion
Roel challenges the sufficiency of the evidence used to
convict him. We review the evidence in the light most favorable to
the jury’s verdict. United States v. Jones, 185 F.3d 459, 463 (5th
Cir. 1999). This court will only uphold a verdict if “there is
substantial evidence from which a rational trier of fact would have
to find all the essential elements of the offense beyond a
reasonable doubt.” United States v. Alarcon, 261 F.3d 416, 422-23
(5th Cir. 2001). In the instant case, to convict Roel, the
Government had to prove beyond a reasonable doubt that Roel
(1) knowingly (2) possessed cocaine (3) with intent to distribute.
Id. Roel challenges only the knowledge requirement.
Generally, a jury may infer knowledge from the
defendant’s control of a vehicle containing drugs; where, as here,
the drugs are hidden in a secret compartment, proof of the
defendant’s knowledge depends upon inference and additional
circumstantial evidence. Id. This additional requirement exists
because, in hidden compartment cases, there “is at least a fair
assumption” that a third party may be using the defendant as an
unwitting carrier. United States v. Diaz-Carreon, 915 F.2d 951,
954 (5th Cir. 1990). Among the types of behavior that this court
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has previously recognized as circumstantial evidence of guilty
knowledge are:
(1) nervousness; (2) absence of nervousness, i.e., a cool
and calm demeanor; (3) failure to make eye contact; (4)
refusal or reluctance to answer questions; (5) lack of
surprise when contraband is discovered; (6) inconsistent
statements; (7) implausible explanations; (8) possession
of large amounts of cash; and (9) obvious or remarkable
alterations to the vehicle, especially when the defendant
had been in possession of the vehicle for a substantial
period of time.
United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir.
1998)(internal citations omitted).
Roel is correct that his demeanor during the search of
his car, both his excessive friendliness and his nervousness at the
sight of a drug-sniffing dog, cannot determine the sufficiency of
the Government’s case. See id. at 545. However, he errs in
implying that all evidence relating to nervousness or lack thereof
is equivocal and therefore worthless. Although evidence of
nervousness “alone is insufficient, it may support an inference of
guilty knowledge when combined with facts suggesting that the
nervousness is derived from an underlying consciousness of criminal
behavior.” Jones, 185 F.3d at 464. By way of comparison, the
defendant in Ortega Reyna, a case relied upon by Roel, was
unusually calm throughout the search of his car; the court
concluded that such behavior could have been equally indicative of
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guilt or innocence.3 Roel, on the other hand, initially seemed
abnormally friendly, and then his demeanor changed noticeably upon
the introduction of a drug-sniffing dog. A reasonable jury did not
have to regard such evidence as equivocal, and could have inferred
Roel’s guilty knowledge because of his sudden change in demeanor.
Other sources of evidence reinforced an inference of
knowledge on the part of Roel. Notably, Roel’s unorthodox business
methods and his frequent, seemingly wasteful trips to Mexico could
be regarded as implausible by the jury. See United States v.
Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990).
Most important, however, there are Roel’s car and the
cocaine itself. Again, to compare, Ortega Reyna concerned drugs
hidden in a “loaner” automobile that had only been in the
defendant’s possession for a short period of time. As the court
noted, it was unlikely that the defendant would “examine the teeth
of his gift horse” and notice abnormalities. Ortega Reyna,
148 F.3d at 547. However, a defendant could reasonably be expected
to notice visible damage to his personal vehicle, and indeed, Roel
claimed that after his car returned from its suspiciously long
3
Further, as the court noted in Ortega Reyna, a defendant’s seemingly
odd behavior must be put into context by looking to his perspective. Ortega
Reyna, 148 F.3d at 545. The defendant in Ortega Reyna was an “illiterate,
poverty-level” worker of odd jobs with no demonstrated understanding of the
English language. Id. In contrast, Roel had resided in the United States for
nearly twenty years at the time of his arrest, spoke English, and had a steady
history of employment; he also had driven the route from Houston to Reynosa on
multiple occasions. Thus, Roel had no obvious reason to behave oddly in the
presence of Border Patrol.
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“wash,” it had fresh scuff marks and smelled of paint thinner.
Despite claiming to be upset about the damage, Roel testified that
he did nothing, and proceeded to Houston. A jury did not have to
regard such testimony as credible. Finally, $400,000 worth of
cocaine was found in Roel’s vehicle. The value of the drugs
located may be probative of knowledge, as a jury may infer that
drug smugglers would not entrust substantial amounts of drugs to an
unwitting stranger. United States v. Villareal, 324 F.3d 319, 324
(5th Cir. 2003); United States v. Gamez-Gonzalez, 319 F.3d 695, 699
(5th Cir. 2003). Roel testified that he was a victim of a set-up
and that smugglers known by Sol had placed the cocaine in his car.
Again, a reasonable jury could have found this explanation
incredible, and instead inferred Roel’s knowledge from the large
quantity of cocaine in his possession.
III. Conclusion
A rational jury could have found beyond a reasonable
doubt that Roel had knowledge of the cocaine in his car.
Therefore, Roel’s conviction is AFFIRMED.
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