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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-15237
Non-Argument Calendar
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D.C. Docket No. 7:17-cr-00201-LSC-HNJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN HERNANDEZ PORTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(May 8, 2020)
Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Adrian Hernandez Portillo appeals his convictions for conspiracy to possess
with intent to distribute cocaine and morphine and possession with intent to
distribute cocaine and morphine. He argues that the district court erred in denying
his motion for judgment of acquittal because there was insufficient evidence from
which a reasonable jury could find that he knew about the cocaine and morphine in
the intake manifold of the pickup truck in which he was a passenger or that he
knowingly entered a conspiracy. After careful review, we affirm.
I. BACKGROUND
A grand jury charged Portillo with conspiracy to possess with intent to
distribute five kilograms or more of a mixture and substance containing cocaine
and a mixture and substance containing morphine, in violation of 21 U.S.C. § 846,
possession with intent to distribute five kilograms or more of a mixture and
substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and
possession with intent to distribute a mixture and substance containing morphine,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). 1 Portillo pled not guilty and
proceeded to a jury trial.
At trial, the government offered testimony from Ken Delaney, a law
enforcement officer who conducted a traffic stop on a Toyota Tundra pickup truck
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Because we write for the parties, we recount only the facts necessary to decide this
appeal.
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on an Alabama interstate. Portillo was the passenger in the truck. Delaney
questioned Portillo and the driver, Eduardo Mendez Hernandez, both of whom
appeared nervous and gave inconsistent stories about the truck and their
relationship to one another. Portillo told Delaney that the truck was his.
Hernandez and Portillo consented to a search of the truck. Delaney and a partner
found three packages concealed in a compartment inside the truck’s intake
manifold.
Drug Enforcement Administration Special Agent Joshua Moore testified that
the contents of the packages tested positive for cocaine and morphine, with a total
street value of at least $700,000. Moore also testified that in his training and
experience it would not make sense for a drug trafficking organization to transport
such a high-value quantity of drugs via someone who did not know of the drugs’
existence. A Department of Homeland Security border patrol agent testified that
the Toyota Tundra had crossed the border from Mexico to the United States the
day before Delaney conducted the traffic stop. Based on photographs of the truck
and entry documents, Portillo was the only person in the truck at the border.
At the close of the government’s case, Portillo moved for a judgment of
acquittal, arguing that the government had offered insufficient evidence that he had
knowledge of the drugs or a plan to possess with intent to distribute them. The
district court denied the motion.
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Portillo testified in his own defense. He testified that he owned a private
security business in Mexico. According to Portillo, he and “Maria,” the wife of a
colleague, drove her Toyota Tundra across the border to the United States because
they both had business meetings scheduled in Houston, Texas. Portillo testified
that the truck belonged to Maria. Maria’s meeting was moved to Dallas, so the two
drove to Dallas, where they picked up Hernandez. Portillo testified that he had
never met Hernandez. Although Portillo had planned to travel from Dallas directly
to Houston, Hernandez invited Portillo to travel with him to Atlanta. Portillo,
whose meeting was not for a few more days, agreed, and Hernandez thereafter
drove the truck. Portillo explained that at some point after picking up Hernandez,
Maria got out of the truck and he never saw her again, even though he and
Hernandez continued on in her truck. Portillo testified that he did not know there
were drugs in the truck and never had a conversation with anyone about selling
drugs before getting in the truck.
The government recalled Moore, who testified that months before the traffic
stop Hernandez crossed the border in the same Toyota Tundra pickup truck as was
involved in the stop.
Portillo renewed his motion for judgment of acquittal, arguing again that the
government had failed to demonstrate his knowledge of the conspiracy or the
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underlying substantive offenses. The district court denied the motion, and the jury
convicted Portillo on all three counts.
This is Portillo’s appeal.
II. STANDARD OF REVIEW
We review the district court’s denial of a motion for judgment of acquittal de
novo. United States v. Louis, 861 F.3d 1330, 1333 (11th Cir. 2017). In
determining whether the evidence was sufficient to sustain a criminal conviction,
we “view the evidence in the light most favorable to the government, and draw all
reasonable factual inferences in favor of the jury’s verdict.” United States v.
Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). Evidence of guilt is sufficient to
sustain a conviction if a reasonable trier of fact could determine that it established
the defendant’s guilt beyond a reasonable doubt. Id. at 1284-85.
The jury has exclusive province over the credibility of witnesses, and in
conducting a sufficiency review, we will not revisit the question of witness
credibility unless the testimony is “incredible as a matter of law.” United States v.
Feliciano, 761 F.3d 1202, 1206 (11th Cir. 2014) (internal quotation marks
omitted). When a defendant testifies in his own defense, the jury may disbelieve
his testimony, and the defendant’s own statements “may be considered as
substantive evidence of the defendant’s guilt.” United States v. Brown, 53 F.3d
312, 314 (11th Cir. 1995). “At least where some corroborative evidence of guilt
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exists for the charged offense . . . and the defendant takes the stand in his own
defense, the defendant’s testimony, denying guilt, may establish, by itself,
elements of the offense.” Id. at 314-15. This rule applies with “special force”
when the government must prove “highly subjective elements,” such as the
defendant’s intent or knowledge. Id. at 315.
III. DISCUSSION
On appeal Portillo argues that the government presented insufficient
evidence upon which the jury could conclude that Portillo knew about the cocaine
and morphine hidden in the truck’s intake manifold or that he knowingly engaged
in a conspiracy to possess with intent to distribute those drugs. Viewing the
evidence in the light most favorable to the jury’s verdict, we disagree.
To convict a person of conspiracy, “the evidence must show (1) that a
conspiracy existed, (2) that the defendant knew of it, and (3) that the defendant,
with knowledge, voluntarily joined it.” United States v. Perez-Tosta, 36 F.3d
1552, 1557 (11th Cir. 1994); see 21 U.S.C. § 846. “[D]irect evidence of the
elements of a conspiracy is not required. A defendant’s knowing participation in
the conspiracy may be established through proof of surrounding circumstances,
such as acts committed by the defendant that furthered the purpose of the
conspiracy.” United States v. Alvarez, 755 F.2d 830, 853 (11th Cir. 1985).
Further, “the government need not prove that a defendant had knowledge of all
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details or phases of the conspiracy. Rather, it is enough that the defendant knew
the essential nature of the conspiracy.” Id. To convict a person of possession with
intent to distribute a controlled substance, the government must prove three
elements: (1) knowledge; (2) possession; and (3) intent to distribute. United
States v. Hernandez, 743 F.3d 812, 814 (11th Cir. 2014); see 21 U.S.C. §
841(a)(1). “All three elements can be proven by either direct or circumstantial
evidence.” United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).
Portillo challenges only the knowledge element of each offense. But Portillo
testified in his own defense at trial, telling the jury that he had no knowledge of the
drugs or any plan involving them. The jury was entitled to disbelieve this
testimony and take his denials as affirmative evidence that he had the requisite
knowledge. Brown, 53 F.3d at 314. Portillo’s testimony, taken as substantive
evidence of his own guilt, is corroborated by other evidence of his knowledge of
the drugs and the plan to possess with intent to distribute them, including that:
Portillo drove a truck with hundreds of thousands of dollars’ worth of drugs
concealed in it across the border; Portillo appeared nervous at the traffic stop and
gave Delaney information that was inconsistent with Hernandez’s information;
Hernandez crossed the border in the same Toyota Tundra months before Delaney
stopped Hernandez and Portillo; and in Moore’s experience and training a drug
trafficking organization would not entrust that value of drugs with someone who
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lacked knowledge of the drugs’ existence. See id. at 314-15. The testimony of the
government’s witnesses was not incredible as a matter of law; the jury therefore
was entitled to rely on this evidence. See Feliciano, 761 F.3d at 1206.
Viewing the evidence in favor of the jury’s verdict, we reject Portillo’s
challenge to the sufficiency of the evidence. We affirm Portillo’s convictions.
AFFIRMED.
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