United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 16, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 05-51736
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRUNO GARZA, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. DR-04-CR-203
Before KING, GARZA and PRADO, Circuit Judges.
Per Curiam:*
After a jury trial, Bruno Garza, Jr. (“Garza”), was
convicted of possession with intent to distribute more than five
kilograms of a substance or mixture containing cocaine, in
violation of 21 U.S.C. § 841, and of importation of more than
five kilograms of a substance or mixture containing cocaine, in
violation of 21 U.S.C. §§ 952 and 960. On appeal, Garza raises
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
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three objections: first, that there was insufficient evidence to
prove that Garza knowingly possessed or imported cocaine; second,
that there was insufficient evidence to prove that Garza
possessed and imported more than five kilograms of cocaine; and
third, that the district court erred by allowing the government
to introduce a particular receipt into evidence. For the reasons
that follow, we AFFIRM Garza’s conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 11:30 p.m. on February 7, 2004, Garza was
stopped by border patrol while attempting to cross from Mexico
into Eagle Pass, Texas. Garza stated that he had traveled to
Mexico to buy liquor and tacos, both of which could be seen on
the seat of the van he was driving. Garza claimed that the van
belonged to his brother-in-law, and that it had been in his own
possession for two weeks. After Garza was referred to the
secondary inspection area, Garza stated that the owner of the van
was named Luis Rodriguez1 and that Garza had the van because he
was a mechanic and had been working on it. After the customs
inspector looked at the registration papers for the van and saw
that it was registered to Luis Flores, the inspector stated to
Garza, “I thought you said this belonged to a Luis Rodriguez.”
Garza then claimed he had said that the van belonged to Luis
1
Garza suggests that either he did not say “Luis Rodriguez”
and that the inspector misheard his statement, or that he said
“Luis Rodriguez” by mistake.
2
Flores. When questioned about the time frame of his visit, Garza
stated that he had been in Mexico for about two hours. When asked
why it took so long to obtain liquor and tacos, Garza then added
that he had first seen “some friends.”
The inspectors’ suspicions having been aroused, a drug dog
was brought to the van and alerted to the presence of cocaine.
The inspectors drilled a hole in the van and discovered a white
powder. They then found a trapdoor to the dashboard and removed
ten “bricks” of white powder, wrapped in plastic and covered in
carbon paper. The weight of the packages was 9.68 kilograms;
after accounting for the weight of the wrapping materials, the
weight of the white substances was 8.85 kilograms. Samples of the
white powder were sent to a Drug Enforcement Administration
(“DEA”) laboratory in Dallas, Texas, for testing. The tests
confirmed that the samples were eighty-five percent pure powder
cocaine.
After the cocaine was discovered in the van he was driving,
Garza was arrested. He agreed to speak with law enforcement and
then offered a story different from that which he had provided
before. Garza stated that he had been drinking earlier in the day
with a friend at a bar in Eagle Pass, Texas, and that he and his
friend had decided to go to a bar in Piedras Negras, Mexico, to
continue drinking there. Garza stated that after he and his
friend had been in Mexico “for a while,” his friend asked Garza
to bring the friend’s van back into the United States.
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On March 3, 2004, a grand jury indicted Garza for possession
with intent to distribute more than five kilograms of a substance
or mixture containing cocaine, in violation of 21 U.S.C. § 841,
and for importation of more than five kilograms of a substance or
mixture containing cocaine, in violation of 21 U.S.C. §§ 952 and
960. On September 29, 2004, a jury convicted Garza on both
counts. Garza was sentenced to 121 months in prison on each
count, served concurrently, to be followed by five years of
supervised release on each count, served concurrently. Garza was
also fined $1000 for each count and a $100 special assessment
fee. Garza timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
This is a direct appeal from a final judgment of the United
States District Court in a criminal case. This court has
jurisdiction pursuant to 28 U.S.C. § 1291.
Our standard of review is the same for both of Garza’s
sufficiency of the evidence claims. Because Garza filed a motion
for acquittal at the close of all the evidence raising these
objections, we ask whether a reasonable jury could find that the
evidence established the essential elements of the crime beyond a
reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540,
543 (5th Cir. 1998). We view the evidence in the light most
favorable to the verdict and give the government the benefit of
all reasonable inferences and credibility choices. United States
v. Harvard, 103 F.3d 412, 421 (5th Cir. 1997). We do so because
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“[a] jury is free to choose among reasonable constructions of the
evidence.” United States v. Bell, 678 F.2d 547, 549 (5th Cir.
1982).
For Garza’s claim that the district court improperly
admitted a receipt into evidence, we review a district court’s
decision to admit or exclude evidence for abuse of discretion.
United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993).
III. DISCUSSION
A. Garza’s Knowledge of the Presence of Cocaine in the Van
To convict Garza of possession with intent to distribute
under 21 U.S.C. § 841, the government must prove beyond a
reasonable doubt that Garza (1) knowingly (2) possessed the
controlled substance (3) with the intent to distribute it. United
States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). A
conviction for the crime of importation of a controlled substance
requires proof that the defendant knowingly played a role in
bringing the controlled substance from a foreign country into the
United States. United States v. Diaz-Carreon, 915 F.2d 951, 953
(5th Cir. 1990). Thus, for either offense, the government must
demonstrate that Garza had knowledge that the cocaine was hidden
in the van he was driving.
Knowledge of the presence of a controlled substance may
generally be inferred from the exercise of control over the
vehicle in which the illegal substance is concealed. United
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States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988). Where
the contraband is concealed in a manner not clearly visible or
readily accessible to the defendant, however, that inference may
not be made, because of the possibility that another party was
using the defendant as an unwitting carrier. Diaz-Carreon, 915
F.2d at 954. In such a situation, proof of knowledge requires
“other circumstantial evidence that is suspicious in nature or
demonstrates guilty knowledge.” United States v.
Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990).
This court has repeatedly held that inconsistent or
implausible statements by the defendant are strong evidence of a
defendant’s guilty knowledge. See, e.g., United States v.
Casilla, 20 F.3d 600, 606 (5th Cir. 1994); United States v.
Gibson, 963 F.2d 708, 711 (5th Cir. 1992); Diaz-Carreon, 915 F.2d
at 954-55; Anchondo-Sandoval, 910 F.2d at 1237. We have also
stated that the value of the drugs being transported may be
probative of knowledge, for it is unlikely that a person not part
of the smuggling scheme would be entrusted with such a valuable
cargo. See, e.g., Villarreal, 324 F.3d at 324; United States v.
Garcia-Flores, 246 F.3d 451, 455 (5th Cir. 2001).
Applying this precedent, it is clear that there is
sufficient circumstantial evidence to support the jury’s
conclusion that Garza was knowingly in possession of cocaine.
First, there were numerous inconsistencies in Garza’s statements
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to customs inspectors. Garza stated first that the owner of the
van was named Luis Rodriguez, then Luis Flores. He claimed that
the owner was his brother-in-law but later stated that the owner
was his friend. Garza claimed initially that he had possessed the
van for two weeks, and had been doing mechanical work on it.
Later, however, Garza stated that he had just taken possession of
the van that night, after his friend asked him to drive it back
into the United States. Garza declared first that the purpose of
his trip to Mexico was to buy liquor and tacos, then added that
he had also met “some friends” there, and finally claimed that he
and a single friend had been drinking in the United States and
had decided to continue drinking in Mexico.
A number of Garza’s statements were also arguably
implausible. Certainly, the claim that Garza’s friend handed over
his van for Garza to drive back to the United States strains the
bounds of plausibility. Moreover, extrinsic evidence introduced
at trial undermined Garza’s final account. A Texas state police
officer testified that he stopped Garza at 8:55 p.m. on the night
in question for driving a vehicle with a defective tail light,
and that Garza showed no signs of intoxication. This evidence,
placing Garza unintoxicated in Texas at roughly 9 p.m., casts
doubt on Garza’s claim that “he had been drinking earlier in the
day” in Texas, before he and his friend decided to go to Mexico
to drink, which they did “for a while” before returning to Texas.
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Additionally, the value of the contraband (estimated to be
at least $88,500) was sufficiently high to permit the jury to
infer that the contraband would not have been placed in Garza’s
possession had he not been part of the smuggling scheme. See
Villarreal, 324 F.3d at 324. “We do not consider each piece of
potential evidence separately, rather we review the evidence as a
whole to determine its sufficiency.” Garza, 990 F.2d at 175.
Taken as a whole, the evidence is more than sufficient to allow a
reasonable jury to conclude that Garza had knowledge that the
contraband was in the van he was driving.
B. Quantity of Cocaine in Van
Garza claims that law enforcement agents took samples from
only one of the ten packages of white powder found in Garza’s
van. Garza therefore argues that the DEA laboratory’s conclusion
that these samples contained cocaine is insufficient to prove
beyond a reasonable doubt that the remaining packages contained
cocaine. We need not decide, however, whether testing samples
from one out of ten packages is sufficient, because there is
strong evidence that the samples were taken from three out of the
ten packages.
Garza appears to rely on sections of testimony by Customs
Special Agent Michael Warner (“Warner”) where he stated that he
unwrapped the largest package of white powder and then sent three
samples to the laboratory. From this testimony, one could infer
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that Warner took all three samples from the single package that
he unwrapped. In other testimony, however, Warner stated that he
sent three of the packages to the laboratory, leaving seven
behind. Kiana Hamlet, the DEA chemist who examined the samples
sent by Warner, stated that she received:
two DEA heat-sealed evidence envelopes. One heat-sealed
evidence envelope contained the loose white powder with
the wrappings. And there was another DEA heat-sealed
evidence envelope that contained two bricks that were
fully wrapped.
This testimony implies that Warner took one sample from the
package he had opened and sent two unopened packages as the other
two samples. The jury was entitled to credit the testimony
indicating that samples were taken from three, rather than one,
of the ten packages. See United States v. Bell, 678 F.2d 547, 549
(5th Cir. 1982).
We have previously stated that “[r]andom sampling is
generally accepted as a method of identifying the entire
substance whose quantity has been measured.” United States v.
Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996). In Fitzgerald, we
concluded that tests revealing that five of sixty-three “rocks”
consisted of cocaine base were sufficient evidence that the
entire quantity was cocaine base. Id. We now hold that, in the
absence of evidence to the contrary, tests revealing that three
of ten packages contained cocaine are sufficient to prove that
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all ten packages contained cocaine.2
C. Admission of Receipt into Evidence
Garza objects to the admission into evidence of a receipt
from an Eagle Pass Auto Zone, stamped with a date of February 7,
2004, and a time of 5:44 p.m. This receipt was introduced as part
of the government’s efforts to establish a time line of Garza’s
activities on February 7, 2004. Customs Special Agent Mark
Atchley (“Atchley”) testified that he found the receipt either
with Garza’s personal effects or in the glove box of the van.
Garza argues that because Atchley could not say with certainty
that he found the receipt on Garza’s person, the receipt could
have been located in the van and could have been placed there by
a prior driver. If the receipt was merely in the van, Garza
argues, “it had no evidentiary significance.” Garza therefore
claims that the district court erred by allowing the admission of
irrelevant and confusing evidence.
The general rule for admissibility, to which there are no
doubt a multitude of exceptions, is that all relevant evidence is
admissible. FED. R. EVID. 402. “Relevant evidence” is defined by
Federal Rule of Evidence 401 as “evidence having any tendency to
2
We note that the jury did not need to conclude that each of
the ten packages contained cocaine to convict Garza. Garza was
charged with importation of and possession of with intent to
distribute more than five kilograms of a substance containing
cocaine. The total weight of the white powder found in the van
was 8.85 kilograms, well over the necessary five kilograms.
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make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Contrary to Garza’s
contention, the receipt in question satisfies this standard, for
it tends to make Garza’s presence in Eagle Pass at 5:44 p.m. more
probable, even if it does not establish that fact definitively.
Placing Garza at Eagle Pass at 5:44 p.m. helps the jury to create
a time line for Garza’s movements that evening to compare with
Garza’s own account of his activities.
Under Rule 403, relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury
. . . .” Garza appears to argue that the receipt created a danger
of confusion that substantially outweighed its relevance. It is
unlikely, however, that the jury would have been confused by the
receipt, especially since Garza had an opportunity to question
Atchley regarding its location when Atchley found it.
Even if the district court had erred in admitting the Auto
Zone receipt into evidence, such error would be harmless. See
United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003) (“If the
court errs in its evidentiary ruling, the error can be excused if
it was harmless . . . . A nonconstitutional trial error is
harmless unless it had substantial and injurious effect or
influence in determining the jury’s verdict.”). While helpful in
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establishing a time line of Garza’s movements, the receipt is far
from the only piece of evidence tending to undermine Garza’s
account (or accounts). More significant is the testimony of the
Texas state police officer that Garza was stopped in Texas at
8:55 p.m. and appeared sober. Moreover, the multiple
inconsistencies and implausibilities of Garza’s stories provided
sufficient basis, even in the absence of any extrinsic evidence
regarding Garza’s whereabouts, for the jury to conclude beyond a
reasonable doubt that Garza was in fact aware of the cocaine in
the van.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Garza’s conviction.
AFFIRMED.
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