United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 30, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50513
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD BARNARD PAYNE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1683-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Reginald Barnard Payne appeals his convictions, following
a jury trial, of possession of 100 kilograms or more of marijuana
with intent to distribute, in violation 21 U.S.C. § 841(a), and
carrying a firearm during and in relation to a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c)(1). The district
court sentenced Payne to 78 months in prison as to the marijuana
count and 60 months as to the firearm count, with the terms to
run consecutively, and to five years of supervised release.
Payne contends that the trial evidence was insufficient to
support the knowledge element of the conviction. He asserts that
*
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this opinion should not be published and is not precedent except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. 06-50513
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he did not know that the 1774.5 pounds of marijuana were
concealed in Wrangler Jeans boxes in the trailer portion of his
truck. Payne was stopped by Border Patrol agents near the Sierra
Blanca, Texas, checkpoint while he was transporting a load of
jalapeno peppers that he had retrieved earlier that day at Border
Foods in Deming, New Mexico, and that he was purportedly
delivering to a distributor in Marietta, Georgia.
The standard for reviewing a claim of insufficient evidence
is “whether, viewing all of the evidence in the light most
favorable to the verdict, a rational trier of fact could have
found that the evidence establishes the essential elements of the
offense beyond a reasonable doubt.” United States v. Villarreal,
324 F.3d 319, 322 (5th Cir. 2003) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). When contraband is concealed or
hidden within a vehicle, mere control of the vehicle is not
sufficient to establish guilty knowledge, and the Government must
adduce “additional evidence that is suspicious in nature or
demonstrates guilty knowledge.” See Villarreal, 324 F.3d at 322.
Even if it is assumed arguendo that the marijuana in Payne’s
trailer was concealed or hidden such that evidence beyond Payne’s
control of the vehicle was necessary to prove guilty knowledge,
we hold that the evidence was sufficient for the jury to find
that Payne knew that he was transporting marijuana. See id.;
United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999). Payne
owned and operated the tractor-trailer that he was driving. Upon
being stopped on the highway, Payne was “quite nervous," was
pacing and fidgeting, and was not making eye contact with agents.
See Jones, 185 F.3d at 464. The street value of the marijuana,
No. 06-50513
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approximately $2.1 million, allows an inference that a drug
smuggler would not have entrusted the marijuana to an unwitting
party. See Villarreal, 324 F.3d at 324.
The number of the bill of lading that Payne presented to
agents from Border Foods did not match the number on the seal
removed by border patrol agents from the trailer’s doors; the
number, however, did fall within a sequence of numbers on unused
seals found in the cab of Payne’s truck. There was no evidence
that the tractor-trailer had ever been out of Payne’s possession
at a time when a third party could have secreted the drugs within
his trailer. The pallets containing marijuana were too heavy to
have been loaded on the truck without heavy equipment. Testimony
from a Border Foods employee indicated that it would have been
almost impossible for the marijuana to have been loaded at Border
Foods itself. No evidence was presented to suggest that the
Wrangler Jeans boxes had been loaded prior to Payne’s arrival at
Border Foods or that he had arranged to transport a legitimate
load of Wrangler jeans. Finally, Payne was carrying a loaded
pistol and four cellular telephones, accoutrements that often
indicate involvement in drug trafficking.
The circumstantial evidence was more than sufficient to
prove to a rational trier of fact that Payne knew that he was
transporting marijuana. See Villarreal, 324 F.3d at 322.
Accordingly, the convictions are AFFIRMED.