IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50113
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
ANTONIO LOPEZ,
Defendant-Appellant
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Appeal from the United States District Court
for the Western District of Texas
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January 23, 1996
Before: JOLLY, DUHÉ and DENNIS, Circuit Judges.
DENNIS, Circuit Judge.
Following a jury trial, appellant, Antonio Lopez, was found
guilty of importing marijuana, in violation of 21 U.S.C. §§ 952 and
960, and possessing marijuana with intent to distribute, in
violation of 21 U.S.C. § 841. Lopez appeals his conviction and
sentence solely on the ground that there was constitutionally
insufficient evidence to sustain the jury's verdict. Because we
find that appellant's convictions are adequately supported by the
record, we affirm.
FACTS
On the night of April 18, 1994, at approximately 10:45 p.m.,
appellant drove a blue Ford sedan with Texas license plates to the
Ysleta Port of Entry in order to cross from the Mexican side of the
border into Texas. Traffic was light at this time and only Lanes
3 and 4 were open. U.S. Customs Service Inspector, Rosalva
Morales, testified that she noticed the car because it initially
approached Lane 3, where the inspector was opening trunks, but
abruptly switched into Lane 4, where she was working as primary
inspector. Morales approached the car and began asking routine
questions regarding Lopez's citizenship and any items he was
bringing into the country. Lopez was not carrying a drivers
license or any identification and Morales's attention was drawn to
him because he appeared to be wearing women's cosmetics. She asked
him to exit the car, and open the hood and trunk. Morales
testified that she did not smell anything unusual as she stood a
foot from the car's open driver's side window.
Senior U.S. Customs Service Inspector Angel Hernandez
accompanied Lopez to the back of the vehicle while he opened the
trunk. Hernandez testified that Lopez's hand trembled as he tried
to find the right key, but that he managed to open the trunk. When
Hernandez looked into the trunk area, he observed what appeared to
be a false compartment in the back of the seat. He asked U.S.
Customs Service Inspector Luis Mata to take a look at the
compartment, and then escorted appellant to the Customs headhouse.
Hernandez testified that he did not smell marijuana when the trunk
was opened.
Inspector Mata drove the car from Lane 4 to the secondary
area, where he prepared the vehicle for a canine sniff by closing
the window and running the air conditioner to send air from the
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front of the car out the back. Canine Officer, Lisa Holley, then
walked her dog, Bark, around the vehicle. After Bark alerted on
the rear of the car, Mata pulled the back seat open and found
twelve packages wrapped in plastic. The substance contained in the
packages subsequently tested positive for marijuana. Mata
testified that when he drove the car from the primary to the
secondary inspection area, he smelled a strong odor of marijuana.
Mata, however, failed to include this information when he typed his
report. He testified that at the prompting of Officer Holley, he
added the information by hand to the report.
Lopez took the stand in his own defense and testified that he
was not aware that there was marijuana hidden in the car, that he
did not smell marijuana in the car, and that he would not have
driven the car had he known there was marijuana in it. According
to Lopez, he had gone to Guadalupe, Mexico with a man named Roger,
and had spent the day drinking with Roger and two other men,
Francisco and Edward. When arrested, he was driving a car that he
believed belonged to Edward, who was too drunk to drive back to the
United States.1 Lopez testified that Roger was driving Edward in
another car and that the two were to pick up the car at Lopez's
1
The government does not contend that the car was appellant's.
Jimmy Searls, a special agent with the U.S. Customs Service, testified
that an investigation of the car's license plates revealed that the
vehicle was registered to a Jose Maria and Victoriano Hernandez. The
occupant at the address listed on the registration, however, did not
know either of the listed owners or how the car could be registered at
her address.
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apartment in San Elizario, Texas. Following his arrest, Lopez did
not see any of these men again.
The jury clearly rejected Lopez's version of events, finding
him guilty on all charges -- one count of importation of marijuana
in violation of 21 U.S.C. §§ 952 and 960, and one count of
possession of marijuana with intent to distribute, in violation of
21 U.S.C. § 841. On appeal, Lopez's sole argument is that the
government presented insufficient evidence to establish beyond a
reasonable doubt that he knew that marijuana was hidden in the car,
an element necessary to prove both the importation and the
possession charges.
DISCUSSION
The narrow scope of our review for sufficiency of the evidence
following a conviction is well established. We must affirm if a
rational trier of fact could have found that the evidence
established the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 1789, 61 L.Ed.2d 560 (1979); United States v. Salazar, 66
F.3d 723, 728 (5th Cir. 1995). We thus consider the evidence, all
reasonable inferences drawn therefrom, and all credibility
determinations in the light most favorable to the prosecution.
Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469 (86
L.Ed. 680 (1942); Salazar, 66 F.3d at 728; United States v. Resio-
Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995); United States v. Casel,
995 F.2d 1299, 1303 (5th Cir.), cert. denied U.S. , 114
S.Ct. 472, 126 L.Ed.2d 424 (1993). Our role does not extend to
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weighing the evidence or assessing the credibility of witnesses.
Glasser, 315 U.S. at 80, 62 S. Ct. at 469; Casel, 995 F.3d at 1303.
The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt, and the jury is free to choose among reasonable
constructions of the evidence. Salazar, 66 F.3d at 728; Resio-
Trejo, 45 F.3d at 911 (quoting United States v. Bell, 678 F.2d 547,
549 (5th Cir. 1982)(en banc), aff'd on other grounds, 462 U.S. 356,
103 S. Ct. 2398, 76 L.Ed.2d 638 (1983)). If the evidence, however,
gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence, we must reverse the conviction, as
under these circumstances "a reasonable jury must necessarily
entertain a reasonable doubt." United States v. Sanchez, 961 F.2d
1169, 1173 (5th Cir. 1992)(quoting Clark v. Procunier, 755 F.2d
394, 396 (5th Cir. 1985)(emphasis in original), cert. denied ,
U.S. , 113 S. Ct. 330, 121 L.Ed.2d 3156 (1992).
A conviction for the offense of possession of marijuana with
intent to distribute requires proof that the defendant (1)
knowingly (2) possessed marijuana (3) with intent to distribute it.
United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990).
In order to prove the crime of importation of marijuana, the
Government must establish that the defendant knowingly played a
role in bringing the marijuana into the country. Id. To establish
either crime, the Government must adduce sufficient evidence of
"guilty knowledge." Id. Lopez argues that the Government failed
to do so here.
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The knowledge element for possession or importation of drugs
can rarely be proven by direct evidence. See United States v.
Garza, 990 F.2d 171, 174 (5th Cir.), cert. denied, U.S. ,
114 S. Ct. 332, 126 L.Ed.2d 278 (1993). Although knowledge may
sometimes be inferred solely from control of a vehicle containing
drugs, when the contraband is hidden the Government must produce
additional indicia that the defendant was aware of the presence of
drugs. Id.
Lopez argues that the circumstances of this case, in particular
his change of lanes prior to inspection, his nervousness when asked
to open the trunk, and the odor of marijuana in the car,
individually and collectively do not show a consciousness of guilt
sufficient to support an inference of knowing possession. We
cannot agree. Although it appears that the bulk of evidence
adduced at trial is at least as consistent with innocence as it is
with guilt, we find that Inspector Mata's testimony that he smelled
a strong odor of marijuana in the vehicle must tip the scales in
favor of providing a basis for affirming the verdict.
Lopez mischaracterizes Mata's testimony as establishing that
Mata could only smell marijuana once he had entered the car and
turned on the air conditioner. A review of the trial transcript
reveals, however, that Mata testified that he smelled marijuana
while he drove, with the driver's side window down, the
approximately 45 feet from the primary to the secondary inspection
area. We note that Mata's testimony is hardly unassailable, as he
omitted recording this critical fact when he typed up his statement
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of the investigation and none of the other Customs Service officers
testified to smelling marijuana in the passenger compartment of the
vehicle. Nonetheless, on a review for sufficiency of the evidence
we may not invade the jury's province by substituting our own
credibility assessments for those of the jury. Unless a witness's
testimony is incredible or patently unbelievable, we must accept
the jury's credibility determinations. See United States v. Casel,
995 F.2d at 1304 ("The test for 'incredibility' of a witness is an
extremely stringent one, because an appellate court does not weigh
the credibility of witnesses. To be found 'incredible' as a matter
of law, the witness' testimony must be factually impossible")
(citing United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir.
1989), cert. denied, 496 U.S. 926, 110 S. Ct. 2621, 110 L.Ed.2d 642
(1990) and United States v. Silva, 748 F.2d 262, 266 (5th Cir.
1984)); United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir.
1992)("Because we cannot say that Stone's testimony is facially
insubstantial or incredible, we find the evidence supporting
Estrada's conspiracy convictions was constitutionally
sufficient."), cert. denied, U.S. , 113 S. Ct. 2354, 124
L.Ed.2d 262 (1993). Although Mata's testimony that he smelled
marijuana in the car was subject to question, we cannot say that a
reasonable jury could not credit this testimony. Inasmuch as a
jury could rationally infer beyond a reasonable doubt that Lopez
had knowledge of the hidden marijuana because its odor was present
in the passenger compartment of the car he was driving, see United
States v. Gomez, 776 F.2d 542 (5th Cir. 1985), we must find that
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the Government presented sufficient evidence to prove Lopez's guilt
beyond a reasonable doubt on the possession and importation
charges.
CONCLUSION
Because the evidence was sufficient to convict Lopez for
importation of marijuana and possession of marijuana with intent to
distribute, we AFFIRM his conviction and sentence.
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