IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40537
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN LAWRENCE DOWDY; JOHN EDWARD HUTCHERSON,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Texas
(C-95-CR-32-1)
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March 22, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Lawrence Dowdy and John Edward Hutcherson appeal from
the judgments of conviction for possession with intent to
distribute 330 kilograms of marijuana, aiding and abetting, and
conspiracy to possess with intent to distribute 330 kilograms of
marijuana.
Hutcherson argues that the evidence was insufficient to
support his convictions. The marijuana at issue was found in
front of a load of limes, papayas and produce in a tractor-
*
Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
trailer driven by Dowdy; Hutcherson was a passenger. The
evidence showed that Dowdy and Hutcherson shared a close business
relationship; Hutcherson alone made the pickups of limes, papayas
and produce; the marijuana was not placed in the vehicle by any
of the three produce suppliers; Dowdy and Hutcherson left J&D
sometime between 10:00 p.m. and 11:00 p.m.; the last purchase of
fuel was between 2:00 a.m. and 2:30 a.m. (allowing sufficient
time to load the marijuana after their departure from J&D); and
Dowdy and Hutcherson appeared very nervous at the checkpoint.
The jury heard Dowdy's and Hutcherson's testimony and chose to
disbelieve their explanation concerning their lack of knowledge
of the presence of marijuana in the trailer, their whereabouts
during the time they left J&D and the time that they actually
left the Silver Spur, and their visible nervousness. The jury
was free to choose among reasonable constructions of the
evidence. In addition to his visible nervousness at the
checkpoint, Hutcherson's presence with the truck at all times and
the time-gap between completion of the loading and their actual
departure support the jury's finding that Hutcherson was guilty
beyond a reasonable doubt. Construing the evidence in favor of
the verdict, there was sufficient evidence to support
Hutcherson's conviction on each count of the indictment.
Dowdy and Hutcherson both argue that the district court
abused its discretion in instructing the jury that certain
factors may be evidence of knowledge. Dowdy specifically
challenges the reference to the concept of "nervousness" as
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additional evidence of guilt. They contend that the jury
instruction lessened the Government's burden of proof and shifted
the burden to the defendants in violation of due process. The
challenged portion of the instruction contains no presumption.
It uses the terms "may" and "if any" and is clearly a permissive
inference. The district court did not abuse its discretion in
formulating the jury instruction.
AFFIRMED.
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