United States v. Gamez-Gonzalez

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-40297

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

JOSE ALBERTO GAMEZ-GONZALEZ,

Defendant-Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas

_________________________________________________________________
January 27, 2003
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Jose Alberto Gamez-Gonzalez was convicted for possession of

more than five kilograms of a controlled substance (cocaine), with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A). The principal issue at hand is whether the Government

was required to prove Gamez's mens rea regarding the type and

quantity of the controlled substance. AFFIRMED.

I.

In July 2001, at the Falfurrias Border Patrol checkpoint, a

search of the truck driven by Gamez revealed approximately 123

kilograms of cocaine in a secret compartment. A jury convicted
Gamez that October; he was sentenced, inter alia, to 245 months in

prison.

II.

Gamez maintains: the evidence was insufficient to prove he

knowingly possessed any controlled substance; pursuant to Apprendi

v. New Jersey, 530 U.S. 466 (2000), the Government was required,

and failed, to prove he knowingly possessed the type and quantity

of the controlled substance for which he was convicted; § 841 is

unconstitutional in the light of Apprendi; and the Government’s

rebuttal closing argument constituted reversible error.

A.

At the close of the evidence, Gamez moved unsuccessfully for

judgment of acquittal based on evidence insufficiency, with

emphasis on lack of knowledge. Accordingly, at issue is whether “a

rational trier of fact could have found that the evidence

established the elements of the offenses beyond a reasonable

doubt”, considering “all the evidence in the light most favorable

to the verdict”. United States v. Peters, 283 F.3d 300, 307 (5th

Cir.), cert. denied, Edmonson v. United States, 122 S. Ct. 1949

(2002), and cert. denied, Peters v. United States, 122 S. Ct. 2612

(2002).

“[W]hat the fact finder is permitted to infer from the

evidence in a particular case is governed by a rule of reason[;]

fact finders may properly use their common sense and evaluate the

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facts in light of their common knowledge of the natural tendencies

and inclinations of human beings”. United States v. Ayala, 887

F.2d 62, 67 (5th Cir. 1989)(internal quotation marks omitted).

Along this line, “[c]ircumstances altogether inconclusive, if

separately considered, may, by their number and joint operation,

especially when corroborated by moral coincidences, be sufficient

to constitute conclusive proof”. Id. (internal quotation marks

omitted).

Concerning Gamez's claimed lack of knowledge of any drugs in

his vehicle, a jury “may infer knowledge of the presence of

contraband from the exercise of control over the vehicle in which

it is concealed”. United States v. Jones, 185 F.3d 459, 464 (5th

Cir. 1999), cert. denied, 531 U.S. 850 (2000). “If the substance

is in a hidden compartment of the vehicle, as in [this] case,

additional circumstantial evidence that is suspicious in nature or

demonstrates guilty knowledge is required.” Id.

On the night of 16 July 2001, Gamez, a tractor trailer

operator, loaded his truck in McAllen, Texas, with limes to be

delivered to Brooklyn, New York. According to the bill of lading,

the load was signed out early the next morning — 12:21 a.m. on 17

July.

Approximately three and one-half hours later (approximately

4:00 a.m.), Gamez arrived in the truck at the Falfurrias

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checkpoint. It generally takes only one and one-half hours to

travel between McAllen and the checkpoint.

At the primary inspection area, Gamez stated he was a United

States citizen and was carrying limes. During this discussion, a

Border Patrol Agent observed that Gamez appeared nervous. Agents

directed the truck to a secondary inspection area, where Gamez

exited the vehicle and offered them his bill of lading. As an

Agent later testified, Gamez was “pacing back and forth” and was

“extremely talkative”.

Agents searched the truck using a canine that alerted to the

sleeping area. Two compartment doors in a false ceiling above that

area were found; the sealant for these doors appeared to be wet and

fresh. In the hidden compartment, Agents found 55 bundles of 78%-

pure cocaine, weighing approximately 123 kilograms, with a street

value of approximately $9 million.

Gamez's fingerprints were not found on the bundles. He did,

however, have $1,600 in cash, an amount consistent with the typical

cash advance paid cocaine transporters.

Gamez was the registered owner of the tractor, but there were

significant discrepancies in the title’s history. He had submitted

an application for a Texas title, stating he had purchased the

tractor from Andrew Norris of Timmons International (a Louisiana

dealership) that May; the title, however, listed another purchaser.

Gamez also submitted an affidavit to the Texas Department of

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Transportation (DOT) for a correction to the Louisiana title. A

DOT employee testified that the affidavit was probably filed to

account for the alterations Gamez made on the Louisiana title in

order to indicate he had purchased the tractor from Norris and

Timmons International.

Norris testified that he had never met Gamez and had not sold

him the tractor. Instead, Norris had sold it on behalf of Timmons

in September 2000 to Victor Fernandez. Fernandez had the paperwork

changed to reflect that the sale was to Ricardo Gonzalez, for whom

Fernandez acted as broker.

Three days later, Gonzalez sold the tractor to unidentified

men but did not give them the correction to the title, which he had

yet to receive. The men said they intended to take the tractor to

Mexico.

Norris testified that, at the time of the sale to Fernandez,

no alterations had been made in the tractor’s sleeper area.

Gonzalez testified that he made no such alterations.

The evidence was sufficient. For example: Gamez was

extremely nervous at the checkpoint, see Jones, 185 F.3d at 464

(nervousness may support inference of guilty knowledge if facts

suggest nervousness derived from consciousness of criminal

behavior); he had $1,600, an amount consistent with that advanced

to drivers transporting cocaine; the hatch for the hidden

compartment had been recently sealed and there was a concomitant

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two-hour gap between when Gamez should have arrived at the

checkpoint and when he did arrive; there was evidence Gamez

tampered with the truck’s title and that the truck did not contain

a hidden compartment at the time of the previous owners’

possession; and the jury could reasonably infer Gamez would not

have been allowed to transport cocaine worth almost $9 million if

he was not part of the trafficking scheme, see, e.g., United States

v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir. 2001).

B.

Gamez was charged, inter alia, with possession of, with intent

to distribute, more than five kilograms of cocaine, in violation of

§ 841(a)(1) and (b)(1)(A). The drug type and quantity were

submitted to the jury and proved beyond a reasonable doubt.

Pre-Apprendi, our court held that the knowledge required for

a § 841 conviction is only that the substance possessed was a

controlled substance. United States v. Valencia-Gonzalez, 172 F.3d

344, 345 (5th Cir.), cert. denied, 528 U.S. 894 (1999). Gamez

urges that, post-Apprendi, the Government is now required to prove,

beyond a reasonable doubt, Gamez's knowledge of the drug type and

quantity.

Apprendi held: “any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be ... proved

beyond a reasonable doubt”. 530 U.S. at 490. Because drug type

and quantity are, post-Apprendi, elements of the offense, Gamez

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maintains that, even if the evidence was sufficient to prove he

knowingly possessed some controlled substance, the evidence was

still insufficient because the Government did not prove he

knowingly possessed the type and quantity on which his conviction

was based.

As noted, the Government proved beyond a reasonable doubt that

Gamez possessed more than five kilograms of cocaine. Section

841(a)(1) makes it unlawful to “knowingly or intentionally ...

possess with intent to ... distribute ... a controlled substance”.

For “any person who violates subsection (a) of [§ 841]”, subsection

(b) prescribes penalties based on drug type and quantity involved

in the unlawful act. 21 U.S.C. § 841(b). Restated, those

penalties are based on “violation[s] of subsection (a) ...

involving” specified amounts. 21 U.S.C. § 841(b)(1)(A) and (B)

(emphasis added). For example, if, as in this case, the § 841(a)

unlawful act “involv[es]” five kilograms or more of cocaine,

subsection (b)(1)(A)(ii)(II) mandates a minimum of ten years in

prison (maximum life); if the § 841(a) unlawful act “involv[es]”

500 grams or more of cocaine, subsection (b)(1)(B)(ii)(II) mandates

a minimum of five years in prison (maximum 40 years).

In short, subsection (b) does not make Gamez's knowledge of

drug type or quantity an element of the § 841 offense.

Nevertheless, Gamez asserts that the § 841(a) “knowingly or

intentionally” language, required for the act to be unlawful,

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“modif[ies] all of the elements of § 841, including drug type and

quantity” addressed in § 841(b) (penalties).

Apprendi is inapposite. Knowledge of drug type and quantity

is not, in the words of Apprendi, a “fact that increases the

[subsection (b)] penalty”. 530 U.S. at 490. The penalty is,

instead, based solely on the type and quantity involved in the

unlawful act. As stated in Valencia-Gonzalez, § 841 employs a

“strict liability punishment” scheme. 172 F.3d at 346. In sum,

for § 841, the knowledge required for the act to be unlawful does

not apply to the penalty.

In this regard, Gamez's proposed application of Apprendi has

been rejected by each of the five circuits that has considered it.

United States v. Carranza, 289 F.3d 634, 644 (9th Cir.)(“Apprendi

did not change the long established rule that the government need

not prove that the defendant knew the type and amount of a

controlled substance that he imported or possessed....”), cert.

denied, 123 S. Ct. 572 (2002); United States v. Collazo-Aponte, 281

F.3d 320, 326 (1st Cir.) (“[N]othing in the statutory language of

§ 841(b) supports a mens rea requirement”.), cert. denied, 123 S.

Ct. 275 (2002); United States v. Barbosa, 271 F.3d 438, 458 (3rd

Cir. 2001) (“We believe that the structure of the drug statutes and

the policies behind them show that the Government’s mens rea burden

has not changed with the advent of Apprendi.”), cert. denied, 123

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S. Ct. 660 (2002); United States v. Carrera, 259 F.3d 818, 830 (7th

Cir. 2001) (In the 21 U.S.C. § 846 context (conspiracy to possess

with intent to distribute), “[t]he Government need only prove that

the defendant was aware that some controlled substance was

involved”.); United States v. Sheppard, 219 F.3d 766, 768 n. 2 (8th

Cir. 2000) (“[T]he § 841(b) sentencing provisions only require the

government to prove that the offense ‘involved’ a particular type

and quantity of controlled substance, not that the defendant knew

he was distributing that particular type and quantity”.), cert.

denied, 531 U.S. 1200 (2001). See also United States v. Garcia,

252 F.3d 838, 844 (6th Cir. 2001) (In post-Apprendi case,

Government need not prove mens rea as to drug type and quantity.).

C.

Gamez contends, for the first time on appeal, that, in the

light of Apprendi, § 841(a) and (b) are unconstitutional. This

belated contention would normally be reviewed only for plain error.

E.g., United States v. Lankford, 196 F.3d 563, 570 (5th Cir. 1999),

cert. denied, 529 U.S. 1119 (2000).

In any event, Gamez concedes our court has rejected this

claim, see United States v. Slaughter, 238 F.3d 580, 582 (5th

Cir.), cert. denied, 532 U.S. 1045 (2001). Gamez presents the

claim only to preserve it for Supreme Court review.

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 D.

Upon the Government's stating in its rebuttal closing argument

that “[t]he Defense’s job is to blow as much smoke towards the jury

box as they can, confuse things”, Gamez's counsel objected. The

district court implicitly overruled the objection by allowing the

prosecutor, in his words, to “specify what he mean[t] by ‘smoke’”.

Gamez claims the blow-smoke remark constitutes reversible error

because it both suggested defense counsel was attempting to mislead

the jury and vouched for the credibility of the Government’s case.

Obviously, the remark was extremely unprofessional and

otherwise inappropriate. Nevertheless, it constitutes reversible

error only if it is “so improper as to affect [Gamez's] substantial

rights”. United States v. Vaccaro, 115 F.3d 1211, 1215 (5th Cir.

1997), cert. denied, 522 U.S. 1047 (1998). Considered are: “(1)

the magnitude of the prejudicial effect of the statements; (2) the

efficacy of any cautionary instruction; and (3) the strength of the

evidence of the defendant's guilt”. United States v. Lowenberg,

853 F.3d 295, 302 (5th Cir. 1988), cert. denied, 489 U.S. 1032

(1989).

Following the remark, the prosecutor explained that, by

“smoke”, he was referring to the defense’s theory of the case.

And, immediately after the Government’s closing argument, the court

instructed the jury to base its verdict “solely upon the evidence

without prejudice or sympathy” and that such evidence did not

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include “any statement, objections, or arguments that the attorneys

made”. In this light, and considering the evidence of Gamez's

guilt, there was no reversible error.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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