United States v. Reveles

REVISED, October 1, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50631
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROSARIO REVELES, also known as
Willie Reveles; LUIS REVELES,

Defendants-Appellants.
_________________________________________________________________

Appeals from the United States District Court for the
Western District of Texas
_________________________________________________________________
September 28, 1999

Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A jury convicted Rosario “Willie” Reveles and Luis Reveles of

conspiracy and possession with intent to distribute a controlled

substance. On appeal, Willie does not challenge the jury’s

assessment of guilt, but makes several arguments challenging the

constitutionality of his conviction and the calculation of his

sentence. For the reasons stated below, we find no error with

respect to Willie’s convictions or sentencing. Unlike Willie, Luis

does challenge the sufficiency of the evidence to support his

convictions. Because we find insufficient evidence to support the
knowledge elements of his conspiracy and possession with intent to

distribute convictions, we reverse those convictions.

I

Willie Reveles was involved in a drug conspiracy. According

to testimonial evidence offered at trial, Willie approached a man

named Luis Gil and offered his services in the drug-related

business. Willie informed Gil that he had contacts with shipping

companies that could help Gil in shipping large quantities of

drugs. Sometime later, Willie began using legitimate freight

companies to ship boxes that contained marijuana, but from the

outside the boxes looked like ordinary freight.1 Each of the

delivered boxes rested on a pallet, was wrapped in industrial

cellophane, and was marked “fragile.” Willie told the shipping

companies that the boxes contained ceramic goods.

Sometimes, Willie used a forwarding company (SGT) to arrange

the details with shipping companies to transport the freight. When

dealing with SGT, Willie said that he worked for CC Enterprises--a

fictional entity.2 Typically, a person working for SGT would meet

either Willie or his brother, Luis, at the shipping company with

the paper work. Luis sometimes delivered the drug-filled boxes to

1
The freight companies that Willie used included Herman Miles
Trucking, ABF Freight, and C.F. Motor Freight Co. Willie also used
a shipping broker (called a freight forwarding company) to handle
the details of the shipping arrangements. This company is named
SGT.
2
Willie also used another fictional corporate name--
Timberland--when he dealt with another shipping company.

2
the shipping company on his own. It is unknown how many times Luis

did this, but the evidence supports as few as two times, but not

much beyond three.

The illicit drug trafficking was uncovered in April 1996, when

a fork lift operator at one of the shipping companies accidentally

punctured one of Willie’s boxes. Marijuana poured out of the box,

and the worker called the police. The police arranged to have the

box shipped under controlled supervision to its planned

destination. Because the shipment was delayed, Willie called the

company who had arranged the shipment (SGT), and asked about the

freight’s whereabouts. A SGT employee told the police of the

inquiry. This, in turn, led the police to discover Willie’s

identity. Before arresting Willie, however, the police observed

two other drug deliveries orchestrated by Willie. The three boxes

discovered in these three deliveries contained a total of 1,448

pounds of marijuana.

The second delivery discovered by the police occurred on

June 18, 1996. During this delivery, an employee at ABF Freight

smelled marijuana in one of the boxes sent by Willie. The employee

informed the police, and the police arrested the parties that were

to pick up the shipment. In the third delivery discovered by the

police, the police were alerted beforehand. They observed Luis

drop off the freight at the shipping company. When Luis arrived at

the shipping dock, no one was around to accept the freight. After

waiting for a short time (approximately ten to twenty minutes),

3
Luis left his (correct) name, address, and phone number in a note

that said he would return later that day. The police then followed

Luis to a McDonald’s restaurant where he met three men. The three

men left in the truck Luis had taken to drop off the box, and Luis

left in another automobile.

After further investigation, the authorities discovered that

Willie had a Mexican bank account containing $130,000. (Willie

reported an income of less than $12,000 for each of the years 1994,

1995, and 1996). Willie, however, did not share his wealth. He

only paid his brother Luis fifty dollars for each delivery drop-

off.

During the sentencing phase, the court determined that the

conspiracy ran from February 1995 through June 1996. The

defendants do not dispute this finding. The court then assumed

that all shipments made by Willie during this time contained

marijuana. Because the shipping company records indicated the

weight of each shipment, the court estimated the weight of

marijuana in each shipment by multiplying the total shipment weight

by sixty-two percent--the average weight percentage of marijuana

found in the three discovered deliveries.

The government prosecuted Willie and Luis Reveles in a joint

trial. The jury found them both guilty of conspiracy to possess

with intent to distribute marijuana in violation of 21 U.S.C.

4
§§ 841(a)(1)3 and 846.4 The jury also found the brothers guilty of

possession with intent to distribute the marijuana. The court

sentenced Willie to 262 months of imprisonment and Luis to 121

months.

II

A

Willie first challenges his conviction based on Bruton v.

United States, 391 U.S. 123 (1968) (holding that a defendant’s

Sixth Amendment Confrontation Clause rights are violated when a

court admits into evidence an incriminating statement given by a

non-testifying co-defendant). Before the trial began, the

prosecution announced its intent to introduce a written statement

given by Luis Reveles. The statement incriminated Willie insofar

as Luis stated, “I think Willie knew that there was drugs in the

3
(a) Except as authorized by this subchapter,
it shall be unlawful for any person knowingly
or intentionally–

(1) to manufacture, distribute, or
dispense, or possess with intent to
manufacture, distribute, or
dispense, a controlled substance;

21 U.S.C. § 841(a)(1) (West 1981).
4
Any person who attempts or conspires to commit
any offense defined in this subchapter shall
be subject to the same penalties as those
prescribed for the offense, the commission of
which was the object of the attempt or
conspiracy.

21 U.S.C. § 846 (West Supp. 1999).

5
boxes that I shipped for him.” The government offered to introduce

a redacted version of the statement, but Willie’s lawyer said that

the redaction was unnecessary and that he would not make any Bruton

objection. After Willie’s attorney said that he did not foresee a

Bruton problem, the prosecuting attorney stated, “I want to make it

clear in case he [Luis] changes his mind and doesn’t testify --.”

Willie’s attorney then interjected, “It’s not that damaging.” The

judge then said that he would allow the statement to be admitted.

Now, however, Willie claims that admission of the statement

constitutes plain error. If Willie had forfeited his right to make

an objection based on his Sixth Amendment confrontation right,5 the

plain error standard of review would set the context for our

analysis. But Willie did not forfeit his constitutional right. As

the record reveals, and as Willie’s attorney conceded to us at oral

argument, he waived it. “Waiver is different from forfeiture.

Whereas forfeiture is the failure to make the timely assertion of

a right, waiver is the ‘intentional relinquishment or abandonment

of a known right.’” United States v. Olano, 507 U.S. 725, 733

(1993) (citation omitted). When a defendant has waived a right,

the district court cannot be said to have erred by failing to

5
The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him . . . .”

U.S. CONST. amend. VI.

6
override the intentions of the defendant’s counsel by asserting the

right sua sponte. Id.6 Because Willie explicitly waived his Sixth

Amendment confrontation right at trial, he cannot successfully now

claim that the district court erred by failing to protect that

right.

B

Willie next argues that the government committed reversible

error when at trial it questioned him about his silence during the

investigation. At trial, Willie testified on his own behalf. In

his testimony, he tried to convey to the jury that he had been

willing to cooperate with the authorities during their

investigation. Furthermore, on direct examination, Willie denied

that he knew that the packages he shipped contained drugs and he

testified that if he had known, he would have reported it to the

6
See also United States v. Stephans, 609 F.2d 230, 232-33 (5th
Cir. 1980) (holding that a defendant’s attorney can waive the
defendant’s Sixth Amendment confrontation right “so long as the
defendant does not dissent from his attorney’s decision, and so
long as it can be said that the attorney’s decision was a
legitimate trial tactic or part of a prudent trial strategy”).
Willie did not object to his attorney’s decision. Although Willie
now argues that the introduction of the statement harmed his case,
he does not provide us with any argument as to why the waiver could
not have been a “legitimate trial tactic or part of a prudent trial
strategy.” There are plausible reasons why Willie might not object
to admission of the statement. For example, Willie testified that
Luis had told him that the police coerced him into giving his
statement. Willie could have decided, as a matter of strategy,
that Luis’s statement afforded him an opportunity to call into
doubt the tactics used by the police. Whatever the possibilities,
we will not speculate about the intentions of Willie’s counsel
when, on appeal, Willie has not called those intentions into
question.

7
authorities. Willie’s attorney also questioned Willie about his

response to the government’s request for his cooperation. Willie

stated that he had attempted to meet with a government agent but

that the agent “got upset and left” when Willie and his attorney

were late for the meeting.

During cross-examination, the government made two comments,

which Willie argues violated his Fifth Amendment right against

self-incrimination. First, the prosecutor asked Willie if he had

gone to the police after Luis was arrested, but before his own

arrest. Second, the government brought out that Willie did not

make any effort to cooperate with the authorities in the months

after his arrest. The district court sustained objections to both

lines of questioning and the court gave a curative instruction to

the jury.7 After discussing the curative instruction that would be

given, the district court specifically asked Willie’s counsel if he

would like to request any other relief. Willie’s counsel declined

the invitation. Because it is not altogether clear whether we can

stop our analysis here and decide whether the harmless error or

7
The district court gave the following curative instruction:

Mr. Willie Reveles has been asked questions and has given
answers about his cooperation with law enforcement
officials after his arrest on the charges tried here. I
have decided whether or not Mr. Willie Reveles talked to
law enforcement officials after his arrest is not
relevant. All testimony regarding issues of cooperation
by Mr. Willie Reveles after arrest is, therefore,
stricken, and you are instructed to disregard it.

8
plain error standard of review applies,8 we will proceed to address

the direct question of whether any Doyle violation occurred.

“In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court

held that the Due Process Clause . . . prohibits impeachment of a

defendant’s exculpatory story, told for the first time at trial, by

using the defendant’s post-arrest silence.” United States v.

Rodriguez, 43 F.3d 117, 121 (5th Cir. 1995). The Doyle rule “rests

on ‘the fundamental unfairness of implicitly assuring a suspect

that his silence will not be used against him and then using his

silence to impeach an explanation subsequently offered at trial.’”

Brecht, 507 U.S. at 628 (citations omitted).9 Thus, the prosecutor

does not commit a constitutional error when he refers to the

defendant’s silence before the police have read the defendant his

Miranda warnings. Id.; see also Jenkins v. Anderson, 447 U.S. 231

(1980). Therefore, Willie’s argument concerning any of the

government’s references to his silence occurring before his arrest

do not violate the Fifth Amendment as interpreted in Doyle.

Prosecutors may not, however, comment on a defendant’s post-

arrest silence as a method for impeaching the defendant’s

exculpatory defense. Nevertheless, Doyle does not prohibit

8
See Greer v. Miller, 483 U.S. 756, 761 n.3 (1987) (“Before
reaching the question whether the harmless-error standard applies,
we must be satisfied that an error of constitutional dimension
occurred.”).
9
Willie does not point to any portion of the record that
indicates that he received Miranda warnings. We will assume that
Willie was read the rights.

9
prosecutors from commenting on a defendant’s post-arrest silence

for all purposes. The Court in Doyle gave one example of one such

permissible purpose:

It goes almost without saying that the fact of post-
arrest silence could be used by the prosecution to
contradict a defendant who testifies to an exculpatory
version of events and claims to have told the police the
same version upon arrest. In that situation the fact of
earlier silence would not be used to impeach the
exculpatory story, but rather to challenge the
defendant’s testimony as to his behavior following
arrest. Cf. United States v. Fairchild, 505 F.2d 1378,
1383 (CA5 1975).

Doyle, 426 U.S. at 619 n.11. In Fairchild, which was cited with

some approval by the Supreme Court, we held that a prosecutor may

question a defendant about his post-arrest silence for the purpose

of rebutting the impression that he cooperated with law enforcement

authorities. See Fairchild, 505 F.2d at 1383; see also Chapman v.

United States, 547 F.2d 1240, 1243 n.6 (5th Cir. 1977) (stating

that Fairchild “clearly survive[s] Doyle.”). A review of the trial

transcript shows that the government’s inquiries into Willie’s

post-arrest silence were for the purpose of rebutting his claim

that he stood ready to cooperate all along.10 When a defendant

attempts to convince a jury that he was of a cooperative spirit,

Doyle does not tie the hands of prosecutors who attempt to rebut

this presentation by pointing to a lack of cooperation. Therefore,

the district court’s curative instructions were unnecessary, and no

constitutional violation occurred.

10
See Record Vol. 7, pp. 859-61.

10
 C

In his final argument, Willie urges that the district court

erred as to the amount of drugs for which he was responsible.11 As

described above, the district court judge determined that Willie

involved himself in a conspiracy running from (at the latest)

February 1995 through June 1996. The government seized only three

of the shipments made at the tail end of the conspiracy, but the

district court assumed that every shipment (forty-two in total)

Willie arranged during the relevant time period contained

marijuana. The Presentence Report, using evidence of each

shipment’s total weight, approximated the amount of marijuana by

assuming that each shipment was the same weight percentage of

marijuana as the average of those actually seized. The district

court specifically adopted the findings of the Presentence Report

on this issue. We review the district court’s interpretation of

the Sentencing Guidelines de novo; we review factual findings

associated with the sentencing for clear error. See United States

v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994).

Willie presents two arguments. First, he argues that the

district court failed to make the required findings, that is, when

he joined the conspiracy, what drug quantities were within the

11
“Under § 2D1.1(a)(3) of the Sentencing Guidelines, the
offense level of a defendant convicted of a drug trafficking
offense is determined by the quantity of drugs involved in the
offense.” United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.
1994).

11
scope of the agreement, and what quantities the defendant could

reasonably foresee being sold. Second, Willie argues that the

evidence on which the court relied lacked any indicia of

reliability for marijuana weight calculations.

Willie’s first argument has no merit. The district court

specifically adopted the findings of the Presentence Report as to

which specific, documented deliveries should be counted in

determining the amount of drugs attributable to Willie.

Furthermore, Willie did not object to a lack of specificity at the

sentencing hearing.

The district court’s finding as to the amount of marijuana

involved is a finding of fact, reviewed under the clearly erroneous

standard. See United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.

1996). “A factual finding is not clearly erroneous as long as the

finding is plausible in the light of the record as a whole.”

United States v. Brown, 7 F.3d 1155, 1159 (5th Cir. 1993). The

preponderance of the evidence standard is the applicable standard

of proof for sentencing purposes. See Gaytan, 74 F.3d at 558.

The district court’s determination that all of the shipments

contained marijuana was not clearly erroneous. Evidence at trial

showed that Willie made his initial contact with drug suppliers

before February 1995. The documented shipments sent after this

date were packaged in a similar fashion; the same few shipping

companies were used for delivery; and all of the shipments were

addressed to non-existent companies. Furthermore, Willie offered

12
no credible evidence showing that the boxes contained anything

other than drugs.

The district court relied, to some degree, on a First Circuit

case that upheld a district court’s decision to include the

contents of known-but-not-seized mailings in the sentencing

calculation. See United States v. Sklar, 920 F.2d 107 (1st Cir.

1990). Because the mailings were delivered in the same fashion and

had other similarities with the known illegal mailings, the court

upheld the district court’s inclusion of them. In the instant

case, we simply hold that the shipments, and the circumstances

surrounding them, bore sufficient indicia of similarity to seized

shipments of marijuana so that the district court did not clearly

err in finding, under the preponderance of the evidence standard,

that all of the shipments contained marijuana.

III

We next consider Luis’s challenge to the sufficiency of the

evidence for his conviction. To succeed in its case against Luis,

the government must have proved beyond a reasonable doubt that Luis

knowingly possessed a controlled substance and that he knew of the

conspiracy. See, e.g., United States v. Villegas-Rodriguez, 171

F.3d 224, 228 (5th Cir. 1999) (discussing elements).12 Luis

12
The district court also gave a “deliberate ignorance”
instruction to the jury. Luis does not challenge this instruction
on appeal. We note, however, that the instruction does not lessen
the government’s burden to show, beyond a reasonable doubt, that
the knowledge elements of the crimes have been satisfied. As we
have recently reiterated, “[a] deliberate ignorance charge is

13
challenges only the knowledge element of the conspiracy and

possession with intent to distribute charges, arguing that the

government failed to prove beyond a reasonable doubt that he knew

the shipments contained marijuana. We agree.

In reviewing the evidence, our task is to “determine whether

a reasonable trier of fact could have found 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 all of the inferences that may be drawn from it in

the light most favorable to the verdict. Id. “Our role does not

extend to weighing the evidence or assessing the credibility of

witnesses.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir.

1996). Furthermore,

[t]he 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. 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.”

Id. (citations omitted; emphasis in original).

With the scope of our review firmly planted in our mind, we

must nevertheless conclude that a reasonable trier of fact would

intended ‘to inform the jury that it may consider evidence of the
defendant’s charade of ignorance as circumstantial proof of guilty
knowledge.’” United States v. Threadgill, 172 F.3d 357, 368 (5th
Cir. 1999)(quoting United States v. Lara-Velasquez, 919 F.2d 946,
951 (5th Cir. 1990)).

14
see virtually equal circumstantial evidence of incrimination and

exoneration, and consequently would entertain a reasonable doubt

whether Luis actually had specific knowledge that he was shipping

drugs for his brother. When the evidence is in equipoise, as a

matter of law it cannot serve as the basis of a finding of

knowledge. See Ortega Reyna, 148 F.3d at 545. Several pieces of

evidence are especially compelling. First, it is uncontroverted

evidence that Luis left his name, address, and phone number on an

unattended shipment containing hundreds of pounds of marijuana.

Second, the shipments bore no outward indication that they

contained marijuana, i.e., they had no odor and the packaging

suggested nothing untoward; indeed, the shipments were packaged in

industrial cellophane so as to discourage any investigation into

their contents.13 Third, Luis did not attempt to avoid the presence

of several customs officials and accompanying drug-detecting

canines. Fourth, the government presented no convincing evidence

that Luis knew his brother was involved in narcotics. Fifth, Luis

provided the police with a full statement--the facts of which the

government has never contested--of his involvement with his

13
This fact contrasts with cases in which outward appearances
put the defendant on notice that he might be carrying drugs. See,
e.g., Lara-Velasquez, 919 F.2d at 953 (inside of camper shell in
which the drugs were hidden was inexplicably painted two shades of
white and noticeably patched on the underside); United States v.
Restrepo-Granda, 575 F.2d 524, 529 (5th Cir. 1978) (suitcase given
defendant by stranger, and packed by stranger, contained hangers so
oversized so as to contain approximately four and one-half pounds
of cocaine).

15
brother’s business. Finally, Willie paid Luis only fifty dollars

per delivery, a sum lacking in disproportion to the task at hand by

which Luis might have become suspicious of the true nature of his

assignment.14

The government argues that five circumstances support a guilty

beyond a reasonable doubt conclusion. We will review each of those

circumstances.

First, the government notes that Luis Gil’s testimony

recounted a conversation he had with Willie in which Willie

mentioned his brother, Luis.15 Luis Gil testified that “Willie

stated he got real busy and he couldn’t handle it by himself so he

had to get his brother involved.” This was the only reference to

Luis Reveles--whom Luis Gil did not know by name or sight--in Luis

Gil’s testimony. The statement indicates nothing about Luis

Reveles’s knowledge of the drugs. Getting Luis “involved” does not

necessarily imply informing Luis of the nature of the business,

14
Fifty dollars per delivery contrasts sharply to cases in
which the defendant protested lack of knowledge of his shipment’s
contents despite having been paid a substantial sum of money to
accomplish a relatively routine task. See, e.g., United States v.
de Luna, 815 F.2d 301, 302 (5th Cir. 1987) (defendant offered
$10,000 to deliver a load of cabbage into the United States even
though the job usually paid only $1000). Moreover, in contrast to
Willie, the government presented no evidence to suggest that Luis
possessed substantial, even discernible, assets, and certainly not
any large sums secreted in foreign bank accounts as did Willie.
Indeed, the uncontroverted evidence is that Luis was unemployed and
living with his sister.
15
Luis Gil operated as a shipping broker for narcotics
suppliers. He would introduce drug dealers to people who could
transport their drugs.

16
even though they were brothers. As stated, the evidence showed

that Willie did not get along with his family and was paying Luis

only fifty dollars per trip.

Second, the government points out that the routine Luis

followed (on three occasions) in picking up and delivering the

shipments was suspicious. Luis would meet three men at a

restaurant, take their loaded vehicle to the shipping company, then

return the vehicle to them at the restaurant. This point is the

government’s strongest argument; this arrangement was indeed

suspicious. It is surely evidence that Luis knew he was being

“used” for some undisclosed and probably illegal reason.16 A

16
We agree with the government up to a point. This arrangement
was so bereft of any rational explanation that a reasonable juror
could conclude beyond a reasonable doubt that Luis must have known
that he was being used to further some illegal activity. The
government seems to argue that because the transaction occurred in
El Paso, a known source city for narcotics, Luis knew his
activities involved drugs. Drug activity is not the only illegal
activity occurring in El Paso. We are therefore unwilling to say
that a rational juror could find beyond a reasonable doubt that,
based on this inference, Luis knew drugs were involved. The
indictment specifically charged conspiracy with intent to
distribute marijuana and possession with intent to distribute
marijuana, that is, it specifically charged knowledge of drugs.
The shipments, however, easily could have involved other contraband
goods such as illegally-imported ceramics inasmuch as Willie was
involved in that business. No evidence suggests that Luis was ever
told the shipments involved marijuana; indeed, there was direct
testimony stating that Luis was not so informed. “It is not enough
for [the government] merely to establish a climate of activity that
reeks of something foul.” United States v. Galvan, 693 F.2d 417,
419 (5th Cir. 1982) (citation omitted). See also United States v.
Zapata, 497 F.2d 95, 99 (5th Cir. 1974). Furthermore, that Willie
paid Luis only fifty dollars per trip lends credence to Luis’s
position that he believed the shipments’ contents involved a far
less lucrative contraband.

17
reasonable jury could thus harbor a suspicion that Luis himself

suspected narcotics might be involved. But this suspicion–-even if

focused on narcotics--is not enough; it does not tie him to

knowledge that drugs were involved beyond a reasonable doubt.

“[M]ere suspicion cannot support a verdict of guilty.” United

States v. Sacerio, 952 F.2d 860, 863 (5th Cir. 1992). Although the

arrangement was suspicious, it is also important to note that Luis

freely explained this routine in detail when he gave his voluntary

statement after being arrested.17 The government presented no

evidence to suggest Luis’s statement was not truthful.18

Next, the government points out that in his voluntary, post-

arrest statement, Luis said, “I think Willie knew that there was

drugs in the boxes that I shipped for him.” The government argues

that a reasonable jury could have read this statement to conclude

that Luis could only know about Willie’s knowledge because Luis

himself knew of the drugs. Context is important. When the

statement was given, Luis had just been told that he was being

arrested for delivering a shipment of drugs to the carrier. Luis

was explaining how he had come to deliver the package to the

17
The statement was not a confession. Luis disclaimed any
knowledge of the drugs, but explained fully to the authorities how
he was involved in the deliveries.
18
The truthfulness of Luis’s statement differs from situations
in which a defendant has initially lied to police upon questioning.
See, e.g., Ortega Reyna, 148 F.3d 544 n.16 (citing cases involving
inconsistent statements provided to authorities); Farfan-Carreon,
935 F.2d 678, 681 (5th Cir. 1991); Lara-Velasquez, 919 F.2d at 953.

18
carrier for his brother, and was answering questions relating to

his brother. The statement is a reflective one, made with the

insight that accompanies hindsight. A fuller quotation of Luis’s

statement is warranted:

My brother works at McNutt Inc. 3513 Rosa 532-4411 where
they sell carpet, tile, and floor coverings. He has
worked there for the past two to three years as a
salesman. He once owned a business named DECOR located
at 1121 Larry Mahan. My brother owns four cars, two
Lincolns 1986 and 1993, a light grey 1990 Jaguar, and a
1986 GMC Cherokee. I believe the cars are paid. My
brother is married to MARISELA REVELES who works for the
Health Department located on Airway. I think Willie knew
that there was drugs in the boxes that I shipped for him.
My brother Willie is very proud of all of the money that
he has. My brother has a drinking problem, and does not
get along with the rest of our family.

This statement plausibly reads more like the statement of a

unwitting and subsequently bitter mule--i.e., one reflecting,

“Willie must have known”--rather than the statement of a co-

conspirator. More importantly, the statement literally read does

not provide any indication that Luis knew his brother was shipping

marijuana.19 Luis’s statement says, “I think Willie knew.” From

this voluntary statement, a jury could not conclude that Luis knew

of the drugs; a reasonable jury could only draw an inference that

Luis knew of the drugs if Luis had stated the equivalent of “I know

that Willie knew the shipments contained drugs.”

19
There is no indication that Luis knew Willie had been engaged
in criminal activity, knowledge we have previously relied upon to
uphold a finding of knowledge. See, e.g., Farfan-Carreon, 935 F.2d
at 681; Lara-Velasquez, 919 F.2d at 953.

19
 In its fourth item of circumstantial evidence, the government

characterizes the evidence as indicating that Luis participated in

the shipments on a routine basis, more than the three times the

investigation actually revealed. But the testimony the government

points to for support of its characterization does not lend much

support at all.20 The government notes that Ms. Torres, her

daughter and one Dennis Owens (who all worked at SGT) identified

both Luis and Willie as people associated with CC Enterprises (one

of Willie’s fictional entities). But their testimony does not

indicate that they held this view because they had seen Luis

deliver shipments on a frequent basis. The government never asked

these witnesses to estimate the number of times they saw Luis

deliver shipments for Willie. In fact, the government asked Dennis

Owens whether he had accepted “few or many” shipments from Luis.

Owens responded, “Few.” If the government had presented evidence

that Luis participated in a substantial number of the forty-two

shipments, a jury might infer that this fact increased the

likelihood of Luis’s knowledge that drugs were involved. But as

20
The dissent argues that Luis has attempted to minimize his
involvement, and points to inconsistencies in Luis’s statement to
the police following his arrest. Based on the evidence presented
at trial, a reasonable juror could believe that Luis made more than
two or three deliveries for Willie. Luis’s statement, however,
does not contradict that inference. His statement literally reads
that “[t]his year” (1996) Willie asked Luis to do “at least” three
deliveries. While concrete evidence only supports a finding of two
deliveries, Luis’s statement is consistent with the other testimony
presented at trial. The evidence, however, does not support a
finding that Luis made deliveries on a regular basis.

20
the government actually presented its case, the jury only knew of

Luis’s involvement in, at most, three shipments. Any conclusion of

further involvement would have been speculation.

The final piece of circumstantial evidence the government

points to involves one of the deliveries Luis made. Luis met an

SGT employee at the shipping company (Herman Miles Trucking). When

Luis arrived, the SGT employee was talking to several Customs

agents. These uniformed agents had several canines with them.

After the SGT employee finished talking to these agents, he came

over to process Luis’s shipment. Luis then asked the SGT employee

why he had been talking to the Customs agents. The worker told

Luis that he had applied for a position to work as a canine

officer. According to the employee’s testimony, this response

“shocked” Luis.

The government now argues that Luis’s “shock” shows a rational

fear of having a load of drugs in the vicinity of canine-wielding

Customs agents. But read in context, the SGT employee’s testimony

indicates that Luis’s “shock” was the result of being told that

this employee had applied for a job as a canine officer.21 The

21
The government cites the following exchange between the
prosecutor and the SGT employee (Dennis Owens) as evidence of
Luis’s incriminating “shock”:

Q. All right. And Willie Reveles’ brother asked you--could
you say it again, please?

A. He asked me if I know them [the customs officers] and what
was I doing talking to them.

21
testimony does not indicate that the “shock” was a result of the

Customs agent’s presence. If Luis did know about the drugs, it

would have been inconsistent with guilty knowledge for him to

continue processing the shipment with narcotics dogs in the area.

(The agents and dogs had gone into the warehouse while Luis and the

SGT employee were processing the freight out on the loading dock.)

Indeed, the fact that Luis stayed, and continued to process the

shipment, would cause some doubt in any reasonable juror’s mind as

to Luis’s knowledge.

Q. Did you reply to him?

A. Yes, I told him--I said, ‘Why, does it matter?’ And I
told him what the reason was I was talking to them.

Q. All right. Did he say or ask anything else?

A. No, he didn’t.

Q. Did you say or ask anything else?

A. No, I didn’t.

Q. Did he seem--you said you told him why you were talking
with the Customs officer.

A. Right.

Q. Did that have something to do with your application?

A. Yes, it did.

Q. Did he seem surprised you had sought employment with the
Customs agency?

A. Yes. He seemed shocked.

At this point, the government passed the witness.

22
 The jury had before it other conduct of Luis that seems

exculpatory. After dropping off the third seized shipment, Luis

left a note with his correct name, address, and phone number on the

freight. Such conduct is irrational if one knows that this crate

and the other crates he had shipped contained hundreds of pounds of

drugs. Additionally, as we have mentioned earlier, Willie paid

Luis only fifty dollars per shipment. This compensation does not

raise an inference of the presence of drugs; if the compensation

has any probative value at all, it tends to offset an inference of

guilty knowledge of the shipments’ contents. In sum, when all of

the evidence in this case is considered, it “gives equal or nearly

equal circumstantial support to a theory of guilt and a theory of

innocence.” Lopez, 74 F.3d at 577.

What is essentially lacking in this case is any evidence that

Luis knew his brother was in the drug business. Without that

evidence, the other incriminating evidence is that of the odd

suspicious arrangements made for Luis to pick up the shipments from

a nearby restaurant before delivering them. Because the evidence

is not subject to a clear interpretation beyond a reasonable doubt

that Luis knew drugs were involved, and in view of the other

evidence tending to show that he lacked guilty knowledge of drugs,

this one piece of incriminating evidence is insufficient for a jury

to conclude beyond a reasonable doubt that Luis knew of the drugs.22

22
We note that the dissent’s conclusion of “overwhelming
suspicious” circumstances in this case rests on facts that do not

23
 IV

We understand our role as a narrow one in reviewing the jury’s

verdict. Nevertheless, we are not to ask whether Luis could have

been guilty, but instead whether a reasonable jury could find no

reasonable doubt as to Luis’s guilt. In this case, a reasonable

jury could not have rid itself of a reasonable doubt that Luis may

not have known of the drugs based on the government’s case. For

this reason, we REVERSE Luis’s convictions.23 As we have said

earlier, the convictions and sentence of Willie Reveles are

AFFIRMED.

AFFIRMED in part; REVERSED in part.

rise to those existing in cases such as United States v. Cano-Guel,
167 F.3d 900 (5th Cir. 1999); Ortega Reyna, supra, Farfan-Carreon,
supra, Restrepo-Granda, supra, Luna-Velasquez, supra, or de Luna,
supra.
23
Because we reverse Luis’s convictions, we will not address
his challenges to his sentencing.

24