IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 98-51001
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO RAMOS GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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August 6, 1999
Before JONES and WIENER, Circuit Judges, and LITTLE, District
Judge.*
LITTLE, District Judge:
Pedro Ramos Garcia was convicted of possession of
marijuana with intent to distribute, 21 U.S.C. § 841(a)(1),
and importation of marijuana, 21 U.S.C. § 952(a). On appeal,
Garcia argues that the government failed to produce sufficient
evidence at trial to justify conviction on either count. We
disagree and affirm the jury’s verdict.
*
District Judge of the W estern District of Louisiana, sitting by designation.
I. Facts
On the morning of 10 January 1998, Garcia was visited at
his home in Mexico by a friend of his and man unknown to
Garcia at the time, one Juan Jiminez. Jiminez offered Garcia
$500 to drive a white pickup truck with Mexican license plates
from Garcia’s home to Eagle Pass, Texas, only four miles away.
The truck’s bed was empty save a toolbox, which was likewise
empty. Jiminez instructed Garcia to leave the truck in the
parking lot of a supermarket near the border with the keys
under the truck’s floor mat. Garcia agreed. The additional
money would aid Garcia in celebrating his nearing birthday.
Garcia arrived at the border at about 11:00 a.m. In the
primary inspection lane, Immigration Inspector John Hernandez
asked Garcia the standard battery of questions, including
whether Garcia carried with him anything obtained in Mexico.
Garcia replied in the negative and presented his resident
alien card. Hernandez, finding it odd that a resident alien
of the United States would drive a truck with Mexican plates
from Mexico into Texas, referred Garcia to a secondary
inspector. Hernandez testified at trial that Garcia appeared
nervous during their colloquy.
The secondary inspector, Customs Inspector Alberto
Mendoza, asked Garcia to open the hood of the truck and then
stand on the other side of a nearby table. Garcia opened the
hood but according to Mendoza seemed to hesitate and linger
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near the truck. Mendoza again asked Garcia to step aside, and
Garcia complied. Upon inspecting the truck, Mendoza grew
suspicious that the gas tank had been tampered with and
ordered a canine inspection. As the canine alerted, Mendoza
observed Garcia looking towards Mexico.
Inspectors discovered 70 pounds of marijuana in a hidden
compartment behind the empty toolbox. Special Agent Enemencio
Torres issued a Miranda warning to Garcia; Garcia waived his
rights prior to Torres’s interrogation. Garcia recounted the
events of the day and denied any knowledge of the marijuana.
At that time, Garcia claimed that he thought that the truck
was going to be used to transport illegal aliens. Torres
testified that Mendoza told him that during the search of the
vehicle, Garcia appeared uneasy and paced back and forth.
Mendoza did not mention these facts during his testimony.
Until the canine search revealed the compartment, no inspector
had suspected the presence of the hidden chamber in the cab or
smelled marijuana.
A jury convicted Garcia of possession of marijuana with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and
importation of marijuana in violation of 21 U.S.C. § 952(a).
The trial judge sentenced Garcia to 27 months on each count,
to be served concurrently, with three years’ supervised
release and a $200 special assessment. Garcia filed a timely
notice of appeal challenging the sufficiency of the evidence
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as to a necessary element of both crimes: his knowledge that
the truck he drove carried drugs.
II. Analysis
A. Standard of Review
We review challenges to the sufficiency of evidence under
a mere rationality standard: that is, we affirm “if a rational
trier of fact could have found that the evidence established
the essential elements of the offense beyond a reasonable
doubt.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir.
1996) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
We determine only whether the jury’s decision was rational
without passing on whether or not we believe it was a correct
one. See United States v. Dean, 59 F.3d 1479, 1484 (5th Cir.
1995). We therefore must view the evidence in the light most
favorable to the jury’s verdict without second-guessing the
weight or credibility given the evidence by the jury. See
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998); United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir.
1995). While the jury is free to choose among reasonable
constructions of the evidence, see Ortega Reyna, 148 F.3d at
543; Dean, “[i]f the evidence . . . 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
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reasonable doubt.’” Lopez, 74 F.3d at 577 (quoting United
States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992)).
B. Knowledge
“The knowledge element in a possession case can rarely be
established by direct evidence. Knowledge can be inferred
from control of the vehicle in some cases; however, when the
drugs are hidden, control over the vehicle alone is not
sufficient to prove knowledge.” United States v. Garza, 990
F.2d 171, 174 (5th Cir. 1993). This is so because “it is at
least a fair assumption that a third party might have
concealed the controlled substances in the vehicle with the
intent to use the unwitting defendant as the carrier in a
smuggling enterprise.” United States v. Diaz-Carreon, 915
F.2d 951, 954 (5th Cir.1990). Thus, it is the general rule in
this circuit that where the case involves a hidden
compartment, control must be supplemented by other
circumstantial evidence “that is suspicious in nature or
demonstrates guilty knowledge.” Garza, 990 F.2d at 174; see
also Diaz-Carreon, 915 F.2d at 954; United States v. Anchondo-
Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990); United States
v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988); United
States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988).
The government claims that the jury’s verdict is
supported by the necessary additional circumstantial evidence
because: (1) Garcia’s ignorance of the marijuana in the face
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of suspicious circumstances is implausible; (2) it is
implausible that Garcia would be entrusted with such a large
quantity of marijuana without his knowledge; and (3) Garcia
was nervous during his encounter with Immigration Inspector
John Hernandez and Special Agent Enemencio Torres. We agree
with the government that these additional factors adequately
support the jury’s verdict.
1. Implausible Story
The government correctly points out that an implausible
story advanced by a defendant to explain his actions can
provide circumstantial evidence from which a jury might infer
the defendant’s guilty knowledge. See Ortega Reyna, 148 F.3d
at 544; United States v. Casilla, 20 F.3d 600, 607 (5th Cir.
1994); Garza, 990 F.2d at 175; Diaz-Carreon, 915 F.2d at 954;
Anchondo-Sandoval, 910 F.2d at 1237; Richardson, 848 F.2d at
13. The government finds it implausible that Garcia, when
presented with the opportunity to earn $500 by driving an
empty truck four miles across the U.S.-Mexico border, would
not conclude that the truck is likely to carry drugs. We
agree with the government that Garcia’s story is rather
implausible, and his failure to ask any questions about the
trip smacks of a willful ignorance consistent with guilty
knowledge. Garcia attempts to neutralize the inference of
guilty knowledge by positing an alternative explanation for
his behavior: although he believed the circumstances were
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suspicious, he suspected not the presence of drugs hidden in
the truck, but that the truck he was delivering was destined
for use in smuggling illegal aliens. While this may be a
plausible explanation, it is one that the jury evidently did
not believe, and “[w]e will not second guess the jury in its
choice . . . .” United States v. Zuniga, 18 F.3d 1254, 1260
(5th Cir. 1994). The jury was free to infer Garcia’s guilty
knowledge from the implausibility of his story.
2. Quantity of Drugs
The government contends that Garcia’s story is also
implausible because it is unreasonable to believe that Garcia
would have been entrusted with a large quantity of drugs
without his knowledge. For this proposition the government
relies on United States v. Del Aguila-Reyes, 722 F.2d 155 (5th
Cir. 1995), where this court upheld a jury’s inference of a
defendant’s guilty knowledge based in part on the quantity of
drugs involved. See id. at 157. Although this “reasonable
inference, . . . if there were nothing more, might well not
support a finding of guilty knowledge[,]” see id., in this
case we have more: Garcia’s apparent willful ignorance. This
factor, therefore, also lends support to the jury’s verdict.
3. Nervousness
The government points to the testimony of Immigration
Inspector John Hernandez and Special Agent Enmencio Torres
indicating Garcia’s nervousness during questioning to support
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the jury’s inference of guilty knowledge. In Fifth Circuit
case law, the character of a defendant’s reaction to scrutiny
at the border is a double-edged sword for the defendant.
While this court has found that nervousness during an
investigation often indicates guilty knowledge, see Shabazz,
993 F.2d at 442; Olivier-Becerril, 861 F.2d at 427;
Richardson, 848 F.2d at 13, a calm reaction to the suspicion
of border agents has also been considered incriminating. See
Resio-Trejo, 45 F.3d at 913; Aguila-Reyes, 722 F.2d at 158.
Because nervousness is “a normal reaction to . . . being
stopped at a border[,] . . . anxiety is inconclusive unless
viewed in the context of other facts” indicating guilty
knowledge. United States v. Williams-Hendricks, 805 F.2d 496,
500 (5th Cir. 1986). In this case, as we have seen, sufficient
indicia of guilty knowledge exist to lend significance to
Garcia’s nervousness. Viewed in context with the
implausibility of Garcia’s story, the jury could have inferred
Garcia’s guilty knowledge from his nervousness under
questioning.
In sum, the inference of Garcia’s guilty knowledge is
supported by his possession of the truck in combination with
the implausibility of his story and his nervousness under
questioning. The jury’s verdict as to Garcia’s knowledge was
therefore supported by sufficient evidence. We AFFIRM.
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