United States v. Gomez-Montelongo

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 26, 2000
• Docket: 99-41275
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-41275 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBEN GOMEZ-MONTELONGO,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (M-99-CR-204-1) _________________________________________________________________ July 24, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Ruben Gomez-Montelongo was convicted by a jury for importation

of, and possession with intent to distribute, more than five

kilograms of cocaine. According to Gomez, the evidence was

insufficient to support his conviction because the cocaine was

concealed inside one of the fuel tanks for the vehicle he was

driving and the Government failed to prove he knew the cocaine was

there.

Knowledge of the presence of a controlled substance may be

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. inferred from the exercise of control over a vehicle in which the

substance is concealed. E.g., United States v. Diaz-Carreon, 915

F.2d 951, 954 (5th Cir. 1990). If the contraband is concealed in

a hidden compartment, control of the vehicle does not by itself

support an inference of guilty knowledge; there must be “additional

evidence indicating knowledge”. Id.

Based on the circumstantial evidence, including Gomez’s

nervousness and avoidance of eye contact with the primary Customs

Inspector, deliberately turning his back on the search, his claimed

ownership of the vehicle in which the cocaine was concealed, the

recent, significant alterations of the vehicle to accommodate the

concealment of contraband, and the very large amount of cocaine he

was carrying, a rational trier of fact could have found that Gomez

had knowledge of the presence of the cocaine concealed in the

truck. See United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th

Cir. 1999)(implausibility of defendant being entrusted with large

quantity of marijuana without his knowledge is circumstantial

evidence of guilty knowledge); United States v. Ortega Reyna, 148

F.3d 540, 544 (5th Cir. 1998) (listing types of behavior recognized

as circumstantial evidence of guilty knowledge, including

nervousness, avoidance of eye contact, and alterations to the

vehicle); United States v. Resio-Trejo, 45 F.3d 907, 913 (5th Cir.

1995) (defendant’s calm demeanor and indifference while agents

dismantled gas tanks on his truck was circumstantial evidence of

2 guilty knowledge).

AFFIRMED