United States v. Lopez

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 2, 1996
• Docket: 95-50113
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

______________________

No. 95-50113 ______________________

UNITED STATES OF AMERICA Plaintiff-Appellee,

versus

ANTONIO LOPEZ, Defendant-Appellant

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Appeal from the United States District Court for the Western District of Texas - - - - - - - - - - - - - - - - - - January 23, 1996

Before: JOLLY, DUHÉ and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

Following a jury trial, appellant, Antonio Lopez, was found

guilty of importing marijuana, in violation of 21 U.S.C. §§ 952 and

960, and possessing marijuana with intent to distribute, in

violation of 21 U.S.C. § 841. Lopez appeals his conviction and

sentence solely on the ground that there was constitutionally

insufficient evidence to sustain the jury's verdict. Because we

find that appellant's convictions are adequately supported by the

record, we affirm.

FACTS

On the night of April 18, 1994, at approximately 10:45 p.m.,

appellant drove a blue Ford sedan with Texas license plates to the

Ysleta Port of Entry in order to cross from the Mexican side of the border into Texas. Traffic was light at this time and only Lanes

3 and 4 were open. U.S. Customs Service Inspector, Rosalva

Morales, testified that she noticed the car because it initially

approached Lane 3, where the inspector was opening trunks, but

abruptly switched into Lane 4, where she was working as primary

inspector. Morales approached the car and began asking routine

questions regarding Lopez's citizenship and any items he was

bringing into the country. Lopez was not carrying a drivers

license or any identification and Morales's attention was drawn to

him because he appeared to be wearing women's cosmetics. She asked

him to exit the car, and open the hood and trunk. Morales

testified that she did not smell anything unusual as she stood a

foot from the car's open driver's side window.

Senior U.S. Customs Service Inspector Angel Hernandez

accompanied Lopez to the back of the vehicle while he opened the

trunk. Hernandez testified that Lopez's hand trembled as he tried

to find the right key, but that he managed to open the trunk. When

Hernandez looked into the trunk area, he observed what appeared to

be a false compartment in the back of the seat. He asked U.S.

Customs Service Inspector Luis Mata to take a look at the

compartment, and then escorted appellant to the Customs headhouse.

Hernandez testified that he did not smell marijuana when the trunk

was opened.

Inspector Mata drove the car from Lane 4 to the secondary

area, where he prepared the vehicle for a canine sniff by closing

the window and running the air conditioner to send air from the

2 front of the car out the back. Canine Officer, Lisa Holley, then

walked her dog, Bark, around the vehicle. After Bark alerted on

the rear of the car, Mata pulled the back seat open and found

twelve packages wrapped in plastic. The substance contained in the

packages subsequently tested positive for marijuana. Mata

testified that when he drove the car from the primary to the

secondary inspection area, he smelled a strong odor of marijuana.

Mata, however, failed to include this information when he typed his

report. He testified that at the prompting of Officer Holley, he

added the information by hand to the report.

Lopez took the stand in his own defense and testified that he

was not aware that there was marijuana hidden in the car, that he

did not smell marijuana in the car, and that he would not have

driven the car had he known there was marijuana in it. According

to Lopez, he had gone to Guadalupe, Mexico with a man named Roger,

and had spent the day drinking with Roger and two other men,

Francisco and Edward. When arrested, he was driving a car that he

believed belonged to Edward, who was too drunk to drive back to the

United States.1 Lopez testified that Roger was driving Edward in

another car and that the two were to pick up the car at Lopez's

1 The government does not contend that the car was appellant's. Jimmy Searls, a special agent with the U.S. Customs Service, testified that an investigation of the car's license plates revealed that the vehicle was registered to a Jose Maria and Victoriano Hernandez. The occupant at the address listed on the registration, however, did not know either of the listed owners or how the car could be registered at her address.

3 apartment in San Elizario, Texas. Following his arrest, Lopez did

not see any of these men again.

The jury clearly rejected Lopez's version of events, finding

him guilty on all charges -- one count of importation of marijuana

in violation of 21 U.S.C. §§ 952 and 960, and one count of

possession of marijuana with intent to distribute, in violation of

21 U.S.C. § 841. On appeal, Lopez's sole argument is that the

government presented insufficient evidence to establish beyond a

reasonable doubt that he knew that marijuana was hidden in the car,

an element necessary to prove both the importation and the

possession charges.

DISCUSSION

The narrow scope of our review for sufficiency of the evidence

following a conviction is well established. We must affirm if a

rational trier of fact could have found that the evidence

established the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 1789, 61 L.Ed.2d 560 (1979); United States v. Salazar, 66

F.3d 723, 728 (5th Cir. 1995). We thus consider the evidence, all

reasonable inferences drawn therefrom, and all credibility

determinations in the light most favorable to the prosecution.

Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469 (86

L.Ed. 680 (1942); Salazar, 66 F.3d at 728; United States v. Resio-

Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995); United States v. Casel,

995 F.2d 1299, 1303 (5th Cir.), cert. denied U.S. , 114

S.Ct. 472, 126 L.Ed.2d 424 (1993). Our role does not extend to

4 weighing the evidence or assessing the credibility of witnesses.

Glasser, 315 U.S. at 80, 62 S. Ct. at 469; Casel, 995 F.3d at 1303.

The 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. Salazar, 66 F.3d at 728; Resio-

Trejo, 45 F.3d at 911 (quoting United States v. Bell, 678 F.2d 547,

549 (5th Cir. 1982)(en banc), aff'd on other grounds, 462 U.S. 356,

103 S. Ct. 2398, 76 L.Ed.2d 638 (1983)). 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." United States v. Sanchez, 961 F.2d

1169, 1173 (5th Cir. 1992)(quoting Clark v. Procunier, 755 F.2d

394, 396 (5th Cir. 1985)(emphasis in original), cert. denied ,

U.S. , 113 S. Ct. 330, 121 L.Ed.2d 3156 (1992).

A conviction for the offense of possession of marijuana with

intent to distribute requires proof that the defendant (1)

knowingly (2) possessed marijuana (3) with intent to distribute it.

United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990).

In order to prove the crime of importation of marijuana, the

Government must establish that the defendant knowingly played a

role in bringing the marijuana into the country. Id. To establish

either crime, the Government must adduce sufficient evidence of

"guilty knowledge." Id. Lopez argues that the Government failed

to do so here.

5 The knowledge element for possession or importation of drugs

can rarely be proven by direct evidence. See United States v.

Garza, 990 F.2d 171, 174 (5th Cir.), cert. denied, U.S. ,

114 S. Ct. 332, 126 L.Ed.2d 278 (1993). Although knowledge may

sometimes be inferred solely from control of a vehicle containing

drugs, when the contraband is hidden the Government must produce

additional indicia that the defendant was aware of the presence of

drugs. Id.

Lopez argues that the circumstances of this case, in particular

his change of lanes prior to inspection, his nervousness when asked

to open the trunk, and the odor of marijuana in the car,

individually and collectively do not show a consciousness of guilt

sufficient to support an inference of knowing possession. We

cannot agree. Although it appears that the bulk of evidence

adduced at trial is at least as consistent with innocence as it is

with guilt, we find that Inspector Mata's testimony that he smelled

a strong odor of marijuana in the vehicle must tip the scales in

favor of providing a basis for affirming the verdict.

Lopez mischaracterizes Mata's testimony as establishing that

Mata could only smell marijuana once he had entered the car and

turned on the air conditioner. A review of the trial transcript

reveals, however, that Mata testified that he smelled marijuana

while he drove, with the driver's side window down, the

approximately 45 feet from the primary to the secondary inspection

area. We note that Mata's testimony is hardly unassailable, as he

omitted recording this critical fact when he typed up his statement

6 of the investigation and none of the other Customs Service officers

testified to smelling marijuana in the passenger compartment of the

vehicle. Nonetheless, on a review for sufficiency of the evidence

we may not invade the jury's province by substituting our own

credibility assessments for those of the jury. Unless a witness's

testimony is incredible or patently unbelievable, we must accept

the jury's credibility determinations. See United States v. Casel,

995 F.2d at 1304 ("The test for 'incredibility' of a witness is an

extremely stringent one, because an appellate court does not weigh

the credibility of witnesses. To be found 'incredible' as a matter

of law, the witness' testimony must be factually impossible")

(citing United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir.

1989), cert. denied, 496 U.S. 926, 110 S. Ct. 2621, 110 L.Ed.2d 642

(1990) and United States v. Silva, 748 F.2d 262, 266 (5th Cir.

1984)); United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir.

1992)("Because we cannot say that Stone's testimony is facially

insubstantial or incredible, we find the evidence supporting

Estrada's conspiracy convictions was constitutionally

sufficient."), cert. denied, U.S. , 113 S. Ct. 2354, 124

L.Ed.2d 262 (1993). Although Mata's testimony that he smelled

marijuana in the car was subject to question, we cannot say that a

reasonable jury could not credit this testimony. Inasmuch as a

jury could rationally infer beyond a reasonable doubt that Lopez

had knowledge of the hidden marijuana because its odor was present

in the passenger compartment of the car he was driving, see United

States v. Gomez, 776 F.2d 542 (5th Cir. 1985), we must find that

7 the Government presented sufficient evidence to prove Lopez's guilt

beyond a reasonable doubt on the possession and importation

charges.

CONCLUSION

Because the evidence was sufficient to convict Lopez for

importation of marijuana and possession of marijuana with intent to

distribute, we AFFIRM his conviction and sentence.