United States v. Rodriguez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50770 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OCTAVIO RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. P-00-CR-133-2-F

September 27, 2001

Before GARWOOD, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Octavio Rodriguez appeals his convictions for aiding and

abetting the importation and possession with intent to distribute

of cocaine. Appellant contends that the evidence was insufficient

to sustain the convictions because the Government did not prove

beyond a reasonable doubt that he knew of the cocaine concealed on

the person of his codefendant and that he intended to import the

* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. cocaine from Mexico into the United States for distribution. He

argues that the evidence gives equal or nearly equal circumstantial

support to a theory of innocence as well as to a theory of guilt.

The evidence was sufficient for the jury to conclude beyond a

reasonable doubt that appellant aided and abetted the possession of

cocaine with the intent to import and distribute it. See United

States v. Williams, 985 F.2d 749, 753-54 (5th Cir. 1993); United

States v. Velgar-Vivero, 8 F.3d 236, 241 (5th Cir. 1993). The

evidence showed that Rodriguez and his codefendant passenger

offered implausible and inconsistent statements to explain their

trip to Mexico in Rodriguez’s car and the subsequent discovery of

cocaine concealed on the person of the codefendant. The jury could

infer Rodriguez’s guilty knowledge from these implausible

explanations. See United States v. Diaz-Carreon, 915 F.2d 951,

954-55 (5th Cir. 1990). Witnesses testified to Rodriguez’s unusual

demeanor during the Customs inspection and nervousness and

evasiveness during subsequent questioning; such testimony provides

further evidence from which guilty knowledge may be inferred. See

United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998).

A customs agent testified that the quantity of cocaine was

consistent with an intent to distribute, and, in light of the

evidence of Rodriguez’s guilty knowledge, the evidence was

sufficient to prove that Rodriguez knowingly assisted in importing

the cocaine from Mexico to the United States. See United States v.

2 Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988); Velgar-

Vivero, 8 F.3d at 241. Although Rodriguez presented testimony

supporting his theory of innocence, the jury was free to reject

this testimony, as it is the sole province of the jury to determine

the weight and credibility of the evidence. United States v.

Casilla, 20 F.3d 600, 602 (5th Cir. 1994). Under these

circumstances, it cannot be said that the evidence gives equal or

nearly equal circumstantial support to guilt and to innocence. See

Ortega Reyna, 148 F.3d at 543.

AFFIRMED.