     Case: 11-41200     Document: 00511984365         Page: 1     Date Filed: 09/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 12, 2012
                                     No. 11-41200
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADOLFO PEREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-505-1


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        At a border checkpoint, Adolfo Perez was found with approximately 3,800
pounds of marijuana hidden among boxes of produce in the trailer of his truck.
A jury convicted him of possessing with intent to distribute more than 1,000
kilograms of marijuana, and he was sentenced to 144 months of imprisonment
to be followed by five years of supervised release. He challenges his conviction,
first arguing that the evidence was insufficient to establish that he knew the
marijuana was in the trailer.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-41200

      Perez preserved his sufficiency of the evidence argument; thus, our review
is de novo. United States v. Mudekunye, 646 F.3d 281, 285 (5th Cir. 2011). We
will uphold the jury’s verdict if a reasonable juror could conclude from the
evidence that the Government established all elements of the offense beyond a
reasonable doubt. Id. We view the evidence and draw all reasonable inferences
in the light most favorable to the verdict. Id. The jury may choose any
reasonable construction of the evidence, and the evidence need not rule out every
theory of innocence. Id. However, we will reverse if the evidence equally or
nearly equally provided circumstantial support for theories of innocence and
guilt. United States v. Williams, 602 F.3d 313, 315 (5th Cir. 2010).
      The Government was required to prove that Perez knowingly possessed
the drugs. § 841(a)(1); United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir.
2008). Because the drugs were hidden, the Government was required to produce
additional circumstantial evidence, other than the mere presence of the drugs,
to prove knowledge. United States v. Ortega-Reyna, 148 F.3d 540, 544 (5th Cir.
1998). Implausible and inconsistent statements can constitute proof of guilty
knowledge. Id.
      Perez testified that after picking up a load of perishable produce in Texas,
he stayed in his truck overnight so that he could have sufficient time off to be
able to transport his cargo to Memphis, Tennessee, and then to immediately
transport another load to his hometown of Denver, Colorado. However, the jury
could have found it implausible that Perez would waste the time and fuel—his
trailer was refrigerated—waiting until the following morning to set out,
especially because Perez had already had at least two nights and two days of
downtime in Texas.
      The jury also could have found implausible Perez’s statement that the
employees at the produce warehouse gave him the seal that was on his trailer
when he arrived at the checkpoint. Warehouse employees testified that it was
their practice to personally put the seals on trucks when requested and that they

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                                  No. 11-41200

did not give Perez a seal or put one on his truck. Moreover, the seal number did
not appear on Evergreen’s copy of the bill of lading and the seal did not resemble
the type of seal used by the warehouse. As witness testimony and video evidence
showed, Perez lied to agents when he told them that he spent the night in the
warehouse parking lot. Significantly, at the time of trial, Perez changed his
story, testifying that he spent the night at a truck stop, across the street from
the warehouse.
      Additionally, the three million dollar value of the drugs also suggests that
Perez had guilty knowledge; as we have explained, it is unlikely that a drug
smuggler would entrust such valuable cargo to an unsuspecting person. See
United States v. Villarreal, 324 F.3d 319, 324-25 (5th Cir. 2003).
      Other evidence also supported the finding that Perez knew he was
transporting drugs.    Video recordings and testimony from the warehouse
workers confirmed that only produce was loaded in the trailer at the warehouse,
and there was no evidence that anyone other than Perez had control of the
trailer from the time it left the warehouse until the marijuana was found. In
light of all of the evidence, it was reasonable for the jury to conclude that after
the produce was placed in the trailer, Perez had marijuana loaded into the
trailer at a different location and then placed a seal on the trailer. The jury was
free to choose among reasonable constructions of the evidence and reject the
defense offered by Perez. See Mudekunye, 646 F.3d at 285. Moreover, it was not
required to accept Perez’s explanations and was permitted to make its own
assessment of the credibility of the witnesses. See id. at 286; United States v.
Casilla, 20 F.3d 600, 602 (5th Cir. 1994).
      Perez also argues that the Government failed to prove that he had
knowledge of the type and quantity of the controlled substance that he
possessed. As Perez acknowledges, however, this argument is foreclosed by
United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), which
reaffirmed the holding in United States v. Gamez-Gonzalez, 319 F.3d 695, 700

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                                 No. 11-41200

(5th Cir. 2003), that knowledge of drug type and quantity is not an element of
possessing with intent to deliver a controlled substance.
      The judgment is AFFIRMED.




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