     Case: 09-40821 Document: 00511330991 Page: 1 Date Filed: 12/23/2010




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

                                                   FILED
                                                                           December 23, 2010

                                          No. 09-40821                        Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                      Plaintiff–Appellee,
v.

ALEJANDRO HERNANDEZ-VERA; MARTIN REYES-CEDILLO;
FEDERICO TURRUBIATES-GARZA; ERICK HERRERA-GUTIERREZ,

                                                      Defendants–Appellants.




                      Appeal from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 1:09-CR-60-3


Before GARZA and BENAVIDES, Circuit Judges, and LYNN,* District Judge.
LYNN, District Judge:**
       Alejandro Hernandez-Vera, Martin Reyes-Cedillo, Federico Turrubiates-
Garza, and Erick Herrera-Gutierrez (collectively, the Defendants) were each
convicted of possession with the intent to distribute and conspiracy to possess
with the intent to distribute approximately 119.06 kilograms of marijuana. On




       *
            District Judge of the Northern District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-40821 Document: 00511330991 Page: 2 Date Filed: 12/23/2010



                                    No. 09-40821

appeal, the Defendants argue that there is insufficient evidence to support the
jury’s guilty verdict. We affirm.


                                         I
      The Defendants were arrested by the United States Border Patrol in a
thick, brushy area approximately 120 yards from the Rio Grande River. This
area, known as the Armstrong Ranch, is a frequently used route for drug and
alien smuggling. In high-traffic areas such as this, the Border Patrol has placed
ground sensors that detect movement and notify the Border Patrol. On the
evening of the Defendants’ arrests, Agents Calderon, Barnett, and Hunt arrived
at the Armstrong Ranch in response to a notification by the Border Patrol
dispatch that a ground sensor in that area had been tripped.
      The agents first looked for signs that anyone had crossed any of the dirt
roads. Agent Hunt notified Agent Calderon and Agent Barnett that he had
found footprints crossing the road, and the agents started looking for people in
the brush. While Agent Barnett remained on the edge of the brush, Agent
Calderon would move between five and ten yards into the thicket and then come
back out. Using this tactic, the agents came across a juvenile hiding in the
brush. As the agents seized the juvenile, they saw another individual running
south. Although Agent Barnett chased this individual, he escaped into the rows
of corn surrounding the thicket. Meanwhile, Agent Calderon took the juvenile
to a patrol vehicle and remained with him while the investigation continued.
      Agent Lopez arrived at the Armstrong Ranch approximately ten to fifteen
minutes after the other agents in response to a call by Agent Calderon. He
began searching the north side of the brush. After a few minutes of searching,
Agent Lopez discovered Reyes-Cedillo hiding in the brush.        Agent Barnett
assisted Agent Lopez in removing Reyes-Cedillo from the brush. Upon leaving
the brush, Reyes-Cedillo told the agents that he was only an illegal alien.

                                         2
    Case: 09-40821 Document: 00511330991 Page: 3 Date Filed: 12/23/2010



                                   No. 09-40821

         Agent Barnett returned to the location where the agents had apprehended
the juvenile and continued searching the area with Agent Hunt. Following a
trail inside the brush, the agents found five bundles of marijuana in trash bags
that were tied with rope. The bundles had straps made by rope so that they
could be carried like backpacks. The bundles were about fifteen to twenty yards
from where Reyes-Cedillo was found.
         After the bundles were discovered, Agent Lopez continued to search the
area where Reyes-Cedillo was found. He subsequently found the three other
Defendants hiding in the brush. At this point it was dark, and Agent Lopez
could not see the bundles from the places the Defendants were hiding, but he
could see Agent Hunt and his flashlight in the area with the bundles through the
trees.
         The agents then took the bundles and the Defendants to the Fort Brown
Station for processing. At the station, Agent Lopez observed red markings on
the shoulders and armpits of all four Defendants. Agent Lopez also saw freshly
torn skin on one of Herrera-Gutierrez’s shoulders. The Border Patrol took
photographs of the Defendants’ backs and shoulders, and the Government
introduced these photographs as evidence during trial.
         At the station, agents interviewed Hernandez-Vera after he waived his
Miranda rights. Hernandez-Vera stated that he, the other Defendants, and the
juvenile had crossed the border with a smuggler, who ran away when he saw the
Border Patrol trucks arrive. He also told the agents that he had been carrying
a backpack that contained clothes, blankets, and other small things and that the
backpack weighed approximately fifteen kilograms. He said that he threw the
backpack away when he was running from the Border Patrol.
         The morning after the Defendants’ arrest, Agent Hunt asked Agent
Guerra to go to the area where the Defendants were arrested and see where the
Defendants had crossed the border. Agent Guerra found signs that individuals

                                         3
     Case: 09-40821 Document: 00511330991 Page: 4 Date Filed: 12/23/2010



                                       No. 09-40821

had crossed—footprints and grass dragged across the road—and, based on the
prints left by different shoes, Agent Guerra estimated that four to six people had
crossed. He followed the signs into the brush and searched the area. He found
one old tennis shoe that he concluded had been there for some time, but he did
not find any backpacks with clothing. Agent Guerra did not find any other signs
that anyone had crossed the border.
       A federal grand jury returned a two-count indictment charging the
Defendants with         (1) conspiring      to     possess with     intent to      distribute
approximately 119.06 kilograms of marijuana and (2) possessing with intent to
distribute the marijuana. The Defendants pleaded not guilty and proceeded to
trial. Each Defendant moved for a judgment of acquittal at the close of the
Government’s evidence and again at the close of the evidence in the case. The
district court denied these motions. The jury found the Defendants guilty as to
both counts of the indictment, and the district court sentenced each of the
Defendants. This appeal followed.
                                              II
       Because the Defendants moved for a judgment of acquittal at the close of
the Government’s evidence and again at the close of all evidence in the case, we
review the Defendants’ sufficiency of the evidence claim de novo.3 We review the
sufficiency of the evidence to determine whether a rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.4 “In
applying this standard, we view the evidence in the light most favorable to the
prosecution and accept all reasonable inferences that tend to support the




       3
         See United States v. Broadnax, 601 F.3d 336, 343 (5th Cir. 2010), petition for cert.
filed, No. 09-11478 (June 17, 2010).
       4
        United States v. Sylvester, 583 F.3d 285, 295 (5th Cir. 2009), cert. denied, 130 S. Ct.
1313 (2010).

                                              4
     Case: 09-40821 Document: 00511330991 Page: 5 Date Filed: 12/23/2010



                                        No. 09-40821

verdict.”5     “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.” 6
However, we will reverse if the evidence “gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of innocence, . . . as
under these circumstances a reasonable jury must necessarily entertain a
reasonable doubt.”7
                                              III
      The Defendants argue that there is insufficient evidence to support their
convictions on either the conspiracy charge or the possession charge. In order
to convict a defendant of a drug conspiracy, the Government must prove beyond
a reasonable doubt: (1) “an agreement that entails violation of federal narcotics
laws”; (2) “the defendant’s knowledge of the agreement and intent to join it”; and
(3) the defendant’s voluntary participation in the conspiracy.8 “Each element
may be inferred from circumstantial evidence; that is, the agreement may be
inferred from a ‘concert of action’ and knowledge of a conspiracy and voluntary
participation . . . may be inferred from a collection of circumstances.” 9 “The
essential elements of possession with the intent to distribute a controlled
substance in violation of 21 U.S.C. § 841 are (1) knowledge, (2) possession, and




      5
          Broadnax, 601 F.3d at 343 (internal quotation marks omitted).
      6
          United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
      7
          Id. (internal quotation marks omitted) (emphasis in original).
      8
          Sylvester, 583 F.3d at 295.
      9
          United States v. Watkins, 591 F.3d 780, 788 (5th Cir. 2009).

                                               5
    Case: 09-40821 Document: 00511330991 Page: 6 Date Filed: 12/23/2010



                                        No. 09-40821

(3) intent to distribute the controlled substance.”10 “Possession may be actual or
constructive and may be proved by either direct or circumstantial evidence.” 11
      The Defendants contend that the evidence gives equal circumstantial
support to a theory of guilt and a theory of innocence, and thus requires this
court to reverse the judgment of the district court. They maintain that the
evidence in this case equally supports a theory that the marijuana belonged to
someone else.
      The Defendants assert that the following facts support their theory that
the bundles of marijuana could have belonged to someone other than the
Defendants. The Defendants were discovered in a high-traffic area with thick
cover that is known for narcotics and alien smuggling. One man escaped, and
it is possible that more people could have escaped because the area was not
secure. The sensor in the Armstrong Ranch went off eighteen other times in the
twenty-four hours prior to the Defendants’ arrest, and it went off six more times
while the Border Patrol agents were investigating the area.            Although Agent
Guerra found signs of travel, he could not link those signs to the Defendants.
      The Defendants further argue that there is no evidence that they were
aware of the bundles of marijuana in the brush; no Defendant made self-
incriminating statements or demonstrated guilty knowledge of events in the
brush where the marijuana was found. When agents found Reyes-Cedillo, he
immediately told them that he was only an illegal alien. Furthermore, the
marijuana was not visible from where the Defendants were hiding, and there
was not a clear path from where the Defendants were found to where the
marijuana was located. Agent Hunt acknowledged that in his seven years with
the Border Patrol, “a package of marijuana that was unattended” had been


      10
           United States v. Mata, 491 F.3d 237, 242 (5th Cir. 2007).
      11
           Id.

                                               6
    Case: 09-40821 Document: 00511330991 Page: 7 Date Filed: 12/23/2010



                                  No. 09-40821

found in the Armstrong Ranch area, though no further details were provided.
Hernandez-Vera told the agents that he was carrying a backpack, but the area
was not scoured immediately after the arrest to look for other people or
backpacks. He also denied any involvement with the marijuana, even when
Agent Hunt falsely told Hernandez-Vera that there was video of him carrying
the marijuana. The Defendants argue that a reasonable hypothesis of innocence
is that the marks on the Defendants’ shoulders were caused by moving through
the brush. Turrubiates-Garza argues that, in the Government’s photographs,
no marks are apparent on the Defendants’ skin, except on Herrera-Gutierrez.
Herrera-Gutierrez argues that the marks on his body were not fresh.
      However, after reviewing the evidence presented at trial, we are satisfied
that the evidence was sufficient to meet each of the elements of both charges and
therefore sufficient to sustain the jury’s verdict. Agent Guerra testified that he
found signs that four to six people had crossed the border in the area where the
Defendants were found, and he found no other signs that anyone else had
crossed in the area. Hernandez-Vera told the Border Patrol that the Defendants
had crossed the border together. Each of the Defendants had marks on his
shoulders and armpits that were consistent with carrying the bundles of
marijuana. Although Turrubiates-Garza argues that these marks were not
visible in the Government’s photographs, and Herrera-Gutierrez argues that the
marks on his body were not fresh, Agent Lopez testified at trial that he saw the
marks on all four Defendants’ bodies and that skin on Herrera-Gutierrez’s
shoulders was freshly torn.    The jury was entitled to credit Agent Lopez’s
testimony.
      Furthermore, the jury was entitled to discredit Hernandez-Vera’s
contention that the marks on his shoulders were the result of carrying a
backpack with clothes, blankets, and other small objects. The Border Patrol did
not find any other backpacks in the area where the Defendants were

                                        7
     Case: 09-40821 Document: 00511330991 Page: 8 Date Filed: 12/23/2010



                                          No. 09-40821

apprehended on the night of their arrest or during Agent Guerra’s search the
following morning. There was no evidence that a large quantity of drugs, in
multiple containers, had previously been found abandoned in the area.
Accordingly, there was sufficient evidence for the jury to conclude that the
Defendants knowingly and voluntarily agreed to violate federal narcotics laws.
Likewise, there was sufficient evidence for the jury to find that the Defendants
knowingly possessed the marijuana with the intent to distribute.12
                                      *        *         *
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       12
          See also United States v. Williamson, 533 F.3d 269, 277-78 (5th Cir. 2008) (“We have
held in the past that the mere possession of a quantity of drugs inconsistent with personal use
will suffice for the jury to find intent to distribute.” (internal quotation marks omitted)).

                                               8
