                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                  In the                                 January 4, 2007
                       United States Court of Appeals                                Charles R. Fulbruge III
                                      for the Fifth Circuit                                  Clerk
                                            _______________

                                              m 06-50131
                                            _______________




                                   UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                                 VERSUS

                            EDGAR BENJAMIN AGUILAR-ALVAREZ,
                          ALSO KNOWN AS EDGAR AGUILAR-ALVAREZ,

                                                              Defendant-Appellant


                                     _________________________

                             Appeal from the United States District Court
                                  for the Western District of Texas
                                        m 3:03-CR-1051-12
                               ______________________________



Before KING, HIGGINBOTHAM, and SMITH,                     A jury found Edgar Aguilar-Alvarez guilty
  Circuit Judges.                                      of knowinglypossessing marihuana with intent
                                                       to distribute. He appeals, arguing that the evi-
JERRY E. SMITH, Circuit Judge:*                        dence was insufficient to prove he knew that
                                                       he possessed marihuana. Because the evi-
                                                       dence was sufficient, we affirm.

   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-                          I.
termined that this opinion should not be published         Aguilar-Alvarez was driving a tractor-trail-
and is not precedent except under the limited cir-     er rig that New Mexico Department of Trans-
cumstances set forth in 5TH CIR. R. 47.5.4.            portation inspectors searched in response to a
Drug Enforcement Administration (“DEA”)                    ing the usual route from California to Wiscon-
alert identifying the trailer as possibly trans-           sin.3 Finally, the tractor-trailer was very
porting drugs. The inspectors found mari-                  cleanSSthe outside lacked the dirt, mud, and
huana hidden in cardboard boxes placed                     bugs typical of a trip from Los Angeles to
among legitimate cargo.                                    New Mexico, and the inside lacked the usual
                                                           fast food trash, bedding, and maps.4
    The DEA sent the alert to other members
of law enforcement about the tractor-trailer                  Aguilar-Alvarez consented to a search of
Aguilar-Alvarez was driving, because a DEA                 the trailer, where law enforcement officers
agent observed the rig parked in front of a                found plain cardboard boxes containing mari-
warehouse the DEA had under surveillance.1                 huana among other legitimate cargo listed in
The tractor-trailer arrived at the warehouse               the bill of lading. Aguilar-Alvarez stated he
early in the afternoon of August 31, 2002, and             did not know marihuana was there; he said he
left about two hours later. No one testified at            was not present when the trailer was loaded;
trial that Aguilar-Alvarez was present at the              he assumed it had been loaded before he began
warehouse.                                                 his journey in California. Finally, he indicated
                                                           that he was at a truck station in the tractor-
   A transfer station inspector recognized the             trailer almost all day August 31, 2002SSthe
tractor-trailer from the alert and informed Ag-            day DEA agents observed the trailer at the
uilar-Alvarez that his vehicle would be in-                warehouse they had under surveillance.
spected. Part of the inspection resulted in
normal, unsuspicious discoveries: The licence                  An indictment charged Aguilar-Alvarez
for the trailer matched paperwork Aguilar-                 with conspiracy to possess marihuana with in-
Alvarez had provided; the cargo area was                   tent to distribute it and knowingly possessing
sealed and undisturbed; and the manifest did               marihuana with intent to distribute it. A jury
not suggest any criminal activity. Other as-               found him guilty of possession with intent to
pects of the inspection, however, yielded sus-             distribute, but the district court declared a mis-
picious results. Aguilar-Alvarez told the in-              trial on the charge of conspiracy to possess
spector he was coming from Los Angeles, but                with intent to distribute. Aguilar-Alvarez ap-
in fact he was headed westbound. His log                   peals, challenging the sufficiency of the evi-
books likely understated the time required to              dence that he had knowledge of the marihana.
travel different subsections of his trip to New
Mexico, and they did not contain the name of                                       II.
the shipper. Further, Aguilar-Alvarez could
not provide the phone number of the company
                                                              2
for which he worked, 2 and he was not travel                    (...continued)
                                                           that he had just taken this job two days earlier.
                                                              3
                                                                Aguilar-Alvarez stated that his boss accompa-
   1
     The agent identified Aguilar-Alvarez’s tractor-       nied him and instructed him to stop in El Paso so
trailer by the numbers on the front of the vehicle         his boss could pick up a vehicle to drive to McAl-
and a design on the door.                                  len, Texas.
   2                                                          4
       Aguilar-Alvarez told law enforcement agents              Aguilar-Alvarez indicated he had not used the
                                      (continued...)       truck stop’s car wash.

                                                       2
    We must decide whether any reasonable                   We have held a various types of circum-
trier of fact could have found that the evidence        stantial evidence sufficient to prove knowledge
established the essential elements of the crime         of contraband in cases involving drugs in hid-
beyond a reasonable doubt. United States v.             den compartments, such as evidence of ner-
Ortega-Reyna, 148 F.3d 540, 543 (5th Cir.               vousness, refusal to answer questions, and in-
1998) (per curiam). Considering the evidence            consistent statements. See id. (summarizing
in the light most favorable to the government,          the various types of circumstantial evidence
we draw all reasonable inferences and credi-            sufficient to prove knowledge in hidden com-
bility choices in support of the verdict. Id.           partment cases). Specifically, a defendant of-
The jury is free to choose among reasonable             fering implausible explanations for the situa-
constructions of the evidence, but if the evi-          tion is sufficient circumstantial evidence to
dence tends to give equal or nearly equal cir-          support a conviction of knowingly possessing
cumstantial support to guilt and to innocence,          drugs. E.g., United States v. Casilla, 20 F.3d
we must reverse, because a reasonable jury              600, 606 (5th Cir. 1994). A defendant’s de-
would have reasonable doubt when the evi-               cision to lie to law enforcement officers can
dence is essentially in balance. Id.                    constitute sufficient circumstantial evidence to
                                                        support an inference of guilty knowledge.
   The government was required to prove,                United States v. Jones, 185 F.3d 459, 465 (5th
beyond a reasonable doubt, that Aguilar-Al-             Cir. 1999).
varez (1) knowingly (2) possessed marihuana
(3) with the intent to distribute it. United               Aguilar-Alvarez offered implausible expla-
States v. DeLeon, 247 F.3d 593, 596 (5th Cir            nations and lied to officers. This circumstantial
2001). Only the first element is at issue here.         evidence sufficiently supports the jury’s infer-
                                                        ence that Aguilar-Alvarez knowingly pos-
    Generally, a jury may infer knowledge of            sessed the drugs.
the presence of drugs from the exercise of
control over a vehicle containing drugs. Unit-              His claim that he was traveling from Los
ed States v. Resio-Trejo, 45 F.3d 907, 911              Angeles is implausible under t he
(5th Cir. 1995). If the drugs are hidden in a           circumstances. Not only was he headed in the
compartment, we normally require additional             wrong direction, the tractor-trailer was clean,
circumstantial evidence that raises suspicion or        lacking the characteristics of a long trip. More
demonstrates guilty knowledge. Id. We rec-              importantly, he lied to officials about being in
ognize that in hidden compartment cases, there          his tractor-trailer on August 31, 2002; he said
“is at least a fair assumption that a third party       he remained in the tractor-trailer all day Au-
might have concealed the controlled substanc-           gust 31, except for trips into the truck shop to
es in the vehicle with the intent to use the un-        make purchases. DEA agents, however, iden-
witting defendant as the carrier in a smuggling         tified the tractor-trailer as the rig that arrived
enterprise.” United States v. Diaz-Carreon,             at the warehouse and spent several hours there
915 F.2d 951, 954 (5th Cir. 1990). “This as-            that afternoon. 5            This circumstan
sumption is heightened when . . . the vehicle is
a ‘loaner’ or has otherwise been in the posses-
sion of the suspect for only a short time.” Or-            5
                                                            Unlike the situation in Ortega-Reyna, in which
tega-Reyna, 148 F.3d at 544.                            we held the evidence of knowledge was insufficient
                                                                                             (continued...)

                                                    3
tial evidence supports an inference of guilty
knowledge of drug possession.

   AFFIRMED.




   5
    (...continued)
because the circumstances permitted benign infer-
ences, here there is not “an equal and opposite
benign inference to be drawn” from Aguilar-Alvar-
ez’s lie. Ortega-Reyna, 148 F.3d at 545. Lying to
officials is not “at least as consistent with inno-
cence as guilt.” Id. at 546.

                                                      4
