     Case: 10-40881 Document: 00511484020 Page: 1 Date Filed: 05/20/2011




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

                                                 FILED
                                                                            May 20, 2011
                                     No. 10-40881
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JAVIER MARTINEZ-SOSA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:10-CR-193-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Javier Martinez-Sosa appeals his jury-trial conviction for one count, each,
of: possession, with intent to distribute, more than 100 kilograms of marijuana;
and conspiracy to possess, with intent to distribute, more than 100 kilograms of
marijuana. Martinez contends there was insufficient evidence to sustain a
conviction for both counts.
       Martinez moved for a judgment of acquittal at the close of the
Government’s case-in-chief, but failed to renew that motion at the close of all

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40881 Document: 00511484020 Page: 2 Date Filed: 05/20/2011

                                  No. 10-40881

evidence. Therefore, we review for a “manifest miscarriage of justice”, i.e.,
whether the record is devoid of evidence of guilt or whether the evidence on an
offense’s key element is so tenuous that a conviction would shock the conscience.
United States v. Miller, 576 F.3d 528, 529-30 & n.2 (5th Cir.) (citations omitted),
cert. denied, 130 S. Ct. 652 (2009); United States v. Rodriguez-Martinez, 480 F.3d
303, 307 (5th Cir. 2007). Martinez fails to show such manifest miscarriage of
justice for each conviction.
      For the possession conviction, Martinez contends the evidence was
insufficient for the jury to conclude that he knew the bundles he threw over the
border fence between the United States and Mexico contained marijuana. This
contention, however, is belied by the record. At trial, Martinez testified that he
recognized the bundles as ones that contained marijuana. There was additional
testimony that the bundles: were hidden before they were thrown over the
fence; were approximately 60-70 pounds; were wrapped alike; had carrying
straps; and smelled like marijuana.
      For the conspiracy conviction, Martinez’ concerted actions with other
members of the conspiracy rose to more than mere association or presence in an
unsavory atmosphere. See United States v. Garcia Abrego, 141 F.3d 142, 155
(5th Cir. 1998). The evidence showed that Martinez: joined the group carrying
the bundles; waited with the group for approximately 20-30 minutes; walked
with them as they carried the bundles and a ladder; helped form a human chain
enabling them to move the bundles across the border fence; and had markings
on his shoulders indicating he carried a bundle. Thus, his active participation
in moving with the group and/or carrying the bundles suggests he was more
than an innocent bystander. Moreover, the marijuana’s high value indicates
Martinez was not an unwitting participant, because “a prudent smuggler is not
likely to suffer the presence of unaffiliated bystanders” with so much at stake.
United States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985); see also
United States v. Martinez-Moncivais, 14 F.3d 1030, 1035 (5th Cir. 1994) (jury

                                        2
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                                  No. 10-40881

could conclude smuggler would not entrust unknowing driver with millions of
dollars in drugs). Furthermore, the court specifically instructed jurors that they
were not to convict Martinez based solely on his presence at the scene.
      AFFIRMED.




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