                                 IN THE UNITED STATES COURT OF APPEALS

                                                    FOR THE FIFTH CIRCUIT


                                                                 No. 02-50253




UNITED STATES OF AMERICA,
                                                                                                                      Plaintiff-Appellee,


                                                                        versus

JOSE FEDERICO GOMEZ,

                                                                                                                        Defendant-Appellant.



                                         Appeal from the United States District Court
                                              for the Western District of Texas


                                                               January 29, 2003

Before GARWOOD, JONES, and STEWART, Circuit Judges.

PER CURIAM:*



           In January 2001, Jose Gomez (“Gomez”) was convicted by a jury for conspiring to possess

over five kilograms of cocaine in violation of 21 U.S.C. §§ 841 and 846. Gomez now appeals arguing

that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm.




           *
            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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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.
                                Factual and Procedural Background

       In August 2000, confidential informant, Martin Chavira (“Chavira”), was working with the

Federal Bureau of Investigation (“FBI”). Chavira had a conversation with some individuals in Mexico

setting up a cocaine deal. In this conversation, Chavira was instructed to call a man named “Tonio”

to pick up a part of a load of cocaine that was going to be transported that day from El Paso to

Chicago or New York. Chavira called Antonio1 who instructed him to go to Love’s Truck Stop

(“Love’s”) where he would be met by someone in a red vehicle. Chavira did as instructed and was

met at Love’s by the Defendant, Gomez in a red Chevrolet Blazer. The FBI observed that Gomez

took Chavira’s keys to his pick-up truck, left Chavira and the red Blazer at Love’s, and drove to JAM

Enterprises. Although there was no direct evidence to establish ownership, the Government deduced

that Gomez and his two brothers owned JAM Enterprises.2 At JAM Enterprises, Gomez parked next

to a car and transferred three cardboard boxes from the car to the bed of Chavira’s pick-up truck.

Gomez then returned to Love’s, returned the keys to Chavira, and drove away.

       The three cardboard boxes contained approximately 58 kilograms of cocaine worth

approximately $1,160,000. Chavira drove the pick-up truck with the three cardboard boxes to Petro’s

Truck Stop to meet a tractor-trailer driver, Alberto Reyes (“Reyes”). Reyes was concerned that the

odor of the cocaine would be detected by drug detection dogs and instructed Chavira to re-wrap the

cocaine to try to mask the smell.3 The FBI then took possession of that cocaine as well as 42


       1
        The Government later learned that “Tonio” was short for Antonio
       2
        The Government contends that JAM stood for the first initials of the three Gomez brothers:
Jose, Antonio and Mario.
       3
        Reyes ultimately did not transport the cocaine because it would not have fit into the
concealed compartments in the tractor-trailor.

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kilograms of cocaine obtained elsewhere, and completed a controlled delivery to Chicago after which

several persons were arrested.

                                             Discussion

       This Court reviews an insufficiency of the evidence claim in the light most favorable to the

Government. United States v. Quiroz-Hernandez, 48 F.3d 858, 865 (5th Cir. 1995). The Court

reviews all evidence, direct and circumstantial, to determine “whether the jury co uld reasonably,

logically and legally infer that the defendant was guilty beyond a reasonable doubt.” Id. “The evidence

does not need to exclude every reasonable hypothesis of innocence; the jury is free to choose among

reasonable interpretations of the evidence.” United States v. Perrien, 274 F.3d 936, 939-940 (5th Cir.

2001). A sufficiency of the evidence review is necessarily fact specific and the Court must consider

the totality of the circumstances.

       To establish a drug conspiracy under 21 U.S.C. §§ 841(a)(1) and 846, the Government must

prove beyond a reasonable doubt that an agreement existed, and that the defendant knew and

voluntarily participated in it. United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991). The jury can

infer a conspiracy from association or presence, along with other circumstantial evidence, “but mere

presence at the scene o r a close association with the conspirators, without more, is an insufficient

basis for inferring participation.” United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1345 (5th Cir.

1994); see United States v. Martinez, 190 F.3d 673, 676 (5th Cir. 1999).

       Gomez argues that there was insufficient evidence to establish that he was a knowing and

willful member of the conspiracy. Instead, he advances that he was merely present at the scene of the

event. The Government counters that the evidence establishes more than mere presence. In particular,

the Government contends that the sum of the following evidence was sufficient to prove that Gomez


                                                  3
was a knowing and willing participant in the conspiracy: (1) Gomez took the vehicle from Chavira;

(2) handled and loaded the boxes of cocaine; (3) Gomez returned the vehicle to Chavira; and (4) the

cocaine had an odor before it was rewrapped. The Government contends that the jury could also infer

knowing participation in the conspiracy from the large amount of the cocaine and its value.

       The Government contends that Gomez’s control of Chivara’s vehicle supports an inference

of willing participation in the conspiracy. This Court has determined that in the totality of the

circumstances, control of a vehicle involved in drug trafficking supports a conviction of conspiracy.

See United States v. Quiroz-Hernandez, 48 F.3d 858, 865 (5th Cir. 1995) (“The jurors could infer

[the defendant’s] ‘power to control’ the vehicle by asking his cousin to drive a van, that had the keys

in the ignition and which contained thousands of dollars of cocaine, from an established stash

house.”); United States v. Gallo, 927 F.2d 815, 821 (5th Cir. 1991) (“The Government established

[the defendant]’s knowledge of the contents of the box recovered from his car by reasonable

inferences drawn from his control over the box and his inconsistent statements disclaiming the

knowledge of how the box got into his car.”). The evidence of Gomez’s sole control over Chavira’s

truck in this case is as strong as the evidence presented in Quiroz-Hernandez and Gallo. In this case,

Gomez took the pickup truck from Chavira, drove it to JAM Enterprises, loaded three boxes on to

the truck, and returned the pickup to Chavira.

       The Government also contends that the jury could have inferred knowledge and voluntary

participation in the conspiracy from the large amount of cocaine and its value. This Court has

concluded that the owner of a large amount of drugs most likely would not entrust them to an

unknowing member of the conspiracy. See United States v. Martinez-Moncivais, 14 F.3d 1030, 1035

(5th Cir. 1994) (“[R]easonable jurors could conclude that [the owner of the drugs] would not have


                                                  4
entrusted millions of dollars in each truckload of drugs to an unknowing, innocent driver.”); Gallo,

927 F.2d at 821 (explaining that the jury could have inferred Gallo’s knowledge of the conspiracy

because “the evidence that Gallo was solely entrusted with a large portion of the proceeds of the drug

trafficking enterprise establishes his familiarity with, or high level of participation in, that enterprise”).

In this case the Government observed Gomez handling and loading three cardboard boxes containing

58 kilograms of cocaine worth approximately $1,160,000. Similar to the rationale advanced by the

Court in Martinez-Moncvais and Gallo, the owner of the cocaine most likely would not have

entrusted an unknowing participant with handling and transporting such a large quantity of valuable

drugs.

         The Government also relies on evidence that the cocaine may have emitted an odor based on

Reyes’ concern that the cocaine wo uld be detected by drug-sniffing dogs. Although this evidence

alone may not have yielded an inference of knowing participation in the conspiracy, it is one factor

among several from which the jury could make such an inference. See e.g., United States v. Garcia,

86 F.3d, 394, 399 (5th Cir. 1996) (explaining that along with the evidence that there was a chemical

odor coming from the cocaine, the defendant lived at the residence where the police found cocaine

and that the defendant’s car rode lower after he left the residence supported the inference that the car

was loaded with cocaine while parked there); United States v. Villegas-Rodriguez, 171 F.3d 224, 230

(5th Cir. 1994) (explaining that the marijuana not only presented an odor, but was also wrapped in

clear wrapping).



                                                Conclusion




                                                      5
       Given the totality of the circumstances presented in this case, the jury may have reasonably

inferred from the evidence that Gomez was a knowing and willing participant in the conspiracy.

Accordingly, we affirm Gomez’s conviction. AFFIRM.




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