                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      August 1, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-41438
                            Summary Calendar
                        _______________________


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,
                                   versus


                           JAVIER ADOLFO ROEL,

                                                     Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Texas
                       Docket No. 2:05-CR-288


Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

           Javier Adolfo Roel appeals his conviction for possession

of cocaine with intent to distribute.            Finding that there was

sufficient evidence to support the conviction, we AFFIRM.

                             I.   Background

           On April 19, 2005, Roel was stopped at a Border Patrol

checkpoint in Sarita, TX.         At the checkpoint, one Border Patrol

agent noted that Roel’s demeanor was abnormally conversational;

when another agent approached Roel’s car with a canine unit, Roel’s



     *
            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opinion should not be published and is not precedent except under the limited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.
demeanor changed, and he began watching the dog from his rearview

mirror.    The dog alerted to the presence of drugs or people

concealed in the front of Roel’s car, and Roel was instructed to

park in the secondary inspection area, a task he had difficulty

doing.

           Roel eventually got out of his car, and the dog again

alerted.   The two Border Patrol agents examined Roel’s car, and

noticed abnormalities in the front fender area, portions of which

appeared to have been recently removed.        The agents also noticed

fresh paint and that a piece of sheet metal had been affixed to the

car’s cowling using Bondo.   After chiseling into the sheet metal

and opening a secret compartment in the car, the agents discovered

4.491 kilograms of cocaine, worth approximately $400,000, concealed

behind a layer of fresh foam insulation.          The cocaine was, in

short, elaborately hidden.

           Following his arrest, Roel was interviewed by the DEA.

He told the DEA agent that he was in the business of buying cars in

the Houston area for sale in Mexico.           The way in which this

business allegedly operated was unconventional at best: Roel stated

that his buyer in Mexico, Manuel Sol, would send drivers to Houston

to take selected cars to Mexico.       Roel would follow the drivers in

his car, and deliver the vehicles’ paperwork to Sol in Reynosa,

across the Mexican border.   Roel would then return to Houston and

wait for a call from Sol, who was responsible for taking the cars

from Reynosa to Monterrey and selling them.      Once the cars had been

                                   2
sold, Roel would drive from Houston to Monterrey, where he would

receive his share of the proceeds.          The DEA agent asked Roel why,

in an era of Federal Express and wire transfers, Roel felt the need

to make frequent drives from Houston, as such trips entailed

substantial fuel, food, and lodging costs, to say nothing of the

six hour travel time in each direction.              Roel claimed that his

buyer did not wish to pay wire transfer fees, and that in any

event, he liked traveling and being away from home.

            As to the chain of events surrounding his arrest, Roel

stated that he had followed cars to Mexico on April 18, but had

forgotten the paperwork for one of them, and that he had to return

to Houston, where he spent the night.1           He returned to Mexico the

next day and delivered the paperwork to Sol.           He stated that he had

driven his car2 to Mexico, and that he had told Sol of his plan to

change its oil and have it washed before returning to Houston.               One

of Sol’s associates, unknown to Roel, washed the car while the two

men ate lunch.     The car was gone for roughly three hours.            When it

was returned to him, Roel claimed, he noticed the presence of fresh

scuff marks and an odor of paint thinner.                 In spite of these



      1
            The fact that Roel had been issued a traffic citation in the early
morning hours of April 17 heading north to Houston contradicted his timeline;
Roel stated that he must have been mistaken as to certain dates when confronted
with the citation.
      2
             In another inconsistency, when confronted with another receipt, Roel
told investigators that he kept a car in Mexico, solely so that he would not have
to drive his primary vehicle, a recently purchased Dodge Neon, across the border.
He nevertheless drove the Neon across the border, as he had done at least three
other times since December 30, 2004, to meet with Sol.

                                       3
changes, he said nothing, and began his drive back to Texas, where

he was ultimately stopped and arrested. At trial, Roel essentially

reiterated his story, and was convicted.

                                    II.       Discussion

               Roel challenges the sufficiency of the evidence used to

convict him.       We review the evidence in the light most favorable to

the jury’s verdict.         United States v. Jones, 185 F.3d 459, 463 (5th

Cir. 1999).        This court will only uphold a verdict if “there is

substantial evidence from which a rational trier of fact would have

to    find   all    the    essential          elements       of    the   offense    beyond   a

reasonable doubt.”         United States v. Alarcon, 261 F.3d 416, 422-23

(5th Cir. 2001).            In the instant case, to convict Roel, the

Government      had   to    prove       beyond       a   reasonable       doubt    that    Roel

(1) knowingly (2) possessed cocaine (3) with intent to distribute.

Id.    Roel challenges only the knowledge requirement.

               Generally,      a    jury        may        infer    knowledge      from    the

defendant’s control of a vehicle containing drugs; where, as here,

the    drugs    are   hidden       in    a    secret       compartment,      proof    of   the

defendant’s        knowledge       depends          upon    inference      and     additional

circumstantial evidence.                Id.    This additional requirement exists

because, in hidden compartment cases, there “is at least a fair

assumption” that a third party may be using the defendant as an

unwitting carrier.          United States v. Diaz-Carreon, 915 F.2d 951,

954 (5th Cir. 1990).          Among the types of behavior that this court



                                                4
has previously recognized as circumstantial evidence of guilty

knowledge are:

      (1) nervousness; (2) absence of nervousness, i.e., a cool
      and calm demeanor; (3) failure to make eye contact; (4)
      refusal or reluctance to answer questions; (5) lack of
      surprise when contraband is discovered; (6) inconsistent
      statements; (7) implausible explanations; (8) possession
      of large amounts of cash; and (9) obvious or remarkable
      alterations to the vehicle, especially when the defendant
      had been in possession of the vehicle for a substantial
      period of time.

United   States     v.   Ortega   Reyna,        148     F.3d    540,    544    (5th    Cir.

1998)(internal citations omitted).

            Roel is correct that his demeanor during the search of

his car, both his excessive friendliness and his nervousness at the

sight of a drug-sniffing dog, cannot determine the sufficiency of

the Government’s case.            See id. at 545.               However, he errs in

implying that all evidence relating to nervousness or lack thereof

is   equivocal    and    therefore    worthless.               Although    evidence      of

nervousness “alone is insufficient, it may support an inference of

guilty knowledge when combined with facts suggesting that the

nervousness is derived from an underlying consciousness of criminal

behavior.”    Jones, 185 F.3d at 464.                 By way of comparison, the

defendant    in   Ortega    Reyna,    a    case       relied     upon     by   Roel,    was

unusually    calm    throughout      the       search    of     his    car;    the    court

concluded that such behavior could have been equally indicative of




                                           5
guilt or innocence.3            Roel, on the other hand, initially seemed

abnormally friendly, and then his demeanor changed noticeably upon

the introduction of a drug-sniffing dog. A reasonable jury did not

have to regard such evidence as equivocal, and could have inferred

Roel’s guilty knowledge because of his sudden change in demeanor.

                Other sources of evidence reinforced an inference of

knowledge on the part of Roel. Notably, Roel’s unorthodox business

methods and his frequent, seemingly wasteful trips to Mexico could

be regarded as implausible by the jury.                See United States v.

Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990).

                Most important, however, there are Roel’s car and the

cocaine itself.         Again, to compare, Ortega Reyna concerned drugs

hidden     in    a   “loaner”    automobile    that   had   only    been    in   the

defendant’s possession for a short period of time.                  As the court

noted, it was unlikely that the defendant would “examine the teeth

of   his   gift      horse”   and   notice   abnormalities.        Ortega   Reyna,

148 F.3d at 547. However, a defendant could reasonably be expected

to notice visible damage to his personal vehicle, and indeed, Roel

claimed that after his car returned from its suspiciously long



      3
            Further, as the court noted in Ortega Reyna, a defendant’s seemingly
odd behavior must be put into context by looking to his perspective. Ortega
Reyna, 148 F.3d at 545.    The defendant in Ortega Reyna was an “illiterate,
poverty-level” worker of odd jobs with no demonstrated understanding of the
English language. Id. In contrast, Roel had resided in the United States for
nearly twenty years at the time of his arrest, spoke English, and had a steady
history of employment; he also had driven the route from Houston to Reynosa on
multiple occasions. Thus, Roel had no obvious reason to behave oddly in the
presence of Border Patrol.

                                         6
“wash,” it had fresh scuff marks and smelled of paint thinner.

Despite claiming to be upset about the damage, Roel testified that

he did nothing, and proceeded to Houston.              A jury did not have to

regard such testimony as credible.               Finally, $400,000 worth of

cocaine was found in Roel’s vehicle.               The value of the drugs

located may be probative of knowledge, as a jury may infer that

drug smugglers would not entrust substantial amounts of drugs to an

unwitting stranger.      United States v. Villareal, 324 F.3d 319, 324

(5th Cir. 2003); United States v. Gamez-Gonzalez, 319 F.3d 695, 699

(5th Cir. 2003).       Roel testified that he was a victim of a set-up

and that smugglers known by Sol had placed the cocaine in his car.

Again,   a   reasonable      jury   could   have    found   this    explanation

incredible, and instead inferred Roel’s knowledge from the large

quantity of cocaine in his possession.

                              III.    Conclusion

             A rational jury could have found beyond a reasonable

doubt    that   Roel   had   knowledge      of   the   cocaine     in   his   car.

Therefore, Roel’s conviction is AFFIRMED.




                                       7
