            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-50352
                                          Summary Calendar
                                          _______________

                              UNITED STATES OF AMERICA,
                                                             Plaintiff-Appellee,
                                               VERSUS

            LILIANA RUIZ CHAVIRA and MARTIN ALONSO CHAVEZ,
                                                             Defendants-Appellants.
                                    _________________________

                            Appeal from the United States District Court
                                 for the Western District of Texas
                                  _________________________
                                         February 10, 2000

Before SMITH, BARKSDALE, and                            On October 28, 1998, an informant, Jose
PARKER, Circuit Judges.                              Cruz, informed Armando Apodaca of the
                                                     Metro Narcotics Task Force that a red car
JERRY E. SMITH, Circuit Judge:*                      loaded with cocaine would be crossing from
                                                     Mexico and that Cruz would be driving the car
    Martin Chavez was convicted of conspiring        to a house in El Paso. Acting on the tip,
to possess with intent to distribute a quantity      officers observed Cruz pick up the car and
of cocaine in violation of 21 U.S.C. §§ 846          drive it to a house at 500 Dorsey Street.
and 841(a)(1), and he and Liliana Chavira            According to Cruz, the car was loaded with
were convicted of possession with intent to          forty kilograms of cocaine that he placed in the
distribute a quantity of cocaine in violation of     garage. Officers observed Chavez driving a
21 U.S.C. § 841(a)(1). Chavez challenges             blue van into the garage, closing the garage
denial of a motion to suppress and a three-          door, and according to Cruz, loading the
level upward adjustment in sentencing, and           cocaine into the van. Shortly thereafter, the
Chavez and Chavira claim the evidence is             garage door was opened, and Chavez left the
insufficient to support their convictions. We        premises in the van.
affirm Chavez’s conviction and sentence, but
we reverse and remand Chavira’s conviction              The following day, Cruz notified Apodaca
for insufficient evidence.                           of another such shipment, this time specifying
                                                     that two Hispanic males driving a blue van
                       I.                            with a given license plate number would pick
                                                     up the shipment. Officers once again observed
                                                     Cruz drive the red car to the Dorsey house, at
   *
      Pursuant to 5TH CIR. R. 47.5, the court has    which point constant surveillance of the house
determined that this opinion should not be           began.
published and is not precedent except under the
limited circumstances set forth in 5TH CIR.             On October 30, Chavez arrived at the
R. 47.5.4.
house in the van and knocked on the door, but           paper on which were written the license plate
left after receiving no response. After making          numbers of three vehicles involved in the
a phone call at a nearby convenience store,             surveillance, two-way radios, approximately
Chavez returned and knocked again, leaving a            $2,000 in cash, two garage door openers, and
second time when there was still no answer. A           an advertisement with the address 11640
few hours later, officers spotted the van               McAuliffe. Officers later determined that one
nearby; Chavez dropped off a man later                  garage door opener operated the door at the
identified as Jesus Dominguez at the                    Robert David residence, and one operated the
convenience store, and proceeded to the                 door at 11640 McAuliffe, a location at which
Dorsey home. Chavez backed the van into the             officers had seen Dominguez and Chavez
garage and closed the garage door, whereupon            previously.
Cruz observed the cocaine being loaded.
Approximately fifteen to thirty minutes later,             Chavez claimed that he was staying at the
Chavez left the house and picked up                     11640 McAuliffe residence while the owners
Dominguez at the convenience store.                     were out of town. A consent search of that
                                                        residence located no contraband but did locate
   Officers followed the van to a house at              a hidden compartment in the kitchen area.
12457 Robert David Drive, where the van
entered the garage, and the garage door was                 Dominguez consented to a search of his
closed. Approximately thirty to forty-five              van, in which no relevant evidence was found.
minutes later, Dominguez, with Chavez as                Dominguez likewise gave consent to search
passenger, drove the van to a nearby grocery            the house on Robert David, where he informed
store, where Chavez left the van and entered a          the officers that he lived with his common-law
gold Nissan Maxima, which he drove away.                wife, Chavira, and her child. On arrival at the
Chavez was not followed, but Dominguez                  residence, Chavira was informed of
returned to the house on Robert David in the            Dominguez’s consent to a search of the
blue van.                                               residence for evidence of narcotics activity;
   The following day, Dominguez was                     she asserted that she was not aware of any
observed leaving the house in the van twice,            drugs being kept there, but she did not object
driving slowly around the area for hours, and           to the search. Officers located approximately
making “heat runs,” described as quick                  716 pounds of cocaine in two secret
U-turns designed to discover whether one is             compartments of the home; the compartment
being followed.      On the second such                 design was similar to that found in the
excursion, Dominguez ultimately evaded                  McAuliffe residence.
surveillance.
                                                           Following denial of motions to suppress,
   Later that day, officers spotted the van back        Chavez and Chavira were tried together for
at the grocery store parking lot and located            conspiring to possess with intent to distribute
Chavez driving the Maxima with Dominguez                a quantity of cocaine in violation of 21 U.S.C.
as passenger. The officers believed the two             §§ 846 and 841(a)(1) (“the conspiracy count”)
were attempting to discover the surveillance,           and possession with intent to distribute a
by driving very slowly, making frequent stops,          quantity of cocaine in violation of 21 U.S.C.
and making several heat runs; they also                 § 841(a)(1) (“the possession count”).2 The
witnessed them using two-way radios. Two                court granted Chavira a judgment of acquittal
marked units pulled over the Maxima, and                on the conspiracy count but denied acquittal
officers arrested Chavez and Dominguez.1                motions on the remaining counts. The jury
                                                        found Chavez guilty on both counts and
   A search of the Nissan yielded a piece of            Chavira guilty on the possession count.

   1                                                      2
   The parties stipulated that an arrest occurred            Dominguez was also a co-defendant, but he is
when the Maxima was stopped.                            not involved in this appeal.

                                                    2
                      II.                                 Cruz twice informed Apodaca that he
   Chavez contends that his arrest was illegal,        would be driving a red car containing a load of
and therefore that the court erred in denying          cocaine to the Dorsey house, and was
his motion to suppress evidentiary fruits of           observed driving a red car to the house on
that arrest. In reviewing a denial of a motion         both occasions.       Cruz further informed
to suppress, we view the evidence in the light         Apodaca that Hispanic males in a blue van
most favorable to the party that prevailed in          with a specified license plate were going to
the district court, here the government, and           pick up the cocaine, and Chavez was observed
consider the evidence offered at the                   driving the van into the garage of the Dorsey
suppression hearing and the evidence admitted          house following each of Cruz’s visits (on the
at trial. See United States v. Gonzales, 121           second of which Chavez dropped off
F.3d 928, 938 (5th Cir. 1997), cert. denied,           Dominguez immediately before the brief stop).
522 U.S. 1063, and cert. denied, 522 U.S.
1131 (1998).
                                                          Cruz informed Apodaca that he personally
   Because Chavez was arrested without a               observed the van being loaded with the
warrant, probable cause was required. See              cocaine. Cruz was deemed credible because
United States v. Ramirez, 145 F.3d 345, 352            he had been providing reliable information on
(5th Cir.), cert. denied, 525 U.S. 1046 (1998).        narcotics transactions to Apodaca for over a
                                                       year.4 Chavez and Dominguez were observed
   Probable cause exists when the totality             performing counter surveillance measures in
   of facts and circumstances within a                 their vehicles. The totality of facts and
   police officer's knowledge at the                   circumstances provided probable cause to
   moment of arrest are sufficient for a               arrest.
   reasonable person to conclude that the                                    III.
   suspect had committed or was                           Chavez claims insufficiency of the evidence.
   committing an offense. The presence of              “In evaluating a challenge to the sufficiency of
   probable cause is a mixed question of               the evidence, we view the evidence in the light
   fact and law. This court will not disturb           most favorable to the verdict and uphold the
   the factual findings of the district court          verdict if, but only if, a rational juror could
   absent clear error. Accepting these                 have found each element of the offense beyond
   facts, the ultimate determination of                a reasonable doubt.” United States v. Brown,
   whether there is probable cause for the             186 F.3d 661, 664 (5th Cir. 1999). This
   arrest is a question of law to be                   review is de novo, and “[i]f the evidence
   reviewed de novo.3                                  viewed in the light most favorable to the
                                                       prosecution gives equal or nearly equal
Id. (internal citations omitted). “Although            circumstantial support to a theory of guilt and
probable cause requires more than a bare               a theory of innocence, a defendant is entitled
suspicion of wrongdoing, it requires                   to a judgment of acquittal.” Id. (internal
substantially less evidence than that sufficient       quotation marks omitted).
to support a conviction.” United States v. Ho,
94 F.3d 932, 936 (5th Cir. 1996). The district
court found probable cause based on the
information provided by the informant Cruz,                4
whom the court found to be reliable, and on                  Although Chavez stresses that Cruz’s past
the suspicious driving activity observed by            information had not led to arrests, this is not
                                                       dispositive. In United States v. Carrillo-Morales,
surveillance officers, and we agree.                   27 F.3d 1054, 1057 n.1 (5th Cir. 1994), we found
                                                       probable cause partially based on a tip from an
                                                       informant with whom the officer had had no prior
   3
     These likewise are the general standards of       experience. As in the case sub judice, the
review for denial of a motion to suppress. See         information was corroborated by subsequent
Ramirez, 145 F.3d at 352.                              investigation and surveillance.

                                                   3
   On the conspiracy count, the government
had to prove “(1) that an agreement existed to            The McAuliffe residence in which Chavez
violate federal narcotics laws; (2) that the           was residing, and to which Chavez and
defendant knew of the existence of the                 Dominguez had traveled previously, contained
agreement; and (3) that the defendant                  a secret compartment similar to those in the
voluntarily participated in the conspiracy.”           Robert David residence in which the cocaine
Gonzales, 121 F.3d at 935. These elements              was found. This evidence is sufficient to prove
may be established by circumstantial evidence          that Chavez and Dominguez had an agreement
and “may be inferred from the development              to violate federal narcotics laws and that
and collocation of circumstances.”         Id.         Chavez knew of the agreement, and
(internal quotation marks omitted).                    voluntarily participated in it.

   The agreement between the co-                          On the possession count, the government
   conspirator[] and the defendant need not            had to prove “(1) knowing (2) possession of a
   be proved by direct evidence, but may               controlled substance (3) with intent to
   be inferred from concert of action. Such            distribute it.” Gonzales, 121 F.3d at 936.
   action may be inferred from the                     Possession may be actual or constructive, the
   circumstances as a whole. Acts which                establishment of which can depend on
   are not per se unlawful lose that                   circumstantial evidence and inference
   character when cumulatively viewed as               therefrom. See United States v. Jones, 133
   the constituent elements of a criminal              F.3d 358, 362 (5th Cir.), cert. denied, 523
   conspiracy.                                         U.S. 1144 (1998); United States v. Gonzales,
                                                       79 F.3d 413, 423 (5th Cir. 1996).
United States v. Morris, 46 F.3d 410, 420 (5th         “‘Constructive possession’ is ownership,
Cir. 1995) (internal quotation marks and               dominion, or control over illegal drugs or
citation omitted).                                     dominion over the premises where drugs are
                                                       found.      In other words, constructive
   There is sufficient evidence to support             possession is the ability to reduce an object to
Chavez’s conspiracy conviction. He twice               actual possession.” United States v. Pigrum,
drove the van to the Dorsey house; Cruz                922 F.2d 249, 255 (5th Cir. 1991) (internal
testified that he witnessed Chavez load the van        quotation marks and citation omitted).
with cocaine on those occasions. On the
second trip, Chavez dropped off Dominguez                 The evidence is sufficient to sustain
before reaching the destination, picked up             Chavez’s possession count. Not only was
Dominguez on the return, and drove the van             Cruz’s testimony evidence of actual
into the garage of Dominguez’s residence on            possession, but the evidence further supports
Robert David. Chavez performed heat runs               a reasonable inference that Chavez had
and other counter surveillance measures in his         knowing access to, and control over, the
Maxima, with Dominguez as passenger, in                cocaine at the Robert David residence. The
which vehicle was found a listing of the license       amount of cocaine discovered, 716 pounds,
plate numbers of three surveillance vehicles.          provides an inference that it was meant for
                                                       distribution: “Intent to distribute a controlled
                                                       substance may generally be inferred solely
                                                       from possession of a large amount of the
                                                       substance.” United States v. Prieto-Tejas, 779
                                                       F.2d 1098, 1101 (5th Cir. 1986); see also
                                                       Gonzales, 121 F.3d at 936.

                                                                            IV.
                                                          Chavira claims there is insufficient evidence
                                                       that she knowingly possessed cocaine. She
                                                       was Dominguez’s common-law wife, and she

                                                   4
and her child at least sometimes resided at the        1993).5
Robert David house. On the day the house
was searched, an officer observed Chavira                 We have rejected findings of constructive
leave the residence with Dominguez and her             possession under somewhat analogous
child and travel to a nearby Wal-Mart, where           circumstances. In United States v. Pigrum,
she “look[ed] around from left to right, and           922 F.2d 249 (5th Cir. 1991), a female
also behind her.” The officer believed she was         defendant was present at a co-defendant’s
trying to discover whether anyone had                  house during a search that produced cocaine.
followed her, even though her “looking                 Women’s undergarments were found in the
around” took place approaching a crosswalk.            bedroom dresser; drug residue and drug
                                                       paraphernalia were in plain view throughout
                                                       the house; when officers arrived, the defendant
   Chavira and her child were at the residence         unlocked the door only after warning her
when officers arrived to search it; informed of        codefendant that the police were present; and
their purpose, she replied that she was not            a cocaine buy was made at the residence a
aware of any drugs in the home. After                  couple of hours before the officers arrived to
Chavira, Dominguez, and Chavez were                    execute the search. See id. at 255. There was
arrested, they were transported to jail, where         no evidence, however, either that the
Chavira was observed pleading with                     undergarments belonged to the defendant or
Dominguez to provide officers with                     that she generally resided in the house. We
information which would help her and her               concluded that there was insufficient evidence
child.                                                 of constructive possession.

   The cocaine was found in secret                         In United States v. Onick, 889 F.2d 1425,
compartments located in the closets of the             1429 (5th Cir. 1989), police discovered the
master bedroom and the child’s bedroom, and            female defendant in nightclothes at the house
Chavira’s purse was found in the closet of the         when they searched it; a bedroom closet
master bedroom. To transfer cocaine from the           contained women’s clothing; there was a
garage to the bedroom closets, one would               photograph of the defendant in one of the
have to walk through common areas of the               bedrooms; and the defendant was present at
house, including the kitchen and living room.          the house at an earlier time when a locksmith
To gain access the secret compartments, one            installed a safe. We concluded that the
had to remove shelves in the closet, turn on an        evidence was insufficient to show that the
electrical supply source, and push an electrical       defendant constructively possess drugs found
switch to open a hidden door.                          at the house.

   The government contends that Chavira
constructively possessed the cocaine. When
there is joint occupancy of a location,                     5
                                                               Although the elements of possession and
however, mere control or dominion over the             scienter (knowing) are theoretically distinct, in the
place in which contraband is found is                  realm of constructive possession they tend
insufficient for constructive possession:              naturally to overlap. Constructive possession is
“[S]omething else (e.g., some circumstantial           “the knowing exercise of, or the knowing power or
indicium of possession) is required besides            right to exercise, dominion and control over the
mere joint occupancy before constructive               proscribed substance.” United States v. Brito,
possession is established. . . . [There must be]       136 F.3d 397, 410 (5th Cir.), cert. denied,
                                                       523 U.S. 112, and cert. denied, 524 U.S. 962, and
some evidence supporting at least a plausible          cert. denied, 525 U.S. 867 (1998). See also
inference that the defendant had knowledge of          United States v. de Leon, 170 F.3d 494, 497 (5th
and access to the . . . contraband.” United            Cir.), cert. denied, 120 S. Ct. 156 (1999).
States v. Mergerson, 4 F.3d 337, 349 (5th Cir.         Whether we term it a failure to prove possession or
                                                       a failure to prove the required scienter, the result is
                                                       the same.

                                                   5
   While there is evidence that Chavira jointly           demonstrates a consciousness of guilt.7
occupied the house with Dominguez, there is               Likewise, the fact that she pleaded with her
no further evidence supporting a plausible                husband to provide authorities with
inference that she had knowledge of and                   information that would help her and her child
access to the cocaine. Although conducting                is no more indicative of guilt than it is of
counter surveillance measures such as heat                innocence.
runs is suspicious, testimony that Chavira was
observed looking around on her way to Wal-                   The totality of the evidence against Chavira
Mart is not nearly so probative.                          amounts to nothing more than residing at the
                                                          house where the cocaine was found and her
   That the cocaine had to pass through                   close association with Dominguez, which is
common areas of the house to reach the                    not sufficient to prove constructive possession.
compartments does not implicate Chavira                   See United States v. Steen, 55 F.3d 1022,
without some evidence that she was present                1032 n.23 (5th Cir. 1995). We therefore
during any such transfer.          Unlike the             reverse her conviction for insufficient
circumstance in Pigrum, in which evidence of              evidence.8
drugs was in plain view, access to the cocaine
in the secret compartments in the closets                                        V.
required the removal of shelves, the turning on              Chavez contends that the court erred in
of an electrical supply source, and the pushing           giving him a three-level upward adjustment
of a switchSSa detective testified that the               based on his aggravating role in the offense
secret compartments were very sophisticated,              pursuant to U.S.S.G. § 3B1.1(b), which
“the best [he had] ever seen.” Therefore, the             provides such an enhancement if “the
presence of Chavira’s purse in one of the                 defendant was a manager or supervisor . . .
closets does not allow the inference that she             and the criminal activity involved five or more
therefore knew of the presence of the drugs.              participants or was otherwise extensive.” The
                                                          presentence investigation report
   The government also relies on Chavira’s                recommending the adjustment does not specify
statements as inferentially proving guilty
knowledge, but they are just as indicative of
innocence as of guilt. When officers informed                 7
Chavira of the purpose of the search, she                       While we have recognized both nervousness
responded that to the best of her knowledge               and an absence of nervousness as circumstantial
there were no drugs at the house.                         evidence of guilty knowledge, we also have
                                                          criticized government attempts to use such
                                                          evidence when it lacks probative value. See United
   The government attempts to make use of                 States v. Ortega Reyna, 148 F.3d 540, 544-45 (5th
the nervous/not nervous dichotomy, arguing                Cir. 1998). The government urges Chavira’s
that Chavira was not nervous enough when                  general calm composure and submission to the
asked the question, demonstrating a guilty                search as evidence of guilty conscience, but as in
conscience.6 Nervous behavior, such as                    Ortega we postulate that had Chavira been nervous
countersurveillance measures, before one is               and vehemently objected to the search, the
confronted by police, is more probative than is           government would have argued that this behavior,
one’s reaction to an actual confrontation. See,           as well, justified an inference of guilty knowledge.
e.g., Carrillo-Morales, 27 F.3d at 1065.                  See id.
While nervousness, or lack thereof, during a                8
confrontation may also sometimes be                           The government argues that, in the alternative,
                                                          Chavira’s conviction can be sustained on a theory
probative, nothing about Chavira’s response               of aiding and abetting. Because the court did not
                                                          instruct the jury on aiding and abetting, this
                                                          contention is incorrect. See Brito, 136 F.3d at 410
                                                          n.18. Regardless, there is no evidence that Chavira
   6
    There was trial testimony that she was “very          associated with the criminal activity or acted to
calm” but also that she was “a little bit nervous.”       help it succeed. See Gonzales, 121 F.3d at 936.

                                                      6
whether the criminal activity was considered to
involve five or more participants or whether it          ‘Plain error’ is error which, when
was “otherwise extensive,” and the court did             examined in the context of the entire
not clarify the basis for the increase, merely           case, is so obvious and substantial that
terming Chavez a “manager.”                              failure to notice and correct it would
                                                         affect the fairness, integrity, or public
   Because Chavez did not raise this issue at            reputation of judicial proceedings . . . .
or before sentencing, we review for plain                Review for plain error is uniquely
error. See United States v. Lopez, 923 F.2d              addressed to the appellate court’s
47, 49 (5th Cir. 1991).                                  discretion. Questions of fact capable of
                                                         resolution by the district court upon
                                                         proper objection at sentencing can never
                                                         constitute plain error.

                                                      Id. at 50. A ruling on a defendant’s role in the
                                                      offense is a factual determination. See United
                                                      States v. Navarro, 169 F.3d 228, 234 (5th
                                                      Cir.), cert. denied, 120 S. Ct. 117, 312 (1999);
                                                      United States v. Posada-Rios, 158 F.3d 832,
                                                      878 (5th Cir. 1998), cert. denied, 119 S. Ct.
                                                      1280, 1487, 1792 (1999). Therefore, we need
                                                      not reach the merits of Chavez’s argument; the
                                                      court did not commit plain error.

                                                         Chavira’s judgment of conviction is
                                                      REVERSED and REMANDED for entry of
                                                      judgment of acquittal, and Chavez’s judgments
                                                      of conviction and sentence are AFFIRMED.




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