     Case: 10-40684   Document: 00511658092   Page: 1   Date Filed: 11/07/2011




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

                                                                 FILED
                                                               November 7, 2011

                                 No. 10-40684                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee
v.

JAIME MORENO-GONZALEZ

                                          Defendant-Appellant



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


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
        Jaime Moreno-Gonzalez appeals his jury conviction for attempting to
distribute over 1000 kilograms of marijuana based on insufficient evidence.
Because there was sufficient evidence with which a jury could have convicted
Moreno-Gonzalez, we AFFIRM his conviction.
                                    FACTS
        Moreno-Gonzalez drove a tractor-trailer from Mexico and entered the
United States where he was stopped at a checkpoint in Falfurrias, Texas. As
Moreno-Gonzalez approached the checkpoint, he “immediately” and “without
[the border patrol agent] asking” told the agent that he was a U.S. citizen.
Afterwards, Moreno-Gonzalez's brother, Cirilo Moreno-Gonzalez (“Cirilo”), who
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was lying down in the sleeper compartment of the tractor (i.e., the cabin area of
the truck), “snuck his head out from the curtain” and handed the agent his
permanent resident alien card. At some point, the agent asked Moreno-Gonzalez
where he was going, and he responded that he was hauling produce to North
Carolina.
      While Moreno-Gonzalez was stopped at the checkpoint, a drug-detection
dog alerted another border patrol agent to the presence of drugs in
Moreno-Gonzalez’s tractor-trailer. Moreno-Gonzalez consented to the agents’
search of the trailer, and the vehicle was sent to a secondary inspection area.
There, an X-ray of the truck revealed “anomalies” in the cargo, and the
drug-detection dog again alerted to the truck. Moreno-Gonzalez consented to
open the back of the trailer. Agents broke the seal of the trailer and discovered
112 bundles of marijuana inside boxes in the sealed compartment. The boxes
only occupied one-eighth of the space in the trailer, and the trailer did not
contain any other cargo. The total weight of the marijuana was 1,329.5 pounds
(585.1 kilograms).
      The agents also found $4,420 in cash on Moreno-Gonzalez's person — $900
in his wallet and two small bundles of cash, amounting to $3,520, wrapped with
a rubber band in his pocket. Moreno-Gonzalez explained that one of the bundles
of cash was for fuel. Additionally, the agents found two bills of lading in the cab
of Moreno-Gonzalez’s truck: one dated July 23, 2009 and one dated September
20, 2009. The first documented a shipment from Turner Enterprises, a business
located at an address in McAllen, Texas, to Elite Coverall, a business located at
an address in Chicago, Illinois. Both businesses and addresses were later found
not to exist. The second bill of lading — the one for Moreno-Gonzalez’s delivery
— also stated that the shipment was coming from Turner Enterprises but that
it was going to “QVC” in “Rocky Mount, North Carolina,” without specifying a
ship-to address. Both bills of lading reflected the same bill of lading numbers

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                                  No. 10-40684

and the same trailer numbers, although the seal numbers and the carrier names
differed. Moreno-Gonzalez told the agents that the bills of lading were in the
truck when he first entered it, but he was “familiar with them.”
      Moreno-Gonzalez was arrested at the checkpoint and charged in an
indictment with: (1) “knowingly and intentionally conspir[ing] . . . to knowingly
and intentionally possess with intent to distribute . . . more than one thousand
(1,000) kilograms of marihuana, that is, approximately one thousand seven
hundred ninety-six (1,796) kilograms of marihuana, a Schedule 1 controlled
substance” and (2) “knowingly and intentionally possess[ing] with intent to
distribute . . . more than one hundred (100) kilograms of marihuana, that is,
approximately five hundred eighty five and one-tenth (585.1) kilograms of
marihuana, a Schedule I controlled substance.” On March 25, 2010, a jury found
Moreno-Gonzalez not guilty of the conspiracy charge but guilty of the possession
charge. He now appeals his conviction for sufficiency of the evidence.
                          STANDARD OF REVIEW
      Our review of the sufficiency of the evidence is “highly deferential to the
verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002). “[T]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979); see United States v. Villarreal, 324 F.3d 319, 322 (5th
Cir. 2003). “The evidence is viewed in the light most favorable to the verdict,
accepting all credibility choices and reasonable inferences made by the trier of
fact which tend to support the verdict.” United States v. Asibor, 109 F.3d 1023,
1030 (5th Cir. 1997). We must ensure that our inquiry is “limited to whether
the jury’s verdict was reasonable, not whether we believe it to be correct.” United
States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001). Finally, “[i]t is not
necessary that the evidence exclude every reasonable hypothesis of innocence or

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be wholly inconsistent with every conclusion except that of guilt.” United States
v. Lage, 183 F.3d 374, 382 (5th Cir. 1999), and any conflict in the evidence must
be resolved in favor of the jury’s verdict. United States v. Duncan, 919 F.2d 981,
990 (5th Cir. 1990).
      A large part of the defendant’s argument on appeal revolves around the
proper inferences and weight the jury is permitted to give to circumstantial
evidence. With that in mind, it is important to highlight that our case law makes
clear that the standard of review for sufficiency of circumstantial evidence is the
same as it normally would be for direct evidence. See Lage, 183 F.3d at 382
(“This standard of review is the same regardless of whether the evidence is
direct or circumstantial.”); see also United States v. Mergerson, 4 F.3d 337, 341
(5th Cir. 1993).
                                 DISCUSSION
I. Sufficiency of the Evidence
      Although there was evidence presented to the jury which could have led
it to either verdict, there was enough evidence presented for the jury to find
Moreno-Gonzalez had the requisite mental state for the crime alleged. Since
Moreno-Gonzalez is challenging the sufficiency of the evidence, it is his burden
to demonstrate that the evidence, when reviewed in the light most favorable to
the government, would not allow a rational jury to find every element of the
offense beyond a reasonable doubt. He has failed to meet that burden.
A. Quantity of Drugs
      The sheer quantity of the drugs is one fact that a rational jury could have
used to find the necessary knowledge on the part of Moreno-Gonzalez. The jury
could have very rationally assumed, as the government argued, that a
sophisticated drug operation, capable of transporting thousands of pounds of
drugs, would not leave its product in the hands of an unwitting dupe. “[I]t is
unreasonable to believe that [a driver] would have been entrusted with a large

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quantity of drugs without his knowledge.” United States v. Ramos-Garcia, 184
F.3d 463, 466 (5th Cir. 1999).
      Our precedent makes clear that the jury is allowed to infer knowledge
based on the quantity of drugs involved, “as long as other evidence supports the
inference.” United. States v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir. 2001). We
must therefore weigh other evidence supporting this inference. Once other
evidence was presented which supports this inference, it was possible for the
jury to conclude that the quantity of drugs was overwhelming enough to dispel
any reasonable doubt.
B. False Bills of Lading
      The jury heard evidence which showed not only that the bills of lading
were suspicious, but also fraudulent. The defendant admitted to Agent Ramos
that he was familiar with the bills although he had not composed them. The
bills of lading were so erroneous that Moreno-Gonzalez could not have made a
delivery to the locations listed on them. While the jury also heard testimony
that it was not unusual for drivers to receive a change of location or more specific
directions for delivery while en route, it is possible that they discounted that
alternative given the other evidence presented. It is also possible that the jury
thought, having looked at the bills of lading, that an innocent person would have
been suspicious enough to inquire further before setting out on the journey.
      The falsity of the bill of lading need not be enough to arouse an innocent
person’s suspicion. The question we must ask is whether or not the bills were
so false that the jury deemed it unlikely that a drug operation would have left
an innocent driver with those faulty bills of lading without the driver having
knowledge of the true destination. It is entirely possible that in conjunction with
the large quantities of drugs, the jury believed it was unlikely that a drug
smuggler would leave an unwitting dupe to risk making a delivery to an



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unknown or non-existent destination, or risk having him get to the destination
listed on the bill of lading, only to be turned away.
      In other words, the jury could have inferred that because of the large
quantity of drugs and the false bill of lading, the driver must have had
knowledge of the drugs in the trailer, of the real final destination for delivery to
the drug operation, and that the bill of lading was just a cover. As the prosecutor
argued in his closing argument:
      Where is he supposed to take that stuff? Not to QVC, not to North
      Carolina. He gets a call to take it somewhere else? If he doesn’t
      know, is he going to do it or not? If you get a call saying, “Hey,
      you know what, I’m in South Carolina, or New Jersey, or Seattle,
      or Portland. That’s where you need to go now, and go behind the
      gas station and drop it off.”
      If you’re the owner of that marijuana, do you really want to risk
      the driver saying, “Huh-uh. Thanks, but no thanks. I don’t know
      what’s going on –” or opening it up, and to his surprise, seeing
      marijuana in there and calling the police? No. Is that really
      reasonable to think that the person driving the stuff does not
      know that it’s in there?


The lack of a legitimate bill of lading, the implausible explanation Moreno-
Gonzalez provided to investigators, and the large quantities of drugs could have
been enough for the jury to find the knowledge element of the crime. It is
implausible that a sophisticated drug operation would leave such a large
quantity of drugs in the hands of an unwitting dupe with no way of retrieving
them. See Villarreal, 324 F.3d at 324; Garcia-Flores, 246 F.3d at 455.
      Furthermore, upon rejection of the delivery, the innocent driver would be
more likely to open the trailer and discover the large quantity of drugs. Upon

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discovery, an innocent person would have involved the police. The jury could
very well have found that these myriad potential pitfalls likely meant that it was
entirely implausible that a sophisticated drug operation would leave an innocent
person in possession of such a valuable stash of drugs with a false destination.
Having been presented with this evidence at trial, we do not need to delve into
the exact rationale of the jury, or their weighing of potential explanations. It
suffices to say that there was plausible evidence presented that would link
Moreno-Gonzalez with the knowledge that he was transporting a significant
quantity of illegal narcotics.
C. Cash on Hand
      The jury heard a number of pieces of evidence which could have indicated
the defendant had knowledge of the drugs. They heard testimony that the
defendant had significantly more cash on hand than a normal driver would have
had if he was making the purported drive listed on the bill of lading. We have
previously held that large quantities of cash can be used to infer knowledge of
large quantities of drugs. See United States v. Ortega Reyna, 148 F.3d 540, 544
(5th Cir. 1998).
D. Trailer Window
      There is also the nature of the shipment which the jury could have
weighed to find knowledge. While both sides agree that the trailer compartment
was locked when the defendant received it, they dispute whether he could have
seen the relative emptiness of the trailer. There was a six by twelve inch
window through which a person could look into the trailer. It was noon when
the defendant was stopped. Whether or not Moreno-Gonzalez could have seen
that the shipment inside was not in fact ‘produce’ but was U-Haul boxes, or that
the shipment only took up one-eighth of the trailer, are factors that the jury
could have weighed. The jury could have determined that given the incomplete
bill of lading that the defendant admitted looking at—including the incomplete

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information on what he was shipping—an innocent person would have looked
inside to verify what he was transporting. Taken together, the jury could have
easily concluded that this story was so unlikely or implausible as to infer
knowledge of the drugs. We have repeatedly “acknowledged that a less-than-
credible explanation for a defendant’s actions is part of the overall
circumstantial evidence from which possession and knowledge may be inferred.”
United States v. Diaz-Carreon, 915 F.2d 951, 955 (5th Cir. 1990)(internal
quotation marks omitted).
II. Safety Valve Reduction
      Moreno-Gonzalez also argues that the judge erroneously denied him a
safety valve reduction for truthfully providing all relevant information regarding
the offense to the government. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a)(5).
The plain language of the statutes and guidelines requires that he truthfully
provide all information and evidence regarding the offense to be eligible for the
reduction. Moreno-Gonzalez simultaneously argues that there was insufficient
evidence to convict him, while also arguing that he gave all the information he
had regarding the offense.
      In this instance, the two arguments are incompatible. A finding of guilt by
the jury diminishes Moreno-Gonzalez’s argument that he was completely
truthful to the government, and undercuts his claim for the safety valve
reduction. While other circuits have reached differing conclusions on this issue,
there are no cases in this circuit holding that a defendant is eligible for the
safety valve reduction under these circumstances, and we decline to extend other
circuits’ precedents here. Compare United States v. Sherpa, 110 F.3d 656, 660-62
(9th Cir. 1996) with United States v. Reynoso, 239 F.3d 143, 149-50 (2d Cir.
2000). Our case law makes clear that the burden is on the defendant to prove his
eligibility for the safety valve reduction. United States v. Flanagan, 80 F.3d 143,
146-47 (5th Cir. 1996). With the record before this court, we find that Moreno-

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Gonzalez has failed to meet that burden, and that the district court finding that
he did not provide truthful information was not clearly erroneous in light of the
jury verdict. See United States v. Ridgeway, 321 F.3d 512, 516 (5th Cir. 2003)
(holding that a determination as to a defendant’s credibility for a safety valve
reduction is a factual finding that is reviewed for clear error).
                                CONCLUSION
      While a jury could have found the defendant not guilty, that is not the
question presented. Given the evidence, there are many avenues or inferences
that the jury could have taken to reach either a guilty or not guilty verdict. Our
review of the evidence cannot include a review of the weight or credibility of the
evidence, as that is solely within the jury’s province. United States v. Hayes, 342
F.3d 385, 389 (5th Cir. 2003). Our statement in one of our earliest cases testing
the sufficiency of knowledge evidence in a drug trafficking conspiracy remains
true: “[T]he jury surely was not compelled to find guilty knowledge; it could well
have rejected inferences which are reasonable to draw from these facts. We hold
only that there was sufficient evidence from which the jury could infer guilty
knowledge on the part of the defendant beyond a reasonable doubt.” United
States v. Del Aguila-Reyes, 722 F.2d 155, 158 (5th Cir. 1983). Looking at the
evidence presented to the jury and the inferences they could draw, there was
sufficient evidence for a jury to find knowledge beyond a reasonable doubt.
Because our inquiry must be “limited to whether the jury’s verdict was
reasonable, not whether we believe it to be correct,” United States v. Williams,
264 F.3d 561, 576 (5th Cir. 2001), we affirm the verdict below.


JACQUES L. WIENER, JR, Circuit Judge: concurring in the judgment only.




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