                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                     March 27, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-41473


                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                  versus

                            IRMA SALAZAR,

                                                  Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Texas
                          (5:04-CR-2245-ALL)


Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     Convicted for bulk-cash smuggling and evading a currency-

reporting   requirement,   Irma    Salazar   claims:    evidence       was

erroneously admitted; and the evidence is not sufficient to support

the jury verdict.    AFFIRMED.

                                    I.

     Salazar was stopped by a Border Patrol Inspector while driving

a pickup truck into Mexico on the Lincoln-Juarez Bridge.            As is

customary, the Inspector asked if she was transporting firearms,




     *
      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this opinion should not be published and is not precedent except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.
ammunition, or over $10,000 in cash, currency, or money orders out

of the United States.     She responded in the negative.

     The    Inspector   then   looked   at   the   gas-tank    area    of   the

vehicle’s undercarriage, where he observed unusual conditions.               As

a result, he referred Salazar’s vehicle to the secondary inspection

area.   There, the Inspector inserted a fiber-optic scope into the

gas tank.    Using the scope, he and another Inspector saw rust and

welding marks, which they agreed indicated something was in the gas

tank.   Salazar did not inquire what the Inspectors were doing,

which one testified as being unusual in his experience.                      In

response to questioning, Salazar stated she had not had any repairs

done to the vehicle and was traveling from Chicago, Illinois, to

Guadalajara, Mexico.

     Further inspection revealed a trap door in the gas tank, which

concealed   a   compartment    containing    $418,300   in    United   States

currency inside a plastic bag and bundled with rubber bands.                One

bundle was labeled with a note in Spanish:          “Look, please deliver

... to my lady [or wife]”.        The installation of the compartment

caused the gas tank’s capacity to be reduced by approximately half.

     Salazar was charged with:      transporting monetary instruments

of more than $10,000 outside the United States from a place within,

in violation of 31 U.S.C. § 5332(a) and 18 U.S.C. § 2; and evading

a currency reporting requirement, in violation of 31 U.S.C. §§

5316(a)(1)(B), 5322(a), and 18 U.S.C. § 2.         A jury found her guilty


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on both counts.    She was sentenced, inter alia, to 30 months’

imprisonment for each count, to be served concurrently.

                                 II.

     The challenges to evidentiary admissibility and sufficiency

are addressed in turn.   Salazar fails to show:       the admission of

evidence, based on a calculation she claims is arbitrary, was

reversible plain error; and the evidence was insufficient to prove,

beyond a reasonable doubt, that she knew the currency was concealed

in the vehicle.

                                   A.

     At trial, an Immigration and Customs Enforcement Agent, who

had interviewed Salazar post-arrest about her trip from Illinois,

testified regarding the increased number of fuel stops required due

to the altered/reduced gas tank.         He relied on a related map,

basing his calculations on gas mileage of 17.5 miles-per-gallon —

the average of the unchallenged city and highway gas mileages for

Salazar’s   vehicle.   The   testimony    was   intended   to   support   a

reasonable inference that Salazar knew the vehicle’s tank capacity

had been altered/reduced.

     Salazar contends the district court abused its discretion in

allowing the Agent to rely on the 17.5 figure because it is

arbitrary and does not reflect the largely highway nature of her

route from Aurora, Illinois, to Laredo, Texas.       She maintains she

objected to the figure at trial.    The Government counters: Salazar


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did not object to the use of the figure; and the district court did

not err in admitting the testimony and map.

      When the Agent testified, Salazar objected to his testimony

regarding where, given the vehicle’s reduced fuel capacity, she

would be forced to stop, but did not object to the gas-mileage

calculation upon which that testimony was based.                    It was not until

the next day, after the Government had rested, and had then offered

the map in evidence, that Salazar objected to the 17.5 miles-per-

gallon figure.       Salazar claimed it should have been 20 miles-per-

gallon. Needless to say, this objection should have been made when

the Agent testified the day before.                      Salazar did not present

evidence.     Therefore, the testimony had ended.                She did not ask to

re-open it.

      As a result, our review is only for plain error.                           United

States v. Thompson, 454 F.3d 459, 464 (5th Cir.), cert. denied, 127

S.   Ct.    602   (2006)    (when       no   objection    is    made   at   trial,   an

evidentiary       ruling    is    reviewed       only   for    plain   error).       “To

demonstrate plain error, [Salazar] must show that the district

court committed an error that was clear or obvious and that

affected [her] substantial rights.”                Id.    Salazar fails to do so.

(Therefore, we need not proceed to whether it would have been

reversible error.          Id.)

      The    17.5    figure       was    within    the    mileage      range   Salazar

acknowledged as accurate for the vehicle.                      That a more precise

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figure tailored to the route’s percentage of urban and rural areas

could have been used does not make the 17.5 figure erroneous.

Moreover, even if the Agent’s testimony had been based on the

higher highway gas mileage, it would have resulted in just one

fewer fuel stop being required — five instead of six. Furthermore,

on cross-examination, the Agent acknowledged the 17.5 figure was

chosen because it was the average of the city and highway gas

mileages and not because it reflected the driving conditions from

Aurora to Laredo.

                                    B.

     Salazar’s having properly moved at trial for judgment of

acquittal, her sufficiency challenge is “reviewed in the light most

favorable to the verdict, inquiring only whether a rational juror

could   have   found   each   element       of   the   crime   proven   beyond   a

reasonable doubt”.      United States v. Jennings, 195 F.3d 795, 801

(5th Cir. 1999). “To support a conviction, the evidence need not

exclude every hypothesis of innocence, so long as a reasonable

trier of fact could find that the evidence establishes guilt beyond

a reasonable doubt.”     United States v. Diaz-Carreon, 915 F.2d 951,

953-54 (5th Cir. 1990) (emphasis added).                 “‘A jury is free to

choose among reasonable constructions of the evidence.’”                  Id. at

954 (quoting United States v. Bell, 678 F.2d 547, 549 (Former 5th

Cir. 1982) (en banc), aff’d, 462 U.S. 356 (1983)).




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     To obtain a conviction for bulk-cash smuggling, the Government

had to prove Salazar,

          with the intent to evade a currency reporting
          requirement   under   [31  U.S.C.   §]   5316,
          knowingly conceal[ed] more than $10,000 in
          currency or other monetary instruments on
          [her] person ... or in any conveyance ... and
          transport[ed] or transfer[red] or attempt[ed]
          to transport or transfer such currency or
          monetary instruments from a place within the
          United States to a place outside of the United
          States.

31 U.S.C. § 5332(a)(1).

     To obtain a conviction for evading the currency-reporting

requirement, the Government had to prove:    (1) Salazar knowingly

transported or was about to transport more than $10,000 in currency

at one time from a place in the United States to a place outside

it; (2) she knew she had a legal duty to file a report of the

amount of currency transported; and (3) she knowingly failed to

file the report, with intent to violate the law.     Fifth Circuit

Pattern Jury Instructions (Criminal) § 2.98 (2001); 31 U.S.C. §

5316; see also United States v. Berisha, 925 F.2d 791, 795 (5th

Cir. 1991) (To establish guilt under § 5316(a), “the government

must show that the defendant had actual knowledge of the currency

reporting requirement and voluntarily and intentionally violated

that known legal duty”.).

     Salazar does not dispute either that more than $10,000 in

currency was found in a vehicle she owned and was driving or that

she knew of the reporting requirement.   Rather, she contends only

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that the Government’s evidence could not have led a reasonable jury

to find, beyond a reasonable doubt, that she knew the currency was

in the vehicle, and thereby knowingly concealed, transported, and

failed to report the currency as required by 31 U.S.C. §§ 5316(a)

and 5332(a)(1).

     Although a jury “‘may infer knowledge of the presence of

contraband from the exercise of control over the vehicle in which

it is concealed[,] ... additional circumstantial evidence that is

suspicious in nature or demonstrates guilty knowledge is required’”

when the contraband is in a hidden compartment in the vehicle.

United States v. Gamez-Gonzalez, 319 F.3d 695, 698 (5th Cir. 2003)

(quoting United States v. Jones, 185 F.3d 459, 464 (5th Cir.

1999)).   Possible   examples   of       such    evidence   are   conflicting

statements to law enforcement, an implausible story, possession of

large amounts of cash, alteration of the vehicle, dramatically

reduced fuel capacity, and a calm or indifferent demeanor during

the dismantling of the gas tank.         See United States v. Martinez-

Lugo, 411 F.3d 597, 599 (5th Cir.), cert. denied, 126 S. Ct. 464

(2005); United States v. Resio-Trejo, 45 F.3d 907, 913 (5th Cir.

1995).

     The circumstantial evidence, viewed in the requisite light

most favorable to the verdict, was sufficient for a jury to find,

beyond a reasonable doubt, that Salazar knew the currency was

concealed in her vehicle’s gas tank.            Her knowledge was supported


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by:   her inconsistent statements to law enforcement regarding

recent repairs made to the vehicle by her brother-in-law; her

taking the vehicle to her brother-in-law for repairs, rather than

a dealer when it was under warranty; the vehicle’s decreased fuel

capacity, resulting from installation of the compartment; her

purchase of the vehicle from her sister (whose husband had been

arrested for bringing cocaine into the United States in a vehicle’s

gas tank) in small monthly payments, when the sister allegedly sold

the vehicle because she needed money; the lack of explanation for

the vehicle’s accumulation of almost 20,000 miles in fewer than

four months; her failure to question the insertion of the fiber-

optic scope into the gas tank; the value of the currency; and the

note attached to it.

                               III.

      For the foregoing reasons, the judgment is

                                                        AFFIRMED.




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