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

                                                FILED
                                                                 September 18, 2009
                                No. 08-51024
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

PRIAMO PEDRO MENA ABREU,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:07-CR-1974-1


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
      Priamo Pedro Mena Abreu (Abreu) is appealing his conviction for
possession with intent to distribute 100 kilograms or more of marijuana for
which he received a sentence of 60 months of imprisonment. Abreu argues that
the Government failed to provide sufficient evidence to prove beyond a
reasonable doubt that he knowingly possessed the marijuana found in his
tractor-trailer. He argues that his control of the vehicle in which the drugs were



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-51024

found was not sufficient to prove his knowledge and that the circumstantial
evidence introduced by the Government did not raise a reasonable inference of
knowledge on his part.
      The Government argues that Abreu had exclusive control of the tractor-
trailer and that his guilty knowledge could be inferred from his suspicious and
implausible conduct. Abreu replies that the drugs could have been loaded into
the trailer by a third party.
      In proving the offense of possession with intent to distribute marijuana,
the Government was required to show that Abreu “(1) knowingly (2) possessed
marijuana (3) with intent to distribute it.” See United States v. Martinez-Lugo,
411 F.3d 597, 599 n.1 (5th Cir. 2005) (quotation marks omitted). The knowledge
element in a possession case can be inferred from control of the vehicle in which
the drugs are found. United States v. Pennington, 20 F.3d 593, 598 (5th Cir.
1994). However, if the drugs are concealed, control alone is not sufficient to
prove knowledge. Id. “[A]dditional circumstantial evidence that is suspicious
in nature or demonstrates guilty knowledge is required.” United States v. Jones,
185 F.3d 459, 464 (5th Cir. 1999).
      Assuming that the drugs were “hidden” from Abreu, there was substantial
additional evidence that raised a reasonable inference of Abreu’s knowledge of
the presence of the drugs in the trailer. The evidence reflected that the trailer
was empty when Abreu arrived at Las Cruces, New Mexico, that he was present
during the entire loading process, and that he closed the trailer doors when the
loading was finished. These facts raised a reasonable inference that Abreu had
continual control over the contents of the truck and rebuts any inference that it
was a third party who placed the drugs in the trailer at the loading facility.
See United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990). Further,
the evidence of the substantial amount of marijuana found in boxes that had not
been observed in the area of the loading facility contradicted any inference that



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the drugs were in the loading area when Abreu arrived and that someone
surreptitiously loaded them into his trailer.
      An inference of guilty knowledge also arose from the fact that it took
Abreu over six hours to transport the load to the Sierra Blanca checkpoint, a
two-to-three hour trip, and that he provided no full explanation for the length
of his trip. This evidence raised an inference that the drugs were placed in the
trailer after Abreu left the loading area in Las Cruces.
      The evidence that Abreu traveled at a financial loss from Rhode Island to
New Mexico without carrying a load also raised a question regarding his actual
motive for making the trip. Abreu’s assertion that he could not safely carry the
standard 840-bag load raised an inference of guilt, especially in light of his
refusal to weigh the truck and load, the routine followed by other truckers in
determining their trailer’s capacity.
      Abreu’s exhibition of nervous behavior at the checkpoint, his failure to stop
his truck upon the initial command and the subsequent rolling of his vehicle
while Agent Bobbitt was speaking to him, in addition to his lack of attention to
Bobbitt, also raised an inference of guilty knowledge. See Diaz-Carreon, 915
F.2d at 954.
      This court will uphold the jury’s verdict if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Viewing the evidence in the light most favorable to the jury verdict, a reasonable
trier of fact could have concluded beyond a reasonable doubt that Abreu had
knowledge of the marijuana stored in his trailer and that he possessed it with
the intent to distribute the drugs. See United States v. Resio-Trejo, 45 F.3d 907,
910-11 (5th Cir. 1995). Abreu’s conviction is AFFIRMED.




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