                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         October 2, 2003
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 02-50920


     UNITED STATES OF AMERICA

                           Plaintiff - Appellee

     v.

     JAVIER ANDRADE

                           Defendant - Appellant


           Appeal from the United States District Court
                 for the Western District of Texas
                      No. EP-02-CR-185-ALL-PRM


Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*

District Judge.

PER CURIAM:**

     After a jury trial, Defendant Javier Andrade was convicted

of: (1) conspiracy to import marijuana under 21 U.S.C. §§ 963,

952(a), and 960(a)(1); (2) aiding and abetting the importation of

marijuana under 21 U.S.C. §§ 952(a), 960(a)(1), and 18 U.S.C.

§ 2; (3) conspiracy to possess marijuana with an intent to

     *
          District Judge for the Northern District of Texas,
sitting by designation.
     **
          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that this opinion should not be published and is not precedent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.

                                  1
distribute the same under 21 U.S.C. §§ 846 and 841(a)(1); and

(4) aiding and abetting the possession of marijuana with an

intent to distribute the same under 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2.    On appeal, Andrade challenges the sufficiency of the

evidence supporting each conviction.

       “In reviewing the sufficiency of the evidence, this court

must determine whether any reasonable trier of fact could have

found that the evidence established guilt beyond a reasonable

doubt.”    United States v. Casilla, 20 F.3d 600, 602 (5th Cir.

1994).    “In evaluating such a challenge, we must examine the

evidence as a whole in the light most favorable to the verdict

and must afford the government the benefit of all reasonable

inferences and credibility choices drawn therefrom.”    United

States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (following

Glasser v. United States, 315 U.S. 60, 80 (1942)).

       As we explained in United States v. Medina:

       To establish a conspiracy under either 21 U.S.C. § 846
       or § 963, the Government must prove beyond a reasonable
       doubt (1) that an agreement existed between two or more
       persons to violate the applicable narcotics law (i.e.,
       a conspiracy existed), (2) that each alleged
       conspirator knew of the conspiracy and intended to join
       it and (3) that each alleged conspirator participated
       (i.e., joined) voluntarily in the conspiracy.

161 F.3d 867, 872 (5th Cir. 1998); see also Casilla, 20 F.3d at

603.    Each element may be inferred from circumstantial evidence;

that is, the “agreement may be inferred from a ‘concert of

action’” and “[k]nowledge of a conspiracy and voluntary

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participation . . . may be inferred from a ‘collection of

circumstances.’” Id.    Once the government proves that the

defendant was involved in a conspiracy to import marijuana, the

jury “[is] entitled to infer from the quantity [of marijuana]

involved that the defendant [is] also guilty of participation in

[a] conspiracy to possess the marijuana with intent to distribute

it.”    United States v. Williams-Hendricks, 805 F.2d 496, 503-04

n.5 (5th Cir. 1986).

       At trial, the Government presented evidence that Andrade

entered the United States on May 24, 2001.    Andrade’s answers to

a border patrol agent’s routine questions appeared “strange,” and

the officer directed Andrade to enter secondary inspection for

more questioning.    At that time, the first agent’s shift was

ending and a second agent came on duty and directed a white van,

which had been immediately behind Andrade’s car in one of the

vehicular entry lanes, to enter secondary inspection.    The agents

discovered that eighty-eight pounds of marijuana had been loaded

into the white van’s gas tank through a trap door in the floor of

the vehicle.     Later, they learned that Andrade owned the white

van and that Manuel Rueda, the van’s driver, was Andrade’s

cousin.    When Andrade was arrested, he asked the agents for a

signed “deal” and, when they told him that they lacked the

authority to make a deal, he responded that he would “do” five

years for his crimes.


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     We hold that the jury could reasonably infer that Andrade

knowingly and intentionally conspired to assist Rueda, by

diverting the border patrol’s attention away from the white van

(the “load car”1), based on: (1) the fact that Andrade and Rueda

are cousins,2 (2) Andrade’s ownership of the van, (3) Andrade’s

strange answers to the border patrol agent, (4) the fact that

Andrade’s car immediately preceded the van in the entry lane, and

(5) Andrade’s apparently incriminating statements upon arrest.

In addition, the jury could also infer, from the large load of

marijuana in the van’s gas tank, that Andrade was present to

assist Rueda if he ran out of gas while importing the marijuana.

Andrade argues that this latter inference is improper without

additional technical evidence regarding the van’s gas mileage and

remaining fuel capacity.   His argument fails, however, because

juries may “use their common sense” in evaluating the evidence

presented at trial.   United States v. Lechuga, 888 F.2d 1472,

1476 (5th Cir. 1989) (citations omitted).    Based on the large

volume of marijuana found in the van’s gas tank, it was also


     1
          See United States v. Reyes, 227 F.3d 263, 266 n.1 (5th
Cir. 2000) (explaining that“[l]oad vehicles carry the principal
shipment of narcotics, whereas scout vehicles [may] serve as
decoys by distracting border agents”).
     2
          Andrade’s argument that the jury should not have
considered this relationship lacks merit. See Williams-
Hendricks, 805 F.3d at 503 (explaining that “when inferences
drawn from the existence of a family relationship . . . are
combined with other circumstantial evidence, there may be
sufficient evidence to support a conspiracy conviction”).

                                 4
reasonable for the jury to conclude that the conspiracy extended

to distributing the marijuana once the two men entered the United

States.     Thus, we uphold the jury’s verdicts with respect to the

two conspiracy charges in counts one and three of the indictment.

     On appeal, Andrade concedes that, in this circuit, evidence

supporting a conspiracy conviction is sufficient to support a

conviction for aiding and abetting.    See Casilla, 20 F.3d at 603.

Therefore, we uphold the jury’s verdicts with regard to the

second and fourth counts of the indictment.

     For the foregoing reasons, Andrade’s convictions are

AFFIRMED.




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