     Case: 18-50824      Document: 00515293507         Page: 1    Date Filed: 01/31/2020




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

                                                                              FILED
                                    No. 18-50824                       January 31, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ZIECHIDIAS CALEB,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-2260-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Ziechidias Caleb appeals his conviction of possession with intent to
distribute marijuana. He argues that the evidence was insufficient to prove
that he possessed the marijuana or knew of its presence and that there was
insufficient evidence to support venue in the Western District of Texas.
       Regarding the sufficiency of the evidence as to the elements of knowledge
and possession, we consider whether, viewing the evidence and all reasonable


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-50824

inferences in the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt. See United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014)
(en banc). The trial evidence established that a canine at the Sierra Blanca
checkpoint in the Western District of Texas alerted to a suitcase in the luggage
compartment of a Greyhound bus, and the testimony of two border patrol
agents and the bus driver indicated that Caleb’s name was on a Greyhound tag
attached to the suitcase.
      The border patrol agents testified that one of the agents attempted to
locate Caleb aboard the bus first by announcing his name and then by
displaying the suitcase but that Caleb did not respond during either attempt.
The agents testified that after Caleb was located through a row-by-row
inspection of each passenger’s bus ticket, Caleb stated that the suitcase
“look[ed] like” it was his suitcase. Caleb’s failure to come forward when his
name was announced and the suitcase was displayed presented sufficient
circumstantial evidence of consciousness of guilt that the suitcase contained
marijuana and belonged to him. See United States v. Lopez-Monzon, 850 F.3d
202, 206-07 (5th Cir. 2017); United States v. Davis, 993 F.2d 62, 66 (5th Cir.
1993). While Caleb argues that the bus driver was more credible in testifying
that the agents only performed a row-by-row search for Caleb and did not
announce his name or display the suitcase, it is within the sole province of the
jury to evaluate the credibility of witnesses and to choose among reasonable
constructions of the evidence. United States v. Velasquez, 881 F.3d 314, 328
(5th Cir.), cert. denied, 139 S. Ct. 138 (2018).
      Furthermore, possession of a controlled substance may be proven by
either direct or circumstantial evidence, may be actual or constructive, and
may be joint with others. United States v. Ramos-Cardenas, 524 F.3d 600, 605



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                                 No. 18-50824

(5th Cir. 2008). The evidence that the Greyhound tag that was attached to the
suitcase contained Caleb’s name and that Caleb stated the suitcase “look[ed]
like” his suitcase presented a sufficient basis for a rational juror to conclude
beyond a reasonable doubt that the suitcase was Caleb’s and that he had
control over the suitcase and constructively possessed it. See United States v.
Fells, 78 F.3d 168, 170-71 (5th Cir. 1996); Davis, 993 F.2d at 66. The defense’s
theory that someone other than Caleb may have been responsible for the
suitcase also was undercut by evidence that the suitcase was checked as excess
baggage by a passenger who would remain on the same bus as the suitcase,
the excess-baggage fee for the suitcase was paid for shortly after Caleb
purchased his bus ticket, and the suitcase and Caleb both had the same
departure city, Indio, California, and the same final destination, Greenville,
South Carolina. Viewing the evidence and all reasonable inferences in the
light most favorable to the verdict, a rational juror could have found beyond a
reasonable doubt the elements of knowledge and possession. See Fells, 78 F.3d
at 170-71; Davis, 993 F.2d at 66.
      Regarding venue, Caleb argues that the evidence was insufficient to
prove that he possessed the marijuana in the Western District of Texas because
Greyhound retained the care, custody, and control of the suitcase during the
bus trip after it was checked as luggage in California. The relevant question
on de novo review is whether, after considering the evidence in the light most
favorable to the verdict, “a rational jury could conclude that the government
established venue by a preponderance of the evidence.”        United States v.
Romans, 823 F.3d 299, 309 (5th Cir. 2016) (internal quotation marks and
citation omitted).
      Assuming that Caleb’s appellate challenge to venue has not been waived,
there was sufficient evidence to prove by a preponderance of the evidence that



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                                No. 18-50824

Caleb had constructive possession of the suitcase and marijuana while the bus
traveled through the Western District of Texas, as the Greyhound tag on the
suitcase showed that the suitcase belonged to Caleb. See Fells, 78 F.3d at 169-
71; United States v. Catano, 553 F.2d 497, 500 n.3 (5th Cir. 1977).
      AFFIRMED.




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