               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT
                         _____________________

                             No. 01-51029
                         _____________________

UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                versus

MARIA ERNESTINA LEYVA,

                                                 Defendant-Appellant.

__________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                    USDC No. EP-01-CR-247-ALL-DB
_________________________________________________________________
                           August 13, 2002

Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.

PER CURIAM:*

     In January 2001, Maria Leyva’s truck was stopped by customs

agents at the United States port of entry in El Paso, Texas because

a drug-detecting dog alerted to the tires on the truck.      After a

further search, the agents found 96.9 pounds of marijuana concealed

in four metal containers wrapped around the wheel rims inside the

truck’s tires.   A jury ultimately found Leyva guilty of various

offenses in connection with the importation of the marijuana into

the United States. On appeal, Leyva argues that the government did

     *
       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this opinion should not be published and is not precedent except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
not produce sufficient evidence at trial to support the jury’s

verdict on any of the charges against her.     We disagree and affirm

the district court’s judgment.

                                  I

     In view of the fact-intensive nature of an inquiry into the

sufficiency of the evidence, we summarize briefly the events

leading up to the discovery of the marijuana in Leyva’s truck

tires. According to her out-of-court statements1 and the testimony

of her daughter, Leyva lived in Mesquite, New Mexico and had been

employed at a local hospital for eleven years.          Late in the

afternoon of January 23, 2001, Leyva’s then-boyfriend, Miguel

Sanchez, proposed a trip across the border to Juarez, Mexico to

purchase vitamin shots at a pharmacy.      At about 5:00 p.m., Leyva,

Sanchez, and the daughter, Liliana, left Mesquite in Leyva’s 1993

GMC pick-up truck.2   After arriving in Juarez, the three went to a

pharmacy to order the vitamin shots for Sanchez.3     The pharmacist

asked them to return later that evening because the store did not


     1
         Leyva did not testify at trial.
     2
       The truck was registered and titled to Leyva. According to
the truck’s registration produced by Leyva, she purchased the truck
on January 9, 2001. The bill of sale indicated that Paul Petrino,
a used car dealer in Albuquerque, had sold Leyva the truck.
Petrino’s records, however, indicated that he sold the truck to
Luis Sanchez on January 9, 2001. Petrino also testified at trial
that he did not know Leyva and that his signature on Leyva’s bill
of sale had been forged.
     3
      They parked the truck in a public lot in Juarez.      According
to Liliana, two men were washing cars in the lot.

                                  2
have any vitamin shots in stock.

       While they waited, Leyva, Sanchez, and Liliana went to a

nearby restaurant for dinner.            Before sitting down at their table,

Sanchez took the couple’s mobile phone and the keys to the truck

and told Leyva that he was going to the restroom.                Sanchez did not

return to the table until approximately one hour later.4                The three

left the restaurant shortly thereafter.

       Following a brief stop at the pharmacy, Leyva, Sanchez, and

Liliana began their trip back to New Mexico.                At the United States

border, however, a drug-detecting dog alerted to Leyva’s truck.

The customs agent accompanying the dog instructed Leyva, who was

driving, to stop the truck.          Although Leyva saw the agent, she did

not stop the truck until the agent instructed her to stop a second

time.       When the dog scratched at the truck’s tires, Leyva began to

drive forward.          The customs agent again instructed Leyva to stop

the truck and to turn off the ignition.                The agent then questioned

Leyva concerning her citizenship and the purpose of her trip.

Leyva presented her resident alien card and responded that, while

in Juarez, she ate dinner and had the truck washed.                     The agent

testified that Leyva “was visibly nervous” during the interview and

only       made   eye   contact   with   the   agent    when   she   answered   his

questions.        The agent also testified that Leyva “got real nervous,


       4
      According to Liliana, Leyva was angry that Sanchez had left
for such a long time but did not say anything to him when he
returned.

                                          3
and her eyes got big and glossy” as the drug-detecting dog walked

around the car.5     According to the agent, Leyva then turned to

Sanchez and asked: “‘Honey, didn’t they do any work to the tires,

too?’”

      At that point, the agent asked Leyva, Sanchez, and Liliana to

wait while customs agents moved the truck to an inspection area.

According   to   Inspector   Porras,       who   drove   the   truck   into   the

inspection area, the “truck was very wobbly, and the steering was

very unsteady.”6    Inspector Porras also noted that the tires “had

a real hard feeling” when he drove the truck over speed bumps.

      Based on the drug-detecting dog’s behavior, the inspectors

removed one of the tires for further examination.               The inspectors

noted that the tire was abnormally heavy and, using a mobile X-ray

machine, observed a “large cylindrical masses inside the tire.”

The   inspectors   disassembled   the       tire   and   discovered    a   metal

container wrapped around the wheel rim.            Inside the container, the

inspectors found bundles of marijuana.             The inspectors discovered

similar containers in the truck’s other three tires.

      The government charged Leyva with one count of importation of

96.9 pounds of marijuana in violation of 21 U.S.C. §§ 952(a),

960(a)(1), one count of conspiracy to import marijuana in violation

      5
      Another agent similarly observed Leva “beg[i]n to physically
tremble” while she was questioned.
      6
       In his report, however, Inspector Porras indicated that he
noticed the wobbly steering only after the agents had cut open the
tire.

                                       4
of 21 U.S.C. § 963, one count of possession of marijuana with

intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one

count of conspiracy to possess marijuana with intent to distribute

in violation of 21 U.S.C. § 846.

     At trial, Leyva moved for a judgment of acquittal on all

charges at the close of the government’s case and at the close of

all of the evidence.   The district court denied both motions, and

the jury returned a verdict of guilty on all charges.   The district

court sentenced Leyva to four concurrent terms of twenty-seven

months in prison, followed by four concurrent three-year terms of

supervised release.

                                 II

     In this appeal, Leyva challenges the sufficiency of the

government’s evidence against her on each of the four charges in

the indictment.    We review de novo the district court’s denial of

a judgment of acquittal under the same standard applied by the

district court:    Viewing the evidence in the light most favorable

to the government, we must determine whether a rational jury could

find that the government established the essential elements of each

offense beyond a reasonable doubt.     See United States v. Gourley,

168 F.3d 165, 168-69 (5th Cir. 1999); Jackson v. Virginia, 443 U.S.

307, 319 (1979).

     To establish that Leyva unlawfully imported marijuana into the

United States, the government must prove beyond a reasonable doubt

that she (1) “played a role” in bringing the marijuana into the

                                   5
United States from Mexico, (2) knew that marijuana is a controlled

substance, and (3) knew that the marijuana would enter the United

States.       United States v. Medina, 161 F.3d 867, 873 (5th Cir.

1998).        In    contrast,    to    establish     possession     with   intent    to

distribute, the government must prove beyond a reasonable doubt

that Leyva (1) knowingly (2) possessed marijuana (3) with an intent

to distribute it.          See United States v. Ortega Reyna, 148 F.3d 540,

543-44 (5th Cir. 1998) (per curiam).                In the instant case, the only

question is whether the government presented sufficient evidence to

prove that Leyva knew that the ninety-six pounds of marijuana was

concealed in the tires of her truck.7                       Cf. United States v.

Cano-Guel,         167   F.3d   900,   904   (5th    Cir.   1999)   (“To    establish

[importation or possession with intent to distribute marijuana],

‘the       government     must    adduce     sufficient      evidence      of    guilty

knowledge.’” (citation omitted)).

       Because the marijuana at issue in this case was found in a

hidden compartment in Leyva’s truck, the government may not simply

rely on Leyva’s possession or constructive possession of the

vehicle to demonstrate her guilty knowledge. See id. Instead, the

government         must    present     additional      circumstantial           evidence

indicating that Leyva was actually aware of the illegal drugs in

the vehicle and was not merely an unwitting participant in a

smuggling operation.            See id.

       7
      Leyva challenges the two associated conspiracy charges on the
same basis.

                                             6
     The government argues that, in addition to the fact that Leyva

owned and was driving the truck in which the marijuana was found,

the jury could reasonably infer that Leyva knew that marijuana was

concealed in the truck’s tires based on (1) her visible nervousness

during the stop, (2) her failure to stop the truck at the customs

agent’s request, (3) evidence that the modified tires caused the

truck’s steering to become unsteady, and (4) evidence that the

title to the truck had been forged.           Leyva responds that the

evidence also supports her contention that Sanchez changed the

tires on the truck, without her knowledge or permission, when he

left Leyva and Liliana at the restaurant in Juarez.       She therefore

argues that she is entitled to a judgment of acquittal because the

evidence for and against her is in equipoise.8

     After carefully reviewing the record, we must conclude that

the government presented sufficient evidence to allow a reasonable

jury to find beyond a reasonable doubt that Leyva was aware of the

marijuana   concealed   in   the   truck   tires.   As   the   government

observes, the testimony at trial indicated that Leyva was not only

extremely nervous when questioned by customs agents, but she also

refused to stop the truck on two occasions in an apparent attempt




     8
       See United States v. Cavin, 39 F.3d 1299, 1305 (5th Cir.
1994) (“[I]f    the   evidence  gives   equal   or  nearly   equal
circumstantial support to a finding of guilty and a finding of not
guilty, reversal [of the conviction] is in order.”).

                                    7
to avoid investigation.9    Perhaps more tellingly, the customs agent

testified that, as the drug-detecting dog began to scratch at the

truck’s tires, Leyva asked Sanchez whether “they [did] any work to

the tires, too.”10 This self-serving question supports an inference

that Leyva was aware that the truck’s tires had been altered.

     In   addition,   the   government   presented   evidence   that   the

modified wheels perceptibly affected the handling of the truck.

Specifically, the government’s expert witness testified that the

modified wheels would likely cause the steering wheel to shake, and

Inspector Porras testified that the truck’s steering was, in fact,

impaired even at low speeds.        During the investigation at the

border, however, Leyva told the customs agents that the truck drove

smoothly.   Based on this evidence, the jury could reasonably infer

that Leyva was aware of modifications to the tires and attempted to

hide the modifications from customs officials.11

     9
      We have held that unusual nervousness during questioning is
evidence that the defendant was aware of the presence of concealed
drugs. See, e.g., United States v. Crooks, 83 F.3d 103, 107 (5th
Cir. 1996); United States v. Casilla, 20 F.3d 600, 607 (5th Cir.
1994). Leyva’s failure to make eye contact during questioning is
also some evidence of guilty knowledge.      See United States v.
Price, 869 F.2d 801, 803 (5th Cir. 1989).
     10
       Although Liliana testified that Leyva asked Sanchez “‘What’s
going on with the tires, babe?’” the jury was free to believe the
customs agent’s account of Leyva’s statement. See United States v.
Kelley, 140 F.3d 596, 607 (5th Cir. 1998).
     11
       As noted above, Leyva attempted to undermine the credibility
of the agent’s testimony and presented expert testimony that it
would be possible to balance the modified truck wheels. Liliana
also testified that Leyva drove the truck under twenty-five miles
per hour between the parking lot and the border.      Nevertheless,

                                   8
     Finally, the jury was perfectly free to reject the explanation

and account of the events as presented by Liliana.   We cannot sweep

away the fact that the jury observed her demeanor and was in the

best position to make credibility choices and to draw inferences

from the circumstantial evidence in this disputed case.       Thus,

viewing the record as a whole in the light most favorable to the

government, we conclude that the government presented sufficient

evidence to support the jury’s verdict of guilty on all charges.

The judgment of the district court is therefore

                                                          AFFIRMED.




the jury was free to reject this evidence and to accept the
testimony of the customs agent and the government’s expert witness.

                                9
