     Case: 10-40029 Document: 00511300728 Page: 1 Date Filed: 11/22/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 22, 2010
                                     No. 10-40029
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARWAN M. ABUHASAN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-530-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       At a border checkpoint, Marwan M. Abuhasan, a citizen of Jordan, was
found with nearly 400 kilograms of marijuana in the trailer of his truck. He was
convicted by a jury of possessing with intent to distribute more than 100
kilograms of marijuana and falsely representing that he was a citizen of the
United States. He challenges his convictions, arguing that the evidence was
insufficient to establish that he knew the marijuana was in the trailer and that
he misrepresented his citizenship.           He also argues that there was a fatal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40029

variance between the indictment and the Government’s proof on the false-
representation-of-citizenship count.
      Because Abuhasan properly preserved his sufficiency-of-the-evidence
argument by moving for a judgment of acquittal at the close of the Government’s
case and at the close of all the evidence, our review is de novo. See United States
v. Shum, 496 F.3d 390, 391 (5th Cir. 2007). We will uphold the jury’s verdict if
a reasonable trier of fact could conclude from the evidence that the Government
established all of the elements of the offense beyond a reasonable doubt. United
States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). The evidence, both direct
and circumstantial, is viewed in the light most favorable to the jury’s verdict.
United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995). The jury may
choose any reasonable construction of the evidence, and we accept the credibility
decisions that support the verdict. United States v. Mata, 491 F.3d 237, 242 (5th
Cir. 2007). However, we will reverse if the evidence equally or nearly equally
provides circumstantial support theories of innocence and guilt. United States
v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).
      Abuhasan attacks the credibility of the Government’s witnesses, faulting
them for failing to record interviews with Abuhasan and to obtain a written
statement from him. However, the jury was responsible for determining the
weight of the evidence and the credibility of the witnesses and was entitled to
credit the testimony of the Government’s witnesses over Abuhasan’s own
testimony. See United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994).
      Border Patrol agents and Immigration and Customs Enforcement agents
testified that Abuhasan changed his story regarding the loading of the trailer
and whether he or the workers at the loading dock sealed the trailer.
Inconsistent statements to law enforcement officials constitute evidence of guilt.
United States v. Cano-Guel, 167 F.3d 900, 905 (5th Cir. 1999). Moreover, other
circumstantial evidence supported the drug conviction. Video confirmed that no
marijuana was loaded into the trailer with the legitimate cargo and Abuhasan

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                                  No. 10-40029

had control of the trailer from the time it left the loading dock until the
marijuana was found, making it less likely that a third party secreted the drugs
in the trailer. A package of seals nearly identical to the seal given to Abuhasan
by the warehouse employees was found in the truck and one of those seals was
missing, which could create an inference that the seals were intended for use in
drug smuggling. Abuhasan became nervous when agents questioned him about
names stored in his mobile phones, and Abuhasan’s log books contained false
entries.   The amount—nearly 400 kilograms—and value—$701,000—of the
marijuana also supports the conclusion that Abuhasan knew the marijuana was
in the trailer because the jury could reasonably have inferred that he would not
have been entrusted with such extremely valuable cargo without his knowledge.
See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). Abuhasan
points to other evidence that he says could support a conclusion that a third
party secreted the marijuana in the trailer unbeknownst to him, but for a jury
to convict, the evidence does not have to rule out every possible theory of
innocence or be incompatible with every conclusion other than guilt. United
States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). The jury was free to reject
Abuhasan’s theory.      Moreover, the Border Patrol agent’s testimony that
Abuhasan falsely represented his citizenship, credited by the jury, was sufficient
to support the conviction for misrepresenting himself as a U.S. citizen.
      As for the variance claim, the indictment alleges that Abuhasan falsely
represented that he was a U.S. citizen at the Falfurrias, Texas, checkpoint, but
the proof at trial showed that he made the statement at the checkpoint in Sarita,
Texas. Abuhasan did not preserve the error in the district court because he did
not object; thus, we review for plain error. See United States v. Ratner, 502 F.2d
1300, 1302-03 (5th Cir. 1974). Abuhasan, though, cannot succeed because the
place where he made the false statement was extraneous to the offense; thus,
there was no error, plain or otherwise. To secure a conviction, the Government
is not required to prove irrelevant or nonessential facts recited in the indictment

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                                 No. 10-40029

as long as it proves other facts that are charged and that satisfy the essential
elements of the crime. United States v. Robinson, 974 F.2d 575, 578 (5th Cir.
1992). Here, the place where Abuhasan made his false statement is not an
element of the crime. See 18 U.S.C. § 911; United States v. Harrell, 894 F.2d
120, 126 & n.2 (5th Cir. 1990). It was sufficient that the Government prove, as
it did, that Abuhasan falsely declared that he was a U.S. citizen to the Border
Patrol agent.
      The judgment of the district court is AFFIRMED.




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