     Case: 11-40023     Document: 00511515626          Page: 1    Date Filed: 06/21/2011




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

                                                 FILED
                                                                            June 21, 2011
                                     No. 11-40023
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOE CRUZ, III,

                                                   Defendant - Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:10-CR-667-1


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
        Joe Cruz, III, challenges his jury conviction for possession, with intent to
distribute, 10.02 kilograms of methamphetamine, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(A). (He was sentenced, inter alia, to 292 months imprisonment.)
        Cruz, who testified, maintains there was insufficient evidence to support
his conviction because the Government failed to prove he knew the vehicle he
was driving contained drugs. Because Cruz moved for a judgment of acquittal
at the close of the Government’s case, and again at the close of all the evidence,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 11-40023    Document: 00511515626       Page: 2   Date Filed: 06/21/2011

                                   No. 11-40023

his sufficiency-of-the-evidence challenge is preserved for review. F ED. R. C RIM.
P. 29(a).
      Accordingly, Cruz’ challenge is reviewed for “whether, considering all the
evidence in the light most favorable to the verdict, a reasonable trier of fact could
have found that the evidence established guilt beyond a reasonable doubt”.
United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).             Direct and
circumstantial evidence are weighed equally, and it is not necessary that the
evidence exclude every reasonable hypothesis of innocence. Id. “All credibility
determinations and reasonable inferences are to be resolved in favor of the
verdict.” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995). The
Government’s burden was to prove, beyond a reasonable doubt, that Cruz had:
knowledge; possession of a controlled substance; and, intent to distribute that
substance. See, e.g., United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001).
      “The knowledge element in a possession case can rarely be established by
direct evidence.” United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008)
(citation and internal quotation marks omitted). “Knowledge can be inferred
from control of the vehicle in some cases; however, when the drugs are hidden,
control over the vehicle alone is not sufficient to prove knowledge.” Id. (citation
and internal quotation marks omitted). If hidden, “proof of the defendant’s
knowledge depends on inference and circumstantial evidence”. United States v.
Garcia-Flores, 246 F.3d 451, 454 (5th Cir. 2001).             Our court requires
circumstantial evidence “that is suspicious in nature or demonstrates guilty
knowledge”. Mendoza, 522 F.3d at 489 (citation and internal quotation marks
omitted). Guilty knowledge may be inferred from: failure to make eye contact;
inconsistent statements; implausible explanations; and the amount of drugs
being large enough such that it is irrational to believe the drugs would have been
entrusted to a party who is not a member of the conspiracy. E.g., United States
v. White, 219 F.3d 442, 447-48 (5th Cir. 2000); United States v. Ortega Reyna,
148 F.3d 540, 544 (5th Cir. 1998).

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                                 No. 11-40023

      Viewing the evidence in the requisite light most favorable to the verdict,
a reasonable juror could have found, beyond a reasonable doubt, that Cruz knew
he was transporting drugs. A reasonable juror’s inference of such knowledge
was supported by: Cruz’ avoiding eye contact with law-enforcement agents; and
his making several inconsistent statements to them. A reasonable juror was also
permitted to find Cruz’ explanation—that he believed he was illegally
transporting currency, not drugs—implausible, in the light of: his admission
that he knew the woman who had provided him with the vehicle regularly
transported drugs from Mexico to Dallas; and testimony that drugs are generally
sent northbound and cash southbound. In addition, Cruz does not challenge
testimony at trial that he was entrusted with transporting a significant amount
of drugs of substantial value.
      AFFIRMED.




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