                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                         In the United States Court of Appeals                             June 6, 2007
                                 For the Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk

                                           No. 06-51123


UNITED STATES OF AMERICA,

               Plaintiff–Appellee,

                       v.

VICTORIA LYNN CERNA, also known as Victoria Lynn Fox, also known as Victoria Lynn
Doggett; LIL-AY-RAMEOQUE SANTOS, also known as Santos Cerna,

               Defendants–Appellants.



                            Appeal from the United States District Court
                                for the Western District of Texas
                                       No. 4:05-CR-170-4


Before KING, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

       A jury convicted Santos Cerna and Victoria Cerna of conspiracy to possess with intent

to distribute marijuana and four counts of aiding and abetting possession with intent to

distribute marijuana. On appeal, Santos and Victoria challenge the sufficiency of the

evidence. We affirm.

       We review a defendant’s claim of insufficient evidence to determine “whether, after

       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”1 “The

evidence need not exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and the jury is free to choose among

reasonable constructions of the evidence.”2

       Viewed in the light most favorable to the prosecution, the evidence shows that Santos

and Victoria facilitated the transportation of several vehicles across the U.S.–Mexico border

from March 2005 through early August 2005. Many of these vehicles were loaded with large

amounts of marijuana. On several occasions during the five-month period, Santos and

Victoria recruited individuals to travel with them to Mexico for the purpose of driving

vehicles into the United States. After Santos, Victoria, and those they recruited had traveled

to towns along the border, they would often wait until the vehicles were ready to be moved,

at which point the recruits would be asked to drive the vehicles across the border. Santos

and Victoria would cross in a separate vehicle a minute or two ahead of the driver of the

other vehicle and expected to reunite with that driver after crossing the border. Santos and

Victoria generally told the drivers to give false information to border agents if questioned

about the purpose of their trip to Mexico. On five separate occasions, agents found

marijuana hidden in the vehicles those recruited by Santo and Victoria had driven across the



       1
        Jackson v. Virginia, 443 U.S. 307, 319 (1979).
       2
        United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).

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border. Additionally, there was evidence that at a point early in the alleged five-month

conspiracy, Santos and Victoria were told that at least one vehicle they had arranged to bring

across the border was loaded with marijuana.

       Santos and Victoria argue that they are entitled to acquittal because the Government

failed to provide sufficient evidence for a rational trier of fact to find an essential element

of both the conspiracy charge and the aiding and abetting charges beyond a reasonable doubt.

Knowledge is an essential element of both crimes, and Santos and Victoria each argue that

there is insufficient evidence that they knew the vehicles contained marijuana. “[P]roof that

possession of contraband is knowing will usually depend on inference and circumstantial

evidence.”3 The question is not whether any single piece of circumstantial evidence is

conclusive when considered in isolation, but whether the evidence as a whole is sufficient

to constitute conclusive proof.4

       When viewed as a whole, the evidence could lead a rational trier of fact to find the

essential elements of the conspiracy and aiding and abetting charges beyond a reasonable

doubt. Likewise, a rational trier of fact could reject the defendants’ implausible assertion

that they were unaware that the vehicles contained marijuana. We AFFIRM.




       3
        United States v. Richardson, 848 F.2d 509, 514 (5th Cir. 1988).
       4
        See id.

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