                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                              No. 91-8414



                      UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,


                                 VERSUS


                    AMADO RIGOBERTO ROSAS-FUENTES,

                                                  Defendant-Appellant.




             Appeal from the United States District Court
                   For the Western District of Texas
                           (August 19, 1992)


Before GOLDBERG, JONES and DEMOSS, Circuit Judges

DEMOSS, Circuit Judge:

     Appellant,    Amado   Rigoberto   Rosas-Fuentes   (Rosas)   and   his

companion, Santiago Valdez (Valdez) were charged in a two-count

indictment with (1) conspiracy to possess with intent to distribute

more than 20 kilograms of marijuana, in violation of 21 U.S.C. §§

841(a)(1) and 846, and (2) possession with intent to distribute

more than 20 kilograms of marijuana, in violation of 21 U.S.C. §

841(a)(1).    Valdez pleaded guilty.      Following a bench trial, the

court found Rosas guilty of both counts. The court sentenced Rosas

to 33 months imprisonment and 3 years of supervised release on each

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count to be served concurrently.       In this appeal, Rosas complains,

among other things, that the evidence is insufficient to support

his conviction.    After thorough review of the record, we find that

there is insufficient evidence to support Rosas' conviction and,

therefore, do not reach Rosas' other contentions.

                                 FACTS

     On October 17, 1990, Valdez and his passenger, Rosas, arrived

at the U.S. Border Patrol checkpoint in Eagle Pass, Texas, in a

pickup truck.     Border Patrol Agent Ronald Marcell (Marcell) asked

them whether they were United States citizens.        Valdez responded

that they had to go back to Eagle Pass because Rosas had forgotten

his identification "card" and his wallet.        Both Valdez and Rosas

said that they were born in Eagle Pass.         When asked about their

destination, Rosas told Marcell that Valdez was giving him a ride

to Carrizo Springs to meet someone who could tell him where in San

Antonio he could find a certain car part.      Valdez was then going to

drop him off in San Antonio to purchase the part.      At trial, Valdez

admitted that he was travelling to Ft. Worth.         Because both men

appeared nervous and anxious to leave the checkpoint, Marcell

referred them to the secondary inspection area.

     Border Patrol Agents Mendoza and Santini handled the secondary

inspection.     Mendoza asked for and received Valdez' consent to

search the vehicle.    The agent noticed a gap between the bed of the

truck and the cab.    In the space, the agent saw two gasoline tanks,

one that was dirty and one that was clean.          Agent Mendoza then

tapped the tanks, and the extra tank did not make the usual hollow


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sound. Mendoza crawled under the truck and observed that the extra

tank was inadequately secured with loose bolts that had tool marks

on them, as if the tank had been recently removed and replaced.

Agent Santini then used a piece of wire and ran it down the filler

line of the tank.   The wire met an obstruction about 12 inches down

the line.   Agent Marcell joined the search and loosened the filler

line under the truck.    He inserted his pen, which immediately met

a solid obstruction.    At that time, the agents were fairly certain

that the tank contained some type of illegal contraband.      During

the search at secondary, Agent Santini testified that Rosas asked

several times if they had found anything.    Record Vol. 3 at p. 74.

     Marcell testified that he arrested Rosas and Valdez and

advised them of their Miranda rights while still at the checkpoint.

Marcell then transported Rosas alone to the Border Patrol Station

in El Paso.   Marcell said that on the way to the Station, Rosas

asked him in Spanish if they had found anything in the tank.

Marcell responded in Spanish, "'Well, you tell me.'"          Rosas'

response was, "'Well, yes.'"    Record Vol. 3, at p. 46.   All of the

agents testified that both men appeared nervous, that is, with

their hands in their pockets, heads down, making no eye contact

with the agents.    Agent Mendoza testified that in the past he had

seen Rosas go through this checkpoint, and his demeanor had been

"pretty bold" in contrast to this day.      Record Vol. 3, at p. 11.

      At the Station, the agents removed the spare tank and saw

that someone had cut open the upper part of the tank and closed it

with duct tape.      Inside the tank they found 24 packages of


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marijuana, weighing 21,321 kilograms or about 53 pounds.

                              STANDARD OF REVIEW

       The government argues that the defendant failed to renew his

motion    for   acquittal     at    the   close   of   all   of   the   evidence,

therefore,      he   waived   his   sufficiency    review    on   appeal.    The

government contends that we should reverse only for plain error or

"manifest miscarriage of justice." U.S. v. Ruiz, 860 F.2d 615, 617

(5th Cir. 1988).        This standard applies, however, only when the

defendant fails to move for acquittal at the end of a jury trial.

Rosas had a bench trial, and his plea of not guilty serves as a

motion for acquittal, therefore, error is preserved.                     U.S. v.

Pitts, 428 F.2d 534, 535 (5th Cir.), cert. denied, 400 U.S. 910, 91

S.Ct. 154, 27 L.Ed.2d 149 (1970), citing, Hall v. U.S., 286 F.2d

676 (5th Cir.), cert. denied, 366 U.S. 910, 81 S.Ct. 1087, 6

L.Ed.2d 236 (1961).

       When a jury trial has been waived and a bench trial held we

must

       determine whether [the] findings are supported by any
       substantial evidence. It is not [our] function to make
       credibility choices or to pass upon the weight of the
       evidence. The test is whether the evidence is sufficient
       to justify the trial judge, as trier of the facts, in
       concluding beyond a reasonable doubt that the defendant
       was guilty. . . .

United States v. Jennings, 726 F.2d 189, 190 (5th Cir. 1984)

(quoting, Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th

Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56

(1971).    When reviewing the sufficiency of the evidence to support

a conviction, we view the facts and all reasonable inferences


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therefrom in the light most favorable to the Government.                        U.S. v.

Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990).

                           SUFFICIENCY OF THE EVIDENCE

      The elements of conspiracy are as follows:                    (1) the existence

of   an    agreement   between       two   or   more    persons      to     violate   the

narcotics     laws,    (2)      knowledge       of     the   conspiracy,       and    (3)

voluntary participation in the conspiracy.                   U.S. v. Arzola-Amaya,

867 F.2d 1504, 1511 (5th Cir.), cert. denied, 493 U.S. 933, 110

S.Ct. 322, 107 L.Ed.2d 312 (1989).               In U.S. v. Blessing, 727 F.2d

353, 355 (5th Cir.), cert. denied sub nom., Rodriguez v. U.S., 469

U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 773 (1985), this court stated,

      [t]he government must show beyond a reasonable doubt that
      the defendant had the deliberate, knowing, and specific
      intent to join the conspiracy. . . . this court will not
      'lightly infer a defendant's knowledge and acquiescence
      in a conspiracy.' It is not enough that the defendant
      merely associated with those participating in a
      conspiracy, nor is it enough that the evidence places the
      defendant in 'a climate of activity that reeks of
      something foul.' (citations omitted)

      To    sustain    a    conviction     for    possession         with    intent   to

distribute, the government must show that the defendant knowingly

possessed the contraband with intent to distribute it.                          U.S. v.

Molinar-Apodaca,       889    F.2d    1417,     1423    (5th   Cir.       1989).      The

government may prove actual or constructive possession by either

direct or circumstantial evidence. Ruiz, 860 F.2d at 619.                       To show

constructive     possession,         the   government        must    show     that    the

defendant controlled, or had the power to control, the vehicle or

the contraband; mere proximity to the contraband is not enough.

U.S. v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986). Intent


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to distribute may be inferred from the possession of a large

quantity of narcotics, street value of the narcotics and/or purity

of the narcotics.        U.S. v. Pilgrum, 922 F.2d 249, 254 (5th Cir.),

cert. denied sub nom., Allen v. U.S.,                 U.S.     , 111 S.Ct. 2064,

114 L.Ed.2d 468, 59 U.S.L.W. 3782 (1991).

       The   district     court    concluded      that       the     evidence    was

insufficient      to   support     a   finding    that       Rosas    actually       or

constructively possessed the marijuana.           We agree that no evidence

showed that Rosas had any power to control the marijuana and its

movement and distribution, nor was there any evidence that he had

any power to control the truck in which it was concealed.                 However,

the   district    court    convicted    Rosas    of    possession      because       he

participated in the conspiracy.          In so holding, the court followed

the rule that it may hold each conspirator criminally culpable for

substantive offenses committed by the conspiracy of which he is a

member, while he is a member.          Garcia, 917 F.2d at 1377; Pinkerton

v. U.S., 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489

(1946).      The government's case, therefore, turns on whether the

evidence sufficiently proves that Rosas was part of a conspiracy.

       The government argues that the district court had sufficient

evidence before it to hold that Rosas was part of a conspiracy to

possess with intent to distribute marijuana.                       The government,

however,     presented    very    limited   evidence     linking       Rosas    to   a

conspiracy.      This evidence consisted primarily of Rosas' statement

to    Marcell,   his   nervous    demeanor   at    the       checkpoint   and    his

implausible explanation for riding to Carrizo Springs and San


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Antonio with Valdez, who admittedly was delivering a load of

marijuana to Ft. Worth.        The district court found that Rosas'

statement showed that he knew that a controlled substance was in

the tank.    However, we do not agree that this statement proves

knowledge of the marijuana.      It could have been just as reasonable

to infer from this statement that Rosas was admitting the obvious,

that the agents must have found something or else they would not

have arrested them.

     In addition, the district court found unbelievable Valdez' and

Rosas' story that they were going to Carrizo Springs to meet Rosas'

unnamed friend for directions and then to San Antonio for a car

part.    The court questioned whether Valdez would risk losing a

large load of marijuana with a street value of $53,000 to do a

favor for an unknowing acquaintance and speculated that Carrizo

Springs and San Antonio would not be part of a direct route to Fort

Worth.    The trial judge found little to believe in Rosas' or

Valdez' testimony, but in our view, the government did not sustain

its burden of proving Rosas' knowledge of the conspiracy.

     In rendering his decision, the trial judge relied primarily on

U.S. v. Garcia, 917 F.2d 1370 (5th Cir. 1990), where Garcia was

convicted of conspiracy with intent to distribute marijuana on

evidence that he guarded a truck knowing it contained marijuana.

Unlike   this   case,   the   Garcia       court   heard   testimony   from   a

government informant saying that he overheard a conversation in

which the owner of the truck, Pacheco, told Garcia that the truck

contained marijuana.     No such evidence of knowledge exists here.


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Likewise, in Garcia, there was evidence that Pacheco paid Garcia

$200 to watch the truck.          The existence of some sort of agreement

between Pacheco and Garcia regarding the truck and its contents was

clearly established, and the dispute was over whether Garcia knew

the truck contained marijuana.              There is no such evidence from

which we can infer an agreement between Valdez and Rosas.                 In fact,

Valdez denied that Rosas was a participant in any conspiracy and

that Rosas had any knowledge of the marijuana.

     Based on our review of the evidence, we hold that no trier of

fact could have justifiably found beyond a reasonable doubt that

Rosas   knew    of   the    marijuana       and   thus    participated    in    the

conspiracy.     See also, U.S. v. Gardea Carrasco, 830 F.2d 41, 45

(5th Cir. 1987) (reversing conviction of defendant who loaded

suitcases containing marijuana onto an airplane but was not privy

to conversations concerning the conspiracy or the contents of the

suitcases); U.S. v. Jackson, 700 F.2d 181, 185-86 (5th Cir. 1983)

(reversing     conviction    of    defendant      who    was   present   when   the

conspirators were exchanging money for drugs because insufficient

evidence was presented to show defendant's presence when the

conspiracy was discussed or his knowledge of the "nature or purpose

of the meeting, or even that a large amount of money was present.

. . . ").

     We agree with the district court that the evidence of Rosas'

possession of the marijuana is clearly insufficient. We also agree

that Rosas' conviction for possession could rest only upon his

participation in the conspiracy under the Pinkerton rule.                         A


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reversal   of   the   conspiracy   conviction   causes   the   possession

conviction to fall.     We, therefore, REVERSE and RENDER judgment of

acquittal on both the conspiracy and the substantive possession

counts.




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