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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50579                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 8, 2015
                                                                           Lyle W. Cayce
                                   Plaintiff - Appellee                         Clerk

v.

MANUEL GARCIA-MARTINES; MANUEL EDUWIGES RUIZ-SOLIS;
ADELFO VIZCARRA-SERRANO; DELFINO BACA-TUPIA; PEDRO SAENZ-
VIZCARRA; AVELINO BENITEZ-CEBALLOS,

                                   Defendants - Appellants



                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 4:13-CR-631-1


Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendants Manuel Garcia-Martines (“Garcia”), Manuel Eduwiges Ruiz-
Solis (“Ruiz”), Adelfo Vizcarra-Serrano (“Vizcarra”), Delfino Baca-Tapia 1
(“Baca”), Pedro Saenz-Vizcarra (“Saenz”), and Avelino Benitez-Caballos
(“Benitez”) were each charged with one count of possession of marijuana with



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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 Baca is named in the indictment as “Delfino Baca-Tupia.” Delfino Baca-Tapia is the
correct spelling and will be used throughout this opinion.
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                                       No. 14-50579
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting
that offense in violation of 18 U.S.C. § 2. All six defendants were found guilty
after a three day jury trial. All six appeal their convictions on the grounds of
insufficient evidence. Finding ample evidence in the record to support the
jury’s guilty verdicts, we affirm their convictions.
                                I. Facts & Proceedings
       This is an unusual but compelling circumstantial case of drug trafficking
in the wilds of West Texas. “We recite the facts in the light most favorable to
the verdict.” United States v. Olis, 429 F.3d 540, 541 n.1 (5th Cir. 2005).
       At approximately 8:00 PM on November 14, 2013, Border Patrol sensor 2
activity was registered roughly five to six miles north of the border with Mexico
in a known area of foot traffic and narcotics trafficking on the Vizcaino Ranch
southwest of Marfa, Texas. Agents from the Marfa Border Patrol office arrived
to investigate several hours later at approximately 1:00 or 1:30 AM on
November 15. They found signs of foot traffic and fresh disturbances along a
trail near the sensor. Significantly, footprints on the ground bore several
distinctive markings that agents described as resembling a “Christmas tree,”
“circles,” or the “Atari” video game symbol. 3 Agents recognized these symbols
as those left by boots that are commonly used by “backpackers” 4 in drug
trafficking organizations. Agents initially estimated they were left by between


       2 These sensors are set up by Border Patrol agents in strategic locations where there
is expected foot traffic. Both human and animal traffic is capable of setting off the sensor.
Agents also set up game cameras near the sensors to capture images of the foot traffic.

       3Named after the company that produced classic video and arcade gaming systems in
the 1970’s and 1980’s. The company’s first, and perhaps most famous game, was “Pong.” The
symbol consists of three lines: a vertical line in the middle flanked on each side by half of an
upside-down arch arching away from the vertical center line.

       4 In Border Patrol parlance, the term “backpackers” refers to groups of people
transporting drugs or other contraband across the border. The term “walkers” refers to illegal
immigrants coming to the United States to look for work or permanently settle here.
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                                       No. 14-50579
four and five people traveling the trail, but later estimated it to be between
four and six people. Agent Juan Flores also checked images left on a nearby
game camera and saw images of backpackers carrying duffle bags on their
backs. One of the photographs showed an individual hunched over as if the
backpack was quite heavy. Agent Flores testified at trial that based on these
images, the distinctive footprints, and his four-and-a-half years of Border
Patrol experience he believed that agents were dealing with a group of
backpackers transporting drugs.
       By this time, it was light out and other agents arrived at the Vizcaino
Ranch. They began “cutting sign” 5 by “leapfrogging.” 6 This led the agents to
the bottom of a mountain they call “the rim.” Three agents, Agent Flores
among them, began cutting sign up the side of the rim while two other agents
looked for sign on the top. Agent Flores and other agents testified at trial that
in their experience, backpackers tend to follow difficult routes like this – up
the rim – to avoid detection, whereas walkers tend to follow easier routes –
“the path[s] of least resistance.” 7 Agents also called in a helicopter to help with
their search.



       5 “Sign,” by itself, refers to the footprints, tracks, and disturbances in ground
vegetation left by walkers or backpackers. “Cutting sign,” is the process by which agents
track sign to find the walkers or backpackers who left it. In layman’s terms, “cutting sign” is
tracking or following a trail.

       6 A strategy where one agent follows the trail or cuts sign while another skips ahead
to where the trail or sign is expected to lead. This is done to save time compared to cutting
sign from where it begins to where it ends. See also United States v. Hernandez-Bautista,
293 F.3d 845, 848 (5th Cir. 2002) (describing “leapfrogging” as a “technique . . . to speed up
the trailing process by looking for tracks ahead of the ones already found”).

       7 Obviously, walkers seek to avoid detection as well since they are breaking U.S.
immigration law by illegally crossing the border into this country. However, they are
generally not as deceptive and are more willing to give themselves up if in distress than
backpackers, who are breaking not only U.S. immigration laws but narcotics trafficking laws
as well.
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       While cutting sign up the side of the rim, Agent Flores looked back down
to his right and suddenly saw four “bodies” 8 running in a single-file line down
the rim. The only distinguishing feature he could identify was that the last of
the four bodies was wearing a gray hoodie or jacket.                 He radioed to the
helicopter, which had momentarily landed to save fuel, “[w]e got bodies
running.” It got airborne and followed the bodies until the group split. First
the back person (the one wearing the gray hoodie) turned around and began
running back up the rim. Then the third-to-last split and ran up a hill to the
east (left). The agents in the helicopter decided to follow the remaining two
bodies (the first two of the original single-file four) as they continued to run.
The two later surrendered with their hands up near an old windmill after being
pursued by the helicopter for approximately two miles. The chopper landed
and an agent arrested the two, defendants Garcia and Vizcarra. Agent Flores
drove to their location and checked the soles of their boots. Garcia’s soles
indicated the “Christmas tree” and Vizcarra’s the “Atari.” Neither was in
possession of a backpack, clothes, or water when arrested. Both were wearing
jackets.
       The helicopter returned to the air and continued the search. From the
air, agents spotted a red “mochila” 9 on the ground approximately two miles
from where Garcia and Vizcarra were arrested. The red mochila had not been
there the first time the helicopter flew over that location approximately 45




       8This term is undefined in the record, but the context in which it is used throughout
indicates it means “people” or “individuals.”

       9 Mochila is the Spanish word for “backpack” and is used in Border Patrol parlance to
refer to regular backpacks. This is to be distinguished from the larger duffel bags, or
“backpacks,” used by backpackers to transport drugs. Mochilas are carried by walkers and
backpackers alike, though the contents of their mochilas generally vary.
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                                       No. 14-50579
minutes earlier. 10 Agents in the helicopter also spotted indentations in the
face of the rim that might have been a cave. Other than apprehending Garcia
and Vizcarra and seeing the mochila and a possible cave, agents did not find
anything else that morning.
       In the afternoon, agents returned to the area to search for narcotics on
foot and by helicopter. They observed partial sign in the area indicating
unnatural movement and followed it to a large tree. While there, the helicopter
agents radioed to the ground agents to check for a possible cave nearby. The
ground agents cut more partial sign as they approached what turned out to be
a previously undiscovered (by agents anyway) cave.                   Agents found a tarp
concealing two men in the cave with a third off to their left (the agents’ right).
These three were defendants Ruiz, Baca, and Saenz. They were arrested and
taken into custody.
       Each grabbed a mochila when agents instructed them to take their
belongings. The mochilas were full of food, but not clothing, personal hygiene
items, identification, or other personal items. There was testimony at trial
that backpackers tend to carry very little in their mochilas besides food.
Walkers, on the other hand, are leaving their homes to resettle in this country.
They therefore carry personal items such as important phone numbers, family
photos, mementos, hygiene items, changes of clothes, and identification in
their mochilas. In addition to food, Baca’s mochila contained a roll of pink
twine and a sewing needle that he told agents was for a tear in his shoes. His
shoes bore no indication of repair by pink twine, but they did indicate the
“circle” design. Ruiz’s and Saenz’s boot soles were imprinted with “Christmas



       10Agents decided not to prioritize the red mochila. They did not feel it was the type
of bag that backpackers use to transport narcotics and that it would not be left out in the
open where it could be spotted if it did in fact contain drugs. Agents retrieved it several days
later.
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                                      No. 14-50579
tree” signs. Saenz was wearing a gray hoodie and Baca was wearing a jacket
when they were arrested.
       Agents returned later that night around 1:30 AM (technically the
morning of November 16). They found fresh sign and cut it to the cave, where
they discovered defendant Benitez sleeping inside. He had a mochila that
contained only food and a pair of socks. The soles of his boots had a “Christmas
tree” symbol. He was wearing a jacket. He was arrested and taken into
custody.
       During the day on November 16, Agent Flores and others again returned
to the area. They discovered more sign and began cutting it toward the cave.
Before reaching it, Agent Flores spotted three green duffel bags around a bush
covered by tree branches. He found a fourth one about 150 yards away from
these three bags, and other agents found two bags about 100 yards away from
them. A total of six bags were discovered, all within 200 to 300 yards of the
cave. Agents also saw sign about 50 yards from the location of the three bags,
and disturbances in the grass (but no definite sign) right next to them. The
duffel bags appeared “fresh” and still smelled of marijuana. The six bags
contained a total of 311.95 pounds (141.5 kilograms) of marijuana packaged in
individual bricks wrapped in brown cellophane. Two of the duffel bags were
sewn with pink twine.
       Five of the six defendants (all except Benitez) spoke with Border Patrol
agents after being read their rights (in Spanish) and stating they understood
them and were willing to speak with agents. Each told a similar story: that he
was a construction worker from Chihuahua, Mexico who was driven to San
Antonio del Bravo, Mexico in a pickup truck 11 and crossed the border looking


       11 There were some different recollections of the make and color of the pickup truck,
and whether the defendants paid anybody to drive them from Chihuahua. Such differences
are irrelevant to the case.
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                                  No. 14-50579
for work in the United States. All denied knowledge of the marijuana. Garcia
admitted that he was one of the bodies who ran from the cave when the
helicopter flew over. Vizcarra said he had a red backpack, but lost it while
running from Border Patrol. Saenz admitted that he ran from the helicopter
and later returned to the cave. He also admitted that the gray hoodie was his.
Each claimed to be a walker, not a backpacker.
      The six defendants were indicted on December 12, 2013 and each was
charged with one count of possession of marijuana with intent to distribute and
aiding and abetting. A three day jury trial ensued. The defendants filed a
Rule 29 motion for judgment of acquittal at the close of the Government’s case-
in-chief, which the district court denied.
      Two defendants testified for the defense at trial. Vizcarra testified to
traveling with Garcia across the border. He testified that he wanted to come
to the United States to live and work in Oklahoma. He admitted to running
from the helicopter and identified Garcia as the man arrested with him. On
cross-examination by the Government, he admitted telling agents he lost a
backpack, but denied telling them that it was red.
      Baca also testified at trial. He testified that he was carrying a small
backpack, but could carry no more than 15 kilograms (33 pounds) due to a
shoulder injury. He confirmed that he was traveling with Saenz and Ruiz prior
to his arrest when they happened upon the cave. He claimed he found the spool
of pink twine in the cave and thought it would be useful to repair his shoes.
On cross-examination, he admitted that the pink twine in his bag resembled
the pink twine sewn on two of the six duffel bags full of marijuana.
      All six of the defendants were found guilty by the jury and were
sentenced to between 60 and 63 months, plus five years of supervised release.
They all filed timely appeals to this court.


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                                       No. 14-50579
                                      II. Discussion
       Each defendant contends on appeal that the evidence presented at trial
was insufficient for a rational jury to have found him guilty. “This court
reviews preserved challenges to the sufficiency of the evidence de novo.”
United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). We must therefore
“review[] the record to determine whether, considering the evidence and all
reasonable inferences 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.” United States v. Vargas-Ocampo, 747 F.3d 299,
303 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979)). “We do not evaluate whether the jury's verdict
was correct, but rather, whether the jury's decision was rational.” United
States v. Miles, 360 F.3d 472, 477 (5th Cir. 2004) (internal citation omitted). 12
“A conviction for the offense of possession of marijuana with intent to distribute
requires proof that the defendant (1) knowingly (2) possessed marijuana
(3) with intent to distribute it.” United States v. Cano-Guel, 167 F.3d 900, 904
(5th Cir. 1999) (internal citation omitted). To aid and abet an offense, the
Government must show that the elements of the substantive offense occurred
and that the defendant associated with the criminal activity, participated in it,
and acted to help it succeed. United States v. Pringler, 765 F.3d 445, 449 (5th
Cir. 2014). Applying these standards to the evidence in the record, we have
little trouble concluding that a jury could have rationally found all of the
defendants guilty of the crimes charged beyond a reasonable doubt.
       All of the defendants’ principal contention is that there is only
circumstantial evidence connecting them to the marijuana.                      None of the


       12We also reiterate that this court no longer adheres to the so-called “equipoise rule,”
which would require this court to reverse a conviction if the evidence construed in favor of
the verdict provides equal or nearly equal circumstantial support of guilt or innocence.
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                                       No. 14-50579
defendants were arrested with marijuana on his person and there was no
evidence that any of them had been in contact with the marijuana. This
argument overlooks that the jury heard evidence that backpackers stash or
hide their bags of drugs when they sleep precisely for this reason; agents find
either the drugs or the bodies, but do not find them together. It also overlooks
established law in this circuit that properly evaluated circumstantial evidence
“is as reliable and trustworthy as a means of proving guilt as direct evidence.”
Thurmond v. United States, 377 F.2d 448, 450 (5th Cir. 1967). The jury was
instructed that the law makes no distinction between the weight the jury may
give to direct and circumstantial evidence.               Moreover, there are myriad
additional     circumstances       supporting      a    rational     inference     of   guilt.
“Circumstances altogether inconclusive, if separately considered, may, by their
number and joint operation, especially when corroborated by moral
coincidences, be sufficient to constitute conclusive proof.” United States v.
Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990).
       To begin with, agents saw fresh sign in a known drug trafficking area
left by a group of four to six people, 13 all wearing boots with distinctive soles
that left “Christmas tree,” “circles,” or “Atari” sign on the ground. There was
testimony from Border Patrol agents that walkers tend to wear sports shoes or


Vargas-Ocampo, 747 F.3d at 300-02. Several of the defendants’ briefs cite the equipoise rule
and our prior cases. To be clear, an en banc decision of “this court abandon[ed] any reliance
on the equipoise rule” in Vargas-Ocampo. Id. at 303 (internal quotations omitted). Cases
cited by defendants to the contrary are no longer the law in this circuit. E.g., United States
v. Gonzalez, 436 F.3d 560, 571 (5th Cir. 2006); United States v. Ortega Reyna, 148 F.3d 540,
543 (5th Cir. 1998); United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996); see also Vargas-
Ocampo, 747 F.3d at 301 n.2 (collecting cases that were abrogated because they applied the
equipoise rule).

       13  Benitez emphasizes testimony that agents believed they were initially tracking only
four or five backpackers and argues that he had the fortune of being the sixth person arrested.
The jury also heard testimony that agents later believed they were tracking four to six
backpackers from which it would be rational to conclude that he was among the group that
left the sign.
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                                 No. 14-50579
tennis shoes of all different kinds whereas drug trafficking organizations
purchase boots with these soles for each of their backpackers in order to
confuse agents tracking them. All of the defendants were arrested wearing
such boots, and four of the six defendants (Garcia, Ruiz, Vizcarra, and Saenz)
wore the boots that left the “Christmas tree” sign. Some of the defendants take
issue that the agents did not measure the footprints left on the ground in order
to confirm they were the same size as the boots worn by the defendants. This
was not necessary for a jury to have concluded rationally that the defendants
left the sign.
      The marijuana was recovered in the vicinity of a cave that all of the
defendants were either arrested in, seen near, or admitted to being in. Agents
cut sign straight from where the sensors were activated to the rim and the
cave. Agents testified that there was no other human sign in the area and that
walkers would not tend to follow such a difficult route up the side of the rim to
the cave. The cave was not easily accessible, and not even agents knew of its
existence before this case arose. While it is certainly possible, as defendants
argue, that all of the defendants coincidentally happened upon the same
remote cave while traveling illegally across the border as mere walkers, it was
rational for the jury to conclude otherwise.
      Six duffel bags of marijuana were recovered and six defendants were
arrested. Defendants argue that there was no fingerprint or DNA evidence
linking them to the duffel bags, but forensic evidence is not required to
establish a link. There was testimony that the duffel bags were of a type used
by backpackers in drug trafficking organizations. Images recovered by Agent
Flores from the game camera showed men carrying heavy duffel bags that




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                                      No. 14-50579
matched the type that were ultimately found. 14 Two of the six bags had pink
twine on them that Baca admitted matched what he carried in his mochila.
       Defendants argue that a lack of evidence of strap marks on their
shoulders indicates that they were not the individuals carrying the heavy
duffel bags. This argument ignores testimony that these strap marks would
not be left if the defendants were wearing jackets or layers of clothing. Five of
the six defendants (all but Vizcarra) were in fact wearing jackets when taken
into custody. 15 Moreover, there was testimony that any marks would generally
subside once the duffel bag was off for several hours.
       On the subject of backpacks, defendants carried mostly food in their
mochilas. The jury heard that backpackers tend to carry only food, whereas
walkers tend to carry other items and personal effects. Vizcarra told agents
that he lost a red mochila while running from Border Patrol. A red mochila
that was not there when the helicopter first passed over (before it chased
Garcia and Vizcarra) was found near where the drugs were located.
       The colloquy of circumstances in this case is compelling. In the end,
defendants’ arguments on appeal mainly provide alternative explanations for
the evidence presented. But it was the jury’s role to weigh these arguments
and make its own factual determinations.               See United States v. Delgado,
668 F.3d 219, 225 (5th Cir. 2012) (“The jury is free to choose among reasonable



       14 Baca testified at trial that he could carry no more than 15 kilograms (33 pounds)
due to a preexisting shoulder injury. There were 141.5 kilograms (311.95 pounds) of
marijuana recovered in the six bags, meaning that the average weight per bag was roughly
23.5 kilograms (52 pounds). From this, he argues that he could not have been one of the
backpackers carrying the drugs. Even if the jury chose to believe he had an injury, it still
heard Agent Flores’s testimony and saw the image of the man hunched over carrying a heavy
bag. It would have been rational for the jury to conclude that Baca carried all that he could
with his injury and the body in the image picked up the slack.

       15  Saenz was even arrested in and admitted to owning a gray hoodie. Agent Flores
testified that he saw the last of the four single-file runners wearing a gray hoodie.
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                                No. 14-50579
constructions of the evidence and the evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” (internal quotations and citations omitted)).
Having done so, the jury reached a rational finding of guilt of the crimes
charged. All of the defendants’ convictions are therefore AFFIRMED.




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