    Case: 14-41298    Document: 00513303664     Page: 1   Date Filed: 12/11/2015




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

                                                                        FILED
                                No. 14–41298                     December 11, 2015
                                                                   Lyle W. Cayce
                                                                        Clerk


UNITED STATES,

                                           Plaintiff–Appellee,

versus

ALEXANDER LORENZO GIL-CRUZ,

                                           Defendant–Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Alexander Gil-Cruz was convicted of importing and possessing a con-
trolled substance with intent to distribute in violation of 21 U.S.C. §§ 841 and
960. He claims that the district court erred by admitting photographs found
on his cellphone at the time of arrest that showed an altar he had built. He
also contends that there was insufficient evidence to show that he had knowl-
edge of the type and quantity of drugs he was carrying. Because any error in
the admission of the photos was harmless, and because the second theory is
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                                 No. 14–41298
foreclosed by United States v. Betancourt, 586 F.3d 303 (5th Cir. 2009), we
affirm.

                                       I.
      Gil-Cruz was indicted for (1) conspiracy to import 500 grams or more of
methamphetamine, (2) importation of 500 grams or more of methampheta-
mine, (3) conspiracy to possess with intent to distribute 500 grams or more of
methamphetamine, and (4) possession with intent to distribute 500 grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(A)(viii), 952(a), 960(a)(1) and (b)(1)(H), and 963. On January 7, 2012, he
entered from Mexico in a silver Ford Focus, but border officers discovered 10.16
kilograms of crystal methamphetamine in a hidden compartment in the fire-
wall of his car.

      Before trial, the government indicated that it planned to introduce three
photos from a cellphone that Gil-Cruz had with him at the time of arrest. The
photos depicted an altar and Gil-Cruz preparing the altar with a chicken that
he had sacrificed. A set of car keys appeared on the front right-hand side of
the altar.   The government urged that the altar provided circumstantial
evidence that Gil-Cruz sought supernatural protection for the car and thus
indicated that Gil-Cruz knew he was importing methamphetamine. Despite
Gil-Cruz’s objection, the three photographs were admitted into evidence during
the government’s cross-examination of Gil-Cruz. Gil-Cruz contended that it
was a coincidence that the keys were placed on the altar when the photos were
taken. As part of its closing arguments, the government implied that the altar
provided evidence that Gil-Cruz knew about the drugs hidden in his car, by
describing the altar with the keys as a “back-up plan.”

      The jury convicted on counts 2 and 4 after the court had granted Gil-
Cruz’s motion for a judgment of acquittal as to counts 1 and 3 because of
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                                        No. 14–41298
insufficient evidence of conspiracy. Gil-Cruz also had claimed that there was
insufficient evidence that he had knowledge of the drugs inside his vehicle, but
the court rejected his request for acquittal on counts 2 and 4.

                                               II.
       Gil-Cruz maintains that the admission of the photographs violated Fed-
eral Rules of Evidence 401, 404, 403, and 610. We need not evaluate those
contentions, because any error was harmless.

                                                A.
       “We review evidentiary rulings under a deferential abuse-of-discretion
standard.” 1 Any error is reviewed for harmlessness. 2 Indeed, “[w]e reverse a
judgment based on an erroneous evidentiary ruling only if that ruling ‘affected
the substantial rights of the parties.’” 3 “An error affects substantial rights if
there is a reasonable probability that the improperly admitted evidence con-
tributed to the conviction.” United States v. Sumlin, 489 F.3d 683, 688 (5th
Cir. 2007).

                                                B.
       There was significant evidence to indicate that Gil-Cruz knew he was
carrying drugs and thus to support the conviction, apart from the admission of
the photographs. There is no dispute that Gil-Cruz owned the silver Ford
Focus in which drugs were discovered. “Knowledge of the presence of nar-
cotics often may be inferred from the exercise of control over the vehicle in



       1Aransas Project v. Shaw, 775 F.3d 641, 655 (5th Cir. 2014) (per curiam), cert. denied,
135 S. Ct. 2859 (2015).
       2   Id.
       3 Id. (quoting Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 992 (5th Cir. 2008));
see also FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”).
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                                       No. 14–41298
which the illegal drugs are concealed.” United States v. Resio-Trejo, 45 F.3d
907, 911 (5th Cir. 1995). Nevertheless, in secret-compartment cases we have
required additional circumstantial evidence to support knowledge because of
the possibility of that a third party could conceal drugs in the vehicle of an
unwitting defendant. Id. 4

       There is such additional evidence: Gil-Cruz made multiple trips to Mex-
ico within a short time, crossing the border on December 12 and January 6
before his trip on January 7.             He drove two different cars with hidden
compartments—on December 12, officers discovered an empty compartment in
the firewall of a gold Ford Focus that Gil-Cruz was driving, and Gil-Cruz drove
the silver Focus, which was found to have a hidden firewall compartment on
January 7. 5

       The alterations to both cars appeared to be recent. Notably, the customs
officer found no signs of tampering on Gil-Cruz’s silver Focus on January 6,
even though there was a lookout advisory in the Treasury Enforcement Com-
munication System regarding Gil-Cruz’s driving of a car with a hidden
compartment. 6 In contrast, on January 7, the officer immediately observed



       4 See also United States v. Vasquez, 677 F.3d 685, 694 (5th Cir. 2012) (quoting United
States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994)).
       5 Additionally, a prior similar act can be relevant, in some cases, to the issue of knowl-
edge. See FED. R. EVID. 404(b) (stating that other-act evidence may be admissible to demon-
strate knowledge). The similarities between the two incidents are striking—Gil-Cruz drove
two different Ford Focuses, with the same hidden compartment in the firewall, across the
border. He was the only person in the gold Focus. Therefore, the similarities between his
two crossings support an inference of knowledge. In the unpublished (and therefore non-
precedential) case of United States v. Garcia-Garcia, 324 F. App’x 286 (5th Cir. 2009) (per
curiam), we reversed under similar circumstances, except that the cars were of different types
with different modifications, and in any event, the issue there was admissibility, which is not
challenged here, and the defendant was only a passenger.
       6 The advisory was entered after Gil-Cruz was found driving the gold Focus with a
hidden firewall compartment on December 12.
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                                      No. 14–41298
tampering with the fender, so the alterations appear to have been made
between the two crossings. Evidence of recent alterations creating a secret
compartment in a vehicle used to transport drugs, when coupled with posses-
sion of the vehicle, supports a finding of knowledge. See Resio-Trejo, 45 F.3d
at 912–13.

       Gil-Cruz appeared to have access to significant amounts of money—he
had a picture of stacks of cash on his phone during the December 12 crossing,
and despite serving as a Walmart employee and field worker, he was able to
buy several cars, including a BMW, within a month. 7 When he was stopped at
the border on January 7, Gil-Cruz was carrying narcotics worth about
$286,000. As we stated in Vasquez, 677 F.3d at 695, “[t]he high value of con-
cealed narcotics can also support knowledge.”

       Gil-Cruz was unable to recall the name of the girl he allegedly went to
Mexico to meet on January 7, with whom he supposedly had spent six hours at
the mall. 8 The jury easily could have concluded that it was implausible that
someone would steal his car, take it apart, and hide large quantities of narcot-
ics in it while Gil-Cruz was at the mall, especially given that he claimed that
he saw no signs of tampering when he returned to the parking lot. “[A]n
implausible story advanced by a defendant to explain his actions can provide



       7Although there is some conflict in the record regarding whether Gil-Cruz owned the
gold Focus, it appears that he bought it but returned it because of engine problems. It is
undisputed that he next bought a BMW. After receiving a refund from the return of the first
Focus, he bought the silver one. Cf. United States v. Ortega Reyna, 148 F.3d 540, 547 (5th
Cir. 1998) (per curiam) (“Considering Ortega’s possession of the cash and his description of
his employment, a jury might well question his ability to accumulate this much cash while
supporting his family with odd jobs.”), abrogated on other grounds by United States v. Vargas-
Ocampo, 747 F.3d 299 (5th Cir.), cert. denied, 135 S. Ct. 170 (2014).
       8Cf. United States v. Molina-Iguado, 894 F.2d 1452, 1456–57 (5th Cir. 1990) (explain-
ing that the defendant’s inability to name the boyfriend who supposedly borrowed her car
while she was in Mexico supported a finding that she knew of the drugs hidden in it).
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                                     No. 14–41298
circumstantial evidence from which a jury might infer the defendant’s guilty
knowledge.” 9

       The jury also heard testimony regarding Gil-Cruz’s excessively friendly
behavior during the January 6 crossing—he appeared to be attempting to curry
favor with the border officers and volunteered information regarding illicit
activity with credit cards. Gil-Cruz continued to talk with a border officer after
he was told he could leave, which is not typical. And he was friendly with
officers on January 7. In contrast, during the December 12 crossing, Gil-Cruz
appeared nervous and did not make eye contact.

       Considered as a totality, this evidence provides sufficient support for the
jury’s finding that Gil-Cruz knew he was carrying drugs. Although Gil-Cruz
posits that the evidence is merely circumstantial, we rely on circumstantial
evidence to demonstrate knowledge in these types of drug-smuggling cases.
See Vasquez, 677 F.3d at 694–95; Resio-Trejo, 45 F.3d at 911. Indeed, “[d]irect
and circumstantial evidence are given equal weight.” 10 Thus, even if Gil-Cruz
were correct that it was error to admit the photographs of the altar, any error
was harmless.

                                            III.
       Gil-Cruz reasons, using Flores-Figueroa v. United States, 556 U.S. 646
(2009), that under 21 U.S.C. §§ 841 and 960, the government was required to
prove that he had knowledge not only that he was carrying drugs but also of
their type and quantity.         As Gil-Cruz concedes, however, that theory is


       9 United States v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir. 1999); see also Resio-
Trejo, 45 F.3d at 913 (observing that the defendant’s alternative explanation that someone
took his truck, constructed secret compartments in it, and filled them with marihuana with-
out his knowledge was “incredulous” [sic, presumably should have read “incredible”]).
       10 United States v. Dien Duc Huynh, 246 F.3d 734, 742 (5th Cir. 2001) (quoting United
States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000)).
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                                     No. 14–41298
foreclosed by Betancourt, 586 F.3d at 308–09, in which we construed § 841 in
the wake of Flores-Figueroa and determined that “knowingly,” as used in
§ 841(a), does not apply to type and quantity determinations under § 841(b).
With regard to Gil-Cruz’s conviction under § 841, Betancourt is directly
controlling.

       Betancourt also directs our disposition of Gil-Cruz’s claim regarding
§ 960. As Gil-Cruz notes, the structure of § 960 is virtually identical to that of
§ 841. In both, subsection (a) makes it a crime “knowingly or intentionally”
either to “possess” (§ 841(a)) or “distribute” (§ 960(a)) “a controlled substance,”
and subsection (b) lists penalties. In both, a period separates subsections (a)
and (b). Thus, under Betancourt, “knowingly,” as used in § 960(a), cannot
apply to type and quantity determinations in § 960(b). 11 Therefore, the convic-
tion under § 960 stands.

       AFFIRMED.




       11See Betancourt, 586 F.3d at 309 (explaining the significance of having two separate
subsections separated by a period).
                                             7
