     Case: 10-50493 Document: 00511379680 Page: 1 Date Filed: 02/11/2011




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

                                                 FILED
                                                                          February 11, 2011
                                     No. 10-50493
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JORGE PALMA-PORTILLO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 4:09-CR-403-2


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Jorge Palma-Portillo appeals his conviction for aiding and abetting
possession with intent to distribute marijuana, arguing that the district court
abused it discretion in giving a “deliberate ignorance” jury instruction. Palma-
Portillo’s participation in suspicious activities, his inconsistent statements, and
his statement that he thought the circumstances were “kind of weird,” were
sufficient to infer that he had subjective awareness that his conduct was illegal.
See United States v. Nguyen, 493 F.3d 613, 620 (5th Cir. 2007); see also United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 10-50493

States v. Conner, 537 F.3d 480, 486-87 (5th Cir. 2008). The evidence further
established that the circumstances were extremely suspicious and that
Palma-Portillo’s failure to inquire further “suggests a conscious effort to avoid
incriminating knowledge.” See United States v. Ricardo, 472 F.3d 277, 286 (5th
Cir. 2006).    Therefore, the district court did not abuse its discretion in
determining that the evidence warranted a deliberate ignorance instruction. See
id.
       Palma-Portillo asserts that the district court erred in denying his motion
for a judgment of acquittal.      Because Palma-Portillo timely moved for a
judgment of acquittal and renewed his motion at the close of all the evidence, he
is entitled to de novo review. See United States v. Floyd, 343 F.3d 363, 370 (5th
Cir. 2003). Viewing the evidence and the inferences that may be drawn from it
in the light most favorable to the verdict, a rational jury could have found that
Palma-Portillo aided and abetted the possession with intent to distribute the
marijuana beyond a reasonable doubt. See United States v. Clark, 577 F.3d 273,
284 (5th Cir.), cert. denied, 130 S. Ct. 809 (2009).     Palma-Portillo’s guilty
knowledge may be inferred from his inconsistent statements to agents in which
he initially minimized his actions. See United States v. Villarreal, 324 F.3d 319,
324 (5th Cir. 2003). His statement that he knew only a little Spanish was
refuted by other evidence and further demonstrates guilty knowledge. See id.
The jury could also consider Palma-Portillo’s denial of knowledge of the
marijuana to be implausible given his actions and as circumstantial proof of his
guilty knowledge. See Nguyen, 493 F.3d at 618. He went to a remote area near
the United States border with Negro and Perro and seven other men that he met
on the street in Ojinaga, Mexico. They crossed the river, retrieved heavy burlap
backpacks, carried the backpacks at night for about four days in cold, rainy and
snowy weather through very rough, mountainous terrain, and slept during the
day at a distance from the backpacks with the backpacks hidden under brush.
He did not ask any questions or discuss the contents of the backpacks with the

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                                  No. 10-50493

other men even though he thought the circumstances were “kind of weird.” After
the agents found the backpacks, they continued to follow the same tracks that
had led them to the backpacks for about 500 yards and discovered the men
sleeping; Palma-Portillo admitted that he and seven other men had carried
heavy backpacks through the area for about four days and that the backpacks
were hidden while they slept. Although Palma-Portillo testified that he is a
Tarahumaran Indian with no education and no knowledge of marijuana, his
testimony established that he did not live in such isolated conditions that he had
no contact with the outside world. It was for the jury to determine whether
Palma-Portillo’s testimony was credible as we do “not weigh evidence or assess
the credibility of witnesses.” See United States v. Ramos-Cardenas, 524 F.3d
600, 605 (5th Cir. 2008). Viewing the evidence in the light most favorable to the
Government, a rational factfinder could find beyond a reasonable doubt that
Palma-Portillo aided and abetted the possession with intent to distribute of the
marijuana that agents found in the burlap backpacks. See United States v.
Guanespen-Portillo, 514 F.3d 393, 396-97 (5th Cir. 2008).
      AFFIRMED.




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