                                                 United States Court of Appeals
                                                          Fifth Circuit
                                                       F I L E D
               UNITED STATES COURT OF APPEALS
                                                       January 4, 2007
                    for the Fifth Circuit
                                                   Charles R. Fulbruge III
                                                           Clerk

                        No. 05-50951


                 UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,


                           VERSUS


                    DANIEL P. SALAZAR,

                                       Defendant-Appellant.



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

                        (4:05-CR-54)

Before GARZA, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

      Defendant Daniel P. Salazar (“Salazar”) was charged

in a two-count indictment with knowingly importing less

than fifty kilograms of marijuana in violation of 21



  *
   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that this opinion should not be published and is not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.
U.S.C. §§ 952 and 960 and knowingly possessing less than

fifty kilograms of marijuana with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). A jury convicted

Salazar   on    both      counts.   He   was   sentenced      to   thirty

months’ imprisonment on each count, to run concurrently,

and   three    years’     supervised     release.     He   appeals      his

conviction and sentence, arguing that (1) the criminal

proceeding was void because the grand jury foreperson did

not    sign    the      indictment;      (2)    the    evidence         was

insufficient to establish the requisite knowledge that he

was   importing      or    possessing    drugs;      and   (3)     he   was

entitled to a partial acquittal regarding the drugs found

inside two ice chests. For the following reasons, we

affirm Salazar’s conviction and sentence.

                                    I.

      On February 17, 2005, a U.S. Customs and Border

Protection agent stopped a Dodge van towing a trailer

that was attempting to enter the United States via the

Presidio, Texas port of entry. The agent recognized the

man in the passenger seat of the van as Daniel Salazar,

a   commercial    carrier      of   people     and    goods      who    had

                                    2
previously attempted to import goods for third parties

without properly declaring them. The agent directed the

van to a secondary lane for a routine examination; a

search of the van and trailer, which both belonged to

Salazar, ensued. Salazar does not contest the legality of

the search.

       The search of the trailer revealed a large decorative

wagon wheel with oddly shaped spokes that was wrapped in

what the agent later described as “excessive” packaging.

The agent asked Salazar to whom the wheel belonged, and

Salazar responded that it was his; however, when the

agent asked if he could drill a hole in the wheel,

Salazar began “fidgeting” and then changed his story and

said    the    wheel   belonged   to      a    friend.    Another        agent

described Salazar as “hesitant,” but not “nervous” or

“agitated.” Marijuana was discovered inside the hollow

spokes of the wheel. Marijuana was also discovered in the

lining of two ice chests stowed in the van. Salazar never

claimed       ownership   of   the       two     ice    chests.        Salazar

stipulated at trial that the marijuana found in the wheel

and    the     ice   chests    weighed         58.2    pounds     or     26.45

                                     3
kilograms.

      After the marijuana was discovered, customs agents

detained Salazar and read him his rights. He waived his

right to remain silent and responded to questioning.

Salazar told the customs agents that he was transporting

the wheel and the ice chests to a man named Daniel Reyez;

however, when the agents asked for Mr. Reyez’s contact

information,   Salazar   responded     that   he   did   not    have

contact information for Mr. Reyez and that Mr. Reyez

would contact him to pick up his goods. The agents also

questioned Salazar about undated logs found in the van

and   on   Salazar’s   person   that   listed      various     items

transported and the names of their respective recipients.

The wagon wheel did not appear on the list Salazar

claimed he prepared for the February 17th trip, and the

only list that mentioned a wagon wheel indicated that the

wheel was going to “Modesta Gonzalez.” Salazar told the

agents that items designated for “Modesta Gonzalez,”

“Pedro Perez,” and “Daniel Reyez” were all for Mr. Reyez.

      Salazar was indicted on March 3, 2005 in a two-count

indictment    for   knowingly   importing     less    than     fifty

                                4
kilograms of marijuana in violation of 21 U.S.C. §§ 952

and    960     and     knowingly       possessing      less        than      fifty

kilograms      of     marijuana       with    intent   to        distribute     in

violation of 21 U.S.C. § 841(a)(1). A jury trial was held

on    April    20,     2005.    The     Government         presented         three

witnesses, two customs agents and a special agent with

Immigration          and    Customs     Enforcement,             all    of     whom

testified to the events that occurred on February 17,

2005. The defense moved for acquittal at the close of the

Government’s         evidence.        That    motion       was    denied.      The

defense      then     presented       three    of    its    own        witnesses,

Salazar’s brother-in-law and two of his nephews. Salazar

also testified on his own behalf. After the defense

rested,       it    renewed     its    request       for    a     judgment      of

acquittal. That motion was also denied. The jury found

Salazar guilty on both counts and he was sentenced to

thirty    months’          imprisonment       on    each    count,        to   run

concurrently, and three years’ supervised release. He

appeals his conviction and sentence.

                                       II.

                                       A.

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    In his first point of error, Salazar argues that the

entire criminal proceeding below was void because the

grand   jury   foreperson    did       not    sign      the    indictment.

Although the copy of the indictment in the record is

unsigned, the record indicates that a signed copy of the

indictment was sealed by the district court pursuant to

the E-Government Act of 2002. We have received a signed

copy of the indictment from the district court, and we

are satisfied that Salazar is not entitled to relief on

this ground.

                                  B.

    In his second point of error, Salazar argues that the

evidence was insufficient to establish the requisite

knowledge that he was importing or possessing drugs.

Salazar   moved    for    acquittal          at   the    close     of    the

Government’s case and at the close of the evidence.

Accordingly,      “we    decide        whether     the        evidence   is

sufficient by viewing the evidence and the inferences

that may be drawn from it in the light most favorable to

the verdict and determining whether a rational jury could

have found the essential elements of the offenses beyond

                                   6
a reasonable doubt.” United States v. Arnold, 467 F.3d

880,    883   (5th    Cir.    2006)       (internal    quotation        marks

omitted).

       Both   of     Salazar’s        offenses,       importation         and

possession, require guilty knowledge as an element. See

United States v. Martinez-Lugo, 411 F.3d 597, 599 & n.1

(5th Cir.), cert. denied, 126 S. Ct. 464 (2005). Guilty

knowledge may sometimes be inferred where a defendant

controls a vehicle containing contraband; however, where

the contraband is concealed, additional circumstantial

evidence      that     is    suspicious        in     nature       or    that

demonstrates guilty knowledge is required. United States

v. Cano-Guel, 167 F.3d 900, 904 (5th Cir. 1999). “This

requirement stems from the recognition that, in hidden

compartment cases, there ‘is at least a fair assumption

that a third party might have concealed the controlled

substances in the vehicle with the intent to use the

unwitting     defendant       as   the     carrier     in    a     smuggling

enterprise.’” Id. at 904-05 (quoting United States v.

Diaz-Carreon,        915    F.2d   951,     954     (5th    Cir.    1990)).

Evidence of nervousness, conflicting statements to law

                                      7
enforcement officials, and an implausible story may all

qualify as circumstantial evidence of guilty knowledge.

Martinez-Lugo, 411 F.3d at 599.

      It is undisputed that the marijuana found in the ice

chests and in the wagon wheel--which were in Salazar’s

control as owner of the van--was concealed. Therefore,

the    Government      had   to    bring       forward    circumstantial

evidence of guilty knowledge to make its case. In support

of    its   case,   the   Government         presented     evidence   that

Salazar     began   “fidgeting”         or   became      “hesitant”   when

customs agents asked if they could drill a hole in the

wagon wheel; that Salazar made inconsistent statements

about the ownership of the wagon wheel; that Salazar’s

story about who he was delivering the wagon wheel to was

implausible because he did not know how to get in touch

with that person; and that Salazar had previously lied to

customs agents about his cargo when trying to cross the

border.      Salazar      argues        that     this      evidence    was

insufficient to support a verdict against him because

nervousness alone is not enough to support a finding of

guilty knowledge; there was a plausible explanation for

                                    8
his lie about the ownership of the wheel--he would have

had to pay a fee if he had admitted the wheel belonged to

a     third    party;    and     there         was     no   other    evidence

demonstrating that his story was implausible or that he

lied about anything else.

       We find the evidence sufficient to support a finding

of    guilty    knowledge      on     Salazar’s        part.     Although    we

recognize that nervousness alone is not enough to support

a finding of guilty knowledge, United States v. Jones,

185    F.3d    459,     464    (5th    Cir.      1999),      here    we    have

nervousness accompanied by an inconsistent statement to

law    enforcement      officials,         a   potentially       implausible

story about how Salazar would transfer his cargo to its

recipient, and other suspicious evidence, including the

questionable business practices described below. With

respect to nervousness, two customs agents testified that

Salazar’s demeanor changed when they asked to drill a

hole in the wagon wheel. According to one, Salazar began

“fidgeting,” and according to the other, Salazar became

“hesitant.”       Further,          Salazar          initially      told    law

enforcement officials that the wagon wheel belonged to

                                       9
him but later changed his story and said it belonged to

a friend. Salazar had no contact information for the

person to whom he said he was delivering the wheel, and

he admitted in open court that he had on other occasions

lied    to    customs   officials        about   his   cargo   to   avoid

problems at the border. We have previously noted that

“unconventional” business practices may qualify as the

suspicious evidence necessary to support a finding of

guilty knowledge. See United States v. Roel, 193 Fed.

App’x 309, 312 (5th Cir. 2006) (citing United States v.

Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990)).

Salazar’s business practice of lying to customs officials

to avoid problems at the border, in combination with his

change       in   demeanor,   his   inconsistent        statements    to

customs officials, and his potentially implausible story

about how he would transfer possession of his cargo could

lead a rational jury to find guilty knowledge beyond a

reasonable doubt. Salazar is not entitled to relief on

this ground.

                                    C.

       Finally, in his third point of error, Salazar argues

                                    10
that he was entitled to a partial acquittal regarding the

drugs    found   inside    the    ice       chests   because   he   never

claimed that he owned them. Although Salazar generally

moved for acquittal, he did not specifically request a

partial acquittal regarding the drugs in the ice chests.

Accordingly, we review for plain error. See United States

v. Villasenor, 236 F.3d 220, 222 (5th Cir. 2000). Under

the plain error standard of review, “a conviction can be

reversed only if there was a ‘manifest miscarriage of

justice,’ which would occur if there is no evidence of

the defendant’s guilt or ‘the evidence on a key element

of the offense was so tenuous that a conviction would be

shocking.’” Id. (quoting United States v. McCarty, 36

F.3d 1349, 1358 (5th Cir. 2000)).

       The trial court did not commit plain error by failing

to partially acquit Salazar. As we discussed above in

Part    II.B,    there    was    at        least   some   circumstantial

evidence of guilty knowledge on Salazar’s part. Although

much of this evidence related to the wagon wheel, we

cannot say that all of it related to the wagon wheel

alone.     For    example,       Salazar’s         irregular    business

                                      11
practices--lying      to   customs      agents   about    cargo--had

nothing to do with the wagon wheel and instead support a

finding of guilty knowledge in general. Accordingly, we

cannot say that Salazar’s conviction for the quantity of

drugs   found     inside   the    ice   chests   gives    rise    to   a

“manifest    miscarriage      of    justice.”    Salazar     is    not

entitled to relief on this ground.

                                 III.

    For     the   foregoing      reasons,   we   AFFIRM    Salazar’s

conviction and sentence.




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