                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0537n.06
                             Filed: July 31, 2007

                                           NO. 06-3252

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL from the United States
v.                                                    )      District Court for the Southern
                                                      )      District of Ohio.
JUAN ANTONIO BERNAL-BERNAL,                           )
                                                      )      OPINION
       Defendant-Appellant.                           )
                                                      )
                                                      )




       Before: RYAN and GRIFFIN, Circuit Judges; HOOD, Chief District Judge.*

       HOOD, Chief District Judge.           Defendant/Appellant Juan Antonio Bernal-Bernal

(“Defendant” or “Bernal”) challenges the district court’s denial of his motion for acquittal.

Defendant was convicted in the United States District Court for the Southern District of Ohio for

conspiring to possess with intent to distribute over five kilograms of cocaine and more than 500

grams of a mixture or substance containing a detectable amount of methamphetamine. For the

reasons that follow, we AFFIRM the judgment of the district court.

       On April 7, 2005, a grand jury for the Southern District of Ohio indicted Bernal for one count

of conspiring to possess with intent to distribute more than five kilograms of cocaine, in violation


       *
        The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District
of Kentucky, sitting by designation.
of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(ii), and more than 500 grams of a mixture

or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(viii). Following a jury trial, Bernal was found guilty on

this one count and was subsequently sentenced to 121 months. Bernal filed a timely notice of appeal.

       Bernal argues that the district court erred by denying his motion for acquittal as to Count 1

because the evidence presented by the government was insufficient to support the conviction. By

failing to renew his Rule 29 motion at the close of all evidence, Bernal waived any objection to the

sufficiency of the evidence in his conviction. However, even if Bernal had renewed his motion, the

evidence of Bernal’s guilt was sufficient to support a conviction. As a result, the district court did

not err in denying his motion for acquittal with respect to Count 1.

       Bernal was arrested in New Mexico after law enforcement officers pulled over the car in

which he was a passenger and, with the consent of the car’s driver, Mauricio Villareal-Garcia,

searched the car and found approximately 14.1 kilograms of cocaine and 893.8 grams of

methamphetamine in a false compartment. Sgt. Miguel Mendez of the New Mexico State Police

interrogated Bernal and, according to Sgt. Mendez, Bernal admitted that he knowingly transported

the drugs and that he had taken similar trips in the past. Both Bernal and Villareal-Garcia agreed to

travel to their intended destination, Columbus, Ohio, to conduct a controlled delivery of the drugs.

The buyer, Octavio Solano-Rodriguez, was arrested and later indicted as the third conspirator.

Bernal exercised his right to trial and moved for a judgment of acquittal at the close of the

government’s evidence. However, Bernal failed to renew this motion at the close of all evidence.

       “Absent a showing of a manifest miscarriage of justice, this court will not review a district

court denial of a Rule 29 motion where a defendant does not renew that motion at the close of all the


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evidence.” United States v. Williams, 940 F.2d 176, 180 (6th Cir. 1991). Viewing the evidence in

the light most favorable to the government, the Court must evaluate whether a manifest miscarriage

of justice would result due to this waiver. Id. Because the evidence, viewed in the light most

favorable to the government, was sufficient to convict Bernal, Bernal has not demonstrated that his

waiver of Rule 29 relief constitutes a manifest miscarriage of justice.

        To prove conspiracy under 21 U.S.C. § 846, “the government must prove the existence of

an agreement to violate the drug laws and that each conspirator knew of, intended to join, and

participated in the conspiracy.” United States v. Gaitan-Acevedo, 148 F.3d 577, 586 (6th Cir. 1998).

The elements of a charge of possession with intent to distribute illegal drugs under 21 U.S.C.

§ 841(a)(1) are as follows: “(1) the defendant knowingly, (2) possessed a controlled substance, (3)

with intent to distribute.” United States v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006).

        Sgt. Mendez testified that Bernal confessed to having knowledge of and a deliberate role in

the conspiracy. Bernal was arrested while riding in a vehicle carrying cocaine and methamphetamine

and, according to Sgt. Mendez’s testimony, later described his role in the conspiracy to possess and

distribute these drugs during an unrecorded interrogation. Sgt. Mendez also testified that Bernal

confessed that he had accompanied Villareal-Garcia on three previous trips to transfer money from

Ohio to Arizona and bring back drugs from Arizona to Ohio; that he knew he was transferring

cocaine; that he had been paid $1,500 for the first two trips and $3,000 for the third trip; that he

expected to be paid $3,000 for this latest fourth trip; that he knew the recipient of the drugs; and that

he knew how the transfer of the drugs took place. Based on the evidence in the record, the jury could

reasonably infer that Bernal conspired to violate the drug laws charged.

        Even if Bernal had renewed his motion for acquittal at the close of all evidence, he has not


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shown that the district court would have erred in denying the motion. Under Federal Rule of

Criminal Procedure 29, the district court “must enter a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “The standard

for evaluating claims that a conviction is not supported by sufficient evidence presents a very

difficult hurdle for the criminal appellant . . . .” United States v. Maxwell, 160 F.3d 1071, 1077 (6th

Cir. 1998). “‘[T]he relevant question is whether, after viewing the evidence 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.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in Jackson)).

        Bernal contends that the government’s evidence was insufficient because the testimony of

Sgt. Mendez, who did not record his alleged confession, was so unreliable that no rational trier of

fact could have believed what he said. Bernal argues that Sgt. Mendez’s testimony on New Mexico

State Police procedure when engaging in dialogue with prospective defendants conflicted with that

of his fellow officer, Sgt. Rudy Mora, who initially pulled over Villareal-Garcia’s vehicle.

Furthermore, although Sgt. Mendez conducted the entire interrogation in Spanish, Bernal contends

that, because he is a Spanish speaker and because he was in custody from 11:28 a.m. until his

interrogation at 3:50 p.m., his isolation and anxiety may have elicited a false confession. However,

Bernal never challenged the legality of his confession before the district court.

        Bernal’s argument challenges the credibility of Sgt. Mendez as a witness, not, as he claims,

the sufficiency of the evidence. “[D]etermining the credibility of witnesses is a task for the jury, not

this court.” United States v. Kelly, 204 F.3d 652, 656 (6th Cir. 2000) (citing United States v.

Hilliard, 11 F.3d 618, 620 (6th Cir. 1993)); see United States v. Adamo, 742 F.2d 927, 935 (6th Cir.


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1984) (“A trial judge considering a Rule 29 motion may neither weigh conflicting evidence nor

consider the credibility of witnesses.”). The jury was entitled to accept the testimony of Sgt. Mendez

despite Bernal’s counsel’s efforts to discredit his testimony by questioning him on cross-examination

about his failure to record the interview.

       For the reasons stated above, we AFFIRM the decision of the district court.




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