                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS              April 20, 2004

                          FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                       Clerk


                                 No. 03-40271
                               Summary Calendar



UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

                                    versus

ISMAEL HERNANDEZ-RODRIGUEZ,

           Defendants-Appellant.



             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. L-02-CR-1372-1


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Ismael Hernandez-Rodriguez (Hernandez) was convicted

by a jury of one count of possession of more than 500 grams of

cocaine   with   intent   to    distribute   cocaine   and   one   count    of

conspiracy to possess cocaine with intent to distribute more than

500 grams of cocaine, in violation of 21 U.S.C. §§ 846 and

841(a)(1).     Hernandez appeals his convictions, arguing that there

was insufficient evidence to support them and that the district

     *
      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this opinion should not be published and is not precedent except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.
court erred by admitting evidence that tended to impeach the

testimony of his witness.    We AFFIRM.

     Hernandez’s prosecution resulted from a September 2002 search

of a Dodge pickup truck on Bridge One at Laredo, Texas, which is a

port-of-entry from Mexico.    Hernandez was the owner of the truck

and its sole passenger; Felipe Zamora, his codefendant, was the

driver.   Customs officers found approximately four kilograms of

cocaine concealed in the engine manifold of the pickup.

     Hernandez moved for a FED. R. CRIM. P. 29 judgment of acquittal

after the Government rested its case, but the district court denied

his motion.   He failed to renew the motion after he presented his

case and the evidence was closed.    He also did not renew his motion

after the jury returned its verdict, as authorized by Rule 29(c).

Therefore, he has waived any objection to the denial of the Rule 29

motion he filed.1

     Because Hernandez failed to renew his Rule 29 motion, we

review his sufficiency-of-evidence issue under the plain-error

standard.2    “Plain error review here looks only to whether the

record is devoid of evidence pointing to guilt or contains evidence

on a key element of the offense [that is] so tenuous that a

conviction would be shocking.”3     We may reverse a conviction under


     1
      See United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th
Cir. 1989).
     2
      See United States v. Cathey, 259 F.3d 365, 368 (5th Cir.
2001).
     3
      Id. (citation and quotation marks omitted).
this standard “only to avoid a manifest miscarriage of justice.” 4

In making this determination, we consider the evidence “in the

light most favorable to the government, giving the government the

benefit of all reasonable inferences and credibility choices.”5

     Hernandez    asserts   that   the   evidence   presented   at   trial

established only that he was present when his co-defendant, Zamora,

was arrested.    Hernandez claims that there was no evidence proving

that Hernandez had any knowledge of Zamora’s illegal activities or

proving a conspiracy among the men.       We disagree.

     “A jury may ordinarily infer a defendant’s knowledge of

the presence of drugs from his control over the vehicle in which

they are found.”6 When the contraband is hidden, as it was here, we

require “additional circumstantial evidence that is suspicious in

nature or demonstrates guilty knowledge.”7          In Hernandez’s case,

there were circumstances, in addition to his ownership and control

of the pickup, that were sufficiently suspicious to support the

jury’s finding of guilty knowledge.          First, the two subjects

claimed to have spent two weeks in Mexico, yet they had only one

overnight luggage bag.       Moreover, the inspection agents found

evidence that the engine had been tampered with and discovered a


     4
      United States v. Parker, 133 F.3d 322, 328 (5th Cir. 1998).
     5
      United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988)
(citation and quotation marks omitted).
     6
      United States v. Villareal, 324 F.3d 319, 324 (5th Cir.
2003).
     7
      Id.
tool box in the truck.         The fact that the inspectors were able to

use the tools found in the pickup to remove the manifold and other

components supports an inference that Hernandez knew that cocaine

was hidden in the manifold.8              Finally, there was considerable

testimony      regarding      Hernandez’s    demeanor    during    the     search.

Hernandez did most of the talking and responding to the inspector’s

questions at the primary inspection point.                    In the secondary

inspection area, when he was asked Hernandez if he had had any work

done to the engine block or manifold area, Hernandez answered no.

However, he then turned away and ceased to watch what they were

doing to the pickup.         After the cocaine was found and Hernandez was

handcuffed, he did not say anything or otherwise react, thereby

indicating his lack of surprise.             This evidence, taken together

with his ownership and control over his truck, “could reasonably

support a finding of guilt beyond a reasonable doubt.”9

      There     was   also    ample    evidence    of   the    existence    of    a

conspiracy. For example, the jury was entitled to believe Zamora’s

testimony that he and others were involved in hiding the cocaine in

the   pickup,     without     crediting     his   testimony    that   tended     to

exonerate      Hernandez.10      In   addition,    mechanical     expertise    was

required in order to conceal the cocaine in the manifold of the


      8
      See United States v. Shabazz, 993 F.2d 431, 442 (5th Cir.
1993).
      9
       Jackson v. Virginia, 443 U.S. 307, 318 (1979).
      10
           See United States v. Merida, 765 F.2d 1205, 1220 (5th Cir.
1985).
pickup.        Since there was ample evidence supporting Hernandez’s

convictions,      we    cannot    say     that    there   was    a   “miscarriage     of

justice.”

               Hernandez    also     contends        that      the   district    court

reversibly erred by admitting into evidence statements made by

Zamora    to     Customs   Agent        Daniel     Gleckman     after   his     arrest.

Hernandez argues that the statements were not admissible under FED.

R. EVID. 801(d)(2)(E) because they were not made in the course of

and in furtherance of the conspiracy.                     Hernandez’s argument is

without merit.

       Zamora, who had pleaded guilty on the conspiracy count,

testified for the defense that he had agreed to transport the

cocaine   in     the    pickup    without        Hernandez’s     knowledge.      After

Hernandez rested his case, the Government called Agent Gleckman to

testify in rebuttal.             Defense counsel objected to Gleckman’s

testifying relative to Zamora’s statements to him, arguing that he

made   them     after    his     arrest    and     not    in    furtherance     of   the

conspiracy.      Both the court and the prosecutor then explained that

the Government was calling Gleckman in order to impeach Zamora’s

testimony.       Defense counsel responded that he would not object to

it on that basis.        Gleckman then testified that Zamora had said he

had no knowledge that cocaine was ever placed or hidden in the

pickup.     Rule 607 provides in part that “[t]he credibility of a

witness may be attacked by any party.” Another witness’s testimony
may be used to contradict that of the witness to be impeached.11

Hernandez does not object to the use of Gleckman’s testimony for

impeachment purposes.      Accordingly, Hernandez is not entitled to

any relief based on Gleckman’s rebuttal testimony.12

     AFFIRMED.




     11
          4 Weinstein’s Federal Evidence, § 607.06[1] (2d ed. 2004).
     12
      See Al-Ra’id v. Ingle, 69 F.3d 28, 33 (5th Cir. 1995)
(holding that an appellant abandons a claim by not briefing it).
