           Case: 18-15237   Date Filed: 05/08/2020   Page: 1 of 8



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-15237
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 7:17-cr-00201-LSC-HNJ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ADRIAN HERNANDEZ PORTILLO,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (May 8, 2020)

Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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          Adrian Hernandez Portillo appeals his convictions for conspiracy to possess

with intent to distribute cocaine and morphine and possession with intent to

distribute cocaine and morphine. He argues that the district court erred in denying

his motion for judgment of acquittal because there was insufficient evidence from

which a reasonable jury could find that he knew about the cocaine and morphine in

the intake manifold of the pickup truck in which he was a passenger or that he

knowingly entered a conspiracy. After careful review, we affirm.

                                       I.      BACKGROUND

          A grand jury charged Portillo with conspiracy to possess with intent to

distribute five kilograms or more of a mixture and substance containing cocaine

and a mixture and substance containing morphine, in violation of 21 U.S.C. § 846,

possession with intent to distribute five kilograms or more of a mixture and

substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and

possession with intent to distribute a mixture and substance containing morphine,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). 1 Portillo pled not guilty and

proceeded to a jury trial.

          At trial, the government offered testimony from Ken Delaney, a law

enforcement officer who conducted a traffic stop on a Toyota Tundra pickup truck



          1
              Because we write for the parties, we recount only the facts necessary to decide this
appeal.
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on an Alabama interstate. Portillo was the passenger in the truck. Delaney

questioned Portillo and the driver, Eduardo Mendez Hernandez, both of whom

appeared nervous and gave inconsistent stories about the truck and their

relationship to one another. Portillo told Delaney that the truck was his.

Hernandez and Portillo consented to a search of the truck. Delaney and a partner

found three packages concealed in a compartment inside the truck’s intake

manifold.

      Drug Enforcement Administration Special Agent Joshua Moore testified that

the contents of the packages tested positive for cocaine and morphine, with a total

street value of at least $700,000. Moore also testified that in his training and

experience it would not make sense for a drug trafficking organization to transport

such a high-value quantity of drugs via someone who did not know of the drugs’

existence. A Department of Homeland Security border patrol agent testified that

the Toyota Tundra had crossed the border from Mexico to the United States the

day before Delaney conducted the traffic stop. Based on photographs of the truck

and entry documents, Portillo was the only person in the truck at the border.

      At the close of the government’s case, Portillo moved for a judgment of

acquittal, arguing that the government had offered insufficient evidence that he had

knowledge of the drugs or a plan to possess with intent to distribute them. The

district court denied the motion.


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      Portillo testified in his own defense. He testified that he owned a private

security business in Mexico. According to Portillo, he and “Maria,” the wife of a

colleague, drove her Toyota Tundra across the border to the United States because

they both had business meetings scheduled in Houston, Texas. Portillo testified

that the truck belonged to Maria. Maria’s meeting was moved to Dallas, so the two

drove to Dallas, where they picked up Hernandez. Portillo testified that he had

never met Hernandez. Although Portillo had planned to travel from Dallas directly

to Houston, Hernandez invited Portillo to travel with him to Atlanta. Portillo,

whose meeting was not for a few more days, agreed, and Hernandez thereafter

drove the truck. Portillo explained that at some point after picking up Hernandez,

Maria got out of the truck and he never saw her again, even though he and

Hernandez continued on in her truck. Portillo testified that he did not know there

were drugs in the truck and never had a conversation with anyone about selling

drugs before getting in the truck.

      The government recalled Moore, who testified that months before the traffic

stop Hernandez crossed the border in the same Toyota Tundra pickup truck as was

involved in the stop.

      Portillo renewed his motion for judgment of acquittal, arguing again that the

government had failed to demonstrate his knowledge of the conspiracy or the




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underlying substantive offenses. The district court denied the motion, and the jury

convicted Portillo on all three counts.

      This is Portillo’s appeal.

                         II.    STANDARD OF REVIEW

      We review the district court’s denial of a motion for judgment of acquittal de

novo. United States v. Louis, 861 F.3d 1330, 1333 (11th Cir. 2017). In

determining whether the evidence was sufficient to sustain a criminal conviction,

we “view the evidence in the light most favorable to the government, and draw all

reasonable factual inferences in favor of the jury’s verdict.” United States v.

Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). Evidence of guilt is sufficient to

sustain a conviction if a reasonable trier of fact could determine that it established

the defendant’s guilt beyond a reasonable doubt. Id. at 1284-85.

      The jury has exclusive province over the credibility of witnesses, and in

conducting a sufficiency review, we will not revisit the question of witness

credibility unless the testimony is “incredible as a matter of law.” United States v.

Feliciano, 761 F.3d 1202, 1206 (11th Cir. 2014) (internal quotation marks

omitted). When a defendant testifies in his own defense, the jury may disbelieve

his testimony, and the defendant’s own statements “may be considered as

substantive evidence of the defendant’s guilt.” United States v. Brown, 53 F.3d

312, 314 (11th Cir. 1995). “At least where some corroborative evidence of guilt


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exists for the charged offense . . . and the defendant takes the stand in his own

defense, the defendant’s testimony, denying guilt, may establish, by itself,

elements of the offense.” Id. at 314-15. This rule applies with “special force”

when the government must prove “highly subjective elements,” such as the

defendant’s intent or knowledge. Id. at 315.

                                III.   DISCUSSION

      On appeal Portillo argues that the government presented insufficient

evidence upon which the jury could conclude that Portillo knew about the cocaine

and morphine hidden in the truck’s intake manifold or that he knowingly engaged

in a conspiracy to possess with intent to distribute those drugs. Viewing the

evidence in the light most favorable to the jury’s verdict, we disagree.

      To convict a person of conspiracy, “the evidence must show (1) that a

conspiracy existed, (2) that the defendant knew of it, and (3) that the defendant,

with knowledge, voluntarily joined it.” United States v. Perez-Tosta, 36 F.3d

1552, 1557 (11th Cir. 1994); see 21 U.S.C. § 846. “[D]irect evidence of the

elements of a conspiracy is not required. A defendant’s knowing participation in

the conspiracy may be established through proof of surrounding circumstances,

such as acts committed by the defendant that furthered the purpose of the

conspiracy.” United States v. Alvarez, 755 F.2d 830, 853 (11th Cir. 1985).

Further, “the government need not prove that a defendant had knowledge of all


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details or phases of the conspiracy. Rather, it is enough that the defendant knew

the essential nature of the conspiracy.” Id. To convict a person of possession with

intent to distribute a controlled substance, the government must prove three

elements: (1) knowledge; (2) possession; and (3) intent to distribute. United

States v. Hernandez, 743 F.3d 812, 814 (11th Cir. 2014); see 21 U.S.C. §

841(a)(1). “All three elements can be proven by either direct or circumstantial

evidence.” United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).

      Portillo challenges only the knowledge element of each offense. But Portillo

testified in his own defense at trial, telling the jury that he had no knowledge of the

drugs or any plan involving them. The jury was entitled to disbelieve this

testimony and take his denials as affirmative evidence that he had the requisite

knowledge. Brown, 53 F.3d at 314. Portillo’s testimony, taken as substantive

evidence of his own guilt, is corroborated by other evidence of his knowledge of

the drugs and the plan to possess with intent to distribute them, including that:

Portillo drove a truck with hundreds of thousands of dollars’ worth of drugs

concealed in it across the border; Portillo appeared nervous at the traffic stop and

gave Delaney information that was inconsistent with Hernandez’s information;

Hernandez crossed the border in the same Toyota Tundra months before Delaney

stopped Hernandez and Portillo; and in Moore’s experience and training a drug

trafficking organization would not entrust that value of drugs with someone who


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lacked knowledge of the drugs’ existence. See id. at 314-15. The testimony of the

government’s witnesses was not incredible as a matter of law; the jury therefore

was entitled to rely on this evidence. See Feliciano, 761 F.3d at 1206.

      Viewing the evidence in favor of the jury’s verdict, we reject Portillo’s

challenge to the sufficiency of the evidence. We affirm Portillo’s convictions.

      AFFIRMED.




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