                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               DEC 17 1997
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                     Case No. 97-2079
 v.
                                                     (D.C. CR-96-460-SC)
 MARIO AMAYA-SANCHEZ,                                (District of New Mexico)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      Mario Amaya-Sanchez appeals directly to this court from a jury verdict

convicting him of drug importation in violation of 21 U.S.C. §§ 952(a), 960(a)(1),

and 960(b)(3) and possession with intent to distribute more than fifty kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). His appeal states




      *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
that the evidence presented against him at trial is not sufficient to prove his guilt

beyond a reasonable doubt. We rule that the evidence is sufficient and affirm. 1

      In determining the sufficiency of the evidence, we review the record in a

light most favorable to the government and ask whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

See United States v. Johnson, 120 F.3d 1107, 1108 (10th Cir. 1997). “[W]hile the

evidence supporting the conviction must be substantial and do more than raise a

mere suspicion of guilt, it need not conclusively exclude every other reasonable

hypothesis and it need not negate all possibilities except guilt.” United States v.

Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (internal quotations omitted). We

do not function as a jury. Instead, we are required to accept the jury’s resolution

of conflicting evidence and its assessment of the witnesses’ credibility. See

United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997). Applying this

standard, we set forth the following facts which were presented to the jury.

      Mr. Amaya-Sanchez stopped the truck he was driving at the Colombus,

New Mexico Port of Entry from Palomas, Republic of Mexico. The roads in

Palomas are in poor condition. United States Immigration Inspector James



      1
             After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.

                                            2
Varnes asked Mr. Amaya-Sanchez his citizenship, and Mr. Amaya-Sanchez

handed the Inspector his resident alien card. Mr. Amaya-Sanchez’s hands were

shaking, and he did not make eye contact with Inspector Varnes, leading the

Inspector to conclude that he was nervous. Inspector Varnes had experienced

instances when drivers were nervous but no contraband was found in their

vehicles and instances when drivers were not nervous but their vehicles did

contain contraband.

      Inspector Varnes directed Mr. Amaya-Sanchez to an area at the port of

entry where other agents trained a drug-sniffing dog on the truck. The agents

themselves smelled no marijuana, but the dog alerted to the presence of drugs in

the truck’s fender. An agent drilled a hole in the fender and discovered

marijuana. The agents removed over seventy-eight pounds of the drug from the

fender wells and arrested Mr. Amaya-Sanchez.

      Three days later, as an officer was driving the truck away from the port of

entry, he noticed that the truck shook badly when he drove between thirty-five

and sixty miles per hour. He pulled over, let some air out of the tires, and

smelled marijuana. There were 118.2 pounds of the drug hidden in specially built

containers in the tires.

      A customs agent interviewed Mr. Amaya-Sanchez who denied that the truck

was his. Mr. Amaya-Sanchez stated that he had gone to Mexico to have his truck


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repainted in Palomas, but he could not or would not identify where or to whom he

took his truck to have it painted. He said he borrowed the truck he was driving

back across the border from Maria Vasquez, a friend of his who worked in

Palomas for Dr. Anaya. However, when the interviewing agent contacted Dr.

Anaya’s office, he found that no person named Maria Vasquez worked for Dr.

Anaya.

      The truck’s glove box contained a certificate of title showing the owner as

Maria Trinidad Vasquez. However, the address listed for Ms. Vasquez on the

title did not exist and there was no Maria Vasquez or Maria Trinidad listed in the

Palomas phone book. Even so, not all residents of Palomas are listed in the phone

book and some small towns in Mexico do not have street addresses for some

houses. Finally, the truck had New Mexico plates, and the office where the title

was issued did not require proof of identification when issuing title documents.



             I.   POSSESSION WITH INTENT TO DISTRIBUTE

      To support a conviction of possession with intent to distribute in violation

of 21 U.S.C. § 841(a)(1), the government must prove beyond a reasonable doubt

(1) that Mr. Amaya-Sanchez knowingly possessed the marijuana and (2) that Mr.

Amaya-Sanchez possessed the marijuana with the specific intent to distribute it.

See United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996).


                                         4
      The government relies on the following evidence to prove that Mr. Amaya-

Sanchez knowingly possessed the marijuana with the intent to distribute it. He

was the driver and sole occupant of the truck which contained the drugs and

appeared nervous when he was stopped at the port of entry. Although Mr.

Amaya-Sanchez claimed the truck was not his, the friend he named as owner did

not work where he claimed she did and was not listed in the Palomas phone book.

Additionally, despite the fact that her name was on the title to the truck, the

address listed on the title did not exist. Also, Mr. Amaya-Sanchez lacked

credibility because he could not tell the police where he had taken his truck

earlier that day to be painted. Finally, no person would hide over $100,000 worth

of marijuana in her truck and then loan it to a friend who did not know about the

marijuana; an innocent Mr. Amaya-Sanchez would have noticed the same shaking

that the officer driving the truck away from the border would have and, not

knowing of the marijuana, would have likely taken it to a mechanic or some place

where it would have been discovered. Thus, the government’s theory of the case

was that Mr. Amaya-Sanchez knew the truck contained marijuana and lied about

his friend.

      Viewing this evidence in a light most favorable to the government, we

accept the government’s theory of the case and hold that a reasonable juror could

have found Mr. Amaya-Sanchez guilty beyond a reasonable doubt. In United


                                           5
States v. Hooks, 780 F.2d 1526 (10th Cir. 1986), we considered the sufficiency of

the evidence supporting a conviction for possession with intent to distribute when

the defendant was driving a borrowed vehicle containing PCP. We noted that

possession under § 841(a)(1) may be actual or constructive and may be proved by

circumstantial evidence. See id. at 1531. “[C]onstructive possession may be

established by proof that the defendant exercised dominion and control over the

vehicle in which the controlled substance was concealed.” Id. However, “proof

of dominion or control, without the requisite showing of knowledge, is

insufficient to sustain a conviction . . . .” Id. We ruled that the requisite showing

of knowledge was found in the totality of the circumstantial evidence and the

reasonable inferences drawn from that evidence. See id. at 1532. The

circumstantial evidence was that the defendant gave the police a false name, was

carrying baking soda which can be used to purify PCP, seemed to be under the

influence of a narcotic, approached the officer instead of waiting for the officer to

come near the truck where he could smell the PCP, and was driving a truck which

contained $10,000 worth of PCP. See id. As to this last bit of evidence, we noted

that “it is unlikely that the owner of the truck, or anyone else, would have left

such a valuable substance in the truck . . . .” while loaning it to a friend who was

unaware of its presence. Id.




                                           6
      As in Hooks, we find the totality of the circumstantial evidence and the

reasonable inferences from that evidence support Mr. Amaya-Sanchez’s guilt

beyond a reasonable doubt as to the issue of his knowing possession of the drug.

Mr. Amaya-Sanchez appeared nervous at the border crossing, suggesting fear that

he would be caught. He told the customs agent that he took his truck to have it

painted earlier that day in Palomas, but could not remember what the name of the

shop was or where it was, leading to the inference that his story was a lie and

suggesting guilty knowledge. Additionally, his story about his friend who loaned

him the truck proved false at least as to where the friend worked, and the fact that

the friend’s address did not exist cast Mr. Amaya-Sanchez’s story into further

doubt. Finally, the fact that he was driving a car with almost 200 pounds of

marijuana in it also leads to the inference that he knew he was transporting drugs;

it strains credulity to think that the owner of such a large amount of marijuana,

worth over $100,000, would hide it in a truck and then loan that truck to an

innocent Mr. Amaya-Sanchez, who would have at the least jeopardized the

shipment once the truck encountered problems across the border.

      As for the second element of the charge, that Mr. Amaya-Sanchez had the

intent to distribute the marijuana, the large quantity of marijuana in the truck is

sufficient to support a judgment that Mr. Amaya-Sanchez intended to distribute

the marijuana. See id. Therefore, we affirm his conviction on this charge.


                                           7
                          II.   DRUG IMPORTATION

      To support a conviction of drug importation in violation of 21 U.S.C. §

841(a)(1), the government must prove beyond a reasonable doubt that Mr. Amaya-

Sanchez knowingly brought marijuana into the United States. See United States

v. Flinckinger, 573 F.2d 1349 (9th Cir. 1978), overruled on other grounds by

United States v. McConney, 728 F.2d 1195 (9th Cir. 1984). The evidence

presented above is equally applicable to whether Mr. Amaya-Sanchez had the

requisite knowledge that he was bringing marijuana into the United States.

      We determine that there is sufficient evidence to find Mr. Amaya-Sanchez

guilty beyond a reasonable doubt on the drug importation charge as well. In

United States v. Ortiz-Ortiz, 57 F.3d 892 (10th Cir. 1995), the defendant was a

passenger in a car which he claimed was loaned to him by two unknown people so

he and his friend could travel across the border to buy new parts for his friend’s

car. See id. at 894. The car was titled in the name of a person the defendant

claimed he knew, but the police could not find the person. See id. The car

smelled of perfume, which is commonly used to mask the odor of drugs, and when

the border police looked, they discovered at least $28,000 worth of marijuana

concealed under a loose back seat. See id. at 895. We held that a jury was

entitled to disregard the defendant’s claims that the car belonged to a friend or




                                         8
was given to him by strangers and instead to conclude that he knowingly imported

the marijuana. See id.

      While the truck in the case at bar did not smell of perfume, the evidence in

our case is more compelling than in Ortiz-Ortiz because of Mr. Amaya-Sanchez’s

nervousness, because his friend could not be located, because he could not or

would not tell the border police where he had left his truck to have it painted,

and, especially, because of the vast quantity of drugs involved which make it

much less likely that a friend would have simply loaned him the car. We hold

that there was sufficient evidence from which a rational trier of fact could find

Mr. Amaya-Sanchez guilty beyond a reasonable doubt on the importation claim.

      Mr. Amaya-Sanchez’s conviction is affirmed. The mandate shall issue

forthwith.

                                              Entered for the Court,



                                              Robert H. Henry
                                              Circuit Judge




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