     Case: 16-40044      Document: 00513835185         Page: 1    Date Filed: 01/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-40044                                 FILED
                                  Summary Calendar                         January 13, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

MARCOS GARCIA,

                                                 Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-647-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Marcos Garcia challenges the sufficiency of the evidence supporting his
jury-trial convictions of conspiring to possess with the intent to distribute and
possessing more than five kilograms of cocaine. Because Garcia preserved his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-40044

challenge by seeking a judgment of acquittal after close of the evidence, we
review de novo. See United States v. Alaniz, 726 F.3d 586, 600 (5th Cir. 2013).

      Garcia contends that the government failed to establish that he know-
ingly possessed the cocaine. Guilty knowledge is a required element of both
the substantive offense of possession with the intent to distribute a controlled
substance and the related conspiracy offense. See United States v. Patino-
Prado, 533 F.3d 304, 309 (5th Cir. 2008); United States v. Sneed, 63 F.3d 381,
385 (5th Cir. 1995). “As a general rule, a jury may infer that a defendant has
knowledge of drugs in a vehicle when the defendant exercises control over the
vehicle.” United States v. Gonzalez-Rodriguez, 621 F.3d 354, 360 (5th Cir.
2010). But where, as here, drugs are hidden in a secret compartment, we
require additional circumstantial evidence that is suspicious in nature and
demonstrates guilty knowledge, such as, among other things, the high value of
the concealed narcotics, obvious or remarkable alterations to the vehicle, and
nervous behavior. United States v. Vasquez, 677 F.3d 685, 694-95 (5th Cir.
2012). “No single piece of circumstantial evidence need be conclusive when
considered in isolation; the question, rather, is whether the evidence, when
considered as a whole, provides a substantial basis for the jury to find that the
defendant’s possession was knowing.” United States v. Miller, 146 F.3d 274,
281 (5th Cir. 1998).

      The circumstantial evidence, when taken as whole, establishes that Gar-
cia knowingly possessed the cocaine in the secret compartment. First, the more
than 37 kilograms of concealed cocaine, estimated to be worth $800,000 to
$1,000,000, likely would not have been entrusted to a person who was not part
of the drug-trafficking scheme. See United States v. Villareal, 324 F.3d 319,
324 (5th Cir. 2003); United States v. Ramos-Rodriguez, 809 F.3d 817, 824 (5th
Cir.), cert. denied, 136 S. Ct. 2040 (2016). Second, the trailer was remarkably


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                                  No. 16-40044

altered to conceal the cocaine in a highly sophisticated hidden compartment.
See Vasquez, 677 F.3d at 695; United States v. Delgado-Guerrero, 53 F.3d 1280,
1995 WL 295846, at *3 (5th Cir. 1995) (unpublished) (holding that, even
though the hidden compartment was not obvious, the jury was free to use com-
mon sense and infer that the vehicle was designed for drug trafficking and that
the defendant would not have such a vehicle unless he intended to use it in the
drug-trafficking conspiracy).

      The approximate six-hour gap between Garcia’s departure in the tractor-
trailer from the produce warehouse and the arrival of the tractor-trailer at the
checkpoint only 82 miles away was evidence of guilty knowledge.               See
Gonzalez-Rodriguez, 621 F.3d at 361 (holding that jury could infer that nine-
hour gap between the time defendant left warehouse with produce and arrived
at checkpoint one-and-a-half hours away was suspicious and provided oppor-
tunity for loading drugs into trailer while it was in defendant’s control). Garcia
suggests that the cocaine could have been loaded without his knowledge at the
produce warehouse or at his family’s farm, when he apparently turned over
possession of the tractor-trailer to unidentified individuals. The evidence,
however, need not exclude every rational hypothesis of innocence, and a jury
is free to choose among reasonable constructions of the evidence. See Alaniz,
726 F.3d at 601. The jury could reasonably have inferred that the six-hour gap
was indicative of Garcia’s guilty knowledge that a significant amount of time
would be necessary to install the sophisticated secret compartment or to com-
plete the one-to-two-hour loading process.

      Garcia’s nervous behavior and risky hiring of an unlicensed and
unskilled driver to operate his valuable tractor-trailer when it was loaded with
aliens and drugs, particularly in light of Garcia’s willingness later to drive a
tractor-trailer loaded only with aliens, is suggestive of his guilty knowledge.


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                                  No. 16-40044

See Vasquez, 677 F.3d at 694–95. In sum, viewing the evidence in the light
most favorable to the government and considering the circumstantial evidence,
a reasonable jury could have found beyond a reasonable doubt that Garcia
knowingly possessed cocaine hidden in the trailer’s secret compartment. See
Alaniz, 726 F.3d at 600–01. There is sufficient evidence to establish the guilty
knowledge element of the substantive and conspiracy offenses. See Patino-
Prado, 533 F.3d at 309; Sneed, 63 F.3d at 385.

      Garcia contends that the evidence was insufficient to support his con-
spiracy conviction because there was no showing that he agreed with others to
possess and transport cocaine. The government was required to prove that
there was an agreement between two or more persons to possess with the
intent to distribute a controlled substance. Patino-Prado, 533 F.3d at 309–10.
For purposes of a conspiracy, “[t]he agreement to violate the law does not have
to be explicit or formal; a tacit agreement is sufficient.” United States v. Chon,
713 F.3d 812, 818 (5th Cir. 2013) (internal quotation marks and citation omit-
ted). “The existence of an agreement to violate the law may be established
solely by circumstantial evidence and may be inferred from a concert of action.”
Id. at 818–19 (internal quotation marks and citation omitted).

      Trial testimony established the necessary involvement of multiple actors
in a large-scale drug trafficking enterprise like the one in this case, as well as
a concert of action between Garcia and the unknown individuals to whom he
apparently gave custody of the tractor-trailer for a lengthy period right before
it was driven to the checkpoint. Viewing the evidence in the light most favora-
ble to the government, a reasonable jury could have determined beyond a
reasonable doubt that Garcia at least tacitly agreed with others to participate
in a drug trafficking conspiracy. See Alaniz, 726 F.3d at 600–01.

      The judgment is AFFIRMED.


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