            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 99-50556
                                         _______________




                                 UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                              VERSUS

                                     JOSÉ ANGEL MENDOZA,

                                                             Defendant-Appellant.

                                   _________________________

                            Appeal from the United States District Court
                                 for the Western District of Texas
                                  _________________________

                                           August 29, 2000


Before JOLLY, SMITH, and BARKSDALE,                                        I.
  Circuit Judges.                                       Border Patrol Agent Andrew Graham spot-
                                                     ted a Nissan Maxima traveling northbound on
JERRY E. SMITH, Circuit Judge:                       Highway 118 approximately thirty-five miles
                                                     south of Alpine, Texas; about one mile behind
                                                     was a Ford Thunderbird with two occupants.
    José Mendoza challenges the sufficiency of
                                                     Because the occupants of the Thunderbird ap-
the evidence supporting his convictions of
                                                     peared surprised when he passed, Graham
conspiracy to possess marihuana with intent to
                                                     turned around to follow the vehicle. The
distribute, in violation of 21 U.S.C. § 846, and
                                                     Thunderbird braked and swerved to the side of
possession of marihuana with intent to distrib-
                                                     the road, then slowed its speed; the Maxima
ute, in violation of 21 U.S.C. § 841(a)(1). We
                                                     continued northbound toward the Border Pa-
affirm.
                                                     trol checkpoint located about fifteen miles
                                                     south of Alpine.
   Graham continued to follow the Thunder-                 Graham believed that the Maxima and
bird, which pulled into a rest area approxi-            Thunderbird had been traveling as a “lead-
mately two miles south of the checkpoint,               car/load-car” team, the “lead car” being used
whereupon the driver and passenger exited and           to scout ahead of the “load car” carrying the
paced nervously around the front of the vehi-           contraband. Lopez and Agent Neal Thames
cle, then a minute or two later returned to their       agreed that the circumstances were suspicious.
car and continued traveling northbound. A               When Thames asked Mendoza and Salazar
small distance south of the checkpoint, Gra-            whether they knew the occupants of the Thun-
ham passed the Thunderbird to arrive at the             derbird, they responded in the negative.
checkpoint first.
                                                           Thames collected driver’s licenses from
    The Maxima reached the checkpoint before            Mendoza, Salazar, Gomez, and Martinez, and
Graham. Mendoza was driving, and his girl-              compared them. He noticed that Salazar and
friend, Hermila Salazar-Benavidez (“Salazar”)           Martinez (the passengers) lived in the same
was in the passenger’s seat. After advising             city and that Mendoza and Gomez (the driv-
Agent Frank Lopez that they were United                 ers) lived in adjacent towns a few miles apart.
States citizens returning from Mexico, they             Graham found a receipt in the Thunderbird
were directed to a secondary inspection, at             signed by “Hermila Hernandez.” After com-
which Mendoza consented to a canine search              paring the signature on the receipt with the
of the car.                                             one on Salazar’s driver’s license, Thames pre-
                                                        sented the receipt to Salazar, who admitted
   The dog alerted to the trunk area. In the            that it was her receipt and her signature. The
trunk, Lopez found what he believed to be a             registration form taken from the Thunderbird
marihuana “twig,” but a field test came back            established that the car was registered to Ser-
negative. Lopez testified that, based on his ex-        gio Salazar, whom Salazar identified as her ex-
perience and the dog’s alerting aggressively on         husband.
the car, he was certain that the twig was mari-
huana residue but that the quantity was too                After first denying she knew Martinez, Sal-
small to yield a positive test result. Lopez            azar then “admitted” that she knew a relative
searched for a hidden compartment but found             of hers. The two men denied knowing each
none.                                                   other or the other women. The agents none-
                                                        theless believed the two cars had acted in con-
    When the Thunderbird reached the check-             junction and therefore placed Mendoza and
point, Graham asked the occupants about their           Salazar under arrest.
immigration status. The male driver, Ambro-
cio Gomez, appeared nervous, and the female                After they were advised of their rights,
passenger, Modesta Martinez, avoided eye                Mendoza, Salazar, Gomez, and Martinez told
contact. When asked whether he had been                 conflicting stories. Gomez told an agent that
traveling with the Maxima, Gomez responded              he and his girlfriend, Martinez, had traveled
in the negative. A canine search of the Thun-           from Plainview, Texas, in the Thunderbird and
derbird uncovered several hidden bundles of             had dropped off a friend in Lajitas, Texas,
marihuana totaling 119.34 pounds, and Gomez             where they had stayed for several hours. Go-
and Martinez were arrested.                             mez could not, however, provide the name or


                                                    2
a description of the friend he had dropped off.         that she informed El Compadre that the vehicle
Gomez admitted that he knew Mendoza, as                 was for sale when Salazar was selling the
they worked at the same meat-packing plant.             Thunderbird. According to Martinez, none of
                                                        her companions knew about the drugs in the
    Mendoza told agents that he had no knowl-           car, and Mendoza was not scouting ahead to
edge of the marihuana in the Thunderbird but            warn of law enforcement. Gomez also testi-
admitted that he knew Gomez and Martinez                fied, stating that the four traveled to Mexico in
through his girlfriend Salazar. He stated that          the Maxima, that Martinez had obtained the
he and Salazar had gone to Ojinaga, Mexico,             Thunderbird, and that it was merely coinci-
to drop off his brother. According to Mendo-            dence that Mendoza and Salazar drove ahead
za, after they did so, he and Salazar spent the         of them to the checkpoint.
night in Ojinaga, then went to Lajitas to visit a
friend. Mendoza could not, however, identify                                   II.
where this friend lived. In Lajitas, they ran in-                              A.
to Gomez and Martinez at a gas station, and                Mendoza argues that the evidence is insuffi-
all proceeded to return to Plainview.                   cient to support his conspiracy conviction. Al-
                                                        though he admits he was not truthful regarding
    Salazar told agents that she and Mendoza            his relationship with Gomez and Martinez,
traveled to Ojinaga to drop off a friend of             Mendoza argues that there is no evidence of a
Mendoza’s (as opposed to Mendoza’s account              lead-car/load-car arrangement and no other
in which they dropped off his brother). She             evidence connecting him with the drugs.
first denied knowing Gomez and Martinez be-
yond having seen them before, but later admit-             Mendoza made motions for judgment of ac-
ted that she was Martinez’s aunt. Salazar told          quittal at the close of the government’s case
agents that she had previously sold the Thun-           and at the close of all of the evidence, so the
derbird to an unknown person. Despite these             standard of review in assessing his sufficiency
statements, Gomez, Martinez, and Salazar                challenge is whether, considering all the evi-
gave the same home address.                             dence in the light most favorable to the ver-
                                                        dict, a reasonable trier of fact could have
   Mendoza, Salazar, and Gomez were tried               found that the evidence established guilt be-
together. Martinez testified for the defense            yond a reasonable doubt. See United States v.
but gave a very different account from those            Gonzales, 79 F.3d 413, 423 (5th Cir. 1996);
offered at the time of arrest. She testified that       United States v. Bell, 678 F.2d 547, 549 (5th
she traveled to Mexico in the Maxima with               Cir. Unit B 1982) (en banc), aff'd, 462 U.S.
Gomez, Salazar, and Mendoza. According to               356 (1983). “Direct and circumstantial evi-
Martinez, she alone picked up the Thunderbird           dence are given equal weight, and the evidence
with its load of marihuana from a man named             need not exclude every reasonable hypothesis
“El Compadre” while Gomez, Salazar, and                 of innocence.” Gonzales, 79 F.3d at 423.
Mendoza were out shopping and eating. El
Compadre was to pay her $100 per pound to                  “To establish a drug conspiracy under
transport the marihuana. As to how El Com-              § 846, the government must prove beyond a
padre happened to possess a vehicle registered          reasonable doubt (1) an agreement between
to Salazar’s ex-husband, Martinez testified             two or more persons to violate the narcotics


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laws, (2) that each alleged conspirator knew of           The officer followed the now erratically-
the conspiracy and intended to join it, and            driven Mercury for a distance, during which
(3) that each alleged conspirator did partici-         time the MG varied its speed to maintain a
pate voluntarily in the conspiracy.” United            constant distance between it and the Mercury.
States v. Inocencio, 40 F.3d 716, 725 (5th Cir.        See id. When the officer stopped the Mercury,
1994). The elements of the conspiracy may be           the MG accelerated out of sight. See id. The
established by circumstantial evidence and             Mercury’s trunk contained eighty-four pounds
“may be inferred from the development and              of marihuana. See id.
collocation of circumstances.” Gonzales, 79
F.3d at 423 (internal quotation marks omit-                We found the evidence sufficient to support
ted). The government must, however, “do                Barnard’s conspiracy conviction, considering
more than pile inference upon inference upon           the evidence of concerted action already dis-
which to base a conspiracy charge.” United             cussed and the following additional evidence:
States v. Williams-Hendricks, 805 F.2d 496,            (1) Barnard’s passenger in the MG was the
502 (5th Cir. 1986) (internal quotation marks          son of the owner of the Mercury; (2) that pas-
omitted). Likewise, “the government may not            senger’s wallet was found in the glove com-
prove up a conspiracy merely by presenting             partment of the Mercury, including his driver's
evidence placing the defendant in a climate of         license and business card; (3) a shaving kit
activity that reeks of something foul.” United         with the inscription “C. E. Barnard” was found
States v. Maltos, 985 F.2d 743, 746 (5th Cir.          in the front seat of the Mercury; and (4) hang-
1992) (internal quotation marks omitted).              ing in the back seat of the Mercury was a
                                                       sweater with a laundry tag marked “E. Bar-
    We have previously considered sufficiency          nard.” See id. at 393.
challenges in lead-car/load-car scenarios. In
United States v. Barnard, 553 F.2d 389 (5th               Mendoza stresses that, unlike in Barnard,
Cir. 1977), we upheld conspiracy and posses-           there is no evidence of concerted driving re-
sion convictions of Barnard, the lead-car driv-        sponses between Mendoza and the Thunder-
er. A Border Patrol officer was passed by two          bird, except that Mendoza’s vehicle was, at
vehicles proceeding northbound approximately           one point in time, approximately one mile
one mile apart. The lead vehicle was an MG             ahead of the Thunderbird. Rather than con-
sports car with two occupants that had a               forming to the erratic behavior of the Thunder-
citizen's band (CB) radio antenna, the driver of       bird, Mendoza continued driving toward the
which appeared to be talking into a micro-             checkpoint. Also unlike the situation in Bar-
phone as the MG passed. See id. at 391. The            nard, in which the vehicles were equipped with
second vehicle was a white Mercury that also           and in which Barnard was seen using, compati-
carried a CB antenna. See id. The two vehi-            ble communications devices, no communica-
cles had the same three-letter prefix on their         tions device was found in the Maxima or
license plates, indicating that both automobiles       Thunderbird or on the person of Mendoza or
were registered in the same county. See id.            any of his co-defendants.
The driver of the Mercury appeared nervous,
looking repeatedly at the officer, and the rear           As in Barnard, however, there is a connec-
end of his car appeared to be riding low. See          tion between Mendoza’s passenger and the
id.                                                    load car. In Barnard, the load car belonged to


                                                   4
the passenger’s father, and the passenger’s             ness when questioned about the two-way ra-
wallet was found in the load car. In the case           dio; papers in the lead car containing business
sub judice, the load car was registered to the          and pager numbers for the driver of the load
passenger’s ex-husband, and a receipt signed            car; a photograph in the lead car picturing the
by the passenger was found in the load car.             driver of the lead and load cars together; and
Although there were no personal items con-              evidence of cell phone calls between the driver
necting the driver, Mendoza, to the load car,           of the lead car and the pivotal figure of the
there was testimony that Mendoza, Salazar,              conspiracy. See id. at 720-21, 726.
Gomez, and Martinez had traveled to Mexico
together and that Mendoza gave materially                  Mendoza is correct that Villarreal and Ino-
false statements to officers regarding his recent       cencio contained more evidence of a lead-
actions and his associations with Gomez and             car/load-car scenario than does the case sub
Martinez.                                               judice, most notably because the Maxima and
                                                        Thunderbird did not contain electronic means
   In United States v. Villarreal, 565 F.2d 932         of communication. Such communication is
(5th Cir. 1978), we again affirmed the conspir-         not, however, essential to facilitate a lead-
acy conviction of a lead-car driver. The evi-           car/load-car transport. Absent communication
dence demonstrated that the lead and load cars          devices, the lead car could travel first to the
had traveled together from the border for over          checkpoint, and either turn around (or not turn
an hour; both vehicles were equipped with CB            around, depending on the agreement) if the
radios; when the lead car approached the                checkpoint is active, thus warning-off the load
checkpoint, the passenger ducked beneath the            car. Here, the load car may have felt com-
dashboard in a manner that suggested that he            pelled to continue toward the checkpoint
was making a furtive call to the load car; the          because Graham followed it to the rest area
load car made a U-turn and turned into a rest           and waited for it to continue.
stop; the load car had been lent to the passen-
ger of the lead car; and both occupants of the             Moreover, to affirm a conviction we need
lead car left footprints at the site where the          not find evidence so overwhelming that it
marihuana had been delivered and loaded into            matches that contained in all our precedent.
the load car. See id. at 934-35, 938.                   Instead, we need only conclude that, viewed in
                                                        the light most favorable to the government, the
   In United States v. Inocencio, 40 F.3d 716           evidence is sufficient to allow a reasonable tri-
(5th Cir. 1994), we upheld conspiracy and               er of fact to find guilt beyond a reasonable
possession convictions in a lead-car/load-car           doubt. The government proved a link between
scenario. The following evidence supported              the two vehicles through Salazar’s receipt and
the existence of a conspiracy: coconspirator            the registration of the Thunderbird to Salazar's
testimony linking the drivers of the lead and           ex-husband. Martinez and Gomez testified
load cars to the pivotal figure of the conspir-         that all four defendants traveled to Mexico in
acy; two-way radios in the lead and load cars           the Maxima.
programmed to the same frequency; agent tes-
timony that the lead car circled not far from              Mendoza admits these connections between
the checkpoint, as if waiting for the load car;         the two vehicles but denies they were function-
the lead car driver’s nervousness and evasive-          ing as a lead-car and load-car. Given his ma-


                                                    5
terially false statements to the police, however,       change of drivers. The jury could rationally
and given the connections between the Max-              conclude that [defendant] knowingly pos-
ima and Thunderbird, a reasonable juror could           sessed the cocaine . . . .” Id.
conclude that Mendoza had knowledge of the
marihuana and that the cars were indeed en-                 Here, to the same effect, the jury could in-
gaged in a lead-car/load-car transport.                 fer that Mendoza constructively but knowingly
                                                        possessed the marihuana because of his obvi-
                       B.                               ous involvement in the conspiracy and the con-
   To prove possession with intent to distrib-          flicting stories he gave. All this is sufficient to
ute under § 841(a)(1), the government must              establish the requisite guilty knowledge.
establish, beyond a reasonable doubt, knowing
possession of contraband with intent to distrib-           AFFIRMED.
ute. See id. at 724. Possession may be actual
or constructive. See id. In a hidden-compart-
ment case such as this, “[p]ossession of or
control over a vehicle does not, standing
alone, suffice to prove guilty knowledge.”
United States v. Anchondo-Sandoval, 910
F.2d 1234, 1236 (5th Cir. 1990). Nervous-
ness, conflicting statements, and implausible
stories can be sufficient to demonstrate guilty
knowledge, however. See Inocencio, 40 F.3d
at 725.

    The government concedes that Mendoza
did not actually possess the marihuana but ar-
gues that he constructively possessed it as
driver of the lead car in a lead-car/load-car
scheme. Indeed, in United States v. Quiroz-
Hernandez, 48 F.3d 858, 868 (5th Cir. 1995),
we held that “[c]o-conspirators may also be li-
able for the substantive offenses committed by
other members of the conspiracy in furtherance
of the common plan” (quoting United States v.
Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992)).
“Therefore, a defendant can be liable for a pos-
session conviction on the basis of both his con-
structive possession over the contraband and
his status as a co-conspirator.” Id. (citing Lo-
pez, 979 F.2d at 1031). “[T]he jury could in-
fer [the defendant’s] joint control over the
contraband from his presence at the scene and
all the events leading to the . . . van’s ex-


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