IN THE UNITED STATES COURT OF APPEALS

        FOR THE FIFTH CIRCUIT

                _______________

                  m 01-50752
                _______________

          UNITED STATES OF AMERICA,

                                  Plaintiff-Appellee,

                    VERSUS

           JOE LUIS SAUCEDO-MUNOZ,
         ALSO KNOWN AS JOE LUIS SAUCEDO,

                                  Defendant-Appellant.


    *****************************


                _______________

                  m 01-50904
                _______________

          UNITED STATES OF AMERICA,

                                  Plaintiff-Appellee,

                    VERSUS

          JOSE LUIS SAUCEDO-MUNOZ,
         ALSO KNOWN AS JEHOVA MIRANDA,

                                  Defendant-Appellant.
                                  _________________________

                          Appeals from the United States District Court
                               for the Western District of Texas

                                  _________________________
                                      September 23, 2002



Before DAVIS, SMITH, and BENAVIDES,                   evasive.
  Circuit Judges.
                                                          Garcia then tapped on the gas tank with his
JERRY E. SMITH, Circuit Judge:                        baton and heard a “thud” that he said was in-
                                                      consistent with the sound that would be pro-
   Jose Saucedo-Munoz appeals his conviction          duced by tapping on an empty tank or a tank
of possession with intent to distribute mar-          filled with fluid. Upshaw also tapped on the
ihuana and cocaine, illegal reentry following         tank with his baton and heard a similar thud.
deportation, and making a false statement.            Garcia concluded that the tank contained
Finding no error, we affirm.                          something more than gasoline.

                       I.                                When asked for identification, Saucedo-
   State troopers Ruben Garcia and Ethan Up-          Munoz produced a New Mexico identification
shaw stopped to assist two stranded motorists         card bearing the name Jehova Miranda. The
standing next to a pickup truck with its hood         other man produced a border crossing card
raised and gas tank opened. An empty gas jug          bearing the name Gerardo Saucedo-Diaz.
lay next to the truck.                                Saucedo-Munoz then asked the officers for a
                                                      ride to a gas station to buy more gas.
   The two men told Garcia they were out of
gas. When Garcia asked where they had last               During the trip to the station, Saucedo-
refueled, they said they had done so in Van           Munoz, Garcia, and Upshaw conversed. Sau-
Horn with nine dollars worth of gas. Garcia           cedo-Munoz stated that he had met Saucedo-
found this suspicious, because he knew Van            Diaz four years earlier at a bar in Juarez. Gar-
Horn was 108 miles away; he would not have            cia observed that, according to Saucedo-Di-
expected a pickup truck to run out of gas after       az’s identification, Saucedo-Diaz would have
traveling such a short distance. Garcia then          been fourteen years old at that time, too young
asked whether the truck’s gas gauge worked,           to be in a bar. Saucedo-Munoz initially had
and the men replied that it did not. This fur-        difficulty explaining this apparent discrepancy
ther aroused Garcia’s suspicion, because he           but finally explained that people in Mexico go
knew from experience and training that a ve-          to bars at young ages.
hicle’s gas gauge usually will not work if the
gas tank is loaded with contraband. Garcia               At the station, Saucedo-Munoz purchased
testified that both men seemed nervous and            a gas jug after realizing that he had left his


                                                  2
empty jug behind at the truck. When they ar-                                    III.
rived back at the truck, Saucedo-Munoz filled               Saucedo-Munoz argues that the district
the truck with the gas and asked the officers to         court improperly instructed the jury regarding
follow him and Saucedo-Diaz to a nearby gas              deliberate ignorance.1 The deliberate ignor-
station. After the officers followed them to a           ance instruction is used “to inform the jury that
station in Pyote, Saucedo-Munoz paid the at-             it may consider evidence of the defendant’s
tendant and filled the tank with only three dol-         charade of ignorance as circumstantial proof of
lars worth of gas before the pump stopped.               guilty knowledge.” United States v. Wells,
                                                         262 F.3d 455, 465 (5th Cir. 2001) (citation
   Saucedo-Munoz acted surprised and at-                 and internal quotati on omitted). The in-
tempted to blame the problem on the station’s            struction allows the jury to convict without
pump, which he claimed was broken. When                  finding that the defendant actually was aware
Upshaw observed that Saucedo-Munoz had                   of the existence of illegal conduct. United
paid the attendant only three dollars, Saucedo-          States v. Cartwright, 6 F.3d 294, 301 (5th Cir.
Munoz paid another seven dollars. After six              1993).
dollars of gas were put into the truck, the tank
would take no more. Both men were placed                     Where, as here, the mens rea required for
under arrest.                                            conviction is that the defendant acted “know-
                                                         ingly” or “intentionally,” a deliberate ignorance
   The truck was taken to a wrecking yard,               instruction creates a risk that the jury might
where a drug dog alerted to the vehicle. Gar-            convict for negligence or stupidity. Id.
cia observed that the gas gauge was broken.              (citations omitted). The deliberate ignorance
The truck was placed on a hydraulic lift, and            instruction “should only be given when a
the officers noted that there were fresh                 defendant claims a lack of guilty knowledge
scratches on the bolts and screws holding the            and the poof at trial supports an inference of
tank in place. Saucedo-Munoz threatened to               deliberate indifference.” Wells, 262 F.3d at
sue if nothing was discovered. After removing
the tank, the officers discovered forty-three
bundles of cocaine and marihuana inside.                    1
                                                               The deliberate ignorance charge read as
                                                         follows:
                       II.
   Saucedo-Munoz pleaded guilty of illegal                       You may find that a defendant had
reentry following deportation, in violation of 8            knowledge of a fact if you find that the de-
U.S.C. §§ 1326(a),(b)(2), and making a false                fendant deliberately closed his eyes to what
statement to a federal officer, in violation of 18          would otherwise have been obvious to him.
U.S.C. § 1001(a)(2). Before trial on charges                While knowledge on the part of the defen-
                                                            dant cannot be established merely by dem-
of possession with intent to distribute mari-
                                                            onstrating that the defendant was negligent,
huana and cocaine, in violation of 21 U.S.C.                careless or foolish, knowledge can be in-
§ 841(a)(1), Saucedo-Munoz moved unsuc-                     ferred if the defendant deliberately blinded
cessfully to suppress evidence. A jury con-                 himself to the existence of a fact. However,
victed him of both offenses. He appeals the                 even so, if you find that the Defendant
convictions and the revocation of his super-                actually believed that the transaction did not
vised release.                                              involve marihuana or cocaine, then you
                                                            must acquit the defendant.

                                                     3
465 (quoting United States v. McKinney, 53                   v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994)
F.3d 664, 676 (5th Cir. 1995)).                              (“Evasive and erratic behavior may be evi-
                                                             dence of guilty knowledge.”).
   A deliberate ignorance instruction is re-
viewed “using the standard of whether the                       Evidence tending to show that Saucedo-
court’s charge, as a whole, is a correct state-              Munoz purposely contrived to avoid learning
ment of the law and whether it clearly instructs             the existence of contraband is less apparent.
jurors as to principles of law applicable to the             Because he did not testify, there was no op-
factual issues confronting them.” United                     portunity for the government to conduct cross-
States v. Wisenbaker, 14 F.3d 1022, 1027 (5th                examination regarding his knowledge of how
Cir. 1994) (citation and internal quotation                  the drugs were put into the tank. We are
omitted). The instruction is justified where                 mindful that where “the choice is simply be-
“the evidence shows (1) subjective awareness                 tween a version of the facts in which the de-
of a high probability of the existence of illegal            fendant had actual knowledge, and one in
conduct and (2) purposeful contrivance to                    which he was no more than negligent or stu-
avoid learning of the illegal conduct.” United               pid, the deliberate ignorance instruction is in-
States v. Threadgill, 172 F.3d 357, 368 (5th                 appropriate.” United States v. Lara-Velas-
Cir. 1999) (citation omitted).                               quez, 919 F.2d 946, 951 (5th Cir. 1990). Nev-
                                                             ertheless, Saucedo-Munoz’s failure to testify
   The record reflects that Saucedo-Munoz                    or present evidence does not render a delib-
was subjectively aware of a high probability                 erate ignorance instruction invalid.
that the gas tank contained contraband. He
knew that the truck had run out of a full tank                  A defendant’s contrivance to avoid learning
of gas after traveling only 108 miles and that               the existence of illegal conduct may be es-
the gauge was broken.2 At the gas station in                 tablished by direct or circumstantial evidence.
Pyote, Saucedo-Munoz tried to fool the of-                   Id. at 952. As we have noted, Saucedo-Mu-
ficers by purchasing only three dollars worth                noz tried to fool the officers by putting only
of gas and then claiming that the pump was                   three dollars worth of gas in the tank, and then
broken. He also produced a New Mexico                        claiming the pump was broken. Depending on
identification with a false name. Both officers              how this action is construed, it could show
testified that he seemed nervous and evasive                 that Saucedo-Munoz had actual knowledge
throughout the encounter. See United States                  that the tank contained contraband. On the
                                                             other hand, the charade might be construed as
                                                             an attempt to avoid discovery of that which he
   2
                                                             believed highly probable.
     Although the average person might not infer
the presence of contraband from this fact alone,
                                                                Whichever it was, the court did not err by
Saucedo-Munoz was previously convicted of a
similar offense. He therefore was more likely than
                                                             giving a deliberate ignorance instruction. Al-
the average person to infer that the inability to fill       though our caselaw prohibits a deliberate ig-
a gas tank with more than nine dollars worth of gas          norance instruction where there is evidence of
and a broken gas gauge were indicative of the                only actual knowledge, Threadgill, 172 F.3d
presence of contraband. The admissibility of                 at 369, we are unaware of any cases sug-
Saucedo-Munoz’s prior offense is discussed infra             gesting that a deliberate ignorance instruction
part III.

                                                         4
is improper where evidence may be construed                 as his defense but refuses to testify,4 he should
as showing either actual knowledge or con-                  not be able to avoid a deliberate ignorance in-
trivance to avoid learning the truth.                       struction because his conduct might also be
                                                            construed as evincing actual knowledge.
   Instead, our precedent suggests that a
deliberate ignorance instruction may be given                  By giving a deliberate ignorance instruc-
alongside evidence of actual knowledge.3                    tion, the court did not create a risk that the
Where, as here, a defendant claims ignorance                jury would convict Saucedo-Munoz for mere
                                                            negligence or stupidity. Saucedo-Munoz’s af-
                                                            firmative attempt to fool the officers, his pro-
                                                            duction of a false identification, and experience
                                                            in narcotics trafficking suggest that if he did
   3
      See United States v. Farfan-Carreon, 935              not have actual knowledge of the presence of
F.2d 678, 681 (5th Cir. 1991) (affirming deliberate         drugs in the tank, he was at the very least
ignorance instruction alongside evidence that the           turning a blind eye. In addition, the court pro-
defendant reacted violently when asked whether he           vided a safeguard by instructing the jury that it
was carrying contraband); Lara-Velasquez, 919               could not find him guilty if it believed he was
F.2d at 952 (“Courts also have determined that the          merely careless or negligent or did not realize
circumstances of the defendant’s involvement in the         that the underlying transaction involved
criminal offense may have been so overwhelmingly            narcotics.5
suspicious that the defendant’s failure to question
the suspicious circumstances establishes the defen-                                IV.
dant’s purposeful contrivance to avoid guilty knowl-
                                                               Saucedo-Munoz contends the district court
edge.”); United States v. de Luna, 815 F.2d 301,
                                                            abused its discretion by admitting evidence of
302 (5th Cir. 1987) (finding deliberate ignorance
instruction proper alongside evidence that the              his 1988 conviction of smuggling cocaine in
defendant confessed to two witnesses); United               the wheel well of a pickup truck. The court
States v. Restrepo-Granda, 575 F.2d 524, 528-30             admitted the evidence for the limited purpose
(5th Cir. 1978) (finding deliberate ignorance               of determining whether Saucedo-Munoz “had
instruction proper while concurrently finding               the state of mind or intent necessary to commit
evidence of actual knowledge).                              the crime charged in the indictment” and

    In United States v. Threadgill, 172 F.3d 357
(5th Cir. 1999), we concluded that the district court          4
                                                                 Although Saucedo-Munoz did not offer any
improperly gave a deliberate ignorance instruction          evidence, defense counsel presented a theory of ig-
where there was strong evidence of actual knowl-            norance in his opening statement and closing
edge, but “little evidence that the defendants pur-         argument, contending that Saucedo-Diaz was the
posefully contrived to avoid knowing that their             person who had tried to “smuggle this dope.”
actions were unlawful.” Id. at 369. The evidence
                                                               5
revealed that “the defendants knew that their                    Because we conclude that the court did not err
conduct was criminal and took elaborate measures            by instructing the jury as to deliberate ignorance,
to hide it.” Id. Although Saucedo-Munoz’s con-              we need not undertake a harmless-error analysis.
duct might be similarly construed, it is also possi-        An error in giving the deliberate ignorance instruc-
ble that he turned a blind eye to what he believed          tion is “harmless where there is substantial evi-
was the presence of contraband. The jury was                dence of actual knowledge.” Wells, 262 F.3d at
entitled to convict on either theory.                       466 (citation and internal quotation omitted).

                                                        5
whether he had “acted according to a plan or               stantially outweighed by its prejudicial effect.
in preparation for the commission of a crime.”             See FED. R. EVID. 403.8

   Federal Rule of Evidence 404(b) provides                   This court has “consistently . . . held that
that “[e]vidence of other crimes, wrongs, or               evidence of a . . . conviction for a similar crime
acts is not admissible to prove the character of           is more probative than prejudicial and that any
a person in order to show action in conformity             prejudicial effect may be minimized by a
therewith.” FED. R. EVID. 404(b). Extrinsic                proper jury instruction.” United States v.
evidence may, however, be admissible for oth-              Taylor, 210 F.3d 311, 318 (5th Cir. 2000).
er purposes, such as proof of motive, oppor-               The district court properly instructed the jury
tunity, intent, preparation, plan, knowledge,              that it was to consider Saucedo-Munoz’s prior
identity, or absence of mistake or accident.               offense only so far as it demonstrated the re-
United States v. Bentley-Smith, 2 F.3d 1368,               quisite intent. This mitigated any danger that
1377 (5th Cir. 1993). Evidence is admissible               the jury considered the evidence improperly as
under rule 404(b) if it relates to an issue other          proof of bad character.
than the defendant’s character and its proba-
tive value is not substantially outweighed by                                    V.
undue prejudice.6                                              Saucedo-Munoz avers that the district
                                                           court erred in denying his motion to suppress
   Evidence of the prior conviction is admis-              illegally obtained evidence as violative of the
sible to show that Saucedo-Munoz knew drugs                Fourth Amendment. Warrantless searches are
were concealed in the gas tank and that he in-             “per se unreasonable unless they fall within a
tended and planned to transport drugs in a hid-            few narrowly defined exceptions.” United
den spot outside the vehicle’s passenger com-              States v. Roberts, 274 F.3d 1007, 1011 (5th
partment or trunk.7 Nonetheless, Saucedo-                  Cir. 2001). Saucedo-Munoz argues that the
Munoz argues that the conviction is inadmis-               officers conducted a warrantless search by tap-
sible because its probative value is not sub-              ping on the gas tank with their batons and that
                                                           the search was not supported by probable
                                                           cause.9
   6
     United States v. Misher, 99 F.3d 664, 670
(5th Cir. 1996); United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978) (en banc).
                                                              8
                                                                Federal Rule of Evidence 403 states: “Al-
   7
      United States v. Ortega-Chavez, 682 F.2d             though relevant, evidence may be excluded if its
1086, 1091 & n.6 (5th Cir. 1982) (holding that             probative value is substantially outweighed by the
evidence of three prior convictions, in which de-          danger of unfair prejudice, confusion of the issues,
fendant had used the same vehicle with a hidden            or misleading the jury, or by considerations of
compartment to transport illegal aliens, was pro-          undue delay, waste of time, or needless presenta-
perly admitted as evidence of knowledge and intent         tion of cumulative evidence.” FED. R. EVID. 403.
and as showing similarity of conduct); see also
                                                              9
United States v. Lazcano-Villalobos, 175 F.3d                   Apart from challenging the gas tank tap as an
838, 845-47 (10th Cir. 1999) (affirming admission          impermissible search, Saucedo-Munoz does not
of prior offense as proof of knowledge of the use of       otherwise challenge the existence of probable cause
concealed compartments for the transportation of           for the removal and search of the tank following his
controlled substances).                                    arrest.

                                                       6
   In reviewing the denial of an evidentiary            United States v. Arvizu, 534 U.S. 266 (2002).
suppression motion, we accept the district
court’s findings of fact unless clearly er-                 We agree with the district court’s conclu-
roneous, but we review de novo its ultimate             sion that the officers had probable cause to tap
conclusion as to the constitutionality of the           on the gas tank. Garcia knew, based on train-
law enforcement action. United States v.                ing and experience, that vehicles carrying con-
Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir.            traband are unable to travel normal distances
1993). We review the evidence in the light              on a full tank of gas and often have broken gas
most favorable to the government. The denial            gauges. Garcia had ample data in the aggre-
of a suppression motion will be upheld “if              gateSSthe failed gas gauge, the short distance
there is any reasonable view of the evidence to         before the truck ran out of gas, and the men’s
support it.” United States v. Tellez, 11 F.3d           nervousnessSSto conclude that there was con-
530, 532 (5th Cir. 1993) (citations omitted).           traband in the tank. To hold otherwise would
                                                        erroneously impute to Garcia the crime-fer-
    We need not decide whether the baton tap            reting wits of a layman, rather than a trained
constituted a search within the meaning of the          law enforcement officer. Ornelas, 517 U.S. at
Fourth Amendment. The automobile excep-                 696 (noting that probable cause is “viewed
tion to the Fourth Amendment’s warrant re-              from the standpoint of an objectively rea-
quirement permits authorities to search a vehi-         sonable police officer”) (emphasis added).
cle when they have probable cause to believe
it contains contraband. Maryland v. Dyson,                                   VI.
527 U.S. 465, 466-67 (1999). To the extent                 Saucedo-Munoz contends that the district
that the actions of Garcia and Upshaw did               court erred by refusing to adjust his offense
constitute a search, they were supported by             level based on his claimed minor role in the
probable cause.                                         offense.10 Even if we were to accept Saucedo-

   Probable cause to search exists “where the
known facts and circumstances are sufficient               10
                                                              In his brief, Saucedo-Munoz also argues that
to warrant a man of reasonable prudence in the          the district court erred in denying his request that
belief that contraband or evidence of a crime           the jury be instructed that it could convict him for
will be found.” Ornelas v. United States, 517           the lesser included offense of misprision of a fel-
U.S. 690, 696 (1996).           “The principal          ony. Saucedo-Munoz admits, however, that he
components of a determination of reasonable             raises this issue on appeal only because an objec-
suspicion or probable cause will be the events          tion was made at trial and that he has located no
which occurred leading up to the stop or                authority in support of his argument. He acknowl-
search, and then the decision whether these             edges that “[i]t does not appear that misprision of
                                                        [a] felony in any way relates to the delivery of-
historical facts, viewed from the standpoint of
                                                        fenses.”
an objectively reasonable police officer,
amount to reasonable suspicion or to probable               Similarly, Saucedo-Munoz notes his objection
cause.” Id. In determining the existence of             at sentencing to the court’s application of the sen-
reasonable suspicion or probable cause, we do           tencing guidelines; he objects to his counts being
not isolate each factor of suspicion, but instead       grouped pursuant to U.S.S.G. § 3D1.4. Saucedo-
look to the totality of the circumstances.              Munoz admits, however, that the court’s applica-
                                                                                              (continued...)

                                                    7
Munoz’s dubious contention that Saucedo-
Diaz was the principal behind the crime, while
Saucedo-Munoz acted only as a courier, we
would not reduce the offense level.11

   In any event, the evidence points to the
conclusion that Saucedo-Munoz, not Saucedo-
Diaz, acted as the principal. Saucedo-Munoz
spoke to the officers, purchased the gas both
times, filled the truck at the station, and was
the one who threatened to sue at the wrecking
yard. Furthermore, the pre-sentence report
mentions that Saucedo-Munoz paid Saucedo-
Diaz $2000 to accompany him on the trip.
The district court’s decision was no error.12

   AFFIRMED.




   10
     (...continued)
tion of the sentencing guidelines was “correctly
made.” We consider these issues inadequately
briefed and therefore do not pass on their merits.
See FED. R. APP. P. 28(a)(9)(A); United States v.
Beaumont, 972 F.2d 553, 563 (5th Cir. 1992)
(waiving argument for failure adequately to argue
the issue).
   11
      See United States v. Edwards, 65 F.3d 430,
433 (5th Cir. 1995) (stating that this court “has
held previously that defendants . . . whose par-
ticipation is limited to holding or delivering drugs,
may not, despite their more limited role in the con-
spiracy, be eligible for a reduction their offense
level”).
   12
      Because we affirm Saucedo-Munoz’s convic-
tion for possession with intent to distribute mari-
huana and cocaine, we do not address his argument
that he was improperly sentenced as a Grade A
offender under U.S.S.G. § 7B1.4. A defendant
convicted of any “controlled substance offense” is
classified as a Grade A offender. See U.S.S.G. §
7B1.1(a)(1)(ii).

                                                        8
