                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit                    July 7, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 03-41024


                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                              VERSUS


                   GAMALIEL DE LIRA-VILLAREAL,

                                                Defendant-Appellant.




          Appeal from the United States District Court
               For the Southern District of Texas
                           (03-CR-60)


Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant De Lira-Villareal was convicted of two

counts of transporting illegal aliens within the United States in

contravention of 8 U.S.C. § 1324(a)(1)(A)(ii). On appeal, De Lira-

Villareal’s sole argument is that there was insufficient evidence

supporting his convictions.



     *
       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this opinion should not be published and is not precedent except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.

                                1
                  BACKGROUND AND PROCEDURAL HISTORY

     On the evening of February 21, 2003, Border Patrol Agent Jose

Jalomos, an 11-year veteran, was performing traffic observation

duties along State Highway 359 southwest of Benavides, Texas.

During his patrol, Agent Jalomos observed four vehicles approaching

his position on State Highway 359 and pulled his patrol vehicle

over to the side of the road to wait for the vehicles to pass by

his location.     Only two of the vehicles eventually reached Agent

Jalomos, the first of which was a white Ford crew cab pickup truck.

As the pickup made its way past Agent Jalomos, he observed through

his night-vision goggles that there were two people in the front of

the cab and four others sitting in the back seat of the cab, with

an additional person lying across the laps of the four back seat

passengers.     Agent Jalomos turned his vehicle around and pursued

the white pickup.    The pickup passed through the town of Benavides

without stopping and continued northeast along State Highway 359.

After passing through Benavides, Agent Jalomos noticed that the

positions of the passengers in the back seat had changed — once

seated upright, all were now crouched down to the point where Agent

Jalomos “could barely see the heads over the rear back window.”

     Agent Jalomos subsequently activated his vehicle’s overhead

emergency lights and pulled over the pickup.   Upon approaching the

pickup, Agent Jalomos observed a total of nine people inside the

vehicle: the driver (De Lira-Villareal), a passenger in the front



                                  2
seat, a person lying on the front passenger floorboard, four people

seated in the back seat, one person lying across the laps of the

back seat passengers, and one person lying on the floorboard of the

back seat.    Agent Jalomos performed an immigration inspection of

the pickup’s occupants and determined that, with the exception of

De   Lira-Villareal,      all   were   undocumented   illegal   aliens   from

Mexico.    De Lira-Villareal was found to be a resident alien who

lived in San Antonio.           All nine individuals were arrested and

transported to the Border Patrol station located approximately 22

miles away in Freer, Texas.

      After being arrested, De Lira-Villareal was interviewed by

Agent Jalomos at the Freer Border Patrol station where he indicated

that he had been visiting a friend in Laredo and was returning to

his home in San Antonio.           De Lira-Villareal added that he was

initially traveling from Laredo to Mission, Texas, to visit his

mother, but, after realizing along the way that he did not have

enough gas to make the trip, changed his mind and headed to San

Antonio.    When asked by Agent Jalomos about the passengers in the

pickup, De Lira-Villareal responded that he had stopped in the city

of Realitos, located 13 miles southwest of Benavides, to get some

diesel fuel when the passengers approached him about getting a

ride.      When   asked    where   De    Lira-Villareal   was   taking    the

passengers, he stated that “he was just giving them a ride up

ahead.”

      Agent Jalomos also interviewed two of the aliens who were

                                        3
detained as material witnesses.            The material witnesses, Juan

Bravo-Ramirez    and    Augustin     Machuca-Rocha,     both    admitted   to

authorities that they had entered the United States illegally.

While the detained aliens provided varying accounts as to how they

entered the United States, both stated that they were eventually

guided through    the   brush   to   a    highway   whereupon   their   guide

deserted the group.1      The aliens then attempted to flag down a

ride.    Both deposed aliens said they had no conversation with De

Lira-Villareal other than to get a ride.            Machuca-Rocha claimed

that De Lira-Villareal told the group he was taking them to a town

further down the road, while Bravo-Ramirez told authorities that De

Lira-Villareal “was taking [him] to a city north of the location

where [he was] stopped.”

     A grand jury indicted De Lira-Villareal on March 12, 2003,

charging him with two counts of transporting illegal aliens within

the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).2

De Lira-Villareal pleaded not guilty to both counts.              On May 7,

2003, after a one-day trial, a jury convicted De Lira-Villareal on

both counts of the indictment.            On July 18, 2003, the district

court sentenced De Lira-Villareal to two concurrent terms of twelve


     1
        Both aliens indicated that they had made arrangements to
pay their smugglers once they arrived at their respective
destinations, but that neither had yet paid.
     2
      The two counts in the indictment were for the transportation
of two separate illegal aliens: the alien in Count 1 was Bravo-
Ramirez, and the alien in Count 2 was Machuca-Rocha.

                                      4
months and one day for each violation of § 1324(a)(1)(A)(ii),

concurrent two-year terms of supervised release, and a $100 special

assessment.   De Lira-Villareal timely filed the instant appeal.

                        STANDARD OF REVIEW

     The standard for reviewing the sufficiency of the evidence is

whether the evidence, when reviewed in the light most favorable to

the government with all reasonable inferences and credibility

choices made in support of a conviction, allows a rational trier of

fact to find the essential elements of the offense beyond a

reasonable doubt. United States v. Harris, 293 F.3d 863, 869 (5th

Cir. 2002).   We review direct and circumstantial evidence adduced

at trial in the light most favorable to the verdict. United States

v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992).   This court will

not substitute its own credibility determination for that of the

jury, but instead will look to whether the trier of fact made a

rational decision. United States v. Jaramillo, 42 F.3d 920, 923

(5th Cir. 1995).

                            DISCUSSION

     On appeal, De Lira-Villareal contends the government did not

present sufficient evidence, direct or circumstantial, that he:

(1) was aware of the illegal status of the aliens transported or

(2) wilfully intended to further their illegal presence in the

United States.     De Lira-Villareal maintains that because the

evidence gives equal or nearly equal circumstantial support to both


                                 5
a theory of guilt and a theory of innocence, his convictions must

be reversed.

     Section 1324(a)(1)(A)(ii) establishes criminal liability for

any person who:

     knowing or in reckless disregard of the fact that an
     alien has come to, entered, or remains in the United
     States in violation of law, transports, or moves or
     attempts to transport or move such alien within the
     United States by means of transportation or otherwise, in
     furtherance of such violation of law[.]

8 U.S.C. § 1324(a)(1)(A)(ii)(2004).         To establish a violation of

§ 1324(a), the government must prove that: (1) the defendant

transported or moved an alien within the United States; (2) the

alien was present in violation of the law; (3) the defendant was

aware of the alien’s status; and (4) the defendant acted wilfully

in furtherance of the alien’s violation of the law. United States

v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998) (citing United

States   v.   Diaz,   936   F.2d   786,   788   (5th   Cir.   1991)).   The

defendant’s knowledge of the alien’s illegal status is an essential

element of the offense. Id.

     In reviewing the elements for establishing a violation of

§ 1324(a), we first observe that there is no dispute as to the

first two prongs of the inquiry, i.e., that De Lira-Villareal

transported aliens within the United States or that the aliens

transported were present in this country in violation of the law.

Instead, we are faced with determining whether De Lira-Villareal

was aware of the aliens’ illegal status and whether he acted


                                     6
wilfully in furthering their violation of the law.

      Awareness of the aliens’ illegal status

      De Lira-Villareal contends the record is devoid of evidence

establishing that he knew the aliens were illegally present in the

United States.       In support of this contention, De Lira-Villareal

argues he was never told by the aliens that they were in the United

States in violation of the law.         Additionally, De Lira-Villareal

maintains that while Agent Jalomos, an 11-year veteran of the

Border Patrol, was able to determine that the passengers were

illegal aliens based on their odor and appearances, there was

nothing in the record to indicate that De Lira-Villareal enjoyed

the   same   power   of   perception.    We   find   De   Lira-Villareal’s

arguments unpersuasive.

      Even if De Lira-Villareal was not personally informed of the

aliens’ illegal status, there are other indicia of the aliens’

illegal presence establishing De Lira-Villareal’s knowledge.           The

evidence presented to the jury relating to the position of the

eight aliens “crammed” into the pickup De Lira-Villareal was

driving — two aliens lying on the pickup’s floorboard while another

lay across the laps of the four aliens seated in the back seat —

and their subsequent crouching in the back seat after Agent Jalomos

began following the pickup, provides strong circumstantial evidence

that De Lira-Villareal had reason to know that the aliens’ presence

in the United States was unlawful.         Also, the appearance of the



                                    7
aliens at the time of the incident lends additional support to the

jury’s finding regarding De Lira-Villareal’s knowledge.      Evidence

presented at trial established that the aliens had not had an

opportunity to bathe at any time during the several days they had

been traveling through the brush, and as such appeared sweaty and

dirty and smelled of smoke from the campfires the group made to

stay warm at night.

     Whether De Lira-Villareal had actual knowledge of the aliens’

illegal status, § 1324(a)(1)(A)(ii) also allows for a conviction if

the defendant recklessly disregards the fact that an alien has

illegally entered this country.       Under the circumstances in this

case and for the reasons discussed above, we conclude that De Lira-

Villareal, at the very least, had a reckless disregard for the fact

that the passengers he was transporting were illegal aliens.

     Acting wilfully in furtherance of the aliens’ violation of the
     law

     De Lira-Villareal maintains he did not intend to further the

unlawful presence of the aliens in the United States, but rather

was simply providing persons stranded on the side of the road with

vital assistance. This Circuit first examined the requirement that

the defendant act wilfully in furtherance of an alien’s violation

of the law in United States v. Merkt, 764 F.2d 266 (5th Cir. 1985).

In Merkt we announced that there must be a “‘direct and substantial

relationship between that transportation and its furtherance of the

alien’s presence in the United States.’ If the defendant’s act of


                                  8
transporting an illegal alien is ‘only incidentally connected to

the furtherance of the violation of law,’ it is ‘too attenuated to

come within the boundaries’” of § 1324(a). Id. at 271 (footnote and

citation omitted).     “Determining a criminal defendant’s intent is

a question of fact that the jury must resolve under the totality of

the circumstances and after evaluating all of the evidence,”

including     taking   proper   consideration    of      “the   mode   of

transportation used, the time of travel, the route chosen, . . .

and the distance from the border at the time of apprehension.” Id.

at 272.

     The jury was presented with evidence that demonstrated a stark

contrast between the story De Lira-Villareal told investigating

officers as to how he first came upon the illegal aliens and the

story the two deposed aliens related to authorities. Specifically,

De Lira-Villareal stated that he had been approached by the group

at a gas station in Realitos where he had stopped to refuel his

pickup.     However, it was revealed that the only gas station in

Realitos had closed years before.      De Lira-Villareal now maintains

the evidence indicates that he actually stopped to refuel in

Hebbronville,    located   approximately    27   miles     southwest   of

Benavides, when he picked up the illegal aliens.3

     3
       De Lira-Villareal argues that because both detained aliens
stated they had been in his pickup for approximately one hour
before being pulled over by Agent Jalomos, this provides support
for finding that he actually stopped in Hebbronville rather than
Realitos, which, as previously stated, is located only thirteen
miles from Benavides.

                                   9
     However, both aliens retained as material witnesses indicated

that De Lira-Villareal picked them up along the highway in the

countryside, not at a convenience store or a gas station.          In fact,

Machuca-Rocha specifically stated that the group of aliens was

never at a store of any kind.        Therefore, while De Lira-Villareal

may have actually picked up the aliens around Hebbronville (based

on the amount of time the aliens stated they were passengers), the

more probative evidence for purposes of our inquiry is the discord

concerning the fundamental issue of where De Lira-Villareal first

encountered the aliens.

     De Lira-Villareal also claims there is no evidence he knew

that Highway 359 was notorious for alien smuggling, arguing that

he was unfamiliar with the area and thus did not have the requisite

knowledge, much less the wilfulness to violate § 1324(a).          De Lira-

Villareal maintains he was simply trying to get to San Antonio

after realizing that he did not have enough gas to travel from his

starting point in Laredo to his mother’s home in Mission, Texas.

De Lira-Villareal suggests the fact he mistakenly told Agent

Jalomos   he   had   stopped   in   Realitos   rather   than   Hebbronville

provides further support for his contention that he was unfamiliar

with the area.

     Testimony at trial revealed that the area around Realitos and

Benavides in Duval County is a common staging area or “lay-up area”

where illegal aliens are guided to certain points beyond Border

Patrol checkpoints to be picked up.            The jury was entitled to

                                     10
consider that De Lira-Villareal was found to be transporting

illegal aliens northeastward, further into the United States and

away from Border Patrol checkpoints, in a locale known for its

alien smuggling.   Moreover, De Lira-Villareal’s chosen route of

travel, a factor to be considered in determining a defendant’s

intent under § 1324(a), Merkt, 764 F.2d at 272, raises serious

doubts as to the veracity of his story.         First, if De Lira-

Villareal was originally trying to get to Mission from Laredo, the

most direct route is clearly along U.S. Highway 83, a four-lane

divided highway for much of the way.     Instead, De Lira-Villareal

chose to travel due east on State Highway 359, a two-lane undivided

highway. Moreover, by taking State Highway 359 instead of the U.S.

Highway 83, De Lira-Villareal added an extra 36 miles and an hour

and a half to his trip.4   Assuming that De Lira-Villareal was aware

of his limited resources prior to embarking on his travels to

Mission, his decision to take the route he did is highly suspicious

and inconsistent with the story he told Agent Jalomos.5

     In addition, the evidence adduced at trial showed that De

Lira-Villareal, while transporting the illegal aliens, drove by a


     4
        These figures were calculated using travel planning
software, which takes into consideration the fact that the two-
lane, undivided highways De Lira-Villareal would have had to take
on his way to Mission go directly through several small towns and
other intermittent road crossings that often require drivers to
reduce their travel speeds.
     5
      It is unclear whether the limited resources were in the form
of money or actual gasoline in the gas tank.

                                 11
24-hour convenience store located in the town of Benavides without

stopping.      De Lira-Villareal argues he did not stop in Benavides

because, by all accounts, it was a small town, and that he planned

on taking the aliens further down the road.                      This is wholly

inconsistent     with      De    Lira-Villareal’s      contention   that   he    was

unfamiliar with the area.              If De Lira-Villareal had truly not been

acquainted with this part of Texas, it does not follow that he

could at the same time be cognizant of the small town best equipped

to   provide    assistance        to    his   passengers.    Although    De   Lira-

Villareal insists that he only intended to help the aliens, the

jury was certainly entitled to find that he could have stopped and

obtained assistance for the aliens at the first opportunity, i.e.,

the convenience store in Benavides.

      Finally, De Lira-Villareal argues there is no evidence that he

was ever paid for transporting the illegal aliens, specifically

noting that neither deposed alien reported making any type of

payment to De Lira-Villareal.                 We have previously held, however,

that financial gain is not an element of § 1324(a), United States

v. Romero-Cruz, 201 F.3d 374, 379 (5th Cir. 2000), and thus De

Lira-Villareal’s argument fails.

      In sum, the direct and circumstantial evidence presented by

the government was sufficient for a rational jury to have rejected

De Lira-Villareal’s explanations as not credible and to have

concluded      that   he        knowingly      transported   illegal    aliens   in

furtherance of their violation of the law. In Williams, this court

                                              12
stated that      “[i]t    is   the   jury’s    responsibility      to   weigh   the

credibility of witnesses. That the jury chose not to believe

[defendant]’s testimony is to [defendant]’s detriment. However,

this court will not assume the jury’s role on appeal.” 132 F.3d at

1059 (finding sufficient evidence supporting the jury’s finding

that the defendant violated § 1324(a)).              While De Lira-Villareal

essentially argues that he was simply a Good Samaritan in the wrong

place at the wrong time, the strength of the evidence indicating

otherwise is considerable.              Because we are bound to view all

evidence, as well as all inferences reasonably drawn from that

evidence,   in    the    light   most    favorable    to   the   government,     we

conclude there was legally sufficient evidence to support De Lira-

Villareal’s convictions.

                                     CONCLUSION

     Having      carefully     reviewed    the    record   of    this   case,   the

parties' respective briefing and arguments, and for the reasons set

forth above, we conclude there was sufficient evidence to support

the jury’s finding that De Lira-Villareal transported illegal

aliens with the requisite knowledge of their illegal status and

with the wilful intent to further their violation of the law.



AFFIRMED.




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