     Case: 15-41547   Document: 00513892477        Page: 1   Date Filed: 03/01/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                    No. 15-41547                      FILED
                                                                  March 1, 2017
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

HECTOR FELICIANO LOPEZ-MONZON,

             Defendant - Appellant



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


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Hector Feliciano Lopez-Monzon appeals from his convictions for
possessing with intent to distribute 500 grams or more of methamphetamine
and importing 500 grams or more of methamphetamine. He challenges the
sufficiency of the evidence only as to the knowledge element of his convictions.
For the reasons set forth below, we AFFIRM the judgment of the district court.
                                         I
      Lopez-Monzon, accompanied by Luis Fernando Rivera-De Leon, brought
two tractor-trailers to Hotel Pena in Mexico, located near the United States
border. Lopez-Monzon hired Juan Buentello-Garcia and Santiago Guadiana,
freelance truck drivers, to drive the tractor-trailers into the United States. On
December 26, 2014, Buentello-Garcia drove the first tractor-trailer—a white
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Freightliner with a car hauler (“Freightliner”)—with instructions to leave it at
Transmigrante Mireya, a business located just inside the United States border.
Guadiana did not drive the second tractor-trailer into the United States
because it had a mechanical problem.
      Buentello-Garcia entered the United States at the Los Indios, Texas port
of entry. During an inspection by U.S. Customs and Border Patrol (“CBP”),
liquid methamphetamine was discovered in the Freightliner’s passenger-side
fuel tank. Buentello-Garcia was arrested, and in his interview he asserted that
he was unaware that the fuel tank contained methamphetamine. A specialist
later calculated that a total of 200.3 kilograms of methamphetamine
hydrochloride had been dissolved in the 100-gallon fuel tank, resulting in 411.4
kilograms of a substance containing methamphetamine. That amount of
methamphetamine was worth up to $3 million in Houston, Texas. When
Guadiana learned of Buentello-Garcia’s arrest, he refused to drive the second
tractor-trailer into the United States.
      The next day, Lopez-Monzon and De Leon entered Texas on foot at the
Los Indios Bridge port of entry. Later that day, at a gas station near the port
of entry, Lopez-Monzon approached CBP Agent Jaime Vidal about the
Freightliner. Lopez-Monzon identified himself as the owner of the Freightliner.
Agent Vidal called for backup and escorted Lopez-Monzon and De Leon to the
customs area.
      Homeland Security Investigations Agent Angelico Santiago interviewed
Lopez-Monzon and De Leon. Lopez-Monzon was nervous and anxious during
the interview. Lopez-Monzon told Agent Santiago that he owned the
Freightliner, and that he had bought the Freightliner with a man named
Ruben “four to five months” earlier. He asserted that he did not know about
the methamphetamine in the fuel tank, and that “if someone had put
something in the gas tank, it would have been Ruben.”
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                                  No. 15-41547
      Lopez-Monzon also told Agent Santiago that he and De Leon traveled
together from Guatemala. He said that De Leon drove the Freightliner, and
that Lopez-Monzon “follow[ed]” in a Ford F-150 pickup truck. Lopez-Monzon
admitted that “he noticed that one of the tanks was not functioning properly”
but told Agent Santiago that the defective fuel tank “did not bother him.”
Lopez-Monzon explained that “he thought that the tank was full and the fuel
inside was left there by . . . the previous owner.”
      Lopez-Monzon and Buentello-Garcia were charged with four counts:
(1) conspiring to possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)
(“Count One”); (2) possessing with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and 18
U.S.C. § 2 (“Count Two”); (3) conspiring to import 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 963, 952(a) and 960(b)(1)
(“Count Three”); and (4) importing 500 grams or more of methamphetamine,
in violation of 21 U.S.C. §§ 952(a), and 960(b)(1), and 18 U.S.C. § 2 (“Count
Four”). The government dropped the charges against Buentello-Garcia after
further investigation, and he was instead considered a material witness.
Lopez-Monzon pleaded not guilty to all counts.
      The government presented numerous exhibits and extensive testimony
during a three-day jury trial. Lopez-Monzon moved for a judgment of acquittal
at the end of the government’s case in chief, and again at the close of all
evidence. See Fed. R. Crim. P. 29(a). The district court denied those motions.
The jury found Lopez-Monzon guilty of Counts Two and Four and not guilty of
Counts One and Three. Lopez-Monzon again moved for a judgment of acquittal.
See Fed. R. Crim. P. 29(c). The district court again denied his motion.
      The district court sentenced Lopez-Monzon to 292 months in prison and
five years of supervised release. Lopez-Monzon timely appealed. He challenges
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the sufficiency of the evidence only as to the knowledge element of his
convictions.
                                       II
      This court reviews de novo a district court’s denial of a post-trial motion
for a judgment of acquittal. United States v. Rojas Alvarez, 451 F.3d 320, 326
(5th Cir. 2006).
                                       III
      “A motion for judgment of acquittal challenges the sufficiency of the
evidence to convict.” United States v. Lucio, 428 F.3d 519, 522 (5th Cir. 2005)
(quoting United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998)). This court
“owe[s] great deference” to the jury’s verdict. United States v. Gray, 96 F.3d
769, 772 (5th Cir. 1996). In deciding the sufficiency of the evidence, the
relevant question is whether “any rational trier of fact could have found the
essential elements of the crime beyond reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979).
      This court must assume that the evidence offered by the prosecution is
true, Rojas Alvarez, 451 F.3d at 326, and weigh the evidence “in a light most
deferential to the verdict rendered by the jury.” Lucio, 428 F.3d at 522. To
uphold the conviction, “the evidence need not exclude every hypothesis of
innocence.” United States v. Diaz-Carreon, 915 F.2d 951, 953–54 (5th Cir.
1990). “[I]f the fact finder was presented with sufficient evidence to support
the verdict reached, that verdict must be upheld.” Lucio, 428 F.3d at 522. “A
jury is free to choose among reasonable constructions of the evidence.” Diaz-
Carreon, 915 F.2d at 954 (quoting United States v. Bell, 678 F.2d 547, 549 (5th
Cir. 1982) (en banc)). This court does not determine “whether the jury correctly
determined guilt or innocence” but only “whether the jury made a rational
decision.” Rojas Alvarez, 451 F.3d at 326 (quoting United States v. Lopez-
Urbina, 434 F.3d 750, 757 (5th Cir. 2005)).
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      To sustain a conviction for the crime of possession of a controlled
substance   with     intent   to   distribute,   the   government    must    prove:
“(1) knowledge, (2) possession, and (3) intent to distribute the controlled
substance.” United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008).
To sustain a conviction for the crime of importation of a controlled substance,
the government must prove: “(1) the defendant played a role in bringing a
quantity of a controlled substance into the United States from outside of the
country; (2) the defendant knew the substance was controlled; and (3) the
defendant knew the substance would enter the United States.” United States
v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999). Lopez-Monzon challenges only
the knowledge element of his convictions, arguing that the government failed
to prove that he knew methamphetamine was concealed in the fuel tank.
      “The necessary knowledge and intent can be proved by circumstantial
evidence.” United States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir. 1993).
“[K]nowledge of the presence of a controlled substance may be inferred from
the exercise of control over a vehicle in which the illegal substance is
concealed.” Id. But where drugs are concealed in a hidden compartment, this
court “also require[s] circumstantial evidence that is suspicious in nature or
demonstrates guilty knowledge.” United States v. Shabazz, 993 F.2d 431, 441
(5th Cir. 1993). Such circumstantial evidence may include evidence of
“consciousness of guilt, conflicting statements, or an implausible account of
events.” Rojas Alvarez, 451 F.3d at 334 (citing Rodriguez, 993 F.2d at 1175).
But this court has explicitly declined to limit the relevant circumstantial
evidence to “a defendant’s nervousness, implausible explanations, and
inconsistent statements, or matters similar or analogous thereto.” United
States v. Resio-Trejo, 45 F.3d 907, 912 (5th Cir. 1995). Viewing the evidence as
a whole, this court holds that the evidence is sufficient to support Lopez-
Monzon’s convictions.
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                                       A
         “Inconsistent statements are inherently suspicious.” Diaz-Carreon, 915
F.2d at 955. Such statements, whether inconsistent with previous statements
or with other evidence, are circumstantial evidence of knowledge. See
Rodriguez, 993 F.2d at 1176 (inconsistent statement where defendant denied
knowledge of a vehicle owned by his sister when defendant “was observed
unlocking and entering” that vehicle). A rational jury could credit the
government’s presentation of documentary and other testimonial evidence as
true, and infer that Lopez-Monzon’s statements to Agent Santiago were
inconsistent with Lopez-Monzon’s understanding of what actually happened.
In other words, a rational jury could infer that Lopez-Monzon attempted to
mislead Agent Santiago—and such attempts to mislead certainly present
circumstantial evidence of “consciousness of guilt.” Rojas Alvarez, 451 F.3d at
334.
         The government presented evidence from which a rational jury could
conclude that Lopez-Monzon omitted or changed details regarding his
purchase of the Freightliner in his interview with Agent Santiago. Lopez-
Monzon told Agent Santiago that he was the owner of the Freightliner, and
that he had bought the Freightliner with a man named Ruben “four to five
months” earlier. But Lopez-Monzon’s statements about his purchase and
possession of the Freightliner were inconsistent with invoices and money
orders found in his luggage—and the government presented evidence that
those documents were themselves falsified. Lopez-Monzon contends that “the
individual who sold the vehicle to Lopez-Monzon furnished him with a
deceptive sales receipt.” Although Lopez-Monzon is correct that the
government presented no direct evidence that Lopez-Monzon knew that the
invoices were falsified, that is not the relevant inquiry. Even if the jury found
that Lopez-Monzon thought the invoices were entirely accurate, his statements
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                                 No. 15-41547
to Agent Santiago regarding the timing, price, purchaser, and location of the
sale were inconsistent with the invoices he possessed and allegedly thought to
be accurate.
      The government also presented evidence that Lopez-Monzon’s
statements to Agent Santiago about his travel to Guatemala were inconsistent
with what actually happened. Lopez-Monzon told Agent Santiago that he and
De Leon traveled together, and that De Leon drove the Freightliner and Lopez-
Monzon “follow[ed]” in a Ford F-150 pickup truck. But according to the exit
stamps in Lopez-Monzon’s and De Leon’s passports, Lopez-Monzon actually
departed Guatemala a day earlier than De Leon. Lopez-Monzon failed to
provide an explanation to Agent Santiago when asked about the discrepancy.
He now contends that “the only logical inference . . . is that Lopez-Monzon
entered Mexico first, waited for his traveling companion to cross the border the
next day, and then the two men continued the rest of their travels across
Mexico together.” Even accepting Lopez-Monzon’s explanation on appeal, that
“logical inference” is still inconsistent with Lopez-Monzon’s statement to Agent
Santiago that he “follow[ed]” De Leon from Guatemala and through the first
part of their trip through Mexico. A rational jury could infer that Lopez-
Monzon attempted to mislead Agent Santiago regarding his travel from
Guatemala.
      The government also presented evidence that Lopez-Monzon omitted
mention of a second tractor-trailer in his interview with Agent Santiago.
Guadiana and Buentello-Garcia testified that Lopez-Monzon brought two
tractor-trailers to Hotel Pena, and that he hired them to drive both tractor-
trailers into the United States. Guadiana testified that people he believed to
be members of the Mexican Mafia retrieved the second tractor-trailer from the
parking lot of Hotel Pena after Lopez-Monzon’s arrest. In addition to the
testimony of Guadiana and Buentello-Garcia, the government introduced
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evidence that Lopez-Monzon’s company had two insurance policies. De Leon
was insured to drive the seized Freightliner, and Lopez-Monzon was insured
to drive a second tractor-trailer. The insurance policies began and ended on the
same date. A rational jury could infer from this evidence that Lopez-Monzon
told Agent Santiago that he followed De Leon in a pickup truck because he did
not want to admit the existence of the second tractor-trailer.
                                        B
       An “implausible account provides persuasive circumstantial evidence of
the defendant’s consciousness of guilt.” Diaz-Carreon, 915 F.2d at 955. A
rational jury may infer from “[a]n implausible account of exculpatory
events . . . that the defendant desires to obscure his criminal responsibility.”
Id. The government presented evidence from which a rational jury could infer
that Lopez-Monzon attempted to hide his knowledge of the methamphetamine
from Agent Santiago by giving an implausible account of the defective fuel tank
and attempting to blame Ruben for the presence of the methamphetamine.
       Agent Santiago testified that Lopez-Monzon told him that “he noticed
that one of the tanks was not functioning properly” but that it “did not bother
him.” According to Agent Santiago, Lopez-Monzon stated that “he thought that
the tank was full and the fuel inside was left there by . . . the previous owner.”
Lopez-Monzon also told Agent Santiago that he purchased the tractor-trailer
“four to five months” earlier. A rational jury could have concluded that Lopez-
Monzon’s statement—that it “did not bother him” that a fuel tank containing
100 gallons of valuable fuel was defective on a trip from Guatemala to the
United States border—was implausible. Again, Lopez-Monzon admitted that
he knew that the fuel tank was not “functioning properly.” A rational jury could
infer, given the totality of the circumstances, that Lopez-Monzon took
advantage of the defect to conceal the methamphetamine and import it into
the United States.
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                                 No. 15-41547
      Lopez-Monzon also told Agent Santiago that “if someone had put
something inside the gas tank, it would have been Ruben.” Lopez-Monzon
stated that Ruben owned a dealership in Guatemala and that they purchased
the tractor-trailer together. But Lopez-Monzon failed to relate any other
information about Ruben. Agent Santiago asked for additional information,
but Lopez-Monzon did not provide even a surname. A rational jury could infer
that Lopez-Monzon’s implausible statements regarding Ruben were an
attempt to deflect blame from himself.
                                       C
      “[T]he value of the drug being transported” is “[o]ne example of
circumstantial evidence which may be probative of knowledge.” United States
v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). A particularly high value of
drugs provides circumstantial evidence of knowledge. See Rodriguez, 993 F.2d
at 1176; see also United States v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir.
2001) (holding that “quantity of drugs” is one factor to consider in determining
sufficiency of evidence for requisite knowledge element). The government
presented evidence that the fuel tank of the Freightliner contained
approximately 100 gallons of liquid methamphetamine, that the liquid
contained 200.3 kilograms of actual methamphetamine, and that this amount
of methamphetamine would be worth up to $3 million in the United States.
The high volume and value of the drugs are not dispositive, but it does present
circumstantial    evidence     that    Lopez-Monzon       knew     about     the
methamphetamine. A rational jury could infer that whoever put the drug in
the fuel tank would not have done so without Lopez-Monzon’s knowledge, given
his ownership and control of the Freightliner throughout the trip.
                                       D
      Agent Santiago testified at trial that Lopez-Monzon was “[v]ery nervous
[and] anxious” during the interview. “Nervous behavior . . . frequently
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                                 No. 15-41547
constitutes persuasive evidence of guilty knowledge.” Diaz-Carreon, 915 F.2d
at 954. Lopez-Monzon argues, and the government concedes, that nervousness
alone is insufficient to support a finding of the requisite knowledge. See Diaz-
Carreon, 915 F.2d at 954 (“In the absence of facts which suggest that the
defendant’s nervousness or anxiety derives from an underlying consciousness
of criminal behavior, evidence of nervousness is insufficient to support a
finding of guilty knowledge”). But given the totality of the circumstances, a
rational jury could infer that Lopez-Monzon’s nervousness was additional
circumstantial evidence of his consciousness of guilt.
                                      IV
      When the jury rendered its verdict of guilty, it determined beyond
reasonable doubt that Lopez-Monzon had the requisite knowledge to support
his convictions for possessing methamphetamine with the intent to distribute
and importing methamphetamine. The jury’s verdict is supported by evidence
that Lopez-Monzon: owned and controlled the tractor-trailer in which the
methamphetamine was found; gave statements to Agent Santiago inconsistent
with the evidence; gave implausible explanations regarding the fuel tank and
the source of the methamphetamine; and was nervous during his interview.
Given this evidence, as well as the high amount and value of the
methamphetamine hidden in Lopez-Monzon’s tractor-trailer, a rational jury
could find beyond reasonable doubt that Lopez-Monzon knew about the
methamphetamine. Considering the totality of the circumstances, we AFFIRM
the judgment of the district court.




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