     Case: 10-40475 Document: 00511403506 Page: 1 Date Filed: 03/07/2011




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

                                                 FILED
                                                                            March 7, 2011
                                     No. 10-40475
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

REYNALDO COBAS,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-177-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Reynaldo Cobas appeals his conviction and 100-month sentence for
possession, with the intent to distribute, 755 kilograms of marijuana. Cobas
contends the evidence was insufficient to support his conviction, asserting that
the Government failed to present evidence showing he knowingly possessed the
marijuana. Cobas maintains that such knowledge may not be inferred only
through control of a vehicle, and that the Government was required, but failed,
to present other evidence of knowledge. Cobas also contends the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        Case: 10-40475 Document: 00511403506 Page: 2 Date Filed: 03/07/2011

                                   No. 10-40475

abused its discretion in denying his new-trial motion on the claim that counsel
was ineffective for failing to investigate the identity of a confidential informant
(CI).
         Because Cobas preserved his sufficiency claim at trial, the standard of
review is “whether, considering all the evidence in the light most favorable to the
verdict, a reasonable trier of fact could have found that the evidence established
guilt beyond a reasonable doubt”. United States v. Mendoza, 226 F.3d 340, 343
(5th Cir. 2000). “A jury may infer knowledge from the defendant’s control over
a vehicle containing contraband unless the drugs are hidden in compartments,
in which case proof of the defendant’s knowledge depends on inference and
circumstantial evidence.” United States v. Garcia-Flores, 246 F.3d 451, 454 (5th
Cir. 2001).
         There was evidence that Cobas was nervous and avoided eye contact in his
interview with Immigration and Customs Enforcement Agent Santini. Cobas
also provided inconsistent and implausible statements. His statement to Agent
Santini differed from the account in his logbook. His testimony at trial was
inconsistent with both his statement to Agent Santini and the account in his
logbook.     Additionally, Cobas was found in possession of 1,711 pounds of
marijuana, valued at $1,368,000. This amount of marijuana was sufficiently
large for the jury to infer that Cobas would not have been entrusted with it
unknowingly. See United States v. Martinez-Moncivais, 14 F.3d 1030, 1034-35
(5th Cir. 1994). Accordingly, the evidence was sufficient for a rational trier of
fact to conclude that Cobas had knowledge of the drugs in his possession. See
United States v. Ortega Reyna, 148 F.3d 540, 543-44 (5th Cir. 1998).
         Cobas also contends the court abused its discretion in denying his new-
trial motion, in which Cobas claimed ineffective assistance of counsel (IAC) for
failing to investigate the CI’s identity. After conducting an evidentiary hearing
at sentencing, the district court rejected the IAC claim on the merits. Cobas
concedes his new-trial motion was filed outside the 14-day time period specified

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                                  No. 10-40475

in Federal Rule of Criminal Procedure 33: “Any motion for a new trial grounded
on any reason other than newly discovered evidence must be filed within 14 days
after the verdict or finding of guilty”. Fed. R. Crim. P. 33(b)(2). Cobas’ new-trial
motion was filed on 21 December 2009, more than seven months after his guilty
verdict. Pursuant to Rule 45(b)(1), “the court on its own may extend the time,
or for good cause may do so on a party’s motion made: . . . (B) after the time
expires if the party failed to act because of excusable neglect”. Fed. R. Crim. P.
45(b)(1). Because the court considered the new-trial motion at sentencing and
heard testimony, we will assume the court either extended the time for filing the
motion or treated it as one grounded on newly discovered evidence, which can
be filed within three years after the verdict. See Fed. R. Crim. P. 33(b)(1).
      The denial of a new-trial motion is reviewed for abuse of discretion.
United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997); United States v.
Sullivan, 112 F.3d 180, 182-83 (5th Cir. 1997). Although questions of IAC are
generally not resolved on direct appeal, the issue may be resolved at this
juncture because the issue was raised in Cobas’ new-trial motion and the record
has been adequately developed. See United States v. Villegas-Rodriguez, 171
F.3d 224, 230 (5th Cir. 1999).
      To establish IAC, pursuant to the well-known, two-prong standard, Cobas
must demonstrate: counsel’s performance “fell below an objective standard of
reasonableness”; and Cobas was prejudiced as a result.               Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Cobas does not explain how the
investigation of the CI’s identity would have altered the outcome of the
proceeding. Moreover, the record shows his counsel moved to have the CI’s
identity revealed. Counsel also filed a motion in limine to prevent any testimony
referencing information provided by the CI. No reference was made at trial to
the CI or any out-of-court statements made by the CI. Accordingly, Cobas failed




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                                 No. 10-40475

to show counsel was deficient and that he suffered prejudice as a result. See
Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
      AFFIRMED.




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