                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 16, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk

                            No. 05-51736

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UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

     v.

BRUNO GARZA, JR.,

                Defendant-Appellant.


          Appeal from the United States District Court
                for the Western District of Texas
                         No. DR-04-CR-203



Before KING, GARZA and PRADO, Circuit Judges.

Per Curiam:*

     After a jury trial, Bruno Garza, Jr. (“Garza”), was

convicted of possession with intent to distribute more than five

kilograms of a substance or mixture containing cocaine, in

violation of 21 U.S.C. § 841, and of importation of more than

five kilograms of a substance or mixture containing cocaine, in

violation of 21 U.S.C. §§ 952 and 960. On appeal, Garza raises


     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

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three objections: first, that there was insufficient evidence to

prove that Garza knowingly possessed or imported cocaine; second,

that there was insufficient evidence to prove that Garza

possessed and imported more than five kilograms of cocaine; and

third, that the district court erred by allowing the government

to introduce a particular receipt into evidence. For the reasons

that follow, we AFFIRM Garza’s conviction.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     At approximately 11:30 p.m. on February 7, 2004, Garza was

stopped by border patrol while attempting to cross from Mexico

into Eagle Pass, Texas.   Garza stated that he had traveled to

Mexico to buy liquor and tacos, both of which could be seen on

the seat of the van he was driving. Garza claimed that the van

belonged to his brother-in-law, and that it had been in his own

possession for two weeks. After Garza was referred to the

secondary inspection area, Garza stated that the owner of the van

was named Luis Rodriguez1 and that Garza had the van because he

was a mechanic and had been working on it. After the customs

inspector looked at the registration papers for the van and saw

that it was registered to Luis Flores, the inspector stated to

Garza, “I thought you said this belonged to a Luis Rodriguez.”

Garza then claimed he had said that the van belonged to Luis


     1
      Garza suggests that either he did not say “Luis Rodriguez”
and that the inspector misheard his statement, or that he said
“Luis Rodriguez” by mistake.

                                 2
Flores. When questioned about the time frame of his visit, Garza

stated that he had been in Mexico for about two hours. When asked

why it took so long to obtain liquor and tacos, Garza then added

that he had first seen “some friends.”

     The inspectors’ suspicions having been aroused, a drug dog

was brought to the van and alerted to the presence of cocaine.

The inspectors drilled a hole in the van and discovered a white

powder. They then found a trapdoor to the dashboard and removed

ten “bricks” of white powder, wrapped in plastic and covered in

carbon paper. The weight of the packages was 9.68 kilograms;

after accounting for the weight of the wrapping materials, the

weight of the white substances was 8.85 kilograms. Samples of the

white powder were sent to a Drug Enforcement Administration

(“DEA”) laboratory in Dallas, Texas, for testing. The tests

confirmed that the samples were eighty-five percent pure powder

cocaine.

     After the cocaine was discovered in the van he was driving,

Garza was arrested. He agreed to speak with law enforcement and

then offered a story different from that which he had provided

before. Garza stated that he had been drinking earlier in the day

with a friend at a bar in Eagle Pass, Texas, and that he and his

friend had decided to go to a bar in Piedras Negras, Mexico, to

continue drinking there. Garza stated that after he and his

friend had been in Mexico “for a while,” his friend asked Garza

to bring the friend’s van back into the United States.

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     On March 3, 2004, a grand jury indicted Garza for possession

with intent to distribute more than five kilograms of a substance

or mixture containing cocaine, in violation of 21 U.S.C. § 841,

and for importation of more than five kilograms of a substance or

mixture containing cocaine, in violation of 21 U.S.C. §§ 952 and

960. On September 29, 2004, a jury convicted Garza on both

counts. Garza was sentenced to 121 months in prison on each

count, served concurrently, to be followed by five years of

supervised release on each count, served concurrently. Garza was

also fined $1000 for each count and a $100 special assessment

fee. Garza timely appealed.

            II. JURISDICTION AND STANDARD OF REVIEW

     This is a direct appeal from a final judgment of the United

States District Court in a criminal case. This court has

jurisdiction pursuant to 28 U.S.C. § 1291.

     Our standard of review is the same for both of Garza’s

sufficiency of the evidence claims. Because Garza filed a motion

for acquittal at the close of all the evidence raising these

objections, we ask whether a reasonable jury could find that the

evidence established the essential elements of the crime beyond a

reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540,

543 (5th Cir. 1998). We view the evidence in the light most

favorable to the verdict and give the government the benefit of

all reasonable inferences and credibility choices. United States

v. Harvard, 103 F.3d 412, 421 (5th Cir. 1997). We do so because
                                4
“[a] jury is free to choose among reasonable constructions of the

evidence.” United States v. Bell, 678 F.2d 547, 549 (5th Cir.

1982).

     For Garza’s claim that the district court improperly

admitted a receipt into evidence, we review a district court’s

decision to admit or exclude evidence for abuse of discretion.

United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993).

                         III. DISCUSSION

A.   Garza’s Knowledge of the Presence of Cocaine in the Van

     To convict Garza of possession with intent to distribute

under 21 U.S.C. § 841, the government must prove beyond a

reasonable doubt that Garza (1) knowingly (2) possessed the

controlled substance (3) with the intent to distribute it. United

States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). A

conviction for the crime of importation of a controlled substance

requires proof that the defendant knowingly played a role in

bringing the controlled substance from a foreign country into the

United States. United States v. Diaz-Carreon, 915 F.2d 951, 953

(5th Cir. 1990). Thus, for either offense, the government must

demonstrate that Garza had knowledge that the cocaine was hidden

in the van he was driving.

     Knowledge of the presence of a controlled substance may

generally be inferred from the exercise of control over the

vehicle in which the illegal substance is concealed. United


                                5
States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988). Where

the contraband is concealed in a manner not clearly visible or

readily accessible to the defendant, however, that inference may

not be made, because of the possibility that another party was

using the defendant as an unwitting carrier. Diaz-Carreon, 915

F.2d at 954. In such a situation, proof of knowledge requires

“other circumstantial evidence that is suspicious in nature or

demonstrates guilty knowledge.” United States v.

Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990).

     This court has repeatedly held that inconsistent or

implausible statements by the defendant are strong evidence of a

defendant’s guilty knowledge. See, e.g., United States v.

Casilla, 20 F.3d 600, 606 (5th Cir. 1994); United States v.

Gibson, 963 F.2d 708, 711 (5th Cir. 1992); Diaz-Carreon, 915 F.2d

at 954-55; Anchondo-Sandoval, 910 F.2d at 1237. We have also

stated that the value of the drugs being transported may be

probative of knowledge, for it is unlikely that a person not part

of the smuggling scheme would be entrusted with such a valuable

cargo. See, e.g., Villarreal, 324 F.3d at 324; United States v.

Garcia-Flores, 246 F.3d 451, 455 (5th Cir. 2001).

     Applying this precedent, it is clear that there is

sufficient circumstantial evidence to support the jury’s

conclusion that Garza was knowingly in possession of cocaine.

First, there were numerous inconsistencies in Garza’s statements



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to customs inspectors. Garza stated first that the owner of the

van was named Luis Rodriguez, then Luis Flores. He claimed that

the owner was his brother-in-law but later stated that the owner

was his friend. Garza claimed initially that he had possessed the

van for two weeks, and had been doing mechanical work on it.

Later, however, Garza stated that he had just taken possession of

the van that night, after his friend asked him to drive it back

into the United States. Garza declared first that the purpose of

his trip to Mexico was to buy liquor and tacos, then added that

he had also met “some friends” there, and finally claimed that he

and a single friend had been drinking in the United States and

had decided to continue drinking in Mexico.

     A number of Garza’s statements were also arguably

implausible. Certainly, the claim that Garza’s friend handed over

his van for Garza to drive back to the United States strains the

bounds of plausibility. Moreover, extrinsic evidence introduced

at trial undermined Garza’s final account. A Texas state police

officer testified that he stopped Garza at 8:55 p.m. on the night

in question for driving a vehicle with a defective tail light,

and that Garza showed no signs of intoxication. This evidence,

placing Garza unintoxicated in Texas at roughly 9 p.m., casts

doubt on Garza’s claim that “he had been drinking earlier in the

day” in Texas, before he and his friend decided to go to Mexico

to drink, which they did “for a while” before returning to Texas.



                                7
     Additionally, the value of the contraband (estimated to be

at least $88,500) was sufficiently high to permit the jury to

infer that the contraband would not have been placed in Garza’s

possession had he not been part of the smuggling scheme. See

Villarreal, 324 F.3d at 324. “We do not consider each piece of

potential evidence separately, rather we review the evidence as a

whole to determine its sufficiency.” Garza, 990 F.2d at 175.

Taken as a whole, the evidence is more than sufficient to allow a

reasonable jury to conclude that Garza had knowledge that the

contraband was in the van he was driving.

B.   Quantity of Cocaine in Van

     Garza claims that law enforcement agents took samples from

only one of the ten packages of white powder found in Garza’s

van. Garza therefore argues that the DEA laboratory’s conclusion

that these samples contained cocaine is insufficient to prove

beyond a reasonable doubt that the remaining packages contained

cocaine. We need not decide, however, whether testing samples

from one out of ten packages is sufficient, because there is

strong evidence that the samples were taken from three out of the

ten packages.

     Garza appears to rely on sections of testimony by Customs

Special Agent Michael Warner (“Warner”) where he stated that he

unwrapped the largest package of white powder and then sent three

samples to the laboratory. From this testimony, one could infer



                                  8
that Warner took all three samples from the single package that

he unwrapped. In other testimony, however, Warner stated that he

sent three of the packages to the laboratory, leaving seven

behind.   Kiana Hamlet, the DEA chemist who examined the samples

sent by Warner, stated that she received:

     two DEA heat-sealed evidence envelopes. One heat-sealed
     evidence envelope contained the loose white powder with
     the wrappings. And there was another DEA heat-sealed
     evidence envelope that contained two bricks that were
     fully wrapped.

This testimony implies that Warner took one sample from the

package he had opened and sent two unopened packages as the other

two samples. The jury was entitled to credit the testimony

indicating that samples were taken from three, rather than one,

of the ten packages. See United States v. Bell, 678 F.2d 547, 549

(5th Cir. 1982).

     We have previously stated that “[r]andom sampling is

generally accepted as a method of identifying the entire

substance whose quantity has been measured.” United States v.

Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996). In Fitzgerald, we

concluded that tests revealing that five of sixty-three “rocks”

consisted of cocaine base were sufficient evidence that the

entire quantity was cocaine base. Id. We now hold that, in the

absence of evidence to the contrary, tests revealing that three

of ten packages contained cocaine are sufficient to prove that




                                 9
all ten packages contained cocaine.2

C.   Admission of Receipt into Evidence

     Garza objects to the admission into evidence of a receipt

from an Eagle Pass Auto Zone, stamped with a date of February 7,

2004, and a time of 5:44 p.m. This receipt was introduced as part

of the government’s efforts to establish a time line of Garza’s

activities on February 7, 2004. Customs Special Agent Mark

Atchley (“Atchley”) testified that he found the receipt either

with Garza’s personal effects or in the glove box of the van.

Garza argues that because Atchley could not say with certainty

that he found the receipt on Garza’s person, the receipt could

have been located in the van and could have been placed there by

a prior driver. If the receipt was merely in the van, Garza

argues, “it had no evidentiary significance.” Garza therefore

claims that the district court erred by allowing the admission of

irrelevant and confusing evidence.

     The general rule for admissibility, to which there are no

doubt a multitude of exceptions, is that all relevant evidence is

admissible. FED. R. EVID. 402. “Relevant evidence” is defined by

Federal Rule of Evidence 401 as “evidence having any tendency to



     2
      We note that the jury did not need to conclude that each of
the ten packages contained cocaine to convict Garza. Garza was
charged with importation of and possession of with intent to
distribute more than five kilograms of a substance containing
cocaine. The total weight of the white powder found in the van
was 8.85 kilograms, well over the necessary five kilograms.

                                10
make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” Contrary to Garza’s

contention, the receipt in question satisfies this standard, for

it tends to make Garza’s presence in Eagle Pass at 5:44 p.m. more

probable, even if it does not establish that fact definitively.

Placing Garza at Eagle Pass at 5:44 p.m. helps the jury to create

a time line for Garza’s movements that evening to compare with

Garza’s own account of his activities.

     Under Rule 403, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury

. . . .” Garza appears to argue that the receipt created a danger

of confusion that substantially outweighed its relevance. It is

unlikely, however, that the jury would have been confused by the

receipt, especially since Garza had an opportunity to question

Atchley regarding its location when Atchley found it.

     Even if the district court had erred in admitting the Auto

Zone receipt into evidence, such error would be harmless. See

United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003) (“If the

court errs in its evidentiary ruling, the error can be excused if

it was harmless . . . . A nonconstitutional trial error is

harmless unless it had substantial and injurious effect or

influence in determining the jury’s verdict.”). While helpful in



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establishing a time line of Garza’s movements, the receipt is far

from the only piece of evidence tending to undermine Garza’s

account (or accounts). More significant is the testimony of the

Texas state police officer that Garza was stopped in Texas at

8:55 p.m. and appeared sober. Moreover, the multiple

inconsistencies and implausibilities of Garza’s stories provided

sufficient basis, even in the absence of any extrinsic evidence

regarding Garza’s whereabouts, for the jury to conclude beyond a

reasonable doubt that Garza was in fact aware of the cocaine in

the van.

                         IV. CONCLUSION

     For the foregoing reasons, we AFFIRM Garza’s conviction.

     AFFIRMED.




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