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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                 No. 14-50846
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          January 5, 2016
                                                                    Lyle W. Cayce
                                           Plaintiff - Appellee          Clerk
v.

JESUS GUADALUPE RAMOS-RODRIGUEZ,

                                           Defendant - Appellant




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


Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:
      This is a direct criminal appeal in which the appellant challenges his
convictions for conspiracy to possess with intent to distribute five kilograms
or more of cocaine and possession with intent to distribute five kilograms or
more of cocaine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. The appellant raises
two evidentiary challenges. Finding no abuse of discretion, we AFFIRM the
district court’s judgment.
      I.     BACKGROUND
      Ramos, a citizen of Mexico, approached the Eagle Pass Port of Entry on
May 29, 2013, driving a white pickup truck. Agents referred the vehicle to
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secondary inspection, based on a notification they had received stating that the
vehicle could have a hidden compartment above the transmission. A drug dog
alerted on the center console in the front seat. An officer driving the vehicle to
an X-ray machine removed the cup holder, which was not firmly attached, from
the console and discovered a trap door. The officer discovered black packages
wrapped in tape under the trap door. Another officer found a metal plate on
the undercarriage of the vehicle, near the center console. Ultimately, the
officers located a hidden compartment running the length of the center console
and under the back seats of the truck, which contained 16 wrapped packages
of cocaine with a net weight of 15.78 kilograms. Ramos admitted that he owned
the truck. Ramos asserted that he had been driving to an auto parts store in
Eagle Pass when he was stopped at the Point of Entry.
      On April 11, 2013, approximately six weeks prior to the instant offense,
Round Rock 1 police officers pulled Ramos over for driving 3 miles an hour over
the speed limit, and as a result of that stop, the officers discovered an empty
hidden compartment in the vehicle. That vehicle is the same truck that is
involved in the instant offense. The following evidence regarding the Round
Rock traffic stop was admitted at Ramos’s trial. Ramos initially told Officer
Raul Morales (“Morales”) that he had driven from Mexico to Fort Worth the
day before but then claimed that he drove to Fort Worth that morning and
“came right back.” Ramos explained that he had driven to Fort Worth to buy
clothing for his business; however, there were no packages in the vehicle.
Morales found that Ramos’s handwritten insurance card was suspicious, but
he did not write Ramos a ticket for it.




      1Round Rock is a city in Texas situated on Interstate Highway 35 on a route between
the Mexican border and Fort Worth, Texas.
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                                 No. 14-50846
      Ramos gave the officers permission to search his vehicle. Sergeant Eric
Mount (“Mount”) found that the carpet in the truck was dirty and wrinkled in
places where it should not have been wrinkled, indicating that it had been
pulled up at some point. Mount noticed that the bolts holding the seats to the
base of the truck were “tooled,” or pulled off; the bolts were shiny, indicating
that they were new, even though the rest of the vehicle interior was dirty and
old. Mount discovered that the center console was “loose” and “wiggly,” and he
was able to move it with his finger. Mount pulled up the console and discovered
a hidden compartment built into the truck. He could not reach inside, so he
called for a drug dog. The dog alerted to the presence of narcotics in the center
console, but no actual drugs were found. Officer Jeffrey Gogolewski explained
that his dog could alert to trace elements of formerly present drugs even if
there was no visible physical evidence. Mount admitted, however, that he had
not told Ramos that they had discovered the hidden compartment.
      Ramos told Morales that he owned the truck and was the primary driver,
although his brother or cousin would occasionally drive it in Mexico. Ramos
kept watching the officer searching the vehicle. Morales learned from Mount
that the seats had been removed. Morales asked Ramos whether he had
removed the seats, Ramos responded “No, the seats came with the truck.” At
that point, Ramos began to get aggressive and nervous. Ramos also explained
that he “had just changed” the license plates on the truck.         The officers
transported the truck to the city shop, where workers removed most of the
interior and discovered access to the compartment under a seat.
      During the trial, the government sought to show Ramos’s knowledge of
the compartment through evidence of the Round Rock traffic stop.             The
government also called border patrol agents who testified with respect to their
discovering the cocaine in a hidden compartment of Ramos’s vehicle when he
was stopped at the Eagle Pass Point of Entry. The government introduced
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                                 No. 14-50846
records of Ramos’s history of crossing the border in his truck. There was
evidence that showed Ramos’s empty truck returning to Mexico on several
occasions. This evidence was introduced to refute Ramos’s statements to the
agents that he came to the United States to buy used goods such as furniture
and return to Mexico to sell the goods. Additionally, the government called a
narcotics agent who testified as an expert witness with respect to the practices
and habits of individuals who smuggle drugs across the border. The jury
convicted Ramos of the cocaine conspiracy count and the substantive count of
possession with the intent to distribute. Ramos now appeals.
      II.   ANALYSIS
            A.    Rule 404(b) Evidence
      Ramos contends that the district court erred in admitting evidence at
trial regarding the previous traffic stop. Federal Rule of Evidence 404(b)
provides that evidence “of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person
acted in accordance with the character,” although such evidence may be
admissible “for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
FED. R. EVID. 404(b)(1)–(2). As a threshold matter, however, evidence of an
uncharged crime or “other act” must be sufficient to support a finding that the
crime or act actually occurred. United States v. Gutierrez–Mendez, 752 F.3d
418, 423–24 (5th Cir. 2014) (citing FED. R. EVID. 104(b)). If evidence of the
crime or act is sufficient, its admissibility under Rule 404(b) hinges on whether
(1) it is relevant to an issue other than the defendant’s character, and (2) it
“possess[es] probative value that is not substantially outweighed by its undue
prejudice” under Federal Rule of Evidence 403. United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978). This court reviews a district court’s evidentiary
rulings for abuse of discretion, although the standard is “‘heightened’ when
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evidence is admitted under [Rule] 404(b), because ‘[e]vidence in criminal trials
must be strictly relevant to the particular offense charged.’” United States v.
Kinchen, 729 F.3d 466, 470 (5th Cir. 2013) (quoting United States v. Jackson,
339 F.3d 349, 354 (5th Cir. 2003)).
      As previously set forth, Ramos was charged with both participation in a
cocaine conspiracy and with a substantive count of possessing cocaine with
intent to distribute. In order to support a conviction for a drug conspiracy, the
government must prove, among other things, that the defendant knew of and
voluntarily participated in an agreement to violate narcotics laws. United
States v. Booker, 334 F.3d 406, 409 (5th Cir. 2009). Likewise, the essential
elements of a possession-with-intent-to-distribute offense include knowledge
and the intent to distribute. See United States v. Cain, 440 F.3d 672, 675 (5th
Cir. 2006). In a moving vehicle case, if the drugs are secreted in a hidden
compartment, the defendant’s control of the vehicle is insufficient to
demonstrate knowledge; rather, there must be other circumstantial evidence
demonstrating guilty knowledge. United States v. Mendoza, 522 F.3d 482, 489
(5th Cir. 2008). Guilty knowledge of the hidden drugs may be inferred from a
number of factors, including nervousness, inconsistent statements, and
obvious alterations to the vehicle. See United States v. Casilla, 20 F.3d 600,
606–07 (5th Cir. 1994).
      As a threshold matter, Ramos argues that the evidence regarding the
prior traffic stop in Round Rock was inadmissible because there is no evidence
to support a finding that he knew of the hidden compartment at the time of
that traffic stop. Ramos correctly states that the officers did not inform him
that they discovered a hidden compartment in his truck at the time of the prior
traffic stop. Nonetheless, during the traffic stop, the officers asked Ramos
whether he had removed the seats, and Ramos responded that he had not.
After being asked about the removal of the seats, Ramos’s demeanor changed,
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                                     No. 14-50846
and he began to “get aggressive [and] nervous.”              As previously indicated,
“nervous behavior may be considered as circumstantial evidence of guilty
knowledge.” Casilla, 20 F.3d at 607. Ramos then told the officers that he
bought tires and changed tires on the vehicle, which was not responsive to the
officer’s question. We also note that Ramos changed his story about when he
drove to Fort Worth while he was talking to the Round Rock officers. 2 This
court has opined that “[p]erhaps the strongest evidence of a criminal
defendant’s guilty knowledge is inconsistent statements,” because “a factfinder
could reasonably conclude that they mask an underlying consciousness of
guilt.” United States v. Diaz–Carreon, 915 F.2d 951, 954–55 (5th Cir. 1990).
      Ramos also told the Round Rock officers that he “had just changed the
[license] plates.” It is undisputed that after the Round Rock traffic stop, Ramos
changed his license plates a second time. Ramos’s changing of his license plate
after the traffic stop was an apparent attempt to evade law enforcement, which
indicates guilty knowledge. Indeed, at oral argument, Ramos conceded that he
had no principled argument that the evidence of his changing the license plates
constituted irrelevant or inadmissible evidence. It is also undisputed that
Ramos owned the truck, and there was no evidence or claim that another
individual had possession of the truck for an extended period of time.
Moreover, the officers testified that they quickly noticed that the carpet had
previously been removed and that new bolts were securing the seats. The new
bolts were in contrast to the rest of the truck, which was old and dirty. Mount
testified that the center console was so loose that when he touched it with his
finger, it moved. See Casilla, 20 F.3d at 607 (explaining that evidence of
obvious alternations to the vehicle is circumstantial evidence upon which a


      2 At first, Ramos told the officers that he had driven from Mexico to Fort Worth the
previous day and then driven to Round Rock that morning. He later said he drove from
Round Rock to Fort Worth and back that same morning.
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jury may infer guilty knowledge). 3 In light of evidence detailed above, we
conclude that the jury could reasonably find by a preponderance of the evidence
that Ramos knew of the hidden compartment in his truck at the time of the
prior traffic stop. Gutierrez-Mendez, 752 F.3d at 424.
       After concluding that the evidence shows Ramos had knowledge of the
hidden compartment, we turn to the question of whether the evidence of the
prior traffic stop is relevant to an issue other than Ramos’s character.
Beechum, 582 F.2d at 911. We are persuaded that the evidence of the prior
traffic stop is relevant to showing Ramos’s knowledge of the drugs in his truck’s
hidden compartment at the time of the instant offense. Very recently, in
United States v. Gil-Cruz, this court addressed a case in which a defendant had
previously crossed the border in a vehicle with an empty hidden compartment.
__ F.3d __, 2015 WL 8597852 (5th Cir. Dec. 11, 2015). In that case, Gil-Cruz
had crossed the border in a gold Ford Focus on December 12, and the officers
discovered an empty hidden compartment in the vehicle he was driving. Id. at
*2.   Because no drugs or contraband was found in the compartment, he
apparently was allowed to cross the border. On January 6, Gil-Cruz drove a
silver Ford Focus and passed through the border checkpoint. Id. It was
undisputed that Gil-Cruz owned the silver Ford Focus. The next day, Gil-Cruz
drove the same silver Focus to the checkpoint, and the officers discovered
narcotics in a hidden compartment. Id. Thus, the evidence demonstrated that
Gil-Cruz had driven two different vehicles that had hidden compartments
across the border. This court concluded that Gil-Cruz’s knowledge of the drugs
contained in the hidden compartment could be inferred, in part, based on the


       3Ramos contends that the evidence of the alterations to the truck is of little weight
because the truck was salvaged. The fact that the truck was salvaged did not render the
evidence of alternations irrelevant. In any event, that evidence was just one piece of the
overall circumstantial evidence admitted to show Ramos’s knowledge of the hidden
compartment.
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previous crossing at the border in which an empty hidden compartment had
been detected. Id. 4 Similarly, here, the Round Rock officers had discovered
the empty hidden compartment in Ramos’s truck, which was shown to have
crossed the border on previous occasions. Also, Ramos, like Gil-Cruz, owned
the vehicle with the hidden compartment.                 Accordingly, because we are
persuaded that the evidence of the prior traffic stop is relevant to showing
Ramos’s knowledge of the hidden drugs, we reject the contention that the
traffic stop only shows a propensity to commit the crime.
       The next question is whether the evidence regarding the prior traffic stop
“possess[es] probative value that is not substantially outweighed by its undue
prejudice.” Beechum, 582 F.2d at 911. The evidence regarding the prior traffic
stop has probative value regarding Ramos’s knowledge or intent. Of course,
the evidence regarding the discovery of the hidden compartment during the
traffic stop, particularly the dog alerting to the compartment, would be
prejudicial to Ramos. However, we do not believe it is unduly prejudicial. “In
weighing the probative value and unfair prejudice, this court must make a
‘commonsense assessment of all the circumstances surrounding the extrinsic
offense.’” United States v. Cockrell, 587 F.3d 674, 678 (5th Cir. 2009) (quoting
Beechum, 582 F.2d at 914). “Rule 403 ‘would seem to require exclusion only in
those instances where the trial judge believes that there is a genuine risk that
the emotions of the jury will be excited to irrational behavior, and that this risk
is disproportionate to the probative value of the offered evidence.’” Id. at 679
(quoting Beechum, 582 F.2d at 915 n.20). We do not believe that the evidence
of the prior traffic stop would excite the jury to irrational behavior. Moreover,



       4In Gil-Cruz, the admissibility of the prior stop was not contested; instead, the issue
was whether there was sufficient evidence to support a finding that Gil-Cruz knew of the
hidden drugs in the context of determining harmless error. Gil-Cruz, 2015 WL 8597852 at
*2.
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the district court gave limiting instructions designed to reduce the potential
for unfair prejudice. 5 We conclude that the evidence of the prior traffic stop
has probative value that is not substantially outweighed by its undue prejudice
under Rule 403.        Thus, we hold that the district court did not abuse its
discretion in admitting evidence of the prior traffic stop.
       Alternatively, with respect to the evidence that the dog alerted to the
hidden compartment during the prior traffic stop, even assuming arguendo
that such evidence may have been inadmissible, it was harmless error because
of the overwhelming evidence showing Ramos had knowledge of the drugs. 6 In
addition to the evidence set forth above, the large quantity of cocaine
discovered in Ramos’s truck’s hidden compartment supports a finding of guilty
knowledge at the time of the instant offense. In Gil-Cruz, this court relied on
the fact that the defendant was carrying $286,000 worth of narcotics, and
explained that such a high value of drugs can support an inference of
knowledge. __ F.3d __, 2015 WL 8597852 at *2. Here, Agent Sanchez testified
that the cocaine in Ramos’s vehicle was worth $79,500 a kilo on the streets of
Fort Worth, which meant that the street value of the cocaine was in excess of
one million dollars. Under the circumstances of this case, we find it rather
implausible that more than a million dollars’ worth of cocaine was hidden in
Ramos’s truck without his knowledge.               Cf. United States v. Colmenares-
Hernandez, 659 F.2d 39, 41 (5th Cir. 1981) (stating that the “jury was entitled,



       5  The district court instructed the jury that Ramos was “not on trial for any act,
conduct or offense not alleged in the indictment.”
       6 In its initial closing argument, the government never mentioned that the dog alerted

to the hidden compartment in the truck during the Round Rock stop. Instead, the
government argued that Ramos told inconsistent stories during that stop and subsequently
changed his license plates. However, after defense counsel in closing argument brought up
the fact that the dog alerted even though there were no visible drugs, the government in
rebuttal argued that the dog alerted to the residue of drugs.

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                                   No. 14-50846
on this record, to decline to credit appellant’s explanation that an unknown
person gave him millions of dollars worth of cocaine to transport without his
knowledge”). Thus, any error in admitting evidence of the dog alerting to the
hidden compartment during the traffic stop is harmless.
              B.    Drug Smuggler Profile Testimony
                    1.     Standard of Review
         Ramos next contends that the district court erred in admitting expert
testimony from a Texas Department of Public Safety narcotics agent regarding
the practices and habits of individuals who smuggle drugs across the border.
Ramos contends that the testimony did not simply provide information about
drug smuggling operations but instead compared his actions with the profile
of a drug trafficker, thereby providing inadmissible opinion testimony about
his guilt.
         This court generally reviews a district court’s evidentiary ruling for
abuse of discretion. United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th
Cir. 2002). The government argues that although Ramos filed a motion in
limine seeking to preclude the use of the drug smuggler profile testimony,
because Ramos did not object at trial, the claim should be reviewed for plain
error.    In his reply brief, Ramos contends that because the district court
definitively ruled on the motion in limine regarding the evidentiary objection,
no further objection was required under Rule 103(b) of the Federal Rules of
Evidence. Rule 103(b) provides as follows: “Once the court rules definitively
on the record–either before or at trial–a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.” Here, during a pretrial
conference, the district court denied the motion in limine regarding the
challenged expert testimony, explaining that the government was entitled to
present expert testimony of “drug courier conduct in general.” Additionally,
the court explained that the government was prohibited from soliciting
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                                  No. 14-50846
testimony “as to the ultimate guilt or state of mind of the defendant.” The
court directed the government “to be very careful to school your expert not to
be making any references directly to the defendant, but rather just to give
expert testimony as long as they’re properly qualified.” (emphasis added). At
oral argument before this court, Ramos asserted that the district court’s ruling
failed to exclude testimony that implicitly amounted to an opinion that the
defendant had knowledge of the drugs in the hidden compartment. We are not
necessarily convinced that Ramos sufficiently raised this particular argument
before the district court. Nonetheless, because we conclude the testimony was
admissible, we assume for purposes of this appeal that the claim is properly
preserved.
                   2.     Agent’s Expert Testimony
      At trial, when the prosecutor moved to qualify Agent Sanchez as an
expert, Ramos’s attorney expressly stated that there was no objection. Thus,
the issue on appeal is not whether the agent was an expert but whether the
expert’s testimony was inadmissible.          The Federal Rules of Evidence
circumscribe when an expert witness may testify with respect to a disputed
matter at trial. Gutierrez-Farias, 294 F.3d at 662. Rule 702(a) provides that
an expert may testify if his “scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in
issue.” However, “[i]n a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental state or
condition that constitutes an element of the crime charged or of a defense.
Those matters are for the trier of fact alone.” FED. R. EVID. 704(b). In the
case at bar, the principal issue was whether Ramos knew that the cocaine was
in his truck’s hidden compartment.        Thus, Rule 704(b) prohibited Agent
Sanchez from stating an opinion as to whether Ramos knew that the drugs
were in the compartment.
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      Additionally, this court has explained that a drug smuggler profile is “a
compilation of characteristics that aid law enforcement officials in identifying
persons who might be trafficking in illegal narcotics.”        United States v.
Medeles-Cab, 754 F.3d 316, 321 (5th Cir. 2014) (internal quotation marks and
citations omitted).     “In ‘pure profile evidence’ cases, law enforcement
personnel seek to testify that because a defendant’s conduct matches the
profile of a drug courier, the defendant must have known about the drugs he
was transporting.” Id. (citation omitted). This court has made clear that “drug
courier profile evidence is inadmissible to prove substantive guilt based on
similarities between defendants and a profile.” Id. (internal citation marks
and citations omitted). Testimony regarding methods that are unique to the
drug business can help a jury understand the importance and implications of
evidence presented at trial. Id. On the other hand, testimony that a defendant
fits a drug smuggler profile runs the risk of suggesting that an innocent person
had knowledge of the illegal drug offense. Id. “Our cases demonstrate that
inadmissible drug courier profile testimony involves an agent drawing a direct
connection between a drug courier characteristic (or characteristics) and the
defendant in order to establish the defendant’s guilt.” Id. If, instead, an agent
only testifies regarding certain characteristics of drug trafficking and does not
draw a connection between the characteristic(s) and the defendant, that
testimony is admissible. Id.
      The government contends that Agent Sanchez’s testimony was properly
admitted because he never made any direct reference to Ramos and did not
opine as to Ramos’s knowledge or guilt regarding the cocaine. The government
correctly contends that Sanchez never referenced Ramos or his state of mind;
however, that does not completely resolve the issue. The proper inquiry is
whether the expert’s “testimony is the ‘functional equivalent’ of an opinion that
the defendant knew he was carrying drugs.”         United States v. Gonzalez-
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Rodriguez, 621 F.3d 354, 364 (5th Cir. 2010) (quoting Gutierrez-Farias, 294
F.3d at 663–64). In Gutierrez-Farias, although the expert witness did not
specifically reference the defendant, his testimony “presented the jury with a
simple generalization: In most drug cases, the person hired to transport the
drugs knows the drugs are in the vehicle.” 294 F.3d at 663. Accordingly, this
court concluded that the expert testimony crossed the line between an
explanation of the witness’s analysis of the facts and an impermissible opinion
on the ultimate legal issue in the case. Id. Thus, we must determine whether
Agent Sanchez’s testimony was an explanation of the facts of the case or an
impermissible opinion regarding whether Ramos knew that the cocaine was in
his vehicle.
      During Agent Sanchez’s direct examination, he testified regarding
several characteristics of drug couriers, including: (1) drug smugglers being
matched to the type of vehicle they drive (example of cowboy-type to a pickup
truck); (2) drug smugglers use the voids in the vehicle to hide the drugs; (3)
drug smugglers change license plates to avoid detection; (4) drug smugglers
use “burner” cell phones that have virtually no history or personal information
attached to the phone; and (5) the time line for the travel pattern of a drug
smuggler from Mexico to a hub city in the United States and back to Mexico.
A careful reading of Agent Sanchez’s testimony indicates that it was an
explanation of the facts of the case, and it made no assertion or generalization
regarding Ramos’s knowledge. Thus, we conclude that Sanchez’s testimony
was not the “functional equivalent” of an opinion that Ramos knew he was
transporting drugs. Gonzalez-Rodriguez, 621 F.3d at 364.
      In a related argument, Ramos contends that the government’s closing
argument was improper because it connected the dots between the expert’s
testimony and the evidence admitted at trial regarding Ramos’s conduct. In
other words, the government relied upon Agent Sanchez’s testimony to argue
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that Ramos knew that the cocaine was in his truck. However, Ramos did not
object to the government’s closing argument. Thus, this argument is reviewed
for plain error. To succeed on plain error review, an appellant must show (1)
a forfeited error (2) that is clear or obvious and (3) that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes
that showing, this court may exercise its discretion “to remedy the error . . .
only if the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and citation omitted)
(alteration in original).
      In United States v. Sanchez-Hernandez, this court rejected a similar
challenge to the government’s closing argument. 507 F.3d 826 (5th Cir. 2007).
In that case, although the government had avoided eliciting an inadmissible
opinion from the expert witness that the drug smugglers would not have
allowed an outsider to participate, the prosecutor had made that argument to
the jury. Id. at 833. This court acknowledged that its precedent criticizes the
admission of this kind of direct testimony. Id. Nonetheless, it held that it was
not error for the government to argue this inference when a defendant
possessed illicit drugs and claims he had no knowledge of the drugs. Id. Thus,
in the case at bar, it was not error, plain or otherwise, for the government to
rely on Agent Sanchez’s testimony in support of its argument that Ramos had
knowledge of the cocaine in his truck’s hidden compartment.
      III.   CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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