U.S. v. Diaz-Carreon

• Decision Date: 16 October 1990
• Docket Number: No. 89-8083,DIAZ-CARREO,D,89-8083
• Citation: 915 F.2d 951
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Angelefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 951

915 F.2d 951

UNITED STATES of America, Plaintiff-Appellee, v. Jose Angel DIAZ-CARREON, Defendant-Appellant.

No. 89-8083.

United States Court of Appeals Fifth Circuit.

Oct. 16, 1990.

Rehearing and Rehearing En Banc

Denied Nov. 13, 1990.

Robert J. Perez, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before BROWN, POLITZ and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Jose Angel Diaz-Carreon ("Diaz-Carreon") appeals his convictions on two counts of controlled substances violations: importation of marijuana into the United States from Mexico in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) (1982) and possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). He argues that the evidence was insufficient to prove a "knowing" violation of the law and that the prosecutor made improper comments that compromised Diaz-Carreon's right to a fair trial. Unable to find that the district court committed reversible error, this Court affirms Diaz-Carreon's convictions.

I. FACTS AND PROCEDURAL HISTORY

Approximately 5:40 a.m. on June 20, 1989, Jose Angel Diaz-Carreon attempted to drive a stake bed pickup truck with California license plates across the international border into El Paso, Texas. He presented an amnesty card to the customs inspector at the Paso Del Norte Port of Entry and declared that he was bringing nothing into the United States. The inspector, finding it unusual that a person arriving early from Mexico in a vehicle with California plates declared neither lunch nor luggage, conducted a cursory inspection of the truck. She walked around the truck and tapped the sides of the unusual convex sideboards. Her taps produced different sounds--some solid, some hollow.

The customs inspector returned to the driver's side of the vehicle and asked Diaz-Carreon several questions. Diaz-Carreon responded that he was driving the truck to his residence in Canutillo, Texas. He explained that he was not the owner of the truck and admitted that he had no driver's license. As the customs inspector continued her questioning, Diaz-Carreon's previously friendly demeanor deteriorated into extreme and noticeable nervousness. He became increasingly agitated and unable to communicate. Suspecting that some of the truck's stakes might contain controlled substances the customs inspector directed Diaz-Carreon to secondary inspection.

Customs officials at secondary inspection further questioned Diaz-Carreon. He stated that he did not own the truck and was driving it to its owner in Anthony, New Mexico (approximately six miles from Canutillo, Texas). He again maintained that he was bringing nothing into the United States. Meanwhile, federal agents conducted a successful canine sniff test on the pickup truck. The agents dismantled the sideboards on the truck, discovering approximately 161 pounds of marijuana. Customs officials subsequently escorted Diaz-Carreon to a detention cell and searched him for contraband and weapons. Toward the end of the search, before being informed that agents had found marijuana in the truck, Diaz-Carreon nervously volunteered in Spanish, "If the truck is loaded, I didn't know about it."

Diaz-Carreon waived his legal rights and consented to an interview with a special agent of the customs service. In the interview, Diaz-Carreon stated that he lived in Puerta de Anapra, Mexico, but was traveling to Anthony, New Mexico, to search for work on a ranch. He revealed that a man known simply as Ruben had loaned him the truck so that he could find employment. However, Diaz-Carreon commented that he had met Ruben only a few days earlier and did not know where Ruben could be found. Moreover, Diaz-Carreon could not explain how Ruben would recover the pickup truck. ¹

On June 20, 1989, Diaz-Carreon was charged with importation of marijuana into the United States from Mexico ² and possession of marijuana with intent to distribute. ³ After a short trial that began on October 18, 1989, the jury returned a guilty verdict on both counts. The district court sentenced Diaz-Carreon to forty-one months of imprisonment on each count, the sentences to be served concurrently.

II. DISCUSSION

On appeal, Diaz-Carreon raises two arguments. First, he complains that the evidence was insufficient to prove a "knowing" violation of the law. Second, he complains that the prosecutor made improper statements that compromised Diaz-Carreon's right to a fair trial. This Court will examine each of these arguments in turn.

A. Sufficiency of the Evidence

In order to sustain a conviction for the crime of possession of marijuana with intent to distribute, the Government must prove three elements: (1) knowing (2) possession of marijuana (3) with intent to distribute it. United States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir.1986); United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). A conviction for the crime of importation of marijuana requires proof that the defendant knowingly played a role in bringing marijuana from a foreign country into the United States. Williams-Hendricks, 805 F.2d at 500. In either event, the Government must adduce sufficient evidence of "guilty knowledge," a requirement Diaz-Carreon contends was not satisfied in the instant case.

In considering Diaz-Carreon's allegations, this Court "must view the evidence and all reasonable inferences that may be drawn from the evidence in a light most favorable to the government." United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986). To support a conviction, the evidence need not exclude every hypothesis of innocence, so long as a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). "A jury is free to choose among reasonable constructions of the evidence." Id.

In the instant case, the Government had the difficult task to prove that Diaz-Carreon knowingly possessed and imported marijuana. The Government could have, and did in fact, offer evidence that Diaz-Carreon was the driver of a vehicle which contained contraband. Knowledge of the presence of a controlled substance often may be inferred from the exercise of control over a vehicle in which the illegal substance is concealed. United States v. Richardson, 848 F.2d 509, 513 (5th Cir.1988); Vergara, 687 F.2d at 62. Here, however, evidence that Diaz-Carreon was the driver of the pickup truck would have been insufficient in itself to support a finding of guilty knowledge. The marijuana in this case was smuggled in hidden compartments which were not clearly visible or readily accessible to the defendant. Under these circumstances, control of the vehicle in which the contraband is cleverly hidden does not support an inference of guilty knowledge; it is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise. ⁴ Thus, in hidden compartment cases, this Court has repeatedly required additional evidence indicating knowledge--circumstances evidencing a consciousness of guilt on the part of the defendant. United States v. Olivier-Becerril, 861 F.2d 424, 426-27 (5th Cir.1988); Richardson, 848 F.2d at 513; United States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir.1983).

While Diaz-Carreon's control of the pickup truck does not in itself constitute sufficient evidence that he knowingly possessed and imported marijuana, the Government in the instant case produced significant additional evidence that tends to establish Diaz-Carreon's guilty knowledge. Specifically, the Government asserts that the following circumstances adequately evidence the defendant's consciousness of guilt: (1) Diaz-Carreon's nervousness; (2) Diaz-Carreon's conflicting statements to customs officials; and (3) Diaz-Carreon's implausible story.

Nervousness. Nervous behavior at an inspection station frequently constitutes persuasive evidence of guilty knowledge. See Richardson, 848 F.2d at 513; Williams-Hendricks, 805 F.2d at 500-01; United States v. Moreno, 579 F.2d 371, 372 (5th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979). Nervousness, however, is "a normal reaction to circumstances which one does not understand." Williams-Hendricks, 805 F.2d at 501. 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. Ample facts nonetheless exist in the instant case which suggest that Diaz-Carreon's nervousness derived from an underlying consciousness of criminal behavior. For example, before being told that agents had discovered marijuana in the pickup truck, Diaz-Carreon volunteered, "If the truck is loaded, I didn't know about it." The jury could reasonably infer that this simple statement, delivered in a rush of anxiety, indicated that Diaz-Carreon knew of the existence of the marijuana in the truck and hoped to divert suspicion from himself.

Inconsistent statements to customs officials. Perhaps the strongest evidence of a criminal defendant's guilty knowledge is inconsistent statements to federal officials. See, e.g., Richardson, 848 F.2d at 513 (inconsistent statements to Drug Enforcement Agency and Border Patrol agents); Williams-Hendricks, 805 F.2d at 501 (inconsistent statements to customs inspectors). Inconsistent statements are inherently suspicious; a factfinder could reasonably conclude that they mask an underlying...