U.S. v. Mendoza

• Decision Date: 26 March 2008
• Docket Number: No. 06-51685.,06-51685.
• Citation: 522 F.3d 482
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco MENDOZA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

522 F.3d 482

UNITED STATES of America, Plaintiff-Appellee, v. Francisco MENDOZA, Jr., Defendant-Appellant.

No. 06-51685.

United States Court of Appeals, Fifth Circuit.

March 26, 2008.

[522 F.3d 486]

Joseph H. Gay, Jr., Asst. U.S. Atty. (argued), Ellen A. Lockwood, San Antonio, TX, for Plaintiff-Appellee.

Ruben P. Morales (argued), El Paso, TX, for Defendant-Appellant.

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

Before KING, DeMOSS and SOUTHWICK, Circuit Judges.

SOUTHWICK, Circuit Judge:

Francisco Mendoza, Jr. appeals his conviction on four counts of importation and possession of marihuana with intent to distribute. Mendoza challenges the sufficiency of the evidence and the fairness of the prosecutor's closing argument. These arguments provide no basis to disturb the judgment of conviction or the sentence. We affirm.

I. Facts and Procedural History

In March 2006, the Defendant Mendoza crossed the border from Juarez, Mexico into the United States in a truck driven by his cousin, Maria del Socorro Castaneda-Mendoza ("Castaneda"). Customs and Border Protection (CBP) Officer Aaron Fierro, stationed at the primary inspection area, was the first agent to encounter the truck. Both occupants sought admission into the United States; Mendoza identified himself as a United States citizen and Castaneda presented a border crossing card. However, Castaneda could not produce registration papers for the vehicle. She explained that Juarez police had taken them away from her husband. Officer Fierro required that the truck undergo a secondary inspection. At trial, Officer Fierro testified that Mendoza did not appear to be nervous during the primary inspection.

CBP Officers Carlos Robles, Jr. and Saul Macias performed the secondary inspection. Officer Robles testified that when the truck entered the secondary inspection area, Castaneda appeared "pale and nervous." Officer Robles explained that "[a]ny person that's going to be checked in the secondary vehicle area, they're going to be ready for that inspection." But Mendoza was "just slouched and leaned over against [the] passenger door." This behavior led Officer Robles to believe that Mendoza was pretending to sleep. On cross-examination, Officer Robles testified that Mendoza did not appear to be nervous during the secondary inspection.

Officer Macias testified that a drug-sniffing dog alerted to the truck's front bumper. An inspection revealed marihuana hidden in the front fender wells. When the dog alerted, Officer Macias observed Mendoza sigh, his whole body slumped, and he "put his head down in disbelief." Officer Macias testified that he had observed the same type of behavior in other suspects when they were "caught with a load" of illegal drugs.

Immigration and Customs Enforcement (ICE) Agent Rafael Martinez was present at the border when Mendoza and Castaneda were detained. After being advised of their relevant constitutional rights, both suspects agreed to speak with Agent Martinez. Agent Martinez recounted their statements during his testimony at Mendoza's trial.

During her interview, Castaneda gave inconsistent accounts of the reasons she was driving Mendoza in this truck. She first told Agent Martinez that her cousin Mendoza had requested a ride to the border and that she had borrowed the truck from her ex-husband. She then changed her story, explaining that she had traveled to Mexico from El Paso, Texas, at Mendoza's request, in order to help him take a vehicle across the border. According to Castaneda, she drove her boyfriend's truck to a point near the border and then walked across the border into Mexico to meet Mendoza. Agent Martinez corroborated this by locating the boyfriend's truck near the place where Castaneda said she had left it. Castaneda said that, upon her arrival in Mexico, Mendoza and another individual asked her to drive the truck across the border because it had Mexican license plates and Mendoza (a United States citizen) would arouse suspicion if he drove the truck. Castaneda said that Mendoza and the other individual gave her a name and told her to tell the border inspectors that the vehicle was registered to that person.

After interviewing Castaneda, Agent Martinez spoke with Mendoza, who also provided inconsistent stories. Mendoza first offered essentially the same story as Castaneda, stating that he had asked Castaneda for a ride to El Paso and that the truck belonged to her ex-husband. Agent Martinez thought the story seemed "rehearsed" and told Mendoza that he did not believe him. At this point, Mendoza said that he would tell the truth if Agent Martinez would tear up his notes from the initial statement. After Agent Martinez tore up the notes, Mendoza stated that Castaneda had asked him to accompany her to El Paso to do some shopping. When asked why he lied initially, Mendoza responded that he thought it would be easy to lie.

In addition to these generally conflicting stories, Agent Martinez also noted certain discrepancies within each story. As part of his first story, Mendoza stated that he made telephone calls from a pay phone in El Paso to a friend in Juarez, Mexico, for 25 cents per call; but calls could not be placed from those pay phones for less than 50 cents. Mendoza told Agent Martinez that he called a friend on a cell phone and asked for a ride into Mexico; but the purported cell phone number was not in service. Mendoza then stated that he traveled by bus to meet his friend near the border; but the bus route seemed circuitous for Mendoza's purposes. As part of his second story, Mendoza stated that he had driven his own vehicle into Mexico the day before and had stayed with his girlfriend in Juarez; but Mendoza could not supply his girlfriend's telephone number. Mendoza also stated that he left his car with a friend before meeting Castaneda; but he could not provide the friend's last name and could not explain why he would leave his car with a person whose last name he did not know.

Prior to trial, Castaneda pled guilty to conspiracy to import marihuana. She agreed to testify against Mendoza. Castaneda's trial testimony tracked the second story that she told Agent Martinez: she had traveled to Mexico at Mendoza's request in order to help him "cross over a truck." She testified that Mendoza and his friend were both in the truck when she arrived at the meeting place, that Mendoza told her the truck's registration had been confiscated by Mexican officials, and Mendoza told her to lie to the border officers regarding truck ownership. She said that Mendoza went from sitting normally to slouching against the door as the truck crossed the bridge to the border checkpoint, then told her, "I don't know anything," as the officers were removing them from the truck during the secondary inspection. Castaneda told jurors that she understood this to mean that the truck had drugs in it.

Mendoza pled not guilty to the four charges against him; his trial strategy was to contest his knowledge that marihuana was hidden in the truck. Mendoza was convicted by a jury on each of four drug-related counts: conspiracy to import 50 kilograms or more of marihuana and of importation of 50 kilograms or more of marihuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1), & 960(b)(3); and conspiracy to possess with intent to distribute 50 kilograms or more of marihuana and possession with intent to distribute 50 kilograms or more of marihuana in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). The district court sentenced Mendoza to a 66-month term of imprisonment and a six-year period of supervised release for each count, but ordered that the sentences be served concurrently. He was also ordered to pay a $1,000 fine. Mendoza's appeal from this conviction is before us today.

II. Discussion

A. Sufficiency of evidence

Mendoza argues that the evidence on each charge was insufficient. We will affirm if "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). The evidence and all reasonable inferences drawn from it are to be viewed on appeal in the light most favorable to the government. Id. "In addition, all credibility determinations are made in the light most favorable to the verdict." United States v. Moreno, 185 F.3d 465, 471 (5th Cir.1999).

"The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence." United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). However, if the evidence "gives equal or nearly equal circumstantial support to a theory of guilt or innocence," the Court should reverse because "under these circumstances a reasonable jury must necessarily entertain a reasonable doubt." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir.1999) (citations and some internal quotation marks omitted).

1. Element of knowledge

Mendoza was convicted on four charges: conspiracy to import marihuana, importation of marihuana, and two counts of conspiracy to possess the marihuana with the intent to distribute. We will not detail each element of these offenses because Mendoza challenges solely the sufficiency of evidence regarding knowledge. "The knowledge element in a possession case can rarely be established by direct evidence." Ramos-Garcia, 184 F.3d at 465. "Knowledge can be inferred from control of the vehicle in some cases; however, when the drugs are hidden, control over the vehicle alone is not sufficient to prove knowledge." Id. In a hidden compartment situation, this Court requires other circumstantial evidence "that is suspicious in nature or demonstrates guilty knowledge." United States v. Garza, 990 F.2d 171, 174 (5th Cir.1993).

2. Evidence offered at trial

The government asserts that the jury's verdict is...