U.S. v. Ortega Reyna

• Decision Date: 28 July 1998
• Docket Number: No. 97-40142,97-40142
• Citation: 148 F.3d 540
• Parties: UNITED STATES, Plaintiff-Appellee, v. Jesus ORTEGA REYNA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 540

148 F.3d 540

UNITED STATES, Plaintiff-Appellee, v. Jesus ORTEGA REYNA, Defendant-Appellant.

No. 97-40142.

United States Court of Appeals Fifth Circuit.

July 28, 1998.

James L. Powers, Paula Camille Offenhauser, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Gene Alberto Garcia, Corpus Christi, TX, for Defendant-Appellant.

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

Before JOLLY, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Defendant-Appellant Jesus Ortega Reyna ("Ortega") was convicted by a jury on charges of possession with intent to distribute over 400 grams of heroin and 7,000 grams of amphetamines, in violation of 21 U.S.C. § 841(a)(1). On appeal, Ortega argues that the district court erred in denying his motion for acquittal, asserting that Plaintiff-Appellee the United States ("the government") failed to produce sufficient evidence that his possession of the illegal drugs was "knowing." After thoroughly reviewing the record, the arguments of counsel, and the applicable law, we agree that no reasonable jury could have concluded beyond a reasonable doubt that Ortega's possession of the drugs was knowing. Accordingly, we reverse his conviction.

I FACTS AND PROCEEDINGS

Accompanied by his wife and two children, Ortega, who is a native of Mexico and resident alien of the United States, was driving a pickup truck north from the Mexican border when he came to and entered the Border Patrol checkpoint at Falfurrias, Texas. Border Patrol Agent Oziel Puente noticed that the truck was "leaning to one side," and that the right rear tire was larger than the rest. When Puente asked Ortega if he was aware of the truck's condition, Ortega responded that the truck was not his, but belonged to a friend in Roma, Texas. According to Puente, he was told by Ortega that he and his family were going to El Campo, Texas.

While the truck remained at the primary checkpoint, Puente inspected its undercarriage and noticed several balancing weights on the right rear tire, indicating to him that the tire might contain hidden compartments for the transport of drugs. After obtaining Ortega's consent to search the vehicle further, Puente had Ortega move the truck to a secondary inspection area. There Puente released air from the tire but was not able to detect any odor of marijuana.

Agent Armando Diaz, a K-9 handler, arrived to assist in the search. When his drug-sniffing dog alerted the agents to the larger tire, they cut it open and discovered over sixteen pounds of amphetamines and fourteen ounces of heroin. Puente testified that Ortega did not appear to be nervous, and Diaz confirmed that Ortega "didn't appear to be very interested" in the search. Shortly thereafter, Puente took Ortega inside and advised him of his rights. ¹ Puente then showed him one of the bundles found in the tire and asked "if he had any knowledge of it." Puente states that Ortega glanced down, paused for "around 15 seconds," repeated that the car was not his, and responded that he "had no knowledge" of the presence of the drugs.

Some time later, Elizabeth Gonzales, an officer with the Corpus Christi Police Department and a member of the DEA Task Force, interviewed Ortega in more detail and also spoke with his wife and older son. According to Gonzales, Ortega told her that "he was from Houston and he had been in the Valley area because his father had been sick so he had to go to Monterrey to see his father." Gonzales also recalled Ortega's stating that he "had been in the Valley area for about a month and while he was in Miguel Aleman, which is a small town across [the border] from Roma, [Texas] that his truck had broken down so he had borrowed this truck to come home in." Ortega indicated to Gonzales that he was returning to Houston to enroll his children in school. He initially gave the name of the friend from whom he had borrowed the truck as simply "Jesus," later providing the last name "Barrera" and ultimately giving the full name as "Jesus Aleman Barrera."

Gonzales asked Ortega how he was going to return the truck to Barrerra. Ortega answered that Barrerra was planning to retrieve the truck in Houston. When Gonzales inquired as to whether Barrerra knew where in Houston Ortega lived, he said that he did not know whether Barrerra had this information. At trial, however, Ortega explained that although he did not know if Barrerra knew precisely where to find him in Houston, he assumed that Barrerra would locate him through Barrerra's mother-in-law, who also lives in Houston and knows Ortega's sister, with whom he would be staying while in Houston. In addition, Ortega acknowledged that he did not have an address or telephone number for Barrerra. He further testified, however, that Barrerra lived in the same neighborhood in Miguel Aleman where Ortega sometimes stays with his family, and that, even though the houses do not have street numbers, he knew where to find Barrerra's house and could communicate those directions to others.

At the time of his arrest, Ortega was carrying $731 in cash. When Gonzales asked him if "he had been working," Ortega responded that he "had done some odd jobs"; but Gonzales failed to ask him where or for whom. At trial, Ortega explained that the $731 was all that remained of approximately $1500 that he had received as a tax refund, and produced a copy of his tax return, which substantiated this statement.

During her interrogation, Gonzales failed to ask Ortega whether he had any luggage with him, but she and the other agents testified at trial that they did not recall seeing any with Ortega or in the vehicle. Although each officer testified that someone with the border patrol always conducts a thorough, written inventory of any vehicle stopped for a drug violation, the government failed to introduce a copy of an inventory of the truck Ortega had driven. In contrast to this testimony of customary checkpoint procedure and the absence of physical evidence of such an inventory, both Ortega and his wife testified unequivocally that they had a large suitcase with them in the truck.

Ortega was indicted on charges of possession with intent to distribute over 400 grams of heroin (count one) and over 7,000 grams of amphetamines (count two), in violation of 21 U.S.C. § 841(a)(1). After a two-day trial--and three days of deliberation--a jury found Ortega guilty of both counts. The district court sentenced him to 130 months in the custody of the Bureau of Prisons and a four-year term of supervised release. Ortega timely appealed.

II ANALYSIS

A. Standard of Review

As Ortega moved for a judgment of acquittal at the close of all the evidence, we must determine whether any reasonable trier of fact could have found that the evidence established the essential elements of the crime beyond a reasonable doubt. ² We consider the evidence in the light most favorable to the government, drawing "all reasonable inferences and credibility choices made in support of the verdict." ³ "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." ⁴ If the evidence tends to give "equal or nearly equal circumstantial support" to guilt and to innocence, however, reversal is required: When the evidence is essentially in balance, " 'a reasonable jury must necessarily entertain a reasonable doubt.' " ⁵

B. Applicable Law

To prove Ortega's guilt of the charged offense in this case, the government was required to prove three elements beyond a reasonable doubt: (1) knowing (2) possession of the drugs in question (3) with intent to distribute them. ⁶ Only the first element--knowledge--is at issue in this appeal, i.e., whether the evidence is sufficient to satisfy the scienter element beyond a reasonable doubt.

As a general rule, a jury may infer knowledge of the presence of drugs from the exercise of control of a vehicle containing such contraband. ⁷ When the drugs are secreted in hidden compartments, however, "this Court has normally required additional 'circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.' " ⁸ This requirement stems from our recognition that, in hidden compartment cases, there "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." ⁹ This assumption is heightened when, as here, the vehicle is a "loaner" or has otherwise been in the possession of the suspect for only a short time. ¹⁰

Among the types of behavior that we have previously recognized as circumstantial evidence of guilty knowledge are: (1) nervousness; ¹¹ (2) absence of nervousness, i.e., a cool and calm demeanor; ¹² (3) failure to make eye contact; ¹³ (4) refusal or reluctance to answer questions; ¹⁴ (5) lack of surprise when contraband is discovered; ¹⁵ (6) inconsistent statements; ¹⁶ (7) implausible explanations; ¹⁷ (8) possession of large amounts of cash; ¹⁸ and (9) obvious or remarkable alterations to the vehicle, especially when the defendant had been in possession of the vehicle for a substantial period of time. ¹⁹

C. Evidence of Mens Rea

To prove the requisite scienter, the government relies on the following circumstantial evidence, which it maintains is "suspicious in nature and demonstrates guilty knowledge": (1) Ortega's non-verbal behavior at the checkpoint, including the absence of nervousness and his momentary delay and downward glance when, immediately after hearing the Miranda warning, he was asked the "$64,000 question" about his awareness of the presence of contraband; (2) his statements regarding the origin and destination of his trip, which the government characterizes as inconsistent; (3) the absence of luggage; (4) his possession of over $700 in cash; and (5)...