United States v. Ramos-Rodriguez, 14–50846.

• Decision Date: 05 January 2016
• Docket Number: No. 14–50846.,14–50846.
• Citation: 809 F.3d 817
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jesus Guadalupe RAMOS–RODRIGUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

809 F.3d 817

UNITED STATES of America, Plaintiff–Appellee

v.Jesus Guadalupe RAMOS–RODRIGUEZ, Defendant–Appellant.

No. 14–50846.

United States Court of Appeals, Fifth Circuit.

Jan. 5, 2016.

Joseph H. Gay, Jr., Asst. U.S. Atty., Timothy Adam Duree, Asst. U.S. Atty. (argued), U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.

Donna F. Coltharp, Assistant Federal Public Defender (argued), Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for 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 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 Rock¹ 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.

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 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 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.2003). 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, 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...