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United States v. Urquidi , 172 F. App'x 42 ( 2006 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                 March 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-50271
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESTEBAN URQUIDI,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-944-ALL
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Esteban Urquidi appeals his conviction for possession of
more than 100 kilograms of marijuana with intent to distribute.
He argues that the evidence was not sufficient to prove that he
knowingly possessed marijuana.
Urquidi failed to renew his motion for a judgment of
acquittal at the close of the evidence.     When defense counsel
fails to renew a motion for a judgment of acquittal, this court
reviews challenges to the sufficiency of the evidence to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-50271
-2-
determine whether affirming the conviction would result in a
manifest miscarriage of justice.     See United States v. McIntosh,
    280 F.3d 479
    , 483 (5th Cir. 2002).    This court will find a
manifest miscarriage of justice only where the record is devoid
of evidence pointing to guilt or contains evidence on a key
element of the offense that is so tenuous that a conviction would
be shocking.
    Id.
    Urquidi, a commercial driver, was apprehended after Border
Patrol agents discovered 1,854 pounds of marijuana with an
estimated value of $1,400,000 in the trailer that he was hauling.
Since the evidence does not establish that the marijuana was
clearly visible or readily accessible, Urquidi’s control of the
trailer alone is insufficient to establish knowledge.       United
States v. Pennington,
    20 F.3d 593
    , 598-99 (1994).      “[A]dditional
circumstantial evidence that is suspicious in nature or
demonstrates guilty knowledge is required.”      United States v.
Jones,
    185 F.3d 459
    , 464 (5th Cir. 1999).      Such evidence “may
include nervousness, conflicting statements to law enforcement
officials, and an implausible story.”
    Id.
    Circumstantial evidence supports the jury’s verdict.      The
substantial value of the marijuana being transported by Urquidi,
approximately $1,400,000, is circumstantial evidence that is
probative of Urquidi’s knowledge.    See United States v.
Villarreal,
    324 F.3d 319
    , 324 (5th Cir. 2003).      The jury
reasonably could have inferred that Urquidi would not have been
No. 05-50271
-3-
entrusted with such valuable cargo if he was not part of the
trafficking scheme.    Villarreal,
    324 F.3d at 324
    .
There also was evidence that the bill of lading Urquidi
provided to Border Patrol agents had been altered and that the
seal recovered from Urquidi’s trailer was not placed on the
trailer by the company that shipped the windshields, the company
from which Urquidi took possession of the trailer, or government
officials.   The jury reasonably could have determined that the
marijuana was placed into the trailer, that the trailer was
sealed, and that the bill of lading was altered after the trailer
was in Urquidi’s possession.    United States v. Resio-Trejo,
    45 F.3d 907
    , 911 (5th Cir. 1995) (reasonable inferences are to be
resolved in favor of the verdict).
Other testimony provides further circumstantial evidence of
Urquidi’s knowledge.   There was evidence that Urquidi took
possession of the trailer at 8:10 p.m. on April 13, 2004.
However, he did not arrive at the Border Patrol checkpoint until
12:20 a.m. on April 14, 2004.    It should have only taken one-and-
one-half hours to travel the approximately 90 miles between these
points.   Although Urquidi’s former employer suggested a
legitimate reason for this delay, the jury reasonably could have
discredited this testimony.     United States v. Ortega Reyna,
    148 F.3d 540
    , 544 (5th Cir. 1998) (it is not necessary that every
reasonable hypothesis of innocence be excluded).
No. 05-50271
-4-
Finally, Border Patrol Agent Joe Navarro indicated that
Urquidi was nervous when first stopped and when standing at the
back of the trailer.   Given the other circumstantial evidence,
the jury reasonably could have interpreted his nervousness as
another indication that he knew the marijuana was in the trailer.
Ortega Reyna,
    148 F.3d at 544
    .
Based on the foregoing evidence, the jury reasonably could
have inferred that Urquidi knowingly possessed marijuana.      See,
e.g., Pennington,
    20 F.3d at 598-99
     (issue is whether jury made a
rational decision to convict or acquit based on the evidence).
Therefore, the evidence of Urquidi’s knowledge is not so tenuous
that his conviction is shocking, and affirming his conviction
would not result in a manifest miscarriage of justice.   See
McIntosh,
    280 F.3d at 483
    .
For the foregoing reasons, Mendoza’s conviction is AFFIRMED.