United States v. Tomas Camacho-Ontiveros ( 2019 )

Case: 18-50238 Document: 00514962429 Page: 1 Date Filed: 05/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50238 FILED
Summary Calendar May 17, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
TOMAS CAMACHO-ONTIVEROS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CR-1234-1
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
Tomas Camacho-Ontiveros was convicted by a jury of bulk cash
smuggling in violation of 31 U.S.C. § 5332(a) after a vehicle he was driving
from the United States to Mexico was found to contain $689,300. The district
court sentenced him to 41 months of imprisonment and three years of non-
reporting supervised release. Camacho-Ontiveros now appeals his conviction.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-50238
In his first issue on appeal, Camacho-Ontiveros argues that there was
insufficient evidence to support his conviction. Any individual transporting
into or out of the United States money in an amount greater than $10,000 is
required to file a report as prescribed by the Secretary of the Treasury. See 31
U.S.C. § 5316. To establish a violation of § 5332(a), the Government had to
prove beyond a reasonable doubt that Camacho-Ontiveros: (1) knowingly
concealed more than $10,000 in U.S. currency in his vehicle; (2) attempted to
transport the U.S. currency from a place in the United States to a place outside
the United States; (3) knew that a report was required to be filed with the
Secretary of Treasury for the attempted transport of amounts $10,000 or
greater; and (4) intended to evade filing such a report. See FIFTH CIRCUIT
PATTERN JURY INSTRUCTIONS (Criminal Cases) § 2.105 (2015).
In considering the sufficiency of the evidence, we evaluate all evidence,
“whether circumstantial or direct, in the light most favorable to the
[g]overnment[,] with all reasonable inferences to be made in support of the
jury’s verdict.” United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (per
curiam) (alterations in original) (internal quotation marks omitted). The jury
may choose among any reasonable constructions of the evidence. United States
v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). We will uphold the verdict if
“any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
Camacho-Ontiveros first argues there was insufficient evidence that he
knowingly concealed money in his vehicle. We disagree. For starters,
Camacho-Ontiveros lied about when he entered the United States the day of
his arrest and did not account for several hours of his day. Moreover, even
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after the money was found in his vehicle and he was handcuffed, Camacho-
Ontiveros remained calm and asked no questions. Further, he did not have
any regular pattern of crossing into and out of the United States, and there
was no GPS tracking device found on his vehicle. It is implausible that an
unknown person concealed $689,300 in Camacho-Ontiveros’s vehicle without
any reliable way of tracking it. A rational juror thus could have reasonably
inferred from the facts adduced at trial that Camacho-Ontiveros knowingly
concealed the bulk cash in his vehicle. See United States v. Villarreal, 324 F.3d
319, 324–-25 (5th Cir. 2003); United States v. Ortega Reyna, 148 F.3d 540, 544
(5th Cir. 1998), abrogated on other grounds by Vargas-Ocampo, 747 F.3d at
301 n.2; United States v. Colmenares-Hernandez, 659 F.2d 39, 41–42 (5th Cir.
1981).
Next, Camacho-Ontiveros argues there was insufficient evidence that he
was aware of § 5316’s reporting requirement and intended to evade it. In
moving for a judgment of acquittal in the district court, Camacho-Ontiveros
made no mention of these elements. Accordingly, he waived any challenge to
the sufficiency of this evidence, and “our review is limited to determining
whether . . . the record is devoid of evidence pointing to guilt.” United States
v. Herrera, 313 F.3d 882, 884–85 (5th Cir. 2002) (en banc) (per curiam)
(internal quotation marks omitted).
When specifically asked, Camacho-Ontiveros told the officer who
initially questioned him that he was not carrying more than $10,000 with him.
He told that same officer that he was aware that it was illegal to bring more
than $10,000 across the border, and he reiterated that he was not carrying
more than $10,000 with him. Although the officer may have misstated the law
by telling Camacho-Ontiveros it is illegal to transport more than $10,000
across the border rather than telling him it is illegal to transport more than
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$10,000 without reporting it, the officer’s statements and questions informed
Camacho-Ontiveros that he needed to let officials know that he was carrying
bulk cash. Despite the evidence that he knew there was bulk cash in his
vehicle, Camacho-Ontiveros consistently denied having more than $10,000
with him. Even if review of this issue were de novo, a rational juror could
reasonably infer from these facts that Camacho-Ontiveros knew there was a
reporting requirement and that he purposefully failed to fulfill that
requirement. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (Criminal Cases)
§ 2.105 (2015) (“The intent to evade the reporting requirement can arise at any
time prior to (and including) the moment of [attempted] transportation.”).
In his second issue on appeal, Camacho-Ontiveros argues the district
court erroneously admitted expert testimony from a DEA agent explaining how
drug-trafficking organizations work. In the district court, Camacho-Ontiveros
argued the testimony was irrelevant. The district court concluded otherwise
because the expert testimony helped the jury understand whether Camacho-
Ontiveros knowingly transported bulk cash. That was not an abuse of
discretion. See FED. R. EVID. 702; United States v. Ramos-Rodriguez, 809 F.3d
817, 825–26 (5th Cir. 2016) (per curiam); United States v. Montes-Salas, 669
F.3d 240, 248–50 (5th Cir. 2012).
Invoking Federal Rule of Evidence 403, Camacho-Ontiveros also argues
that the prejudice created by the expert testimony outweighed any relevance
it had. This issue was not raised by Camacho-Ontiveros in the district court
and is arguably reviewable only for plain error. See United States v. Valas, 822
F.3d 228, 240 (5th Cir. 2016); United States v. Williams, 343 F.3d 423, 434 (5th
Cir. 2003). Under any standard, however, we conclude that the expert
testimony was not unduly prejudicial because there was sufficient evidence to
support Camacho-Ontiveros’s conviction even without that testimony.
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Because the district court did not err in admitting the testimony, we do not
reach the argument that the jury instruction on expert testimony was
insufficient to cure the alleged error.
AFFIRMED.
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