United States v. Leyva ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-51029
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA ERNESTINA LEYVA,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-247-ALL-DB
_________________________________________________________________
August 13, 2002
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
PER CURIAM:*
In January 2001, Maria Leyva’s truck was stopped by customs
agents at the United States port of entry in El Paso, Texas because
a drug-detecting dog alerted to the tires on the truck. After a
further search, the agents found 96.9 pounds of marijuana concealed
in four metal containers wrapped around the wheel rims inside the
truck’s tires. A jury ultimately found Leyva guilty of various
offenses in connection with the importation of the marijuana into
the United States. On appeal, Leyva argues that the government did
*
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this opinion should not be published and is not precedent except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.
1
not produce sufficient evidence at trial to support the jury’s
verdict on any of the charges against her. We disagree and affirm
the district court’s judgment.
I
In view of the fact-intensive nature of an inquiry into the
sufficiency of the evidence, we summarize briefly the events
leading up to the discovery of the marijuana in Leyva’s truck
tires. According to her out-of-court statements1 and the testimony
of her daughter, Leyva lived in Mesquite, New Mexico and had been
employed at a local hospital for eleven years. Late in the
afternoon of January 23, 2001, Leyva’s then-boyfriend, Miguel
Sanchez, proposed a trip across the border to Juarez, Mexico to
purchase vitamin shots at a pharmacy. At about 5:00 p.m., Leyva,
Sanchez, and the daughter, Liliana, left Mesquite in Leyva’s 1993
GMC pick-up truck.2 After arriving in Juarez, the three went to a
pharmacy to order the vitamin shots for Sanchez.3 The pharmacist
asked them to return later that evening because the store did not
1
Leyva did not testify at trial.
2
The truck was registered and titled to Leyva. According to
the truck’s registration produced by Leyva, she purchased the truck
on January 9, 2001. The bill of sale indicated that Paul Petrino,
a used car dealer in Albuquerque, had sold Leyva the truck.
Petrino’s records, however, indicated that he sold the truck to
Luis Sanchez on January 9, 2001. Petrino also testified at trial
that he did not know Leyva and that his signature on Leyva’s bill
of sale had been forged.
3
They parked the truck in a public lot in Juarez. According
to Liliana, two men were washing cars in the lot.
2
have any vitamin shots in stock.
While they waited, Leyva, Sanchez, and Liliana went to a
nearby restaurant for dinner. Before sitting down at their table,
Sanchez took the couple’s mobile phone and the keys to the truck
and told Leyva that he was going to the restroom. Sanchez did not
return to the table until approximately one hour later.4 The three
left the restaurant shortly thereafter.
Following a brief stop at the pharmacy, Leyva, Sanchez, and
Liliana began their trip back to New Mexico. At the United States
border, however, a drug-detecting dog alerted to Leyva’s truck.
The customs agent accompanying the dog instructed Leyva, who was
driving, to stop the truck. Although Leyva saw the agent, she did
not stop the truck until the agent instructed her to stop a second
time. When the dog scratched at the truck’s tires, Leyva began to
drive forward. The customs agent again instructed Leyva to stop
the truck and to turn off the ignition. The agent then questioned
Leyva concerning her citizenship and the purpose of her trip.
Leyva presented her resident alien card and responded that, while
in Juarez, she ate dinner and had the truck washed. The agent
testified that Leyva “was visibly nervous” during the interview and
only made eye contact with the agent when she answered his
questions. The agent also testified that Leyva “got real nervous,
4
According to Liliana, Leyva was angry that Sanchez had left
for such a long time but did not say anything to him when he
returned.
3
and her eyes got big and glossy” as the drug-detecting dog walked
around the car.5 According to the agent, Leyva then turned to
Sanchez and asked: “‘Honey, didn’t they do any work to the tires,
too?’”
At that point, the agent asked Leyva, Sanchez, and Liliana to
wait while customs agents moved the truck to an inspection area.
According to Inspector Porras, who drove the truck into the
inspection area, the “truck was very wobbly, and the steering was
very unsteady.”6 Inspector Porras also noted that the tires “had
a real hard feeling” when he drove the truck over speed bumps.
Based on the drug-detecting dog’s behavior, the inspectors
removed one of the tires for further examination. The inspectors
noted that the tire was abnormally heavy and, using a mobile X-ray
machine, observed a “large cylindrical masses inside the tire.”
The inspectors disassembled the tire and discovered a metal
container wrapped around the wheel rim. Inside the container, the
inspectors found bundles of marijuana. The inspectors discovered
similar containers in the truck’s other three tires.
The government charged Leyva with one count of importation of
96.9 pounds of marijuana in violation of 21 U.S.C. §§ 952(a),
960(a)(1), one count of conspiracy to import marijuana in violation
5
Another agent similarly observed Leva “beg[i]n to physically
tremble” while she was questioned.
6
In his report, however, Inspector Porras indicated that he
noticed the wobbly steering only after the agents had cut open the
tire.
4
of 21 U.S.C. § 963, one count of possession of marijuana with
intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one
count of conspiracy to possess marijuana with intent to distribute
in violation of 21 U.S.C. § 846.
At trial, Leyva moved for a judgment of acquittal on all
charges at the close of the government’s case and at the close of
all of the evidence. The district court denied both motions, and
the jury returned a verdict of guilty on all charges. The district
court sentenced Leyva to four concurrent terms of twenty-seven
months in prison, followed by four concurrent three-year terms of
supervised release.
II
In this appeal, Leyva challenges the sufficiency of the
government’s evidence against her on each of the four charges in
the indictment. We review de novo the district court’s denial of
a judgment of acquittal under the same standard applied by the
district court: Viewing the evidence in the light most favorable
to the government, we must determine whether a rational jury could
find that the government established the essential elements of each
offense beyond a reasonable doubt. See United States v. Gourley,
168 F.3d 165, 168-69 (5th Cir. 1999); Jackson v. Virginia, 443 U.S.
307, 319 (1979).
To establish that Leyva unlawfully imported marijuana into the
United States, the government must prove beyond a reasonable doubt
that she (1) “played a role” in bringing the marijuana into the
5
United States from Mexico, (2) knew that marijuana is a controlled
substance, and (3) knew that the marijuana would enter the United
States. United States v. Medina, 161 F.3d 867, 873 (5th Cir.
1998). In contrast, to establish possession with intent to
distribute, the government must prove beyond a reasonable doubt
that Leyva (1) knowingly (2) possessed marijuana (3) with an intent
to distribute it. See United States v. Ortega Reyna, 148 F.3d 540,
543-44 (5th Cir. 1998) (per curiam). In the instant case, the only
question is whether the government presented sufficient evidence to
prove that Leyva knew that the ninety-six pounds of marijuana was
concealed in the tires of her truck.7 Cf. United States v.
Cano-Guel, 167 F.3d 900, 904 (5th Cir. 1999) (“To establish
[importation or possession with intent to distribute marijuana],
‘the government must adduce sufficient evidence of guilty
knowledge.’” (citation omitted)).
Because the marijuana at issue in this case was found in a
hidden compartment in Leyva’s truck, the government may not simply
rely on Leyva’s possession or constructive possession of the
vehicle to demonstrate her guilty knowledge. See id. Instead, the
government must present additional circumstantial evidence
indicating that Leyva was actually aware of the illegal drugs in
the vehicle and was not merely an unwitting participant in a
smuggling operation. See id.
7
Leyva challenges the two associated conspiracy charges on the
same basis.
6
The government argues that, in addition to the fact that Leyva
owned and was driving the truck in which the marijuana was found,
the jury could reasonably infer that Leyva knew that marijuana was
concealed in the truck’s tires based on (1) her visible nervousness
during the stop, (2) her failure to stop the truck at the customs
agent’s request, (3) evidence that the modified tires caused the
truck’s steering to become unsteady, and (4) evidence that the
title to the truck had been forged. Leyva responds that the
evidence also supports her contention that Sanchez changed the
tires on the truck, without her knowledge or permission, when he
left Leyva and Liliana at the restaurant in Juarez. She therefore
argues that she is entitled to a judgment of acquittal because the
evidence for and against her is in equipoise.8
After carefully reviewing the record, we must conclude that
the government presented sufficient evidence to allow a reasonable
jury to find beyond a reasonable doubt that Leyva was aware of the
marijuana concealed in the truck tires. As the government
observes, the testimony at trial indicated that Leyva was not only
extremely nervous when questioned by customs agents, but she also
refused to stop the truck on two occasions in an apparent attempt
8
See United States v. Cavin, 39 F.3d 1299, 1305 (5th Cir.
1994) (“[I]f the evidence gives equal or nearly equal
circumstantial support to a finding of guilty and a finding of not
guilty, reversal [of the conviction] is in order.”).
7
to avoid investigation.9 Perhaps more tellingly, the customs agent
testified that, as the drug-detecting dog began to scratch at the
truck’s tires, Leyva asked Sanchez whether “they [did] any work to
the tires, too.”10 This self-serving question supports an inference
that Leyva was aware that the truck’s tires had been altered.
In addition, the government presented evidence that the
modified wheels perceptibly affected the handling of the truck.
Specifically, the government’s expert witness testified that the
modified wheels would likely cause the steering wheel to shake, and
Inspector Porras testified that the truck’s steering was, in fact,
impaired even at low speeds. During the investigation at the
border, however, Leyva told the customs agents that the truck drove
smoothly. Based on this evidence, the jury could reasonably infer
that Leyva was aware of modifications to the tires and attempted to
hide the modifications from customs officials.11
9
We have held that unusual nervousness during questioning is
evidence that the defendant was aware of the presence of concealed
drugs. See, e.g., United States v. Crooks, 83 F.3d 103, 107 (5th
Cir. 1996); United States v. Casilla, 20 F.3d 600, 607 (5th Cir.
1994). Leyva’s failure to make eye contact during questioning is
also some evidence of guilty knowledge. See United States v.
Price, 869 F.2d 801, 803 (5th Cir. 1989).
10
Although Liliana testified that Leyva asked Sanchez “‘What’s
going on with the tires, babe?’” the jury was free to believe the
customs agent’s account of Leyva’s statement. See United States v.
Kelley, 140 F.3d 596, 607 (5th Cir. 1998).
11
As noted above, Leyva attempted to undermine the credibility
of the agent’s testimony and presented expert testimony that it
would be possible to balance the modified truck wheels. Liliana
also testified that Leyva drove the truck under twenty-five miles
per hour between the parking lot and the border. Nevertheless,
8
Finally, the jury was perfectly free to reject the explanation
and account of the events as presented by Liliana. We cannot sweep
away the fact that the jury observed her demeanor and was in the
best position to make credibility choices and to draw inferences
from the circumstantial evidence in this disputed case. Thus,
viewing the record as a whole in the light most favorable to the
government, we conclude that the government presented sufficient
evidence to support the jury’s verdict of guilty on all charges.
The judgment of the district court is therefore
AFFIRMED.
the jury was free to reject this evidence and to accept the
testimony of the customs agent and the government’s expert witness.
9