United States v. Campos-Ayala ( 2023 )

Case: 21-50642 Document: 00516777776 Page: 1 Date Filed: 06/07/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
June 7, 2023
No. 21-50642 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Victor Manuel Campos-Ayala; Martin Moncada-De La
Cruz,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-38-2
USDC No. 4:21-CR-38-1
______________________________
Before Richman, Chief Judge, and Elrod and Oldham, Circuit Judges.
Priscilla Richman, Chief Judge:
Victor Campos-Ayala and Martin Moncada-De La Cruz appeal their
convictions of possession with intent to distribute 100 kilograms or more of
marihuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Campos-Ayala
and Moncada-De La Cruz argue that the evidence was insufficient to support
their convictions. Because the jury could not reasonably conclude based on
the available evidence that either Campos-Ayala or Moncada-De La Cruz had
Case: 21-50642 Document: 00516777776 Page: 2 Date Filed: 06/07/2023
No. 21-50642
possession of the marihuana with intent to distribute, we reverse and vacate
their convictions.
I
Troopers with the Texas Department of Public Safety pulled over a
vehicle containing five passengers and five large bundles of marihuana. The
driver, a juvenile, was immediately removed, handcuffed, and seated away
from the highway. The passengers, including Campos-Ayala and Moncada-
De La Cruz, were instructed to remain inside the vehicle, wedged between
the bundles of marihuana. Agents with the U.S. Border Patrol arrived and
began questioning Campos-Ayala and Moncada-De La Cruz in Spanish.
Agent Ramos asked Campos-Ayala and Moncada-De La Cruz, “Do you
know what you’re on?” One of them responded, “uh” or “no.” Agent
Ramos asked, “the weed, right” or “that’s marijuana,” to which one of them
nodded in the affirmative and the other stated, “yes.” Campos-Ayala and
Moncada-De La Cruz were removed from the vehicle shortly after. While
frisking Campos-Ayala, Agent Ramos asked, “Why did you help with the
drugs?” Campos-Ayala responded, “I didn’t.” While escorting Campos-
Ayala to the transport van, Agent Ramos asked, “Why did you cross with the
drugs?” Campos-Ayala responded, “I didn’t, I just helped.”
Campos-Ayala, Moncada-De La Cruz, and another passenger in the
vehicle were transported to a station with agents from the Drug Enforcement
Administration (DEA). At the station, all three gave the same basic story.
The passengers were strangers but crossed the border together and flagged
down a random car in hopes of travelling further into the United States.
There were no drugs in the vehicle when they first accepted the ride. After
they had been on the road for some time, the driver dropped the passengers
off at a roadside park and told the passengers he would come back for them.
When the driver returned, the car was loaded with the large bundles of
2
Case: 21-50642 Document: 00516777776 Page: 3 Date Filed: 06/07/2023
No. 21-50642
marihuana. Agents Kettani and Bustamante testified that Moncada-De La
Cruz said “he helped rearrange [the bundles of marihuana] so that everybody
could fit inside the vehicle, because it’s a small vehicle.” Agent Bustamante
elaborated that the agents believed, in doing so, Moncada-De La Cruz “was
possessing the marijuana inside the vehicle.” DEA Agent Kettani testified
that Campos-Ayala “ma[de] a statement that he understood what his charge
was,” stating, “He understood why he had been arrested. And in Spanish he
said . . . Well, I guess that’s how it goes. Yes, I was in possession of the
marijuana.” Agent Bustamante confirmed that Agent Kettani was asking
Campos-Ayala if he “understood why he was being arrested,” and “what
charges [were] being pressed against him,” to which Campos-Ayala
responded in Spanish slang, “That’s just the way things are and I was in
possession of the marijuana.” Bustamante also testified that Campos-Ayala
said, “I guess that’s just the way things are, that’s the way things happen,”
and that “he understood that he was in possession of the marijuana.”
II
Campos-Ayala and Moncada-De La Cruz argue that the evidence was
insufficient to support their convictions for possession with intent to
distribute. They contend that the evidence only shows their presence around
a person who possessed marihuana and offered them a ride. The
Government contends that the defendants’ close proximity to the drugs,
Campos-Ayala’s statement to Agent Kettani that he understood he was in
possession of the bundles of marihuana, Campos-Ayala’s statement to Agent
Ramos that he helped, and Moncada-De La Cruz’s statement that he helped
rearrange the bundles so that everyone could fit in the car proved their
possession. Additionally, the Government contends that the jury could
reasonably conclude the defendants’ reentry into the car with knowledge that
the driver was transporting marihuana indicated they joined in the crime and
3
Case: 21-50642 Document: 00516777776 Page: 4 Date Filed: 06/07/2023
No. 21-50642
possessed the marihuana in furtherance of their own ends of travelling farther
into the United States.
While a preserved challenge to the sufficiency of the evidence is
reviewed de novo, an unpreserved challenge is reviewed for a manifest
miscarriage of justice. 1 Under de novo review, “we will affirm . . . if a
reasonable trier of fact could conclude . . . the elements of the offense were
established beyond a reasonable doubt.” 2 Under the “exacting” manifest
miscarriage of justice standard, “a claim of evidentiary insufficiency will be
rejected unless the record is devoid of evidence pointing to guilt or if the
evidence is so tenuous that a conviction is shocking.” 3 Under both
standards, “we consider in the evidence in the light most favorable to the
government, giving the government the benefit of all reasonable inferences
and credibility choices.” 4 Furthermore, although the jury is free to choose
among reasonable constructions of the evidence, 5 and we will not second-
guess the jury’s reasonable determinations as to evidentiary weight and
witness credibility, 6 the jury may not “pile inference upon inference to” find
possession with intent to distribute and it must “limit itself to reasonable
constructions of the evidence.” 7
_____________________
1
United States v. McDowell, 498 F.3d 308, 312-13 (5th Cir. 2007).
2
Id. at 312 (internal quotation marks omitted).
3
United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007) (internal quotation
marks omitted).
4
McDowell, 498 F.3d at 312 (5th Cir. 2007) (internal quotation marks omitted).
5
United States v. Meza, 701 F.3d 411, 422-23 (5th Cir. 2012).
6
United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008).
7
United States v. Onick, 889 F.2d 1425, 1429 (5th Cir. 1989).
4
Case: 21-50642 Document: 00516777776 Page: 5 Date Filed: 06/07/2023
No. 21-50642
Both Campos-Ayala and Moncada-De La Cruz moved for acquittal 8
at the close of the Government’s evidence and neither renewed their motion
at the close of all evidence. Campos-Ayala did not introduce any evidence,
and was therefore not required to renew his motion. 9 His sufficiency of the
evidence challenge is therefore reviewed de novo. 10 Because Moncada-De
La Cruz did introduce evidence, calling a witness to testify, the sufficiency of
the evidence as to Moncada-De La Cruz is reviewed under the manifest
miscarriage of justice standard. 11
Under 21 U.S.C. § 841(a)(1) and (b)(1)(B), to sustain a conviction for
the crime of possession of a controlled substance with intent to distribute, the
Government must prove: “(1) knowledge, (2) possession, and (3) intent to
distribute the controlled substance.” 12 Possession of a controlled substance
“may be actual or constructive.” 13 A defendant has actual possession if he
_____________________
8
See Fed. R. Crim. P. 29.
9
United States v. Daniels, 723 F.3d 562, 569 (5th Cir. 2013) (“We reject the
Government’s argument that the . . . defendants’ challenges to the sufficiency of the
evidence should be reviewed only for manifest miscarriage of justice . . . . [The defendants]
did not need to renew their Rule 29 motions in order to preserve their challenges because
they did not present evidence.” (citing United States v. Arias–Diaz, 497 F.2d 165, 168-69
(5th Cir. 1974)).
10
Id.11
See United States v. Salazar, 542 F.3d 139, 142 (5th Cir. 2008) (“[Defendant’s]
having failed to renew his motion for judgment of acquittal, we review his sufficiency-of-
the-evidence challenge only for a manifest miscarriage of justice.”); see also United States
v. Delgado, 672 F.3d 320, 328-31 (5th Cir. 2012) (en banc) (reaffirming that the manifest
miscarriage of justice standard applies to a forfeited claim of insufficient evidence).
12
United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir. 2017).
13
United States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006) (quoting United
States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999)).
5
Case: 21-50642 Document: 00516777776 Page: 6 Date Filed: 06/07/2023
No. 21-50642
“knowingly has direct physical control over a thing at a given time.” 14 A
defendant has constructive possession if he “had (1) ownership, dominion or
control over the item itself or (2) dominion or control over the premises in
which the item is found.” 15 In other words, “the government must establish
[an] adequate nexus between the accused and the prohibited substance.” 16
“Mere presence in the area where drugs are found is insufficient to support
a finding of possession,” 17 and “we have not hesitated to reverse a conviction
when the evidence has shown only that the defendant ran with bad
company.” 18 “Ultimately, the determination of whether constructive
possession exists is not a scientific inquiry, and the court must employ a
common sense, fact-specific approach.” 19
Based on the available evidence, 20 the jury could not reasonably
conclude Campos-Ayala or Moncada-De La Cruz possessed the marihuana
with the intent to distribute it. Moncada-De La Cruz’s statement that he
rearranged the bundles, while showing more than mere presence, does not
establish an adequate nexus sufficient to enable a reasonable jury to find
_____________________
14
United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012) (quoting United States v.
Munoz, 150 F.3d 401, 416 (5th Cir. 1998)).
15
Id.16
United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994) (citing United States v.
Rojas, 537 F.2d 216 (5th Cir. 1976), cert. denied, 429 U.S. 1061 (1977)).
17
United States v. Cordova–Larios, 907 F.2d 40, 42 (5th Cir. 1990) (citing United
States v. Ferg, 504 F.2d 914, 917 (5th Cir. 1974)).
18
United States v. Sandoval, 847 F.2d 179, 185 (5th Cir. 1988) (citing United States
v. Gardea Carrasco, 830 F.2d 41 (5th Cir. 1987)).
19
Meza, 701 F.3d at 419 (internal quotation marks and alterations omitted) (quoting
United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994)).
20
Greer v. United States, 141 S. Ct. 2090, 2098 (2021) (“This Court has repeatedly
stated that an appellate court conducting plain-error review may consider the entire
record—not just the record from the particular proceeding where the error occurred.”).
6
Case: 21-50642 Document: 00516777776 Page: 7 Date Filed: 06/07/2023
No. 21-50642
possession. Campos-Ayala’s statements that he “just helped” and
“understood” he was in possession after Agent Kettani explained the
charges to him are similarly insufficient for a reasonable jury to find he
possessed the marihuana.
A
We first address the sufficiency of the evidence as to Moncada-De La
Cruz. We conclude that the jury could not reasonably find Moncada-De La
Cruz’s act of rearranging the bundles of marihuana so that he could fit inside
the vehicle for the sole purpose of traveling further into the United States
imputed to him ownership, dominion, or control over the marihuana.
Under this court’s decisions, a defendant’s mere presence in a vehicle
in which drugs are found is insufficient to support a finding of constructive
possession. 21 We have found this to be the case even when the defendant
may have known the vehicle was illegally transporting marihuana but was a
passenger in the vehicle for the sole purpose of travelling further into the
United States. 22
_____________________
21
United States v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983) (reversing defendant’s
conviction for possession of marihuana with intent to distribute where the defendant was
only present in the vehicle with the drugs with no other evidence connecting him to drugs);
see also Cordova–Larios, 907 F.2d at 42 (“Mere presence in the area where drugs are found
is insufficient to support a finding of possession.”); Ferg, 504 F.2d at 917 (“The facts of
this case illustrate the logic of this ‘mere presence’ rule. The government presents only
two pieces of circumstantial evidence in an attempt to link Ferg with the seized marijuana.
Ferg was traveling with Shaw, the person who admitted having purchased the marijuana,
and Ferg was a passenger in the car in which the marijuana was concealed. Beyond the
admission by Ferg that he was a traveling companion of one guilty of illegal possession of
marijuana, the government failed to establish that Ferg in any way violated 21 U.S.C.
§ 841(a)(1).”).
22
See United States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986) (“Even
if [the passenger] knew that [the driver] was making an illegal marihuana run, this fact
would not be sufficient evidence to establish his possession without an additional showing
7
Case: 21-50642 Document: 00516777776 Page: 8 Date Filed: 06/07/2023
No. 21-50642
Here, arguably, there is more than mere presence because Moncada-
De La Cruz rearranged the bundles so he could fit in the vehicle. However,
common sense dictates that such an act, by itself, does not establish
ownership, dominion, or control over another’s item. In United States v.
Martinez, 23 this court stated that “constructive possession is the ability to
reduce an object to actual possession.” 24 We concluded that the district
court properly instructed the jury by providing the following example of
constructive possession: “I have pencils on my desk in my chambers. My
law clerk will go get them for me if I want them. . . . That’s constructive
possession.” 25
When this court has affirmed a finding of constructive possession
under 21 U.S.C. § 841(a)(1), it has only been when there was substantially
more circumstantial evidence connecting the defendant to the controlled
substance. For example, in United States v. Brito, 26 this court concluded that
the defendant had constructive possession based on “his ownership of the
vehicle [transporting marihuana], his proximity to the vehicle on the day in
question, and his failure to ever provide any explanation as to the purpose of
his trip to the Big Bend area.” 27 In United States v. Rogers, 28 this court
_____________________
that he was riding in the truck to participate in the possession and distribution. The
government did not make this additional showing even circumstantially beyond a
reasonable doubt.”).
23
588 F.2d 495 (5th Cir. 1979), abrogation on other grounds recognized by United
States v. Sandoval, 615 F. App’x 242, 243 (5th Cir. 2015) (per curiam) (unpublished).
24
Id. at 498.
25
Id. at 498 & n.3.
26
136 F.3d 397 (5th Cir. 1998).
27
Id. at 411.
28
719 F.2d 767 (5th Cir. 1983).
8
Case: 21-50642 Document: 00516777776 Page: 9 Date Filed: 06/07/2023
No. 21-50642
concluded there was “far more than mere presence” connecting the
defendant to the marihuana because the defendant’s “presence near the drug
pick-up was . . . the effect of great effort and considerable expense on his part
in promoting a long journey all but inexplicable for any other purpose, made
chiefly in his own automobile, and ending with the capture of his associate in
a load car over which he had dominion and had rented for no apparent
purpose on the last leg of the journey.” 29 In United States v. Cardenas, 30 this
court found constructive possession because the defendant “flew to Dallas
from Miami for a brief visit[,] [h]e engaged in suspicious activities prior to his
apprehension, [] he, along with the person seen driving him the previous day,
was present in a room for over three-and-one-half hours where drugs and
other incriminating evidence were in plain view[,] and [o]ther individuals
arrived at this room, apparently for a meeting and a drug-related
transaction.” 31 There is no equivalent evidence connecting Moncada-De La
Cruz to the marihuana as in those cases.
The Government argues that the jury could reasonably conclude
Moncada-De La Cruz’s and Campos-Ayala’s reentry into the car with
knowledge that the driver was transporting marihuana indicated they had
joined in the crime and possessed the marihuana in furtherance of their own
ends of travelling further into the United States. However, in United States
v. Moreno-Hinojosa, 32 this court expressly rejected that same argument,
reversing the defendant’s § 841(a)(1) conviction on the basis of constructive
_____________________
29
Id. at 770-71 (internal quotation marks omitted).
30
748 F.2d 1015 (5th Cir. 1984).
31
Id. at 1022.
32
804 F.2d 845 (5th Cir. 1986).
9
Case: 21-50642 Document: 00516777776 Page: 10 Date Filed: 06/07/2023
No. 21-50642
possession. 33 In Moreno-Hinojosa, the defendant was a passenger in a
“tractor-trailer rig” which he may have known was illegally transporting
marihuana. 34 He caught a ride in the vehicle with a co-worker in order to find
work elsewhere, and there was no evidence he asked to travel in the truck to
participate in the possession and distribution of marihuana. 35 Likewise, even
if Campos-Ayala and Moncada-De La Cruz knew the car was illegally
transporting marihuana, that would be insufficient to support a finding they
possessed the marihuana with the intent to distribute it by virtue of re-
entering the vehicle after it had been loaded elsewhere with the contraband
when there is no evidence they had any prior knowledge of the drug-
trafficking scheme. 36 The Government’s argument falls short.
B
We next address the sufficiency of the evidence as to Campos-Ayala.
We conclude that it would be unreasonable for the jury to conclude Campos-
Ayala was in possession based solely on Campos-Ayala’s statements that he
“just helped” and “understood” he was in possession after Agent Kettani
explained the charges to him.
First, it would be unreasonable for the jury to infer Campos-Ayala had
possession with intent to distribute based on his statement to Agent Ramos
that he “just helped.” Agent Ramos asked Campos-Ayala, “Why did you
help with the drugs?” to which Campos-Ayala responded, “I didn’t.” Agent
_____________________
33
Id. at 847.
34
Id. at 846.
35
Id. at 847.
36
Id. (“Even if [the passenger] knew that [the driver] was making an illegal
marihuana run, this fact would not be sufficient evidence to establish his possession without
an additional showing that he was riding in the truck to participate in the possession and
distribution.”).
10
Case: 21-50642 Document: 00516777776 Page: 11 Date Filed: 06/07/2023
No. 21-50642
Ramos then asked, “Why did you cross with the drugs? to which Campos-
Ayala responded, “I didn’t, I just helped.” While it is unclear from this
exchange what Campos-Ayala was referring to when he said he “helped,”
the Government invited the jury to infer that Campos-Ayala was saying he
helped rearrange the bundles as did Moncada. Because, as previously
explained, such an act would not impute ownership, dominion, or control of
the marihuana with intent to distribute, there was insufficient evidence for a
reasonable jury to infer there was an adequate nexus connecting Campos-
Ayala to the marihuana. 37
Second, Campos-Ayala’s statement made to DEA Agents after Agent
Kettani explained the charges against him was not a confession. Agents
Kettani and Bustamante testified that Campos-Ayala said in Spanish slang
that he was in possession of the marihuana, but it is clear from the testimony
that both agents Kettani and Bustamante believed Campos-Ayala was
“mak[ing] a statement that he understood what his charge was” after Agent
Kettani explained the charges against him. The statement, therefore, can
most readily be taken to mean he comprehended that the officers were telling
him his actions constituted possession. In this context, it would be
unreasonable for the jury to infer Campos-Ayala, in making the statement,
was confessing to being caught in possession of the marihuana, particularly
given the paucity of other evidence connecting Campos-Ayala to the
marihuana.
Ultimately, the Government failed to offer evidence of anything more
than Campos-Ayala and Moncada-De La Cruz being “just along for the
_____________________
37
See United States v. Onick, 889 F.2d 1425, 1429 (5th Cir. 1989) (explaining the
jury may not “pile inference upon inference to” find possession and must “limit itself to
reasonable constructions of the evidence”).
11
Case: 21-50642 Document: 00516777776 Page: 12 Date Filed: 06/07/2023
No. 21-50642
ride.” 38 The evidence connecting Moncada-De La Cruz and Campos-Ayala
to the marihuana is insufficient to support a finding that Campos-Ayala and
Moncada-De La Cruz had possession with intent to distribute. Because to
otherwise affirm the convictions on the basis of such tenuous evidence would
be shocking, 39 and would amount to essentially “countenanc[ing] a
conviction based on guilt by association,” 40 we are compelled to reverse the
judgment of the district court and vacate the defendants’ convictions.
* * *
For the foregoing reasons we REVERSE and VACATE Campos-
Ayala and Moncada-De La Cruz’s convictions.
_____________________
38
See United States v. Brito, 136 F.3d 397, 411 (5th Cir. 1998); see also Moreno-
Hinojosa, 804 F.2d at 847.
39
See United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007) (quoting United
States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004)).
40
United States v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983).
12
Case: 21-50642 Document: 00516777776 Page: 13 Date Filed: 06/07/2023
No. 21-50642
Andrew S. Oldham, Circuit Judge, dissenting:
With all due respect to my esteemed and learned colleagues, sitting
on, hugging, and otherwise being sandwiched between and under 283 pounds
of marijuana constitutes “possession” of it:
The defendants had “direct physical control” over the drugs they were
literally holding, sitting on, and lying under. Henderson v. United States, 575
U.S. 622, 626 (2015). That, coupled with the extremely deferential standard
of review, makes this a straightforward case. I respectfully dissent.
A jury found Campos-Ayala and Moncada-De La Cruz guilty of
possession with intent to distribute 100 kilograms or more of marijuana in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Such possession may be actual
or constructive. See United States v. Meyer, 63 F.4th 1024, 1038 (5th Cir.
2023); Nat’l Safe Deposit Co. v. Stead, 232 U.S. 58, 67 (1914); 2A
O’Malley, Grenig & Lee, Federal Jury Practice and
Instructions, Criminal § 39.12 (6th ed. 2023 update). Possession
may also be joint among multiple parties. See United States v. Ramos-
13
Case: 21-50642 Document: 00516777776 Page: 14 Date Filed: 06/07/2023
No. 21-50642
Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). Actual possession “occurs
when a ‘defendant knowingly has direct physical control over a thing at a
given time.’” United States v. Fields, 977 F.3d 358, 365 (5th Cir. 2020)
(quoting United States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998)); see also
Henderson, 575 U.S. at 626. “Constructive possession is established when a
person, though lacking such physical custody, still has the power and intent
to exercise control over the object.” Henderson, 575 U.S. at 626. It requires
“some evidence supporting at least a plausible inference that the defendant
had knowledge of and access to the weapon or contraband.” United States v.
McCowan, 469 F.3d 386, 390 (5th Cir. 2006) (quotation omitted). “In other
words, constructive possession is the ability to reduce an object to actual
possession.” United States v. Pigrum, 922 F.2d 249, 255 (5th Cir. 1991)
(quotation omitted). Thus, actual possession is “a more restrictive
standard” than constructive. United States v. Gaines, 295 F.3d 293, 301 (2d
Cir. 2002). Neither type of possession requires proof of legal ownership. See
Henderson, 575 U.S. at 626.
Possession is easily established here. These defendants “knowingly
ha[d] direct physical control over [the marijuana] at a given time,” which
shows actual possession. Fields, 977 F.3d at 365 (quotation omitted). Just look
at the picture. The defendants were literally sitting on, under, and beside the
marijuana. And the evidence supports “at least a plausible inference that the
defendant[s] had knowledge of and access to the . . . contraband,” which
shows constructive possession. McCowan, 469 F.3d at 390 (quotation
omitted).
The majority relays some of the evidence put on by the Government:
“the defendants’ close proximity to the drugs, Campos-Ayala’s statement to
Agent Kettani that he understood he was in possession of the bundles of
marijuana, Campos-Ayala’s statement to Agent Ramos that he helped, and
Moncada-De La Cruz’s statement that he helped rearrange the bundles so
14
Case: 21-50642 Document: 00516777776 Page: 15 Date Filed: 06/07/2023
No. 21-50642
that everyone could fit in the car.” Ante, at 3. But the majority omits the most
important piece of evidence: the fact that the officers discovered the
defendants actually holding the contraband.
And let’s be clear about how many cases we need to push aside to
reach the majority’s holding.
We have repeatedly held that physical control is sufficient to show
possession. See, e.g., United States v. Ortiz, 927 F.3d 868, 874 (5th Cir. 2019)
(holding that a felon possessed a firearm when he held it briefly); United
States v. Hagman, 740 F.3d 1044, 1049 (5th Cir. 2014) (surveying cases and
finding that a defendant’s mere fingerprint on a firearm or eyewitness
testimony of a defendant holding it were sufficient to show actual
possession); United States v. De Leon, 170 F.3d 494, 497 (5th Cir. 1999)
(finding that a defendant’s “thumbprint on the box of ammunition would
also lead a jury to reasonably infer” that the defendant possessed it); Munoz,
150 F.3d at 416 (finding actual possession where an eyewitness saw the
defendant “handle the sawed-off shotgun”); United States v. Steen, 55 F.3d
1022, 1032 (5th Cir. 1995) (finding possession of cocaine when the officer
observed a white powder on the defendant’s arms); United States v. Ivy, 973
F.2d 1184, 1188 (5th Cir. 1992) (holding that defendant actually possessed
illegal narcotics when he took a package containing them and began to open
it), cert. denied, 507 U.S. 1022 (1993); United States v. Parker, 566 F.2d 1304,
1306 (5th Cir. 1978) (holding a defendant possessed a gun when he held it for
thirty minutes); United States v. Tyler, 474 F.2d 1079, 1081 (5th Cir. 1973)
(per curiam) (holding that the jury could “draw an inference of actual
possession from the presence of the [defendant’s] fingerprint”); see also
United States v. Johnson, 46 F.4th 1183, 1188–89 (10th Cir. 2022) (holding
that a defendant actually possessed a firearm when he knowingly sat on it);
Gaines, 295 F.3d at 301 (holding that where the evidence showed the
defendant “actually holding the weapons in his hand,” that “fact alone was
15
Case: 21-50642 Document: 00516777776 Page: 16 Date Filed: 06/07/2023
No. 21-50642
sufficient to allow a jury to find actual possession, however briefly it
occurred”); cf. United States v. Crain, 33 F.3d 480, 486 (5th Cir. 1994)
(finding no actual possession because the defendant “never touched” the
item in the car); United States v. Onick, 889 F.2d 1425, 1429 (5th Cir. 1989)
(similar).
Today the majority breaks with those cases.
This court has repeatedly held that passengers can be just as guilty of
possession of contraband in a vehicle as owners. See, e.g., Crain, 33 F.3d at
486 (“[W]hen two or more people are occupying a place, a defendant’s
control over the place is not by itself enough to establish constructive
possession of contraband found there. We are especially reluctant to infer
constructive possession of contraband by one occupant when there is
evidence in the record explicitly linking the contraband to another
occupant.”); United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994)
(similar); United States v. Shabazz, 993 F.2d 431, 441–42 (5th Cir. 1993)
(holding that both driver and passenger-owner possessed drugs found in a
hidden compartment); United States v. Phillips, 496 F.2d 1395, 1397–98 (5th
Cir. 1974) (holding that passenger possessed marijuana in a vehicle he didn’t
own or rent even when marijuana was found in the trunk); United States v.
Canada, 459 F.2d 687, 689 (5th Cir. 1972) (finding sufficient evidence of
possession where passenger knew of the presence of contraband in the
vehicle). For example, this court held in United States v. Niver, 689 F.2d 520(5th Cir. 1982), that a passenger was not merely “hitching a free ride” and
was instead guilty of possession with intent to distribute when the marijuana
was in plain view and the passenger recognized it as marijuana. Id. at 530; see
also United States v. Whitmire, 595 F.2d 1303, 1316 (5th Cir. 1979) (similar).
Today the majority breaks with those cases, too.
16
Case: 21-50642 Document: 00516777776 Page: 17 Date Filed: 06/07/2023
No. 21-50642
This court has repeatedly held that a mere admission of possession—
like Campos-Ayala’s admission here—is sufficient to establish possession.
See, e.g., Hagman, 740 F.3d at 1049; United States v. Tovar, 719 F.3d 376, 389
(5th Cir. 2013); United States v. Cartwright, 6 F.3d 294, 299 (5th Cir. 1993).
Again, today’s majority breaks with those cases.
This court has repeatedly held that we must be extremely deferential to
the jury when reviewing a sufficiency of the evidence challenge. See, e.g.,
United States v. Yusuf, 57 F.4th 440, 444 (5th Cir. 2023); United States v.
Cabello, 33 F.4th 281, 288 (5th Cir. 2022); United States v. McNealy, 625 F.3d
858, 870 (5th Cir. 2010). We cannot reweigh evidence, and we must defer to
the jury’s choice “among reasonable constructions of the evidence.” Ramos-
Cardenas, 524 F.3d at 605 (citing United States v. Ibarra, 286 F.3d 795, 797
(5th Cir. 2002)). We must “view[] the evidence in the light most favorable
to the verdict and draw[] all reasonable inferences from the evidence to
support the verdict.” United States v. Jimenez-Elvirez, 862 F.3d 527, 533 (5th
Cir. 2017) (quotation omitted); see also United States v. Resio-Trejo, 45 F.3d
907, 911 (5th Cir. 1995). “We do not consider whether the jury correctly
determined innocence or guilt, but whether the jury made a rational
decision.” United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002).
And we must uphold the verdict even if the evidence does not “exclude every
reasonable hypothesis of innocence.” United States v. Bell, 678 F.2d 547, 549
(5th Cir. 1982) (en banc).
Yet again, today’s majority breaks with those cases too.
Finally, this court has repeatedly held that we must be doubly
deferential to the jury verdict on plain error review of a sufficiency of the
evidence challenge. See Yusuf, 57 F.4th at 445; Cabello, 33 F.4th at 288;
United States v. Delgado, 672 F.3d 320, 330–31 (5th Cir. 2012) (en banc). The
defendant must show “the record is devoid of evidence pointing to guilt or
17
Case: 21-50642 Document: 00516777776 Page: 18 Date Filed: 06/07/2023
No. 21-50642
[that] the evidence is so tenuous that a conviction is shocking.” Delgado, 672
F.3d at 331 (quotation omitted). We reverse “only if there is a manifest
miscarriage of justice.” Ibid. (quotation omitted). This is “tantamount to the
eye of a virtually impassable needle.” Yusuf, 57 F.4th at 445. And even for
Campos-Ayala’s preserved challenge, we still must place “a heavy thumb on
the scale in favor of the verdict.” Cabello, 33 F.4th at 288.
You guessed it: Today’s majority breaks with these cases too.
This is not a case of “mere presence.” Ante, at 6–7. This is not a case
where the defendants had mere knowledge that the driver possessed
marijuana with intent to distribute. Ante, at 9–10 (citing United States v.
Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986)). This is not a case where
some marijuana was found in the trunk or a hidden compartment of the car.
Ante, at 7 (citing United States v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983);
United States v. Ferg, 504 F.2d 914, 917 (5th Cir. 1974)).
This is a case where the defendants unloaded and re-loaded five bales
stuffed with 283 pounds of marijuana into a vehicle, climbed into that very
transport car, held that marijuana in their immediate physical control as they
drove, and admitted to officers that they knew they were holding marijuana.
A rational jury could easily infer from this evidence that the defendants
exercised “direct physical control” over the contraband so we must defer to
its verdict. Fields, 977 F.3d at 365 (quotation omitted). In fact, only an
irrational jury could look at the picture on the first page of this dissent and
conclude that holding marijuana is not possession of it.
I respectfully dissent.
18