IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-51160

Summary Calendar _____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ALFREDO TEJADA-ORNELAS

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas, Pecos Division P-99-CR-226-ALL-FB _________________________________________________________________ October 26, 2000

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Alfredo Tejada-Ornelas was convicted by

a jury on one count of importation of marijuana into the United

States from Mexico in violation of

(a) and

960(a)(1) and one count of possession of marijuana with intent 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. distribute in violation of

(a)(1). Tejada-Ornelas

argues that the evidence was insufficient to support his

convictions. Reviewing the sufficiency of the evidence under the

manifest miscarriage of justice standard, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 1999, Tejada-Ornelas, a 59-year-old truck driver,

drove into the United States at the Presidio Port of Entry in

Texas in a cattle truck, as he did regularly. He spoke with

Customs Inspector Richard Martinez, who knew Tejada-Ornelas from

his almost daily border crossings. Tejada-Ornelas warned the

officer to “keep an eye on Rodriguez Trucking Company.” Martinez

spoke to his fellow officers about the warning, in part concerned

that it was an attempt to divert suspicion from Tejada-Ornelas

himself.

The following day, Tejada-Ornelas again drove into the

Presidio Port of Entry, but this time in an unfamiliar tractor-

trailer. Because they had never seen this particular vehicle and

because of the previous warning, the customs inspectors decided

to conduct a canine inspection of the tractor-trailer. After the

dog indicated the presence of narcotics in the rear tires of the

tractor portion of the vehicle, the inspectors conducted a more

thorough search of the tractor-trailer, including the use of a

2 “buster”1 to check the density of the tires. When asked if the

vehicle could be searched, Tejada-Ornelas made comments to the

effect of “Go ahead. There is nothing there.” According to the

officers, he appeared very calm when they began their

inspections, but became increasingly nervous after the dog

“alerted”2 and they began their more thorough search.

Canine Enforcement Officer Lawrence Gardea requested that

Tejada-Ornelas disconnect the trailer from the tractor. Tejada-

Ornelas responded that he could not do so because the crank did

not work and stated, “There’s nothing there, really. You can

inspect the trailer.”3 After a few more requests, Tejada-Ornelas

disconnected the trailer, and the tractor was driven to a local

service station.4 The rim of each tire was cut off with a

blowtorch, and 194.4 pounds of marijuana was discovered in sealed

1 A buster is used to measure the density of an item, in this case, a tire. The officers take the density reading of the object and compare it to a chart that indicates its normal density reading. If the density reading is too high, it suggests that the substance is thicker than it should be, indicating that there is something inside other than air. 2 As Gardea explained, an alert “is a readable behavior the dog throws when the possible presence of narcotics is there.” 3 Tejada-Ornelas actually consented to a search of “la trucka,” but pointed to the trailer. The government argues this was an attempt to divert their attention from the tractor, where the marijuana was eventually discovered, to the trailer. 4 According to Gardea, this was the first time Tejada- Ornelas had ever hesitated to do anything that had been asked of him.

3 containers attached to the rims inside the interior rear tires of

the tractor.

Tejada-Ornelas was taken to the Customs offices at the rear

of the Port of Entry and advised of his rights in Spanish. At

the time of his arrest, he had only $38, consistent with his

story that he had begun the trip with $50 and had spent $12 to

pay the crossing fare at the Presidio check point. He

voluntarily spoke with the Customs officials, informing them that

he was driving the tractor-trailer for Victor, whose last name he

did not know, but later remembered as Enriquez. Tejada-Ornelas

explained he had been hired to take the truck to a warehouse,

drop it off, and walk back to Mexico where he would be paid. He

also stated that Enriquez, who had exited the truck at the

border, had not driven the truck into the United States because

he did not have a commercial driver’s license.

When questioned about his statements to Martinez, he

originally denied having made them, but later admitted that he

had. Special Agent Joshua Whatmough, who participated in the

questioning, testified that he felt Tejada-Ornelas was evasive,

failed to answer some questions, and provided incomplete answers

to others. However, he also testified that many of the

statements and explanations given were later found to be true.

During the question, Tejada-Ornelas also made several statements

regarding his financial situation. For example, he stated that

he was the sole provider for his family, that he had numerous

4 bills to pay, and that he was afraid his phone was going to be

cut off.

Tejada-Ornelas’s attorney moved for judgment of acquittal at

the end of the government’s case based on the government’s

failure to prove the requisite element of knowledge. That motion

was denied. There is, however, no evidence in the record that he

renewed the motion at the end of the trial or after the verdict.

Tejada-Ornelas was convicted on both counts. Following

sentencing and entry of judgment, he timely appealed.

II. DISCUSSION

Tejada-Ornelas argues on appeal that the evidence was

insufficient to establish his guilt beyond a reasonable doubt.

Normally, the standard of review for sufficiency challenges is

“‘whether a reasonable trier of fact could have found that the

evidence established the essential elements of the crime beyond a

reasonable doubt.’” United States v. Reveles,

(5th Cir. 1999) (quoting United States v. Ortega Reyna,

(5th Cir. 1998)). Under this standard, the evidence and

all reasonable inferences from it are viewed in the light most

favorable to the verdict. See

However, reversal is required

“[i]f the evidence tends to give ‘equal or nearly equal

circumstantial support’ to guilt and to innocence” because then

“‘a reasonable jury must necessarily entertain a reasonable

5 doubt.’” Ortega Reyna,

(quoting United States v.

Lopez,

(5th Cir. 1996)).

Yet, the standard for a sufficiency challenge differs when

the defendant fails to renew his motion for a judgment of

acquittal at the end of trial. When that occurs, the standard is

whether there was a “manifest miscarriage of justice.” United

States v. Rivas,

(5th Cir. 1998).5 “‘Such a

miscarriage would exist only if the record is devoid of evidence

pointing to guilt, or . . . because the evidence on a key element

of the offense was so tenuous that a conviction would be

shocking.’”

at 369 (quoting United States v. Pierre,

(5th Cir. 1992)). “In making this determination,

the evidence, as with the regular standard of review of

insufficiency of evidence claims, must be considered in the light

5 While we recognize that a prior decision of this court raised the question of whether there is a difference between the “sufficiency of the evidence” standard and the plain error “miscarriage of justice” standard, that opinion expressly noted it “need not reach the issue of whether the standards are the same.” United States v. Pennington,

, 597 n.2 (5th Cir. 1994). However, only the court sitting en banc can reverse precedent, and Fifth Circuit precedent both before and after that opinion has consistently found that the “manifest miscarriage of justice” standard is applicable to a sufficiency of the evidence claim when the defendant has failed to make a motion for acquittal at the end of trial. See, e.g., United States v. Rivas,

(5th Cir. 1998); United States v. Laury,

(5th Cir. 1995); United States v. Resio- Trejo,

, 910 n.6 (5th Cir. 1995); United States v. Inocencio,

(5th Cir. 1995); United States v. McCarty,

(5th Cir. 1994); United States v. Thomas,

(5th Cir. 1994); United States v. Pierre,

(5th Cir. 1992).

6 most favorable to the government, giving the government the

benefit of all reasonable inferences and credibility choices.”

United States v. Inocencio,

(5th Cir. 1994)

(citing United States v. Thomas,

(5th Cir.

1994)).

Tejada-Ornelas contends that there was not enough evidence

to support a finding that he knew of the existence of the

marijuana in the tractor-trailer. To support a conviction for

importation of marijuana into the United States from Mexico in

violation of

(a) and 960(a)(1), the government

must prove “that the defendant knowingly played a role in

bringing the marijuana into the country.” United States v.

Lopez,

(5th Cir. 1996). Similarly, “[a]

conviction for the offense of possession of marijuana with intent

to distribute [in violation of

(a)(1)] requires

proof that the defendant (1) knowingly (2) possessed marijuana

(3) with intent to distribute it.”

Knowledge, therefore, is

an element of both offenses.

Knowledge of the presence of contraband may ordinarily be

inferred from the exercise of control over a vehicle containing

such contraband. See Ortega Reyna,

; see also

Lopez,

; United States v. Resio-Trejo,

(5th Cir. 1995); Inocencio,

; United

States v. Pennington,

(5th Cir. 1994). However,

control over the vehicle is not always sufficient to establish

7 guilty knowledge, particularly when the contraband is well

hidden.

When the drugs are secreted in hidden compartments, however, “this Court has normally required additional ‘circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.’” This requirement stems from our recognition that, in hidden compartment cases, “there is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise.” This assumption is heightened when . . . the vehicle is a “loaner” or has otherwise been in the possession of the suspect for only a short time.

Ortega Reyna,

(footnotes omitted); see also

Lopez,

; Resio-Trejo,

; Inocencio,

; Pennington,

.

For example, this court has relied upon “(1) nervousness;

(2) absence of nervousness . . . ; (3) failure to make eye

contact; (4) refusal or reluctance to answer questions; (5) lack

of surprise when contraband is discovered; (6) inconsistent

statements; (7) implausible explanations; (8) possession of large

amounts of cash; and (9) obvious or remarkable alterations to the

vehicle” as circumstantial evidence of a defendant’s guilty

knowledge. Ortega Reyna,

(footnotes omitted)

(collecting cases). See, e.g., Rivas,

; United

States v. Crooks,

(5th Cir. 1996); Lopez,

; Resio-Trejo,

; Inocencio,

. But see United States v. Reveles,

(5th Cir. 1999); Ortega Reyna,

.

8 As evidence of Tejada-Ornelas’s knowledge of the marijuana,

in addition to his control over the vehicle, the government

relies on the following behavior: (1) his nervousness once the

dog “alerted” to the rear tires; (2) his atypical unwillingness

to cooperate with the customs agents as evidenced by his initial

failure to disconnect the tractor when requested to do so; (3)

his attempt to divert suspicion by suggesting the agents keep an

eye on Rodriguez Trucking Company and his reluctance to admit he

had made the statement during questioning; (4) his statement that

he did not know Victor’s, the truck owner’s, last name and his

subsequent recall of it; (5) his implausible excuse, that

Enriquez did not have a commercial driver’s license, for Enriquez

having exited the truck in Mexico and planning to meet him later

in the United States; (6) his evasive responses during

questioning; and (7) his comments about the dire financial

situation of his family. From this evidence, the government

argues that there is a sufficient basis for a reasonable jury to

find his nervousness, failure to cooperate, evasive responses,

implausible explanations, and inconsistent statements sufficient

to prove his guilty knowledge.

The defendant argues that the evidence is in “equipoise,”

and therefore, the jury could not have found guilt beyond a

reasonable doubt. Because we must decide this case using the

manifest miscarriage of justice standard, not the sufficiency of

the evidence standard, we need not reach whether the evidence of

9 guilt and innocence is in fact equal in this case. But, were we

to accept Tejada-Ornelas’s argument that the evidence is in

equipoise, we note that a record that would support such a

finding is necessarily not so devoid of evidence pointing to

guilt that a conviction based on it is a manifest miscarriage of

justice.

Viewing the evidence in the light most favorable to the

government, we neither find the record “‘devoid of evidence

pointing to guilt’” nor find “‘the evidence on a key element of

the offense . . . so tenuous that a conviction would be

shocking.’” Rivas,

(quoting Pierre,

).

III. CONCLUSION

For the reasons stated above, the convictions of Tejada-

Ornelas are AFFIRMED.

10