IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51121 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS SOTOMAYOR-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-99-CR-140-All -------------------- January 15, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jesus Sotomayor Garcia argues that the district court erred

in giving a jury instruction on “deliberate ignorance” because

there was no evidence presented to show that he was aware that he

was engaged in illegal activity or that he purposely contrived to

conceal his knowledge.

The district court should give a jury instruction on

deliberate indifference “‘only when the defendant claims a lack

of guilty knowledge and the proof at trial supports an inference

of deliberate ignorance.’” United States v. Lara-Velasquez, 919

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-51121 -2-

F.2d 946, 950 (5th Cir. 1990). Garcia denied any knowledge of

the presence of drugs in the Suburban, but the evidence indicated

that Garcia was subjectively aware that he was engaging in

illegal activities. The evidence did not reflect that Garcia was

“duped” into carrying the drugs or that he was in possession of

the drugs as a result of negligence or carelessness.

However, the evidence did not indicate that Garcia

“deliberately blinded” himself to the presence of drugs in the

vehicle. The drugs were concealed in the floor of the vehicle,

and the alterations to the vehicle were not apparent to a casual

observer. Even assuming that the district court erred in giving

the deliberate ignorance instruction, the error was harmless

because the evidence reflected Garcia’s actual knowledge of

misconduct. United States v. Threadgill,

(5th

Cir.), cert. denied,

(1999). The presence of the

large amount of drugs in the vehicle considered in connection

with Garcia’s demeanor and his inconsistent statements concerning

the ownership of the vehicle and the events preceding the stop at

the checkpoint gave rise to a reasonable inference that Garcia

possessed actual knowledge of the criminal activity. Thus, any

error in giving the “deliberate ignorance” instruction was

harmless.

Garcia also argues that the evidence was insufficient to

support his conviction for possession with intent to distribute a

quantity of marijuana, in an amount in excess of 100 kilograms

but less than 1000 kilograms. “Knowledge of the presence of

contraband may ordinarily be inferred from the exercise of No. 99-51121 -3-

control over the vehicle in which it is concealed.” United

States v. Garcia,

(5th Cir. 1990).

However, “additional circumstantial evidence that is suspicious

in nature or demonstrates guilty knowledge” is required when the

drugs are secreted in a hidden compartment. United States v.

Ortega Reyna,

(5th Cir. 1998) (internal

citation and quotation marks omitted).

Garcia does not dispute that over 500 pounds of marijuana

was concealed in the vehicle that he was operating. Viewing the

additional evidence in the light most favorable to the verdict,

it showed that Garcia exhibited nervousness when he was initially

questioned by the agent, that he gave inconsistent statements

concerning the ownership of the Suburban, and that he changed his

story about his prior border crossing after his initial

explanation was contradicted by the computer records. This

behavior indicated that Garcia’s assertions of innocence were not

credible and that he was aware that he was in possession of a

large amount of marijuana when he crossed into the United States.

See United States v. Casilla,

(5th Cir. 1994).

Further, after hearing the testimony of the agents and Garcia’s

testimony, the jury made a credibility choice in determining

Garcia’s guilt, a determination which should not be disturbed on

appeal. United States v. Bell,

(5th Cir. 19820

(en banc). Garcia’s argument that the evidence was insufficient

to support his conviction is without merit.

AFFIRMED.