IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41147 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE CASTILLO, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (B-00-CR-147-1) -------------------- October 15, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Guadalupe Castillo, Jr., contends on

appeal that the evidence was not sufficient to support his

convictions for conspiracy to import and importation of marijuana.

According to Castillo, the evidence did not show that he had

knowledge of the marijuana hidden in compartments of the borrowed

vehicle he had driven across the border from Mexico to the United

States. He also argues that the fact that the jury acquitted him

of the charges of conspiracy to possess with intent to distribute

* Pursuant to 5TH Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH Cir. R. 47.5.4. marijuana and possession with intent to distribute marijuana

rendered the evidence insufficient because proof of importation

required proof of the elements of those offenses.

Addressing Castillo’s second contention first, we note that

the jury was not required to find that Castillo intended to

distribute the drugs to find him guilty of conspiracy to import or

importation of marijuana. The jury could have inferred that

Castillo’s only part in the venture was to possess and transport

the drugs but that he did not intend to participate in the

distribution of the marijuana. See United States v. Dubea,

(5th Cir. 1980).

Further, if “a multicount verdict appears inconsistent, the

appellate inquiry is limited to a determination whether the

evidence is legally sufficient to support the counts on which a

conviction is returned.”

The jury’s verdict on the remaining

counts is not relevant.

As discussed below, there was

sufficient evidence to support Castillo’s convictions for

conspiracy to import and importation.

When drugs are found hidden in a defendant’s vehicle, guilty

knowledge may not be inferred solely from the defendant’s control

over that vehicle. United States v. Pennington,

(5th Cir. 1994). In such cases, “additional circumstantial

evidence that is suspicious in nature or demonstrates guilty

knowledge” must be shown. United States v. Resio-Trejo,

(5th Cir. 1995)(internal quotations and citation omitted).

Such evidence may include, among other things, a defendant’s

2 nervousness, implausible explanations, or lack of surprise when

contraband is discovered. United States v. Ortega Reyna,

(5th Cir. 1998).

The evidence reflected that Castillo appeared nervous when he

was asked to open the trunk for an inspection. Castillo did not

express any anger about the marijuana being found in his vehicle or

about a third party using him to transport the drugs over the

border. It is also implausible that the owner of the drugs would

have entrusted a quantity of marijuana having a street value of

$8300 to $12,500 to an unknowing and unsuspecting driver. This

circumstantial evidence supports the inference that Castillo was

aware of the presence of the drugs that were hidden in the vehicle.

When we view the evidence in the light most favorable to the

verdict, we conclude that it is sufficient to prove beyond a

reasonable doubt that Castillo agreed to participate in a

conspiracy to import, and knowingly imported, marijuana into the

United States. Ortega Reyna,

.

Castillo also asserts that the government violated Brady v.

Maryland,

(1963) by failing to disclose to defense

counsel that Castillo defecated in his pants during the custodial

interrogation. To establish a Brady violation, an accused must

show that the State withheld evidence, that the evidence was

favorable, and that the evidence was material to the defense.

Little v. Johnson,

(5th Cir. 1998).

The evidence that Castillo defecated in his pants during the

custodial interrogation was not concealed by the government because

3 Castillo was aware that the incident had occurred and that the

agents were aware of it. Further, there is no reasonable

probability that the introduction of such evidence would have

affected the jury’s verdict because it could have been construed as

a sign of either guilt or innocence. Thus, it was neither material

nor exculpatory evidence in the Brady context. The district court

did not err in determining that no Brady violation had occurred.

AFFIRMED.

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