IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50680 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN AYALA-CARRILLO,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-1964-ALL-DB

February 27, 2003

Before GARWOOD, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Juan Ayala-Carrillo (“Ayala”) appeals his conviction,

following a jury trial, of importation of 100 kilograms or more of

marijuana and possession of 100 kilograms or more of marihuana with

intent to distribute, in violation of

and 841(a).

The district court sentenced Ayala to concurrent 78-month prison

* 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 R.47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. terms and four-year terms of supervised release.

Ayala contends that the district court erred in denying his

request that the jury be instructed that “general nervousness

alone” is insufficient to prove guilty knowledge. He maintains

that such an instruction was supported by the evidence that, he

argues, reflected no connection between his nervousness and any

consciousness of guilt.

We review for abuse of discretion the district court’s refusal

to give a jury instruction requested by the defense. United States

v. John,

(5th Cir. 2002). “A court commits

reversible error where (1) the requested instruction is

substantially correct; (2) the requested issue is not substantially

covered in the charge; and (3) the instruction ‘concerns an

important point in the trial so that the failure to give it

seriously impaired the defendant’s ability to effectively present

a given defense.’”

(citation omitted).

It is true, as Ayala argues, that “[i]n the absence of facts

which suggest that the defendant’s nervousness or anxiousness

derives from an underlying consciousness of criminal behavior,

evidence of nervousness is insufficient to support a finding of

guilty knowledge.” United States v. Diaz-Carreon,

(5th Cir. 1990). Nonetheless, the instruction on nervousness

requested by Ayala was incomplete, because the court in Diaz-

Carreon also stated that “[n]ervousness behavior at an inspection

2 station frequently constitutes persuasive evidence of guilty

knowledge.” See

The instructions submitted to the jury

substantially covered the issue of Ayala’s nervousness, directing

the jury to consider all “facts and circumstances in evidence which

indicate [Ayala’s] state of mind,” and permitting the jury to draw

any number of inferences from evidence of Ayala’s nervous behavior.

The jury was also told that it was permitted “to draw such

reasonable inferences” from the evidence “as you feel are justified

in the light of common experience” and to “make reasonable

deductions and reach conclusions that reason and common sense lead

you to draw from the facts which have been established by the

evidence.” Ayala, therefore, remained free to argue, and did in

fact argue, consistently with Diaz-Carreon, that his nervousness

was simply a normal reaction to the circumstances of his

interrogation. See, e.g., Diaz-Carreon,

(noting

that “[n]ervousness . . . is ‘a normal reaction to circumstances

which one does not understand.’”). The evidence showed that Ayala

was extremely nervous when subjected to initial routine questioning

at the primary U.S. Customs inspection area on entering the United

States at the Bridge of the Americas. There is no evidence that

such an initial, routine questioning was an event that Ayala did

not understand.

Finally, the trial evidence was more than sufficient to

establish that Ayala’s nervousness “derived from an underlying

3 consciousness of criminal behavior.” See

The jury was

authorized to infer Ayala’s knowledge of the presence of the

marihuana from the following circumstances, viz: his exercise of

sole control over the unlocked and unsealed trailer in which it was

concealed;1 his fingerprints being found on both a package of

adhesive numbers found within the trailer and on the actual numbers

that had been affixed to the trailer, suggesting both that he was

personally involved in attempting to disguise the marihuana

shipment as a cargo of televisions and that he had entered the

trailer; the fact that on entry the trailer smelled of marihuana;

the inconsistent and implausible statements made by him to the

authorities, including that he did not know the address of the

establishment to which he was assertedly to deliver the purported

load of televisions; and the fact that the trailer handled as if it

was not loaded.2

Accordingly, the district court did not abuse its discretion

in declining to instruct the jury on “general nervousness alone.”

See John,

.

The judgment of the district court is AFFIRMED.

1 See United States v. Jones,

(5th Cir. 1999). 2 The only evidence presented by the defense was testimony of a Public Defender’s Office investigator as to the importance of securing the crime scene and that numbers on trailers were not official Department of Transportation numbers.

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