United States v. Salazar ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
January 4, 2007
for the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 05-50951
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DANIEL P. SALAZAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(4:05-CR-54)
Before GARZA, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant Daniel P. Salazar (“Salazar”) was charged
in a two-count indictment with knowingly importing less
than fifty kilograms of marijuana in violation of 21
*
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that this opinion should not be published and is not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.
U.S.C. §§ 952 and 960 and knowingly possessing less than
fifty kilograms of marijuana with intent to distribute in
violation of 21 U.S.C. § 841(a)(1). A jury convicted
Salazar on both counts. He was sentenced to thirty
months’ imprisonment on each count, to run concurrently,
and three years’ supervised release. He appeals his
conviction and sentence, arguing that (1) the criminal
proceeding was void because the grand jury foreperson did
not sign the indictment; (2) the evidence was
insufficient to establish the requisite knowledge that he
was importing or possessing drugs; and (3) he was
entitled to a partial acquittal regarding the drugs found
inside two ice chests. For the following reasons, we
affirm Salazar’s conviction and sentence.
I.
On February 17, 2005, a U.S. Customs and Border
Protection agent stopped a Dodge van towing a trailer
that was attempting to enter the United States via the
Presidio, Texas port of entry. The agent recognized the
man in the passenger seat of the van as Daniel Salazar,
a commercial carrier of people and goods who had
2
previously attempted to import goods for third parties
without properly declaring them. The agent directed the
van to a secondary lane for a routine examination; a
search of the van and trailer, which both belonged to
Salazar, ensued. Salazar does not contest the legality of
the search.
The search of the trailer revealed a large decorative
wagon wheel with oddly shaped spokes that was wrapped in
what the agent later described as “excessive” packaging.
The agent asked Salazar to whom the wheel belonged, and
Salazar responded that it was his; however, when the
agent asked if he could drill a hole in the wheel,
Salazar began “fidgeting” and then changed his story and
said the wheel belonged to a friend. Another agent
described Salazar as “hesitant,” but not “nervous” or
“agitated.” Marijuana was discovered inside the hollow
spokes of the wheel. Marijuana was also discovered in the
lining of two ice chests stowed in the van. Salazar never
claimed ownership of the two ice chests. Salazar
stipulated at trial that the marijuana found in the wheel
and the ice chests weighed 58.2 pounds or 26.45
3
kilograms.
After the marijuana was discovered, customs agents
detained Salazar and read him his rights. He waived his
right to remain silent and responded to questioning.
Salazar told the customs agents that he was transporting
the wheel and the ice chests to a man named Daniel Reyez;
however, when the agents asked for Mr. Reyez’s contact
information, Salazar responded that he did not have
contact information for Mr. Reyez and that Mr. Reyez
would contact him to pick up his goods. The agents also
questioned Salazar about undated logs found in the van
and on Salazar’s person that listed various items
transported and the names of their respective recipients.
The wagon wheel did not appear on the list Salazar
claimed he prepared for the February 17th trip, and the
only list that mentioned a wagon wheel indicated that the
wheel was going to “Modesta Gonzalez.” Salazar told the
agents that items designated for “Modesta Gonzalez,”
“Pedro Perez,” and “Daniel Reyez” were all for Mr. Reyez.
Salazar was indicted on March 3, 2005 in a two-count
indictment for knowingly importing less than fifty
4
kilograms of marijuana in violation of 21 U.S.C. §§ 952and 960 and knowingly possessing less than fifty
kilograms of marijuana with intent to distribute in
violation of 21 U.S.C. § 841(a)(1). A jury trial was held
on April 20, 2005. The Government presented three
witnesses, two customs agents and a special agent with
Immigration and Customs Enforcement, all of whom
testified to the events that occurred on February 17,
2005. The defense moved for acquittal at the close of the
Government’s evidence. That motion was denied. The
defense then presented three of its own witnesses,
Salazar’s brother-in-law and two of his nephews. Salazar
also testified on his own behalf. After the defense
rested, it renewed its request for a judgment of
acquittal. That motion was also denied. The jury found
Salazar guilty on both counts and he was sentenced to
thirty months’ imprisonment on each count, to run
concurrently, and three years’ supervised release. He
appeals his conviction and sentence.
II.
A.
5
In his first point of error, Salazar argues that the
entire criminal proceeding below was void because the
grand jury foreperson did not sign the indictment.
Although the copy of the indictment in the record is
unsigned, the record indicates that a signed copy of the
indictment was sealed by the district court pursuant to
the E-Government Act of 2002. We have received a signed
copy of the indictment from the district court, and we
are satisfied that Salazar is not entitled to relief on
this ground.
B.
In his second point of error, Salazar argues that the
evidence was insufficient to establish the requisite
knowledge that he was importing or possessing drugs.
Salazar moved for acquittal at the close of the
Government’s case and at the close of the evidence.
Accordingly, “we decide whether the evidence is
sufficient by viewing the evidence and the inferences
that may be drawn from it in the light most favorable to
the verdict and determining whether a rational jury could
have found the essential elements of the offenses beyond
6
a reasonable doubt.” United States v. Arnold, 467 F.3d
880, 883 (5th Cir. 2006) (internal quotation marks
omitted).
Both of Salazar’s offenses, importation and
possession, require guilty knowledge as an element. See
United States v. Martinez-Lugo, 411 F.3d 597, 599 & n.1
(5th Cir.), cert. denied, 126 S. Ct. 464 (2005). Guilty
knowledge may sometimes be inferred where a defendant
controls a vehicle containing contraband; however, where
the contraband is concealed, additional circumstantial
evidence that is suspicious in nature or that
demonstrates guilty knowledge is required. United States
v. Cano-Guel, 167 F.3d 900, 904 (5th Cir. 1999). “This
requirement stems from the 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.’” Id. at 904-05 (quoting United States v.
Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990)).
Evidence of nervousness, conflicting statements to law
7
enforcement officials, and an implausible story may all
qualify as circumstantial evidence of guilty knowledge.
Martinez-Lugo, 411 F.3d at 599.
It is undisputed that the marijuana found in the ice
chests and in the wagon wheel--which were in Salazar’s
control as owner of the van--was concealed. Therefore,
the Government had to bring forward circumstantial
evidence of guilty knowledge to make its case. In support
of its case, the Government presented evidence that
Salazar began “fidgeting” or became “hesitant” when
customs agents asked if they could drill a hole in the
wagon wheel; that Salazar made inconsistent statements
about the ownership of the wagon wheel; that Salazar’s
story about who he was delivering the wagon wheel to was
implausible because he did not know how to get in touch
with that person; and that Salazar had previously lied to
customs agents about his cargo when trying to cross the
border. Salazar argues that this evidence was
insufficient to support a verdict against him because
nervousness alone is not enough to support a finding of
guilty knowledge; there was a plausible explanation for
8
his lie about the ownership of the wheel--he would have
had to pay a fee if he had admitted the wheel belonged to
a third party; and there was no other evidence
demonstrating that his story was implausible or that he
lied about anything else.
We find the evidence sufficient to support a finding
of guilty knowledge on Salazar’s part. Although we
recognize that nervousness alone is not enough to support
a finding of guilty knowledge, United States v. Jones,
185 F.3d 459, 464 (5th Cir. 1999), here we have
nervousness accompanied by an inconsistent statement to
law enforcement officials, a potentially implausible
story about how Salazar would transfer his cargo to its
recipient, and other suspicious evidence, including the
questionable business practices described below. With
respect to nervousness, two customs agents testified that
Salazar’s demeanor changed when they asked to drill a
hole in the wagon wheel. According to one, Salazar began
“fidgeting,” and according to the other, Salazar became
“hesitant.” Further, Salazar initially told law
enforcement officials that the wagon wheel belonged to
9
him but later changed his story and said it belonged to
a friend. Salazar had no contact information for the
person to whom he said he was delivering the wheel, and
he admitted in open court that he had on other occasions
lied to customs officials about his cargo to avoid
problems at the border. We have previously noted that
“unconventional” business practices may qualify as the
suspicious evidence necessary to support a finding of
guilty knowledge. See United States v. Roel, 193 Fed.
App’x 309, 312 (5th Cir. 2006) (citing United States v.
Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990)).
Salazar’s business practice of lying to customs officials
to avoid problems at the border, in combination with his
change in demeanor, his inconsistent statements to
customs officials, and his potentially implausible story
about how he would transfer possession of his cargo could
lead a rational jury to find guilty knowledge beyond a
reasonable doubt. Salazar is not entitled to relief on
this ground.
C.
Finally, in his third point of error, Salazar argues
10
that he was entitled to a partial acquittal regarding the
drugs found inside the ice chests because he never
claimed that he owned them. Although Salazar generally
moved for acquittal, he did not specifically request a
partial acquittal regarding the drugs in the ice chests.
Accordingly, we review for plain error. See United States
v. Villasenor, 236 F.3d 220, 222 (5th Cir. 2000). Under
the plain error standard of review, “a conviction can be
reversed only if there was a ‘manifest miscarriage of
justice,’ which would occur if there is no evidence of
the defendant’s guilt or ‘the evidence on a key element
of the offense was so tenuous that a conviction would be
shocking.’” Id. (quoting United States v. McCarty, 36
F.3d 1349, 1358 (5th Cir. 2000)).
The trial court did not commit plain error by failing
to partially acquit Salazar. As we discussed above in
Part II.B, there was at least some circumstantial
evidence of guilty knowledge on Salazar’s part. Although
much of this evidence related to the wagon wheel, we
cannot say that all of it related to the wagon wheel
alone. For example, Salazar’s irregular business
11
practices--lying to customs agents about cargo--had
nothing to do with the wagon wheel and instead support a
finding of guilty knowledge in general. Accordingly, we
cannot say that Salazar’s conviction for the quantity of
drugs found inside the ice chests gives rise to a
“manifest miscarriage of justice.” Salazar is not
entitled to relief on this ground.
III.
For the foregoing reasons, we AFFIRM Salazar’s
conviction and sentence.
12