United States v. Salas ( 2000 )

Menu:

               IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51021
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGOBERTO SALAS; ANTONIO SANCHEZ-SALAS,
Defendants-Appellants.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. P-99-CR-160-1
--------------------
September 14, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Rigoberto Salas (“Rigoberto”) and his nephew, Antonio
Sanchez-Salas (“Antonio”), appeal their convictions for
possession with the intent to distribute marijuana, in violation
of

21 U.S.C. § 841

(a)(1).   They argue that the evidence was
insufficient to support their convictions because there was no
evidence of their guilty knowledge.
The argument fails because the evidence, viewed in the light
most favorable to the prosecution, demonstrates that the truck in
which the marijuana was discovered was rented by Rigoberto, that
*
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that this opinion should not be published and is not precedent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. 99-51021
-2-
the appellants exercised control over it, and that they told
agents that they had personally loaded the truck; agent testimony
further established that, when the blanket covering the boxes of
marijuana was moved, the odor of marijuana was strong.   See
Jackson v. Virginia,

443 U.S. 307

, 319 (1970); see also United
States v. Garcia,

917 F.2d 1370

, 1376-77 (5th Cir. 1990).    There
was additional ample circumstantial evidence of guilty knowledge:
agent testimony established that the appellants appeared to be
nervous when stopped and when the truck was inspected; one of
them said, “Oh shit,” when they saw a drug-detection dog being
led toward their truck; and the appellants gave inconsistent
statements and implausible stories to agents following their
arrest.   See United States v. Casilla,

20 F.3d 600

, 606 (5th Cir.
1994).
Appellants next contend, for the first time on appeal, that
the Government violated Fed. R. Crim. P. 16(a)(1)(A) by failing
to disclose the incriminating statement that an agent overheard
one of them make when the drug-detecting canine was brought out
to search the vehicle.   The argument fails because the challenged
phrase was a spontaneous, voluntary statement, not done in
response to any interrogation by Border Patrol agents and thus
did not fall within the ambit of Rule 16's mandatory disclosure
requirements.   See Fed. R. Crim. P. 16(a)(1)(A); United States v.
Navar,

611 F.2d 1156

, 1158 (5th Cir. 1980).   The argument
additionally fails because, as the appellants apparently concede,
the statement was actually disclosed to them prior to trial.
Rigoberto urges, also for the first time on appeal, that the
No. 99-51021
-3-
statement was a violation of his Sixth-Amendment rights under
Bruton v. United States,

391 U.S. 123

 (1968), or alternatively,
was inadmissible as hearsay and unduly prejudicial.    Because the
challenged statement did not directly allude to Rigoberto, there
is no Bruton violation.   United States v. Restrepo,

994 F.2d 173

,
186 (5th Cir. 1993).   The arguments under Fed. R. Evid. 803 and
403 do not implicate any error, plain or otherwise.    See Fed.
R. Evid. 803(2) and 403; see also United States v. Richards,

204 F.3d 177

, 197 n.6 (5th Cir. 2000, petition for cert. filed, ___
S. Ct. ___,

68 U.S.L.W. 3002

 (June 20, 2000, No. 99-2049); United
States v. Lawrence,

699 F.2d 697

, 704 (5th Cir. 1983); United
States v. Calverley,

37 F.3d 160

, 162-64 (5th Cir. 1994)(en
banc).
Rigoberto also challenges for the first time on appeal the
district-court’s deliberate-ignorance instruction.    Antonio’s
motion to incorporate this argument has been treated as a Fed. R.
App. P. 28(i) letter, and this court considers the argument to
have been adopted.   The appellants assert that there was no
evidence of guilty knowledge and that the instruction thus
enabled the jury to convict for mere negligence.   The argument is
unpersuasive because sufficient evidence existed to justify the
deliberate-indifference instruction.   See United States v. Hull,

160 F.3d 265