USA v. Manuel Espinoza

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 16, 2010 N o . 09-40583 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e v. M A N U E L DE JESUS ESPINOZA, D e fe n d a n t ­ A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 5:08-cr-02031

B e fo r e JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN,* District Judge. P E R CURIAM:* * M a n u e l De Jesus Espinoza appeals his conviction for possessing with the in t e n t to distribute more than 100 kilograms of marijuana, which Border Patrol a g e n t s found in his tractor-trailer while at a border checkpoint. On appeal, E s p in o z a argues that (1) his trial counsel was constitutionally ineffective for

*

District Judge of the Southern District of Mississippi, sitting by designation.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

**

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No. 09-40583 fa ilin g to request a Pennington1 jury instruction; (2) the district court erred by fa ilin g to provide a Pennington jury instruction sua sponte; (3) the district court e r r e d by allowing the Government to comment on his post-arrest, pre-Miranda 2 s ile n c e ; (4) the district court abused its discretion by allegedly permitting a G o v e r n m e n t witness to opine as to whether Espinoza knew he possessed the d r u g s found in his trailer; and (5) the Government failed to provide sufficient e v id e n c e to sustain the jury's verdict. W e decline to reach Espinoza's ineffective assistance of counsel claim, as t h is allegation is more properly addressed on collateral review. Espinoza failed t o object to either the district court's jury instructions or the testimony regarding h is post-arrest, pre-Miranda silence, and because he has failed to demonstrate a clear or obvious error by the district court on these two grounds, he is not e n tit le d to relief on them. Additionally, no Government witnesses impermissibly c o m m e n te d on Espinoza's knowledge, and therefore the district court did not a b u s e its discretion by permitting the testimony that Espinoza challenges. Finally, the Government introduced evidence sufficient to support the jury's v e r d ic t. For these reasons, we affirm Espinoza's conviction. I. FACTUAL AND PROCEDURAL BACKGROUND O n November 11, 2008, Espinoza, while driving a commercial tractort r a ile r , arrived at a United States Border Patrol immigration checkpoint near L a r e d o , Texas. As Border Patrol Agent Jose Martinez questioned Espinoza, the t r a c t o r -t r a ile r 's sole occupant, about his immigration status, another agent in fo r m e d Agent Martinez that a narcotics dog had alerted to the trailer. Espinoza complied with a request to move to a secondary inspection area, where t h e dog alerted to the trailer a second time.

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United States v. Pennington, 20 F.3d 593 (5th Cir. 1994). Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 09-40583 A t the secondary inspection area, the agents noticed that the trailer was s e c u r e d with a seal, which Agent Martinez described as the type that could be p u r c h a s e d at any truck stop, and a padlock. Espinoza provided the agents with t h e key to the padlock, and upon inspection, the agents discovered, among E s p in o z a 's legitimate cargo, three duffle bags filled with a total of 118 kilograms o f marijuana near the middle of the trailer. Agent Ibis Mireles then arrested E s p in o z a , and testified at trial that Espinoza displayed no emotion while she s e c u r e d him. Instead, he "just turned around and put his hands in the back." After being advised of his rights, Espinoza agreed to an interview, and denied k n o w in g that his trailer contained the hidden marijuana. T h e Border Patrol agents contacted the Drug Enforcement Administration (" D E A " ), and DEA Agent Nicholas Rich responded to the scene to take custody o f both the contraband and Espinoza. Agent Rich's investigation revealed that E s p in o z a was contracted to haul automotive parts that he picked up from four s e p a r a t e warehouses in Laredo to a Ryder Plant in Auburn Hills, Michigan, for d e liv e r y on November 17, 2008. The tractor-trailer's bill of lading confirmed this r o u t e . Agent Rich later inspected each of the four warehouses, noting that every w a r e h o u s e had security cameras and finding no evidence of marijuana in any of th em . A g e n t Rich also learned that the padlock securing the trailer belonged to E s p in o z a personally rather than the trailer company or the owner of the truck, a n d that the padlock was placed on the trailer after Espinoza's stop at the fourth w a r e h o u s e . Although the trip from Laredo to Auburn Hills was only scheduled t o take three days, Espinoza left Laredo six days before the delivery date. At t r ia l, Agent Rich agreed with Agent Martinez's opinion that the seal on the t r a c t o r -t r a ile r could have been purchased at any truck stop. A t trial, Kari McDonald, Ryder's shipping and receiving manager, testified t h a t despite Espinoza's arrest, the truck driven by Espinoza carrying the 3

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No. 09-40583 a u t o m o tiv e parts arrived on time on November 17, 2008. McDonald also

t e s t ifie d that forklift operators unloaded the truck, and that between ten and fift e e n employees were present when the truck originally driven by Espinoza w a s unloaded. At least one of the individuals did not know that he would be a s s ig n e d to unload Espinoza's truck until the morning that it arrived in Auburn H ills , and McDonald testified that substitute employees are always present to a s s is t with unloading in the event that someone is absent. McDonald testified t h a t she did not believe it would have been possible for Ryder employees to have u n lo a d e d the truck without detecting more than 200 pounds of marijuana. She a ls o testified that had Ryder employees found the contraband, it would have b e e n considered "a very big deal," and would have resulted in a call to the police. She also confirmed that it should have only taken Espinoza three days to travel fr o m Laredo to Auburn Hills. A t trial, DEA Agent Kurt Jestes testified that the seized marijuana had a gross weight of 118 kilograms, which equated to a value of $33,748 to $46,728 in Laredo and $181,720 to $259,600 in Detroit. Agent Jestes testified that the p r ic e increased so dramatically because transporting marijuana from Texas to M ic h ig a n required paying fees to numerous people, such as the owner of any " s t a s h houses," the driver of the truck, and the "broker" who finds the driver. Additionally, Agent Jestes stated that the marijuana would become more e x p e n s iv e the farther north it had to travel because of the increased risk of an e n c o u n t e r with law enforcement. E s p in o z a pled not guilty and proceeded to trial on two counts: (1) c o n s p ir a c y to possess with the intent to distribute over 100 kilograms of m a r iju a n a , in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B); and (2) p o s s e s s io n with the intent to distribute over 100 kilograms of marijuana, in v io la t io n of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2. At the c lo s e of the Government's case, Espinoza moved for a judgment of acquittal, 4

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No. 09-40583 w h ic h the district court granted as to the conspiracy charge. The district court d e n ie d Espinoza's motion as to the possession charge, and submitted his case to t h e jury. To find Espinoza guilty of possession with intent to distribute a controlled s u b s t a n c e , the jury was required to find, beyond a reasonable doubt, that E s p in o z a (1) possessed the marijuana, (2) knew he possessed the marijuana, and (3 ) had the intent to distribute the marijuana. See United States v. Solis, 299 F .3 d 420, 446 (5th Cir. 2002). With regard to the knowledge requirement, the d is t r ic t court provided the jury with the following instructions: T h e word "knowingly" as that term has been used from time to time i n these instructions, means that the act was done voluntarily and in t e n t io n a lly and not because of mistake or accident. Possession, as t h a t term is used in this case, may be of two kinds: actual possession a n d constructive possession. A person who knowingly has direct p h y s ic a l control over a thing, at a given time, is then in actual p o s s e s s io n of it. A person who, although not in actual possession, knowingly has both t h e power and the intention, at a given time, to exercise dominion or c o n t r o l over a thing, either directly or through another person or p e r s o n s , is then in constructive possession of it. P o s s e s s io n may be sole or joint. If one person alone has actual or c o n s t r u c t iv e possession of a thing, possession is sole. If two or more p e r s o n s share actual or constructive possession of a thing, possession is joint. You may find that the element of possession, as that term is used in t h e s e instructions, is present if you find beyond a reasonable doubt t h a t the defendant had actual or constructive possession, either alone o r jointly with others. The jury found Espinoza guilty, and he timely appealed. I I . ANALYSIS O n appeal, Espinoza advances five arguments. First, he contends that his a t t o r n e y was constitutionally ineffective based on his failure to request a P e n n in g to n jury instruction. Next, Espinoza alleges that the district court erred 5

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No. 09-40583 b y not including a Pennington instruction sua sponte. Espinoza also argues that t h e prosecution impermissibly commented on his post-arrest, pre-Miranda s ile n c e . Additionally, Espinoza argues that Agent Jestes, the Government's d e s ig n a t e d expert as to the street value of the marijuana, improperly commented o n the ultimate legal issue--whether Espinoza had knowledge of his p o s s e s s io n -- a n d thus invaded the province of the jury. Finally, Espinoza

c o n t e n d s that the Government did not put forth sufficient evidence to sustain his c o n v ic t io n . We address each argument in turn. A. I n e ff e c ti v e Assistance of Counsel W e have previously held that "`Sixth Amendment claims of ineffective a s s is t a n c e of counsel should not be litigated on direct appeal, unless they were p r e v io u s ly presented to the trial court.'" United States v. Aguilar, 503 F.3d 431, 4 3 6 (5th Cir. 2007) (quoting United States v. Partida, 385 F.3d 546, 568 (5th Cir. 2 0 0 4 )). On direct appeal, we will only consider ineffective assistance of counsel c la im s "in `rare cases' in which the record allows [us] to `fairly evaluate the m e r it s of the claim.'" Id. (quoting Partida, 385 F.3d at 568.) Here, as in Aguilar, " t h e district court did not hold a hearing [on the ineffective assistance of counsel c la im ] and the record does not provide sufficient detail about trial counsel's c o n d u c t and motivations to allow [us] to make a fair evaluation of the merits of" E s p in o z a 's claim. Id. We therefore deny, without prejudice to collateral review, E s p in o z a 's appeal on this ground. See id. B. P e n n in g t o n Jury Instruction E s p in o z a argues that the district court erred by neglecting to provide a P e n n in g to n jury instruction sua sponte. Because Espinoza failed to object to the d is t r ic t court's jury instruction, and we review only for plain error. See United S ta te s v. Betancourt, 586 F.3d 303, 305­06 (5th Cir. 1998). Plain error review r e q u ir e s an examination of "whether the district court committed an error, w h e t h e r that error is plain, and whether the error affect[s] substantial rights." 6

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No. 09-40583 I d . at 306 (alteration in original) (citations and internal quotations marks o m it t e d ). To be "plain," an error must be "obvious." See United States v. Rice, 6 0 7 F.3d 133, 139 (5th Cir. 2010). Espinoza relies heavily on Pennington, the namesake of his requested jury in s t r u c t io n . In that case, two defendants were convicted for possession with in t e n t to distribute marijuana after a canine search at a border checkpoint led t o the discovery of narcotics. Pennington, 20 F.3d at 596­97. The defendants b o th denied knowledge of the presence of the marijuana. Id. Because the d e fe n d a n t s had taken a "circuitous" route, had taken longer than necessary to g e t to their destination, and had seemed disheveled when stopped, the P e n n i n g t o n court held that sufficient evidence existed to support the jury's v e r d ic t that the two knowingly possessed the drugs. Id. at 598­99. T h e Pennington court, however, reversed and remanded the conviction of o n e of the defendants. That particular defendant had requested that the district c o u r t instruct the jury that "control of a vehicle will suffice to prove knowledge o n ly where the drugs `are clearly visible or readily accessible.'" Id. at 598 (q u o tin g United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988)). Instead, the district court simply instructed the jury that "[a]n act is done k n o w in g ly if the defendant is aware of the act and does not act through ig n o r a n c e , mistake, or accident." Id. at 600. Because "the instruction did not s u b s t a n t ia lly cover the issue of constructive possession," the Pennington court r e v e r s e d the defendant's conviction and remanded the case for a new trial. Id. This holding gave rise to what has become known as a Pennington jury in s t r u c t io n , which recommends that the district court advise the jury that: The government may not rely only upon a defendant's ownership a n d control of the vehicle to prove the defendant knew that he p o s s e s s e d a controlled substance. While these are factors you may c o n s id e r , the government must prove that there is other evidence

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No. 09-40583 in d ic a t in g the defendant's guilty knowledge of a controlled s u b s t a n c e hidden in the vehicle. N OTE, FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) § 1.31. Several distinctions exist between this case and Pennington. The

P e n n in g to n court affirmed the conviction of the defendant who did not request t h e jury instruction, while reversing the conviction of the defendant who did r e q u e s t it. Pennington, 20 F.3d at 600. Here, Espinoza did not request the P e n n in g to n jury instruction, and Espinoza has cited no authority for his a r g u m e n t that the district court was bound to issue it sua sponte. Additionally, t h e Pennington court reversed the defendant's conviction after faulting the d is t r ic t court for failing to "substantially cover the issue of constructive p o s s e s s io n ." Id. Here, although the district court failed to give a Pennington in s t r u c t io n , it did provide an instruction on constructive possession. Neither the holding of Pennington nor any other case in this Circuit m a n d a t e s the conclusion that the district court erred. Assuming, without

d e c id in g , that the district court erred, it was not plain or obvious. Because plain e r r o r review requires a clear, obvious mistake by the district court, we find that E s p in o z a has not demonstrated that we should disturb his conviction on this g r o u n d . See Rice, 607 F.3d at 139. C. C o m m e n t s on Espinoza's Post-ArrestPre-Miranda Silence A lt h o u g h Espinoza argues that both Agent Mireles and the prosecutor im p e r m is s ib ly commented on Espinoza's post-arrest, pre-Miranda silence, E s p in o z a failed to object to either instance in front of the district court. Consequently, we ask whether the district court plainly erred. See Betancourt, 5 8 6 F.3d at 305­06. As discussed above, plain error review requires an

e x a m in a t io n of "whether the district court committed an error, whether that e r r o r is plain, and whether the error affect[s] substantial rights." Id. at 306

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No. 09-40583 (a lt e r a t io n in original) (citations and internal quotations marks omitted). To be " p la in ," an error must be "obvious." Rice, 607 F.3d at 139. We have not squarely addressed whether the Government violates a d e fe n d a n t 's Fifth Amendment right against self-incrimination by commenting o n post-arrest, pre-Miranda silence. This question has created a split among our s is t e r circuits, with the Ninth and D.C. Circuits 3 holding that substantive c o m m e n ta r y on a defendant's post-arrest, pre-Miranda silence violates a d e fe n d a n t 's right against self incrimination; the Fourth, Eighth, and Eleventh C ir c u it s4 holding that it does not; and the First, Sixth, and Seventh Circuits 5 h o ld in g that commentary on any pre-arrest silence infringes a defendant's right t o be free from self-incrimination. Assuming, without deciding, that the district c o u r t erred, any error was certainly not clear or obvious. Rice, 607 F.3d at 139. We will therefore not disturb the jury's verdict against Espinoza on this ground. See also United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007) (addressing p o s t -a r r e s t , pre-Miranda silence issue, and stating "[b]ecause this circuit's law r e m a in s unsettled and the other federal circuits have reached divergent c o n c lu s io n s on this issue, even assuming that the prosecutor's comments were im p r o p e r , [the defendant] cannot satisfy the second prong of the plain error t e s t -- t h a t the error be clear under existing law"). D. T e s t i m o n y of Agent Jestes P r io r to trial, Espinoza filed a motion in limine seeking to exclude all G o v e r n m e n t testimony regarding the methods used in drug trafficking
3

See United States v. Velarde-Gomez, 269 F.3d 1023, 1033 (9th Cir. 2001) (en banc); United States v. Moore, 104 F.3d 377, 389 (D.C. Cir. 1997). See United States v. Frazier, 408 F.3d 1102, 1109­11 (8th Cir. 2005); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985). See Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989); Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987).
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No. 09-40583 o p e r a t io n s , explaining that it would impermissibly influence the jury as to the u lt i m a t e legal issue in his case: the knowledge element of the offense. The d is t r ic t court overruled the motion, as well as Espinoza's objections at trial to the t e s t im o n y of Agent Jestes, in which Agent Jestes explained the reasons for the i n c r e a s e in value of marijuana between Texas and Michigan. On appeal,

E s p in o z a argues that Agent Jestes's testimony included generalizations that d r iv e r s are typically hired and provided with drugs, and therefore opined that d r iv e r s know when they possess drugs. W e review "evidentiary rulings on a heightened abuse of discretion basis," b u t "[e]ven an abuse of discretion may not merit reversal if the error . . . was h a r m le s s ." United States v. Franklin, 561 F.3d 398, 404 (5th Cir. 2009).

"[T]estimony in the form of an opinion or inference otherwise admissible is not o b je c t io n a b le because it embraces an ultimate issue to be decided by the trier of fa c t [,]" but an expert witness may not, "with respect to the mental state or c o n d itio n of a defendant in a criminal case . . . state an opinion or inference as t o whether the defendant did or did not have the mental state or condition c o n s t it u t in g an element of the crime charged or of a defense thereto." FED. R. E VID. 704. " I n drug profile cases law enforcement personnel usually testify that b e c a u s e the defendant's conduct matches the profile of a drug courier, he knew a b o u t the drugs he was transporting." United States v. Sanchez-Hernandez, 507 F .3 d 826, 832 (5th Cir. 2007). Because "[a] `drug courier profile' is `nothing more t h a n a compilation of characteristics that aid law enforcement officials in id e n tify in g persons who might be trafficking in illegal narcotics,'" id. at 831 (q u o tin g United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992)), we have h e ld that "[d]rug courier profile testimony is `inadmissible to prove substantive g u ilt based on similarities between defendants and a profile.'" Id. at 832

(q u o tin g United States v. Brito, 136 F.3d 397, 412 (5th Cir. 1998)). We have also 10

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No. 09-40583 h e l d , however, that "`narcotics agent[s] may testify about the significance of c e r t a in conduct or methods of operation unique to the drug business so long as t h e testimony is helpful and its relevance is not substantially outweighed by the p ossibility of unfair prejudice or confusion,'" United States v. Ramirez-Velasquez, 3 2 2 F.3d 868, 879 (5th Cir. 2003) (quoting United States v. Garcia, 86 F.3d 394, 4 0 0 (5th Cir. 1996)) (alteration in original), so long as the Government refrains fr o m going "too far in soliciting the functional equivalent of an opinion whether t h e defendant knew he was carrying drugs." Id. (citing United States v.

G u tie r r e z -F a r ia s , 294 F.3d 657, 663­64 (5th Cir. 2002)). Espinoza objected to the following exchange: THE GOVERNMENT: Okay. And that's a big difference between t h e low in Laredo and the high in Detroit. Why does the marijuana g o up when it goes north? A G E N T JESTES: There's numerous factors that go into the p r ic e -- w h y the price increases. Using this example of this amount o f marijuana just saying from Laredo to being transported to D e t r o it , Michigan in a say a tractor-trailer, the amount is going to b e starting in Laredo there's numerous people that are going to have t o be paid certain fees. It's going have to stay at a house or a stash lo c a tio n here in Laredo which that person is going to have to be p a id . T H E DEFENSE: Your Honor, I'm going to object. This goes b e y o n d -- h e 's already testified as to values and not been challenged. T H E COURT: The objection is overruled. T H E GOVERNMENT: Thank you. Please proceed. A G E N T JESTES: Where the marijuana is stored here before it's g iv e n to the tractor-trailer driver or the driver that's going to t r a n s p o r t it, the person that has it at the house is going to have to b e paid a fee. And then you're going to have a person that goes and s e a r c h e s for the driver, which in our terms we call it a broker, e s s e n t ia lly . And that person is going to have to go find the driver to t r a n s p o r t . Which that person is going to have to be paid a fee. And t h e n once it's ready to be transported.

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No. 09-40583 T H E DEFENSE: Your Honor, we're going to object, [J]udge. It goes t o our pretrial motions concerning the extent of this witness's t e s t im o n y , permissible testimony, Judge. T H E COURT: I don't think it's gotten quite that far, but I would ask y o u to respond to the question that is being asked. That is basically w h y does the value increase from Laredo to Detroit without going b e y o n d that question. A G E N T JESTES: Okay. T H E GOVERNMENT: Generally, let me interrupt here. Generally, t h e further north it goes, there's more risk as you go north, correct? A G E N T JESTES: Yes. Generally once the person is going to t r a n s p o r t it from Laredo to Detroit in this matter, the person is g o in g to have custody of the marijuana for a longer period of time, which is going [to] increase the risk. The first risk is going to--from g o in g from Laredo, you're going to have to cross a checkpoint which h a s a chance of getting caught by law enforcement. And then after t h a t , going to Detroit you have to maintain custody of that m a r iju a n a during the entire time which you have--assume the risk o f being stopped by law enforcement, having an accident of being b r o k e n down on the side of road. All those different factors that c o u ld come into play where you could come into contact with law e n fo r c e m e n t where the marijuana could be seized. So and all those c o s t s that are associated with it. So the price--. T H E DEFENSE: Your Honor, we're going to object to the narrative n a t u r e of the answer, Judge. And we renew our objection from the p r e v io u s issue. T H E COURT: The objection is overruled. E s p in o z a relies heavily on Gutierrez-Farias, in which we agreed with a d e fe n d a n t that a government witness crossed "the borderline long recognized by t h is court between a mere explanation of the expert's analysis of the facts and a forbidden opinion on the ultimate legal issue in the case." 294 F.3d at 663 (c it a t io n s and internal quotations marks omitted). In Gutierrez-Farias, the a g e n t described the manner in which transporters are chosen as such: The way it usually works in that respect is that I don't think they w o u ld target somebody just off the street that, you know, has no 12

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No. 09-40583 k n o w le d g e . . . . Usually they want to use people that . . . have a c e r t a in amount of trust and responsibility because . . . [of] the a m o u n t of money that the narcotics communicates too. . . . [T]he p e o p le need a certain amount of credentials. Id. at 662. We concluded that "[t]he clear suggestion of [the agent's] testimony is that, because most drivers know there are drugs in their vehicles, [the d e fe n d a n t ] must have known too," and that "[a]lthough admittedly [the agent] d id not say the magic words--`In my expert opinion, [the defendant] knew the m a r iju a n a was in the tires.'--we believe his testimony amounted to the fu n c tio n a l equivalent of such a statement." Id. at 663; but see id. at 663­64 (a ffir m in g the defendant's conviction after finding that the district court's error w a s harmless). Similarly, in United States v. Mendoza-Medina, we held that the district c o u r t abused its discretion when it allowed, over objection, an agent's testimony t h a t "(1) managers in charge of transportation recruit people to transport drugs; (2 ) the amount of drugs in a load depends on the person's narcotics transporting e x p e r ie n c e . . . ; (3) trust between the distributor and driver is an essential c o m p o n e n t ; and (4) narcotics traffickers bring their wives and children along." 346 F.3d 121, 127, 129 (5th Cir. 2003). The prosecutor subsequently used this t e s t im o n y as substantive evidence demonstrating the defendant's guilt. See id. a t 128 (quoting the prosecution as stating "`[The agent's] experience of five years a n d hundreds of cases here in Laredo, Texas tells us the defendant knew . . . ,' a n d `we also know that it's true, based on DEA intelligence, that narcotics t r a ffic k in g organizations don't just stick marijuana on tractors of drivers that d o n 't know where it's going.'"). In finding that the district court abused its d is c r e t io n , we analogized the defendant's case to Gutierrez-Farias and RamirezV e la s q u e z ,6 noting that the agent "made the same generalized statements
In Ramirez-Velasquez, we found that the district court plainly erred by allowing an agent to testify "that drivers are paid based on past performance, and that organizations tend
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No. 09-40583 r e g a r d in g distributors having to trust their couriers," and that "the prosecutor a r g u e d that this testimony proved that [the defendant] knew the drugs were p r e s e n t , using the testimony as substantive evidence." Mendoza-Medina, 346 F .3 d at 129; but see id. (finding the district court's error in admitting the agent's t e s t im o n y harmless).7 W e are not persuaded by the cases cited by Espinoza. The reoccurring t h e m e in those cases is the inference that drug dealers need to trust their c o u r ie r s and that the couriers therefore need to know they are carrying c o n t r a b a n d , which leads to the implication that a particular defendant knew he p o s s e s s e d narcotics. Here, however, Agent Jestes did not provide the jury details a s to the common characteristics of marijuana transporters themselves, or opine a s to whether drug dealers usually know and trust those who transport their c o n t r a b a n d . Rather, Agent Jestes explained to the jury the risks involved with t r a n s p o r t in g marijuana long distances, and why those risks increased the price o f marijuana as it travels farther from its source. This testimony is more similar t o that in Sanchez-Hernandez, 507 F.3d at 832­33, in which we found no abuse o f discretion when an officer testified as to how drug smuggling operations are c o n d u c t e d along the Mexican border, and that in Garcia, 86 F.3d at 349­400, in w h ic h we found no abuse of discretion when an agent testified as to his belief t h a t 166.9 kilograms of cocaine indicated a large narcotics operation involving " c a r swaps," "stash houses," and "heat runs." We therefore hold that the district c o u r t did not abuse its discretion by admitting Agent Jestes's testimony.

to seek trustworthy drivers because their cargo is valuable and uninsurable." 322 F.3d at 878­79 (citation omitted); but see id. at 879 (holding that despite the district court's error, the defendant was not entitled to relief on his claim because the error did not affect the defendant's substantial rights). See also United States v. Ibarra, 493 F.3d 526, 530, 532 (5th Cir. 2007) (reversing a district court that admitted testimony from an agent who stated that, "in his experience he had never seen a drug trafficking organization entrust a shipment of narcotics of that size to a courier without the courier knowing that he was carrying something illegal").
7

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Case: 09-40583

Document: 00511204831

Page: 15

Date Filed: 08/16/2010

No. 09-40583 E. S u f f i c i e n c y of the Evidence E s p in o z a argues that the Government did not submit sufficient evidence t o sustain the jury's verdict. Because Espinoza filed a motion for judgment of a c q u it t a l, "we review the district court's denial of that motion by examining the e v id e n c e and all reasonable inferences drawn therefrom in the light most fa v o r a b le to the verdict, and asking whether a rational trier of fact could have fo u n d guilt beyond a reasonable doubt." United States v. Montes, 602 F.3d 381, 3 8 8 (5th Cir. 2010) (citing United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2 0 0 6 )). "`[I]t is not necessary that the evidence exclude every reasonable

h y p o t h e s is of innocence or be wholly inconsistent with every conclusion except t h a t of guilt, provided a reasonable trier of fact could find that the evidence e s t a b lis h e s guilt beyond a reasonable doubt.'" Id. (quoting United States v. Bell, 6 7 8 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc)) (alteration in original). "[C]ircumstances altogether inconclusive, if separately considered, may, by their n u m b e r and joint operation, especially when corroborated by moral coincidences, b e sufficient to constitute conclusive proof." United States v. Ayala, 887 F.2d 62, 6 7 (5th Cir. 1989) (alteration in original) (citation and internal quotation marks o m itte d ). "To prove possession of marijuana with intent to distribute, the g o v e r n m e n t must demonstrate beyond a reasonable doubt that (1) the defendant k n o w in g ly possessed a controlled substance; (2) the substance was in fact m a r iju a n a ; and (3) the defendant possessed the substance with the intent to d is t r ib u t e it." United States v. DeLeon, 247 F.3d 593, 596 (5th Cir. 2001)

(c it a t io n omitted). As discussed above, where, as here, drugs are hidden in a v e h ic le , control of the vehicle alone does not suffice to establish knowledge. See P e n n in g to n , 20 F.3d at 598. We have, however, held that "[o]ne example of c ir c u m s t a n t ia l evidence which may be probative of knowledge is the value of the

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Case: 09-40583

Document: 00511204831

Page: 16

Date Filed: 08/16/2010

No. 09-40583 d r u g being transported." United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2 0 0 3 ) (citations omitted). Although the Government did not introduce overwhelming evidence t e n d in g to demonstrate Espinoza's knowledge in this case, we cannot say, after d r a w in g all reasonable inferences in favor of the verdict, that no rational trier o f fact could have found Espinoza guilty. See Montes, 602 F.3d at 388 (citation o m it t e d ). Espinoza had his own personal padlock on the trailer. Additionally, a lt h o u g h the bill of lading suggested that his trip was only supposed to take t h r e e days, Espinoza left three days earlier than necessary. This, coupled with M c D o n a ld 's testimony that it would have been impossible to unload a p p r o x im a t e ly one hundred kilograms of marijuana without detection at Ryder's A u b u r n Heights facility, gives rise to an inference that Espinoza left Laredo e a r ly to allow himself time to deliver the marijuana before making his legitimate d e liv e r y . See generally United States v. Abreu, 348 F. App'x 8, 10 (5th Cir. 2001) (p e r curiam) (unpublished) ("An inference of guilty knowledge . . . arose from the fa c t that it took [the defendant] over six hours to transport the load to the Sierra B la n c a checkpoint, a two-to-three hour trip, and that he provided no full e x p la n a t io n for the length of his trip. This evidence raised an inference that the d r u g s were placed in the trailer after [the defendant] left the loading area . . . ."). Finally, Espinoza was caught with a significantly valuable amount of marijuana, w h ic h can also give rise to an inference of knowledge. See Villarreal, 324 F.3d a t 324; see generally United States v. Resio-Trejo, 45 F.3d 907, 913 (5th Cir. 1 9 9 5 ) (describing as "incredulous" the defendant's theory that someone would c o n s t r u c t secret compartments in his truck and load it with more than $130,000 w o r t h of marijuana without his knowledge). Because the jury could have

r e a s o n a b ly concluded that Espinoza knowingly possessed the marijuana with the in t e n t to distribute it, we affirm the denial of Espinoza's motion for acquittal.

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Case: 09-40583

Document: 00511204831

Page: 17

Date Filed: 08/16/2010

No. 09-40583 I I I . CONCLUSION B e c a u s e Espinoza has not demonstrated that his is the rare case in which w e should consider his ineffective assistance of counsel claim on direct review, w e decline to do so. Additionally, we find that the district court did not plainly e r r by failing to provide the jury with a Pennington instruction sua sponte, or by a llow in g Agent Mireles and the prosecutor to comment on Espinoza's post-arrest, p r e -M ir a n d a silence. We also find that the district court did not abuse its d is c r e t io n by admitting the testimony of Agent Jestes, who provided the jury w it h information regarding the increase in value of marijuana between Laredo a n d Auburn Hills. Finally, the Government introduced sufficient evidence to s u s t a in the jury's guilty verdict. c o n v ic tio n . A F F IR M E D . For these reasons, we affirm Espinoza's

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