USA v. Jose Galloso-Hurtado

Filing

UNPUBLISHED OPINION FILED. [10-40263 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO Mandate pull date is 01/19/2011 for Appellant Jose M. Galloso-Hurtado [10-40263]

USA v. Jose Galloso-Hurtado Case: 10-40263

Document: 00511335615 Page: 1 Date Filed: 12/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40263 S u m m a r y Calendar December 29, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J O S E M. GALLOSO-HURTADO, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-982-1

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* J o s e M. Galloso-Hurtado appeals his jury-trial conviction for possession o f, with intent to distribute, 100 kilograms or more of marijuana, in violation of 2 1 U.S.C. § 841(a)(1), (b)(1)(B). Galloso contends the evidence was insufficient t o support his conviction, claiming the Government failed to show he knew there w a s marijuana in the trailer of his tractor-trailer truck when he drove it to a B o r d e r Patrol checkpoint.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-40263 Document: 00511335615 Page: 2 Date Filed: 12/29/2010 No. 10-40263 A district court's denial of a motion for judgment of acquittal is reviewed d e novo. E.g., United States v. Campbell, 52 F.3d 521, 522 (5th Cir. 1995). Galloso's motions for judgment of acquittal, made at the close of the G o v e r n m e n t 's case and at the close of the evidence, preserved his challenge to t h e sufficiency of the evidence. E.g., United States v. Mendoza, 226 F.3d 340, 3 4 3 (5th Cir. 2000). Accordingly, the jury's verdict will be upheld if a reasonable t r ie r of fact could conclude from the evidence that the elements of the offense w e r e established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 3 1 9 (1979). Along this line, the evidence, both direct and circumstantial, is v ie w e d in the light most favorable to the jury's verdict. E.g., United States v. R e s io -T r e jo , 45 F.3d 907, 910 (5th Cir. 1995). A s noted, the sole issue raised is Galloso's knowledge of the marijuana, an e le m e n t necessary for his convictions. See United States v. Garza, 990 F.2d 171, 1 7 4 (5th Cir. 1993). That "element [for] a possession case can rarely be

e s t a b lis h e d by direct evidence". United States v. Mendoza, 522 F.3d 482, 489 (5 t h Cir. 2008) (internal quotation marks and citation omitted). Accordingly, "[a] ju r y may infer knowledge from the defendant's control over a vehicle containing c o n t r a b a n d unless the drugs are hidden in compartments, in which case proof o f the defendant's knowledge depends on inference and circumstantial evidence". United States v. Garcia-Flores, 246 F.3d 451, 454 (5th Cir. 2001). T h e evidence demonstrates that Galloso initially told Border Patrol Agent C e n t e n o that he had picked up a loaded trailer in McAllen, Texas, and was h a u lin g it to New York. Galloso's story changed post-arrest, however, when he t o ld Agent Centeno and Drug Enforcement Agency Task Force Officer Gutierrez t h e following: on 5 November 2009, he picked up another load in Laredo, Texas; he was called back to Laredo for picking up the wrong trailer; he returned it to L a r e d o ; and then traveled, without a trailer, from Laredo to McAllen where he p ic k e d up the correct trailer. The trailer Galloso brought to the checkpoint, h o w e v e r , was his own trailer, and his story to Officer Gutierrez did not explain 2

Case: 10-40263 Document: 00511335615 Page: 3 Date Filed: 12/29/2010 No. 10-40263 w h e r e he left his trailer when he picked up the wrong trailer in Laredo. When q u e s t io n e d by Agent Centeno, Galloso could not explain what routes he had t a k e n to Laredo and McAllen. Galloso's log-book entries, which were in his p o s s e s s io n at the time of his arrest, did not provide any indication he had picked u p a trailer in Laredo, and the trucking company owner testified the load G a llo s o picked up in Pharr, Texas, near McAllen, never originated in Laredo and w a s not arranged until 6 November 2009. Consequently, the load Galloso picked u p in Pharr could not have been related to the alleged incorrect trailer Galloso s t a t e d he picked up in Laredo. Finally, it was reasonable for the jury to infer Galloso would not have been e n tr u s te d to possess the 715 pounds of marijuana (with a value of more than $ 5 0 0 ,0 0 0 ) without knowledge of it. See id. at 455. Although Galloso maintains t h e r e are innocent explanations for his statements and for the implausibility of h is story, the totality of the evidence was sufficient for a reasonable juror to infer t h a t Galloso knew marijuana was in the trailer. See id. at 454-55; United States v . Ramos-Garcia, 184 F.3d 463, 466-67 (5th Cir. 1999). F o r the first time on appeal, Galloso asserts: the Government was

o b lig a t e d , but failed, to prove he knew the drug quantity involved, making the e v id e n c e insufficient to support his conviction; and the jury instructions were e r r o n e o u s because the district court did not instruct the jury on such obligation. Galloso concedes these related drug-quantity issues are foreclosed by United S ta te s v. Betancourt, 586 F.3d 303 (5th Cir. 2009), cert. denied, 130 S. Ct. 1920 (2 0 1 0 ), and raises them solely to preserve them for possible further review. A F F IR M E D .

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