Filed: Mar. 27, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 27, 2007 Charles R. Fulbruge III Clerk No. 05-41473 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus IRMA SALAZAR, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas (5:04-CR-2245-ALL) Before SMITH, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* Convicted for bulk-cash smuggling and evading a currency- reporting requirement, Irma Sal
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 27, 2007 Charles R. Fulbruge III Clerk No. 05-41473 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus IRMA SALAZAR, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas (5:04-CR-2245-ALL) Before SMITH, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* Convicted for bulk-cash smuggling and evading a currency- reporting requirement, Irma Sala..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 27, 2007
Charles R. Fulbruge III
Clerk
No. 05-41473
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRMA SALAZAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-2245-ALL)
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Convicted for bulk-cash smuggling and evading a currency-
reporting requirement, Irma Salazar claims: evidence was
erroneously admitted; and the evidence is not sufficient to support
the jury verdict. AFFIRMED.
I.
Salazar was stopped by a Border Patrol Inspector while driving
a pickup truck into Mexico on the Lincoln-Juarez Bridge. As is
customary, the Inspector asked if she was transporting firearms,
*
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this opinion should not be published and is not precedent except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.
ammunition, or over $10,000 in cash, currency, or money orders out
of the United States. She responded in the negative.
The Inspector then looked at the gas-tank area of the
vehicle’s undercarriage, where he observed unusual conditions. As
a result, he referred Salazar’s vehicle to the secondary inspection
area. There, the Inspector inserted a fiber-optic scope into the
gas tank. Using the scope, he and another Inspector saw rust and
welding marks, which they agreed indicated something was in the gas
tank. Salazar did not inquire what the Inspectors were doing,
which one testified as being unusual in his experience. In
response to questioning, Salazar stated she had not had any repairs
done to the vehicle and was traveling from Chicago, Illinois, to
Guadalajara, Mexico.
Further inspection revealed a trap door in the gas tank, which
concealed a compartment containing $418,300 in United States
currency inside a plastic bag and bundled with rubber bands. One
bundle was labeled with a note in Spanish: “Look, please deliver
... to my lady [or wife]”. The installation of the compartment
caused the gas tank’s capacity to be reduced by approximately half.
Salazar was charged with: transporting monetary instruments
of more than $10,000 outside the United States from a place within,
in violation of 31 U.S.C. § 5332(a) and 18 U.S.C. § 2; and evading
a currency reporting requirement, in violation of 31 U.S.C. §§
5316(a)(1)(B), 5322(a), and 18 U.S.C. § 2. A jury found her guilty
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on both counts. She was sentenced, inter alia, to 30 months’
imprisonment for each count, to be served concurrently.
II.
The challenges to evidentiary admissibility and sufficiency
are addressed in turn. Salazar fails to show: the admission of
evidence, based on a calculation she claims is arbitrary, was
reversible plain error; and the evidence was insufficient to prove,
beyond a reasonable doubt, that she knew the currency was concealed
in the vehicle.
A.
At trial, an Immigration and Customs Enforcement Agent, who
had interviewed Salazar post-arrest about her trip from Illinois,
testified regarding the increased number of fuel stops required due
to the altered/reduced gas tank. He relied on a related map,
basing his calculations on gas mileage of 17.5 miles-per-gallon —
the average of the unchallenged city and highway gas mileages for
Salazar’s vehicle. The testimony was intended to support a
reasonable inference that Salazar knew the vehicle’s tank capacity
had been altered/reduced.
Salazar contends the district court abused its discretion in
allowing the Agent to rely on the 17.5 figure because it is
arbitrary and does not reflect the largely highway nature of her
route from Aurora, Illinois, to Laredo, Texas. She maintains she
objected to the figure at trial. The Government counters: Salazar
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did not object to the use of the figure; and the district court did
not err in admitting the testimony and map.
When the Agent testified, Salazar objected to his testimony
regarding where, given the vehicle’s reduced fuel capacity, she
would be forced to stop, but did not object to the gas-mileage
calculation upon which that testimony was based. It was not until
the next day, after the Government had rested, and had then offered
the map in evidence, that Salazar objected to the 17.5 miles-per-
gallon figure. Salazar claimed it should have been 20 miles-per-
gallon. Needless to say, this objection should have been made when
the Agent testified the day before. Salazar did not present
evidence. Therefore, the testimony had ended. She did not ask to
re-open it.
As a result, our review is only for plain error. United
States v. Thompson, 454 F.3d 459, 464 (5th Cir.), cert. denied, 127
S. Ct. 602 (2006) (when no objection is made at trial, an
evidentiary ruling is reviewed only for plain error). “To
demonstrate plain error, [Salazar] must show that the district
court committed an error that was clear or obvious and that
affected [her] substantial rights.”
Id. Salazar fails to do so.
(Therefore, we need not proceed to whether it would have been
reversible error. Id.)
The 17.5 figure was within the mileage range Salazar
acknowledged as accurate for the vehicle. That a more precise
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figure tailored to the route’s percentage of urban and rural areas
could have been used does not make the 17.5 figure erroneous.
Moreover, even if the Agent’s testimony had been based on the
higher highway gas mileage, it would have resulted in just one
fewer fuel stop being required — five instead of six. Furthermore,
on cross-examination, the Agent acknowledged the 17.5 figure was
chosen because it was the average of the city and highway gas
mileages and not because it reflected the driving conditions from
Aurora to Laredo.
B.
Salazar’s having properly moved at trial for judgment of
acquittal, her sufficiency challenge is “reviewed in the light most
favorable to the verdict, inquiring only whether a rational juror
could have found each element of the crime proven beyond a
reasonable doubt”. United States v. Jennings, 195 F.3d 795, 801
(5th Cir. 1999). “To support a conviction, the evidence need not
exclude every hypothesis of innocence, so long as a reasonable
trier of fact could find that the evidence establishes guilt beyond
a reasonable doubt.” United States v. Diaz-Carreon,
915 F.2d 951,
953-54 (5th Cir. 1990) (emphasis added). “‘A jury is free to
choose among reasonable constructions of the evidence.’”
Id. at
954 (quoting United States v. Bell,
678 F.2d 547, 549 (Former 5th
Cir. 1982) (en banc), aff’d,
462 U.S. 356 (1983)).
5
To obtain a conviction for bulk-cash smuggling, the Government
had to prove Salazar,
with the intent to evade a currency reporting
requirement under [31 U.S.C. §] 5316,
knowingly conceal[ed] more than $10,000 in
currency or other monetary instruments on
[her] person ... or in any conveyance ... and
transport[ed] or transfer[red] or attempt[ed]
to transport or transfer such currency or
monetary instruments from a place within the
United States to a place outside of the United
States.
31 U.S.C. § 5332(a)(1).
To obtain a conviction for evading the currency-reporting
requirement, the Government had to prove: (1) Salazar knowingly
transported or was about to transport more than $10,000 in currency
at one time from a place in the United States to a place outside
it; (2) she knew she had a legal duty to file a report of the
amount of currency transported; and (3) she knowingly failed to
file the report, with intent to violate the law. Fifth Circuit
Pattern Jury Instructions (Criminal) § 2.98 (2001); 31 U.S.C. §
5316; see also United States v. Berisha, 925 F.2d 791, 795 (5th
Cir. 1991) (To establish guilt under § 5316(a), “the government
must show that the defendant had actual knowledge of the currency
reporting requirement and voluntarily and intentionally violated
that known legal duty”.).
Salazar does not dispute either that more than $10,000 in
currency was found in a vehicle she owned and was driving or that
she knew of the reporting requirement. Rather, she contends only
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that the Government’s evidence could not have led a reasonable jury
to find, beyond a reasonable doubt, that she knew the currency was
in the vehicle, and thereby knowingly concealed, transported, and
failed to report the currency as required by 31 U.S.C. §§ 5316(a)
and 5332(a)(1).
Although a jury “‘may infer knowledge of the presence of
contraband from the exercise of control over the vehicle in which
it is concealed[,] ... additional circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge is required’”
when the contraband is in a hidden compartment in the vehicle.
United States v. Gamez-Gonzalez, 319 F.3d 695, 698 (5th Cir. 2003)
(quoting United States v. Jones,
185 F.3d 459, 464 (5th Cir.
1999)). Possible examples of such evidence are conflicting
statements to law enforcement, an implausible story, possession of
large amounts of cash, alteration of the vehicle, dramatically
reduced fuel capacity, and a calm or indifferent demeanor during
the dismantling of the gas tank. See United States v. Martinez-
Lugo,
411 F.3d 597, 599 (5th Cir.), cert. denied,
126 S. Ct. 464
(2005); United States v. Resio-Trejo,
45 F.3d 907, 913 (5th Cir.
1995).
The circumstantial evidence, viewed in the requisite light
most favorable to the verdict, was sufficient for a jury to find,
beyond a reasonable doubt, that Salazar knew the currency was
concealed in her vehicle’s gas tank. Her knowledge was supported
7
by: her inconsistent statements to law enforcement regarding
recent repairs made to the vehicle by her brother-in-law; her
taking the vehicle to her brother-in-law for repairs, rather than
a dealer when it was under warranty; the vehicle’s decreased fuel
capacity, resulting from installation of the compartment; her
purchase of the vehicle from her sister (whose husband had been
arrested for bringing cocaine into the United States in a vehicle’s
gas tank) in small monthly payments, when the sister allegedly sold
the vehicle because she needed money; the lack of explanation for
the vehicle’s accumulation of almost 20,000 miles in fewer than
four months; her failure to question the insertion of the fiber-
optic scope into the gas tank; the value of the currency; and the
note attached to it.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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