F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              MAR 2 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 02-2180
                                                        (D. New Mexico)
 JOSE ASCENCION HERRERA-                            (D.Ct. No. CR-01-963-LH)
 HERNANDEZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Jose Herrera-Hernandez was found guilty by a jury of transporting illegal

aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i), and

(a)(1)(A)(v)(II). He appeals the district court’s denial of his motion for a

judgment of acquittal, claiming there was insufficient proof that he knew of, or

recklessly disregarded, the fact that his passengers were in the United States

illegally. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

      We present the evidence adduced at trial in the light most favorable to the

Government. In April 2001, Deputy Sheriff Sean Pruitt saw a van stop at the

intersection of Sumner Avenue and Fourth Street in Fort Sumner, New Mexico.

The intersection had no stop sign and two vehicles behind the van were forced to

stop suddenly. The van bore a Texas license plate, its rear doors were held shut

with a bungee cord and the brake light above the doors was missing. Pruitt turned

on his emergency lights and stopped the van.

      Pruitt asked Herrera-Hernandez, the driver, to produce a driver’s license

and vehicle registration. While waiting for the documents, Pruitt saw passengers

in the van. After calling in the registration and driver’s license number, Pruitt

learned that Herrera-Hernandez’s driver’s license had been suspended and the

insurance on the van was expired. When Pruitt asked the passengers for

identification, he received no response. Pruitt told Herrera-Hernandez to follow


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him to the sheriff’s department, where Pruitt called the U.S. Border Patrol.

Several hours later, border patrol agents Ochoa and Harrison arrived at the

sheriff’s department from their office in Carlsbad, New Mexico, approximately

180 miles away. When they arrived, Herrera-Hernandez agreed to answer their

questions. Herrera-Hernandez said he was transporting the passengers for his

brother’s business. He said he would help the agents investigate other companies

who transported illegal aliens from Houston, but would not provide information

about his brother’s organization. When Agent Harrison then asked him if he

knew the people in the van were illegal aliens, Herrera-Hernandez gestured and

said, “yeah.” Herrera-Hernandez denies this occurred.

      On July 24, 2001, a grand jury returned a two-count indictment against

Herrera-Hernandez for transporting illegal aliens. At trial, the jury returned a

verdict of guilty on both counts and Herrera-Hernandez moved for a judgment of

acquittal. The district court denied his motion and sentenced Herrera-Hernandez

to thirty months imprisonment. This timely appeal followed.

Discussion

      We review insufficiency of the evidence claims de novo. United States v.

Van Tieu, 

, 921-22 (10th Cir. 2002). We review the evidence in the

light most favorable to the Government to determine whether a rational jury could

have found the defendant guilty beyond a reasonable doubt. 

not


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weigh conflicting evidence, nor do we consider the credibility of the witnesses.

are resolved in favor of the Government. 

is required to prove: “(1) the transporting or moving of an

alien within the United States, (2) that the alien was present in violation of the

law, (3) that [Herrera-Hernandez] was aware of the alien’s status, and (4) that

[Herrera-Hernandez] acted willfully in furtherance of the alien’s violation of the

law.” United States v. Barajas-Chavez, 

, 1287 (10th Cir.) (en banc)

(quoting United States v. Diaz, 

, 788 (5th Cir. 1991), cert. denied,

(1999). Herrera-Hernandez claims the Government did not offer

adequate proof that he knew the people in the van were illegal aliens. Although

Herrera-Hernandez admits Harrison testified that Herrera-Hernandez confessed to

knowledge of the passengers’ status by gesturing and saying “yeah,” he claims

that, even if he made the gesture and comment, the response was made during

interrogation when he was not under oath. Because his testimony at trial denying

knowledge was under oath, he claims it should be given greater weight. This

argument is without merit.

      The jury heard evidence that Herrera-Hernandez admitted he knew he was

transporting illegal aliens. Even though there was testimony to the contrary, the

jury obviously believed the agent. As we do not determine the credibility of the

witnesses or the weight of the evidence, this fact alone is sufficient proof of


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Herrera-Hernandez’s knowledge.

     The denial of the motion for acquittal is AFFIRMED.

                                   Entered by the Court:

                                   Terrence L. O’Brien
                                   United States Circuit Judge




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