Filed: Feb. 22, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE February 21, 2007 UNITED STATES COURT OF APPEALS FOR THE Charles R. Fulbruge III FIFTH CIRCUIT Clerk _ No. 05-51016 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SERGIO RAMIREZ, Defendant-Appellant. _ On appeal from the United States District Court for the Western District of Texas No. 5:04-CR-388-1 _ Before DAVIS and STEWART, Circuit Judges, and GODBEY, District Judge.* PER CURIAM:** Appellant Sergio Ramirez appeals his conv
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE February 21, 2007 UNITED STATES COURT OF APPEALS FOR THE Charles R. Fulbruge III FIFTH CIRCUIT Clerk _ No. 05-51016 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SERGIO RAMIREZ, Defendant-Appellant. _ On appeal from the United States District Court for the Western District of Texas No. 5:04-CR-388-1 _ Before DAVIS and STEWART, Circuit Judges, and GODBEY, District Judge.* PER CURIAM:** Appellant Sergio Ramirez appeals his convi..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE
February 21, 2007
UNITED STATES COURT OF APPEALS
FOR THE Charles R. Fulbruge III
FIFTH CIRCUIT Clerk
_____________
No. 05-51016
_____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO RAMIREZ,
Defendant-Appellant.
_____________
On appeal from the United States District Court
for the Western District of Texas
No. 5:04-CR-388-1
_____________
Before DAVIS and STEWART, Circuit Judges, and GODBEY, District Judge.*
PER CURIAM:**
Appellant Sergio Ramirez appeals his conviction for knowingly possessing with the
intent to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
*
District Judge for the Northern District of Texas, 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Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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& 841(b)(1)(A). The jury found Ramirez not guilty of conspiracy and acquitted his co-
defendant, Juan Manuel Quiroga, on both the possession and conspiracy counts. Ramirez
contends the evidence of knowing was insufficient to support his conviction. Having
considered the evidence produced below, we find it sufficient and affirm the judgment of the
district court.
I. BACKGROUND
On July 15, 2004, Ramirez and Quiroga were arrested after Texas Department of
Public Safety Corporal Patrick Davis, with the assistance of a canine unit, uncovered 127.35
kilograms of 72% pure cocaine worth $3.2 million stashed in a concealed compartment of
a trailer being pulled by Ramirez’s truck tractor. Davis initially stopped the truck for
speeding on Interstate 10. As Davis approached the truck, he immediately noticed that the
cargo on the flatbed trailer – another flatbed trailer – was improperly secured with a one-inch
nylon strap, instead of the required four-inch strap. Failure to secure the cargo properly was
a violation that required taking the truck out of service.
When Davis reached the cab, he asked Ramirez and Quiroga for their driver’s
licenses, logbook, and bill of lading. Both men produced identification, but were unable to
produce the customary logbook or bill of lading.1 Both men confirmed they were driving
1
At trial, the Government’s trucking expert explained that a bill of lading is used in
the trucking industry to identify the load by point of origin, shipper, consignee, and
destination. He further explained that legitimate loads are always accompanied by shipping
documents, even freelance loads. However, the defense argued that it is not unusual to move
an empty trailer without a bill of lading, and therefore it was not unusual to be provided no
bill of lading when hauling trailers.
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from Laredo, Texas, to Atlanta, Georgia, but neither could identify the exact destination.
Quiroga told Davis they were to call a woman named Olga when they arrived in Atlanta for
directions to the delivery point.
Because of the violation, Davis asked Quiroga to drive the truck to the next exit for
a more thorough inspection. In route to the exit, Davis called for back up and requested a
canine unit to meet him. Upon arriving at the exit, Davis asked for consent to search the
vehicle, which the men gave. When the canine unit arrived, the officers conducted a sniff
search of the trailers and the dog alerted toward the end of the top trailer. The officers
eventually found a trapdoor leading to a concealed compartment that ran the length of the
entire trailer – about 15 feet. The officers recovered the cocaine from the compartment and
arrested Ramirez and Quiroga.
Texas Department of Public Safety Sergeant James Pieprzica arrived on the scene and,
after advising Ramirez and Quiroga of their Miranda rights, interviewed each man
separately. Ramirez informed Pieprzica that he owned the tractor, but did not own the
trailers. Ramirez related an unusual story regarding how Olga, purportedly a broker in
Chicago, hired him sight unseen to deliver the trailers.
At trial, Ramirez testified in his own defense. He explained that he worked as a driver
for CSX in Chicago under an exclusive contract. He testified about his contact with Olga,
though his trial testimony was different from what he had told Sergeant Pieprzica. He said
Olga initially told him the trip was to be from Joliet, Illinois, to Laredo and back to Chicago,
hauling trailers in both directions. Then, before he left, Olga told him that the load from
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Joliet to Laredo had been cancelled and that he was to bobtail2 to Texas. Finally, after he
and Quiroga started for Laredo, Olga called and changed the final destination of the load
from Chicago to Atlanta, Georgia. It does not appear Ramirez questioned Olga regarding
this change in plans. He was to call Olga when he arrived in Atlanta for an address for
delivery of the load.
The Government called Eduardo Garcia, the director of safety and leasing with
Southwestern Motor Transport, as an expert witness on the trucking industry. Garcia
testified on a number of issues, including the exclusivity of driver contracts. Garcia further
explained that it is very unusual for a driver to drive a lengthy distance without a load;
freight moves in all directions so it would have made better economic sense for Ramirez to
find a load to haul to Laredo. Significantly, Garcia testified that it would have been much
cheaper, not to mention quicker, for Olga to find a driver in Laredo who would move the
load to Atlanta.
Ramirez moved for judgment of acquittal at the close of the government’s case, and
renewed that motion at the close of evidence, which the district court denied. The jury found
Ramirez guilty of knowingly possessing cocaine with intent to distribute, but acquitted him
of conspiring with Quiroga, and acquitted Quiroga on both counts. Ramirez moved for a
judgment notwithstanding the verdict, which the court denied. Ramirez now challenges the
2
“Bobtailing” refers to driving without a load.
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sufficiency of the evidence upon which he was convicted, specifically the element of
knowing.
II. STANDARD OF REVIEW
In this Circuit, “review for sufficiency of the evidence is narrow.” United States v.
Moreno, 185 F.3d 465, 471 (5th Cir. 1999). We review the evidence de novo, and “view the
evidence and all inferences to be drawn from it in the light most favorable to the verdict.”
United States v. Delgado,
401 F.3d 290, 296 (5th Cir. 2005). Additionally, “all credibility
determinations are made in the light most favorable to the verdict.”
Moreno, 185 F.3d at
471. “The evidence need not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the jury is free to choose among
reasonable constructions of the evidence.”
Id. We must reverse the verdict when the
evidence is essentially in balance, for then “a reasonable jury must necessarily entertain a
reasonable doubt.” United States v. Ortega-Reyna,
148 F.3d 540, 543 (5th Cir. 1998)
(quotations and citations omitted). “[W]e must affirm if a rational trier of fact could have
found that the government proved the essential elements of the offense beyond a reasonable
doubt.”
Moreno, 185 F.3d at 471.
III. THE EVIDENCE PRESENTED AT TRIAL IS
SUFFICIENT TO AFFIRM RAMIREZ’S CONVICTION
To obtain a conviction for possession with the intent to distribute cocaine, the
government must prove beyond a reasonable doubt that Ramirez (1) knowingly (2) possessed
cocaine (3) with the intent to distribute it. United States v. Resio-Trejo, 45 F.3d 907, 911
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(5th Cir. 1995). “Possession may be actual or constructive, and the intent to distribute may
be inferred from the quantity and value of the [cocaine] possessed.” Id. On appeal, Ramirez
challenges only the knowledge element, arguing that the evidence produced at trial was
insufficient to sustain a verdict.
Knowledge “may be inferred from the exercise of control over the vehicle in which
the illegal drugs are concealed.” Id. When the contraband is hidden in secret compartments,
however, “this Court has normally required additional circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge.”
Id. (internal quotations and citations
omitted). With the additional requirement, we acknowledge that in such instances there “is
at least a fair assumption that a third party might have concealed the controlled substances
in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling
enterprise.” United States v. Diaz-Carreon,
915 F.2d 951, 954 (5th Cir. 1990). Here, the
arresting officer found the contraband hidden in a secret compartment in a trailer Ramirez
was hired to haul, rather than the truck itself. Accordingly, we must determine whether the
additional circumstantial evidence the government adduced was sufficient to support a guilty
verdict. Among the many types of behavior recognized as circumstantial evidence of guilty
knowledge are:
(1) nervousness; (2) absence of nervousness, i.e., a cool and calm demeanor;
(3) failure to make eye contact; (4) refusal or reluctance to answer questions;
(5) lack of surprise when contraband is discovered; (6) inconsistent statements;
(7) implausible explanations; (8) possession of large amounts of cash; and (9)
obvious or remarkable alterations to the vehicle, especially when the defendant
had been in possession of the vehicle for a substantial period of time.
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United States v. Ortega-Reyna, 148 F.3d 540, 544 (5th Cir. 1998).
A. The Value of the Contraband
In United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003), this Court held that
the value of the drugs being transported is circumstantial evidence that may be probative of
knowledge. The Court explained that a jury could reasonably infer that a defendant “would
not have been entrusted with that extremely valuable cargo if he was not part of the
trafficking scheme.”
Id. In Villarreal, the defendant was found with 600 pounds of
marijuana valued at more than $300,000. Here, Ramirez was found in possession of
significantly more valuable contraband – 127.35 kilograms of 72% pure cocaine valued at
$3.2 million. Because “a prudent smuggler is not likely to suffer the presence of unaffiliated
bystanders” with so much at stake, United States v. Martinez-Moncivais,
14 F.3d 1030, 1035
(5th Cir. 1994) (quoting United States v. Cruz-Valdez,
773 F.2d 1541, 1547 (11th Cir.1985)),
a reasonable jury could infer that Ramirez knew about the contents of the trailer and was not
duped into unwittingly transporting the drugs.3
3
The Court need not decide whether the value of the contraband here, standing alone,
would be sufficient to support the verdict, as there is additional circumstantial evidence
showing knowledge. Cf. United States v. Rojas-Alvarez, 451 F.3d 320, 335 (5th Cir. 2006)
(“The Government’s evidence in Villarreal . . . was not limited to the value of the contraband
alone . . . . In its final analysis, the Villarreal court focused more on the defendant’s
inconsistent statements than the weight of the drugs in the car in concluding that
circumstantial evidence supported his guilty verdict.”). The value of the drugs in Villarreal
was only $300,000, while the value of the drugs in Rojas-Alvarez was “valued at a fraction
of the amount found in Villarreal.”
Rojas-Alvarez, 451 F.3d at 335.
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B. Ramirez Told Inconsistent Stories
This Court has previously stated that “[i]nconsistent statements are inherently
suspicious” and that “a factfinder could reasonably conclude that they mask an underlying
consciousness of guilt.” Diaz-Carreon, 915 F.2d at 955. Here, the Government contends
that Ramirez was not completely forthcoming with information when initially questioned,
and highlights inconsistencies between Ramirez’s interview with Pieprzica and Ramirez’s
testimony at trial. First, the Government suggests Ramirez’s explanations of how he came
in contact with Olga were inconsistent. When interviewed by Pieprzica, Ramirez explained
that she was just “around.” Yet, at trial, Ramirez explained that he obtained Olga’s number
from an advertisement for a job posted in CSX’s driver’s lounge. Additionally, Ramirez first
told Pieprzica that an unknown woman arrived at his house with the front money from Olga.
Ramirez told Pieprzica he did not know how the woman knew his address. At trial, however,
Ramirez testified that the woman was Olga’s sister and that he gave Olga his address.
Finally, Ramirez first told Pieprzica that Olga gave him directions to the Laredo drop lot,
only to change his story once confronted by Pieprzica with an envelope found in the truck
containing a contact’s name and directions to the lot. A reasonable juror could infer that
Ramirez’s inconsistent statements were an attempt to “mask an underlying consciousness of
guilt.”
Diaz-Carreon, 915 F.2d at 955.
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C. Ramirez’s Explanation Is Implausible
The Government further contends that Ramirez proffered an implausible explanation
for his possession of the drugs, from which a jury could reasonably infer guilty knowledge.
In addition to the value of the drugs found and inconsistent statements, this Court has stated
that “a less-than-credible explanation is part of the overall circumstantial evidence from
which possession and knowledge may be inferred.” United States v. Richardson, 848 F.2d
509, 513 (5th Cir.1988) (internal quotations and citations omitted). The Government first
focuses on the circumstances surrounding Ramirez’s hiring. At trial, Garcia, the
Government’s expert, testified that it was highly unlikely that Ramirez obtained Olga’s
number from an advertisement posted in CSX’s driver’s lounge, considering such an ad
would, in effect, encourage drivers to violate their exclusive contracts. Garcia further
explained that it would have been easier, cheaper, and faster for Olga to hire a driver from
Texas to haul the trailers to Atlanta. This argument also intersects with the value of the
drugs argument: if the mysterious Olga were willing to hire a stranger to deliver her $3.2
million of cocaine, why not just hire someone in Laredo, instead of hiring a stranger in
Chicago to drive the load from Laredo to Atlanta? Instead, Olga hired Ramirez without
asking for proof of a commercial driver’s license, providing him with a bill of lading, or
giving him pickup or delivery information until the last minute. Finally, it seems odd that
having agreed to accept $4,000 for a Chicago to Laredo round-trip, Ramirez would acquiesce
without complaint in the addition of an Atlanta leg to the trip for the same price. A jury
could reasonably infer a consciousness of guilt from the improbability of Ramirez’s story.
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IV. CONCLUSION
In the aggregate, the value of the cocaine, Ramirez’s inconsistent statements, and
Ramirez’s implausible story collectively support a determination by the jury that Ramirez
knew about the cocaine he was transporting, rather than being an innocent dupe. Finding
sufficient evidence to support the jury’s finding of knowing possession, we affirm the
judgment of the district court.
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