Case: 09-41265 Document: 00511306451 Page: 1 Date Filed: 11/30/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 30, 2010
                                     No. 09-41265
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAFAEL FELLOVE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-638-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Rafael Fellove was convicted by a jury of possession with intent to
distribute over 1,000 kilograms of marijuana. On appeal, he argues that the
evidence was insufficient to support his conviction. Specifically, Fellove claims
that the evidence did not show that he knowingly possessed the marijuana found
in his trailer.
       Because Fellove properly preserved the sufficiency issue in the district
court, we review his arguments de novo. United States v. Harris, 

,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41265

470 (5th Cir. 2005). To support Fellove’s conviction for possession with intent
to distribute, the evidence must show: (i) a knowing, (ii) possession of a
controlled substance, (iii) with the intent to distribute it. See United States v.
Miller, 

, 280 (5th Cir. 1998).
      “The knowledge element in a possession case can rarely be established by
direct evidence.” United States v. Ramos-Garcia, 

, 465 (5th Cir.
1999). Knowledge may be inferred from control of a vehicle in which drugs are
found, but only if “the drugs are clearly visible or readily accessible.” United
States v. Pennington, 

, 598 (5th Cir. 1998). If the drugs are concealed
or otherwise out of plain sight, as in this case, control of the vehicle alone is not
sufficient to prove knowledge. 

cases, “this Court requires other
circumstantial evidence that is suspicious in nature or demonstrates guilty
knowledge.”     United States v. Mendoza, 

, 489 (5th Cir. 2008)
(internal quotation marks and citation omitted).         Factors indicating guilty
knowledge      include   nervousness,    inconsistent   statements,     implausible
explanations, possession of large amounts of cash, ownership or long-term
possession of the vehicle or item containing the contraband, and the value of the
contraband. See United States v. Villarreal, 

, 324 (5th Cir. 2003);
United States v. Moreno, 

, 472 & n.3 (5th Cir. 1999); 

.
      At trial, the Government presented evidence that Fellove owned and
operated the tractor and trailer that contained the 1,600-plus kilograms of
marijuana discovered; that Fellove claimed that the day of his arrest was the
first time he had been to the Falfurrias, Texas, Border Patrol Checkpoint, but
that the checkpoint’s database indicated that the truck and/or trailer had gone
through the checkpoint at least seven other times; that Fellove stated that he did
not know what he was transporting; that Fellove possessed two bills of lading
that contained incorrect, inconsistent, and incomplete information; that Fellove’s
driver’s logbook was inconsistent with his travels and statements; that Fellove

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                                  No. 09-41265

showed unusual curiosity and nervousness as his trailer was being searched;
that Fellove’s trailer contained an envelope with $1,500 in twenty-dollar bills;
and finally, that the volume of marijuana recovered from Fellove’s trailer had an
estimated street value of three million dollars. See United States v. Martinez-
Moncivais, 

, 1035 (5th Cir. 1994) (“reasonable jurors could
conclude that [a distributor] would not have entrusted millions of dollars in each
truckload of drugs to an unknowing, innocent driver.”). This evidence, when
considered in light of the record as a whole, provided a substantial basis for the
jury to find that Fellove’s possession was knowing. See 

.
In addition, Fellove’s control of the truck was sufficient to establish possession
of the marijuana, and the amount involved supported a finding that the
marijuana was intended for distribution. See United States v. Jones, 

, 464 (5th Cir. 1999); United States v. Casilla, 

, 603 (5th Cir.
1994). Accordingly, the evidence was sufficient to support Fellove’s conviction
for possession with intent to distribute marijuana. See Jackson v. Virginia, 

, 318 (1979).
      Fellove also contends that the testimony of Pedro Figueroa was
inadmissible guilt-by-association evidence. Because Fellove did not object at
trial to any guilt-by-association evidence, review is for plain error. See United
States v. Thompson, 

, 464 (5th Cir. 2006).
      The Government may not attempt to prove a defendant’s guilt by showing
that he associates with “unsavory characters.” See United States v. Singleterry,

, 1018 (5th Cir. 1981). Here, the Government focused primarily
on the similarities between Fellove and Figueroa’s unrelated cases. Figueroa’s
testimony suggested a connection between Fellove and a marijuana broker who
transported large volumes of marijuana using the same method Fellove had
employed here. See United States v. Trejo-Mata, 372 F. App’x 466, 467 (5th Cir.
2010) (evidence linking defendant to drug broker involved in transporting drugs
in a similar fashion to that employed by the defendant permissible “to create

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                                 No. 09-41265

inferences of knowledge.”). Moreover, Fellove and Figueroa had the same drug
broker’s phone number in their cell phones, although the two men (Fellove and
Figueroa) had no ties to one another. Figueroa’s testimony and the prosecutor’s
comments on that testimony, when viewed as a whole, were not impermissible
evidence of guilt by association, see United States v. McCall, 

, 827
(5th Cir. 2008), but were offered to further show Fellove’s knowing possession
of the marijuana found in his trailer. Accordingly, the district court did not
plainly err by permitting Figueroa’s testimony. See 

.
      AFFIRMED.




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