United States 5th Circuit Court of Appeals Reports

Unpublished

U.S. v. SALAZAR, 05-50951 (5th Cir. 1-4-2007) UNITED STATES
OF AMERICA, Plaintiff-Appellee, v. DANIEL P. SALAZAR,
Defendant-Appellant. No. 05-50951. United States Court of
Appeals, Fifth Circuit. January 4, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the United States District Court
for the Western District of Texas (4:05-CR-54)

Before GARZA, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:[fn*]

[fn*] 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determined that this opinion should not be published and is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.

Defendant Daniel P. Salazar (“Salazar”) was charged in a
two-count indictment with knowingly importing less than
fifty kilograms of marijuana in violation of 21 U.S.C.
§§ 952 and 960 and knowingly possessing less
than fifty kilograms of marijuana with intent to distribute
in violation of 21 U.S.C. § 841(a)(1). A jury
convicted Salazar on both counts. He was sentenced to
thirty months’ imprisonment on each count, to run
concurrently, and three years’ supervised release. He
appeals his conviction and sentence, arguing that (1) the
criminal proceeding was void because the grand jury
foreperson did not sign the indictment; (2) the evidence
was insufficient to establish the requisite knowledge that
he was importing or possessing drugs; and (3) he was
entitled to a partial acquittal regarding the drugs found
inside two ice chests. For the following reasons, we affirm
Salazar’s conviction and sentence.

I.

On February 17, 2005, a U.S. Customs and Border Protection
agent stopped a Dodge van towing a trailer that was
attempting to enter the United States via the Presidio,
Texas port of entry. The agent recognized the man in the
passenger seat of the van as Daniel Salazar, a commercial
carrier of people and goods who had previously attempted to
import goods for third parties without properly declaring
them. The agent directed the van to a secondary lane for a
routine examination; a search of the van and trailer, which
both belonged to Salazar, ensued. Salazar does not contest
the legality of the search.

The search of the trailer revealed a large decorative
wagon wheel with oddly shaped spokes that was wrapped in
what the agent later described as “excessive” packaging.
The agent asked Salazar to whom the wheel belonged, and
Salazar responded that it was his; however, when the agent
asked if he could drill a hole in the wheel, Salazar began
“fidgeting” and then changed his story and said the wheel
belonged to a friend. Another agent described Salazar as
“hesitant,” but not “nervous” or “agitated.” Marijuana was
discovered inside the hollow spokes of the wheel. Marijuana
was also discovered in the lining of two ice chests stowed
in the van. Salazar never claimed ownership of the two ice
chests. Salazar stipulated at trial that the marijuana
found in the wheel and the ice chests weighed 58.2 pounds
or 26.45 kilograms.

After the marijuana was discovered, customs agents
detained Salazar and read him his rights. He waived his
right to remain silent and responded to questioning.
Salazar told the customs agents that he was transporting
the wheel and the ice chests to a man named Daniel Reyez;
however, when the agents asked for Mr. Reyez’s contact
information, Salazar responded that he did not have contact
information for Mr. Reyez and that Mr. Reyez would contact
him to pick up his goods. The agents also questioned
Salazar about undated logs found in the van and on
Salazar’s person that listed various items transported and
the names of their respective recipients. The wagon wheel
did not appear on the list Salazar claimed he prepared for
the February 17th trip, and the only list that mentioned a
wagon wheel indicated that the wheel was going to “Modesta
Gonzalez.” Salazar told the agents that items designated
for “Modesta Gonzalez,” “Pedro Perez,” and “Daniel Reyez”
were all for Mr. Reyez.

Salazar was indicted on March 3, 2005 in a two-count
indictment for knowingly importing less than fifty
kilograms of marijuana in violation of 21 U.S.C.
§§ 952 and 960 and knowingly possessing less
than fifty kilograms of marijuana with intent to distribute
in violation of 21 U.S.C. § 841(a)(1). A jury trial
was held on April 20, 2005. The Government presented three
witnesses, two customs agents and a special agent with
Immigration and Customs Enforcement, all of whom testified
to the events that occurred on February 17, 2005. The
defense moved for acquittal at the close of the
Government’s evidence. That motion was denied. The defense
then presented three of its own witnesses, Salazar’s
brother-in-law and two of his nephews. Salazar also
testified on his own behalf. After the defense rested, it
renewed its request for a judgment of acquittal. That
motion was also denied. The jury found Salazar guilty on
both counts and he was sentenced to thirty months’
imprisonment on each count, to run concurrently, and three
years’ supervised release. He appeals his conviction and
sentence.

II.

A.

In his first point of error, Salazar argues that the
entire criminal proceeding below was void because the grand
jury foreperson did not sign the indictment. Although the
copy of the indictment in the record is unsigned, the
record indicates that a signed copy of the indictment was
sealed by the district court pursuant to the E-Government
Act of 2002. We have received a signed copy of the
indictment from the district court, and we are satisfied
that Salazar is not entitled to relief on this ground.

B.

In his second point of error, Salazar argues that the
evidence was insufficient to establish the requisite
knowledge that he was importing or possessing drugs.
Salazar moved for acquittal at the close of the
Government’s case and at the close of the evidence.
Accordingly, “we decide whether the evidence is sufficient
by viewing the evidence and the inferences that may be
drawn from it in the light most favorable to the verdict
and determining whether a rational jury could have found
the essential elements of the offenses beyond a reasonable
doubt.” United States v. Arnold, 467 F.3d 880, 883 (5th
Cir. 2006) (internal quotation marks omitted).

Both of Salazar’s offenses, importation and possession,
require guilty knowledge as an element. See United States
v. Martinez-Lugo, 411 F.3d 597, 599 & n. 1 (5th Cir.),
cert. denied, 126 S. Ct. 464 (2005). Guilty knowledge may
sometimes be inferred where a defendant controls a vehicle
containing contraband; however, where the contraband is
concealed, additional circumstantial evidence that is
suspicious in nature or that demonstrates guilty knowledge
is required. United States v. Cano-Guel, 167 F.3d 900, 904
(5th Cir. 1999). “This requirement stems from the
recognition that, in hidden compartment cases, 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.'” Id. at 904-05 (quoting United
States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990)).
Evidence of nervousness, conflicting statements to law
enforcement officials, and an implausible story may all
qualify as circumstantial evidence of guilty knowledge.
Martinez-Lugo, 411 F.3d at 599.

It is undisputed that the marijuana found in the ice chests
and in the wagon wheel — which were in Salazar’s
control as owner of the van — was concealed.
Therefore, the Government had to bring forward
circumstantial evidence of guilty knowledge to make its
case. In support of its case, the Government presented
evidence that Salazar began “fidgeting” or became
“hesitant” when customs agents asked if they could drill a
hole in the wagon wheel; that Salazar made inconsistent
statements about the ownership of the wagon wheel; that
Salazar’s story about who he was delivering the wagon wheel
to was implausible because he did not know how to get in
touch with that person; and that Salazar had previously
lied to customs agents about his cargo when trying to cross
the border. Salazar argues that this evidence was
insufficient to support a verdict against him because
nervousness alone is not enough to support a finding of
guilty knowledge; there was a plausible explanation for his
lie about the ownership of the wheel — he would have
had to pay a fee if he had admitted the wheel belonged to a
third party; and there was no other evidence demonstrating
that his story was implausible or that he lied about
anything else.

We find the evidence sufficient to support a finding of
guilty knowledge on Salazar’s part. Although we recognize
that nervousness alone is not enough to support a finding
of guilty knowledge, United States v. Jones, 185 F.3d 459,
464 (5th Cir. 1999), here we have nervousness accompanied
by an inconsistent statement to law enforcement officials,
a potentially implausible story about how Salazar would
transfer his cargo to its recipient, and other suspicious
evidence, including the questionable business practices
described below. With respect to nervousness, two customs
agents testified that Salazar’s demeanor changed when they
asked to drill a hole in the wagon wheel. According to one,
Salazar began “fidgeting,” and according to the other,
Salazar became “hesitant.” Further, Salazar initially told
law enforcement officials that the wagon wheel belonged to
him but later changed his story and said it belonged to a
friend. Salazar had no contact information for the person
to whom he said he was delivering the wheel, and he
admitted in open court that he had on other occasions lied
to customs officials about his cargo to avoid problems at
the border. We have previously noted that “unconventional”
business practices may qualify as the suspicious evidence
necessary to support a finding of guilty knowledge. See
United States v. Roel, 193 Fed. App’x 309, 312 (5th Cir.
2006) (citing United States v. Anchondo-Sandoval, 910 F.2d
1234, 1237 (5th Cir. 1990)). Salazar’s business practice of
lying to customs officials to avoid problems at the border,
in combination with his change in demeanor, his
inconsistent statements to customs officials, and his
potentially implausible story about how he would transfer
possession of his cargo could lead a rational jury to find
guilty knowledge beyond a reasonable doubt. Salazar is not
entitled to relief on this ground.

C.

Finally, in his third point of error, Salazar argues that
he was entitled to a partial acquittal regarding the drugs
found inside the ice chests because he never claimed that
he owned them. Although Salazar generally moved for
acquittal, he did not specifically request a partial
acquittal regarding the drugs in the ice chests.
Accordingly, we review for plain error. See United States
v. Villasenor, 236 F.3d 220, 222 (5th Cir. 2000). Under the
plain error standard of review, “a conviction can be
reversed only if there was a `manifest miscarriage of
justice,’ which would occur if there is no evidence of the
defendant’s guilt or `the evidence on a key element of the
offense was so tenuous that a conviction would be
shocking.'” Id. (quoting United States v. McCarty, 36 F.3d
1349, 1358 (5th Cir. 2000)).

The trial court did not commit plain error by failing to
partially acquit Salazar. As we discussed above in Part
II.B, there was at least some circumstantial evidence of
guilty knowledge on Salazar’s part. Although much of this
evidence related to the wagon wheel, we cannot say that all
of it related to the wagon wheel alone. For example,
Salazar’s irregular business practices — lying to
customs agents about cargo — had nothing to do with
the wagon wheel and instead support a finding of guilty
knowledge in general. Accordingly, we cannot say that
Salazar’s conviction for the quantity of drugs found inside
the ice chests gives rise to a “manifest miscarriage of
justice.” Salazar is not entitled to relief on this ground.

III.

For the foregoing reasons, we AFFIRM Salazar’s conviction
and sentence.