United States v. Saucedo-Munoz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-50752
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOE LUIS SAUCEDO-MUNOZ,
ALSO KNOWN AS JOE LUIS SAUCEDO,
Defendant-Appellant.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
_______________
m 01-50904
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE LUIS SAUCEDO-MUNOZ,
ALSO KNOWN AS JEHOVA MIRANDA,
Defendant-Appellant.

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_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
September 23, 2002
Before DAVIS, SMITH, and BENAVIDES,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jose Saucedo-Munoz appeals his conviction
of possession with intent to distribute mar-
ihuana and cocaine, illegal reentry following
deportation, and making a false statement.
Finding no error, we affirm.
I.
State troopers Ruben Garcia and Ethan Up-
shaw stopped to assist two stranded motorists
standing next to a pickup truck with its hood
raised and gas tank opened. An empty gas jug
lay next to the truck.
The two men told Garcia they were out of
gas. When Garcia asked where they had last
refueled, they said they had done so in Van
Horn with nine dollars worth of gas. Garcia
found this suspicious, because he knew Van
Horn was 108 miles away; he would not have
expected a pickup truck to run out of gas after
traveling such a short distance. Garcia then
asked whether the truck’s gas gauge worked,
and the men replied that it did not. This fur-
ther aroused Garcia’s suspicion, because he
knew from experience and training that a ve-
hicle’s gas gauge usually will not work if the
gas tank is loaded with contraband. Garcia
testified that both men seemed nervous and
evasive.
Garcia then tapped on the gas tank with his
baton and heard a “thud” that he said was in-
consistent with the sound that would be pro-
duced by tapping on an empty tank or a tank
filled with fluid. Upshaw also tapped on the
tank with his baton and heard a similar thud.
Garcia concluded that the tank contained
something more than gasoline.
When asked for identification, Saucedo-
Munoz produced a New Mexico identification
card bearing the name Jehova Miranda. The
other man produced a border crossing card
bearing the name Gerardo Saucedo-Diaz.
Saucedo-Munoz then asked the officers for a
ride to a gas station to buy more gas.
During the trip to the station, Saucedo-
Munoz, Garcia, and Upshaw conversed. Sau-
cedo-Munoz stated that he had met Saucedo-
Diaz four years earlier at a bar in Juarez. Gar-
cia observed that, according to Saucedo-Di-
az’s identification, Saucedo-Diaz would have
been fourteen years old at that time, too young
to be in a bar. Saucedo-Munoz initially had
difficulty explaining this apparent discrepancy
but finally explained that people in Mexico go
to bars at young ages.
At the station, Saucedo-Munoz purchased
a gas jug after realizing that he had left his

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empty jug behind at the truck. When they ar-
rived back at the truck, Saucedo-Munoz filled
the truck with the gas and asked the officers to
follow him and Saucedo-Diaz to a nearby gas
station. After the officers followed them to a
station in Pyote, Saucedo-Munoz paid the at-
tendant and filled the tank with only three dol-
lars worth of gas before the pump stopped.
Saucedo-Munoz acted surprised and at-
tempted to blame the problem on the station’s
pump, which he claimed was broken. When
Upshaw observed that Saucedo-Munoz had
paid the attendant only three dollars, Saucedo-
Munoz paid another seven dollars. After six
dollars of gas were put into the truck, the tank
would take no more. Both men were placed
under arrest.
The truck was taken to a wrecking yard,
where a drug dog alerted to the vehicle. Gar-
cia observed that the gas gauge was broken.
The truck was placed on a hydraulic lift, and
the officers noted that there were fresh
scratches on the bolts and screws holding the
tank in place. Saucedo-Munoz threatened to
sue if nothing was discovered. After removing
the tank, the officers discovered forty-three
bundles of cocaine and marihuana inside.
II.
Saucedo-Munoz pleaded guilty of illegal
reentry following deportation, in violation of 8
U.S.C. §§ 1326(a),(b)(2), and making a false
statement to a federal officer, in violation of 18
U.S.C. § 1001(a)(2). Before trial on charges
of possession with intent to distribute mari-
huana and cocaine, in violation of 21 U.S.C.
§ 841(a)(1), Saucedo-Munoz moved unsuc-
cessfully to suppress evidence. A jury con-
victed him of both offenses. He appeals the
convictions and the revocation of his super-
vised release.
III.
Saucedo-Munoz argues that the district
court improperly instructed the jury regarding
deliberate ignorance.1 The deliberate ignor-
ance instruction is used “to inform the jury that
it may consider evidence of the defendant’s
charade of ignorance as circumstantial proof of
guilty knowledge.” United States v. Wells,
262 F.3d 455, 465 (5th Cir. 2001) (citation
and internal quotati on omitted). The in-
struction allows the jury to convict without
finding that the defendant actually was aware
of the existence of illegal conduct. United
States v. Cartwright, 6 F.3d 294, 301 (5th Cir.
1993).
Where, as here, the mens rea required for
conviction is that the defendant acted “know-
ingly” or “intentionally,” a deliberate ignorance
instruction creates a risk that the jury might
convict for negligence or stupidity. Id.
(citations omitted). The deliberate ignorance
instruction “should only be given when a
defendant claims a lack of guilty knowledge
and the poof at trial supports an inference of
deliberate indifference.” Wells, 262 F.3d at
1 The deliberate ignorance charge read as
follows:
You may find that a defendant had
knowledge of a fact if you find that the de-
fendant deliberately closed his eyes to what
would otherwise have been obvious to him.
While knowledge on the part of the defen-
dant cannot be established merely by dem-
onstrating that the defendant was negligent,
careless or foolish, knowledge can be in-
ferred if the defendant deliberately blinded
himself to the existence of a fact. However,
even so, if you find that the Defendant
actually believed that the transaction did not
involve marihuana or cocaine, then you
must acquit the defendant.

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465 (quoting United States v. McKinney, 53
F.3d 664, 676 (5th Cir. 1995)).
A deliberate ignorance instruction is re-
viewed “using the standard of whether the
court’s charge, as a whole, is a correct state-
ment of the law and whether it clearly instructs
jurors as to principles of law applicable to the
factual issues confronting them.” United
States v. Wisenbaker, 14 F.3d 1022, 1027 (5th
Cir. 1994) (citation and internal quotation
omitted). The instruction is justified where
“the evidence shows (1) subjective awareness
of a high probability of the existence of illegal
conduct and (2) purposeful contrivance to
avoid learning of the illegal conduct.” United
States v. Threadgill, 172 F.3d 357, 368 (5th
Cir. 1999) (citation omitted).
The record reflects that Saucedo-Munoz
was subjectively aware of a high probability
that the gas tank contained contraband. He
knew that the truck had run out of a full tank
of gas after traveling only 108 miles and that
the gauge was broken.2 At the gas station in
Pyote, Saucedo-Munoz tried to fool the of-
ficers by purchasing only three dollars worth
of gas and then claiming that the pump was
broken. He also produced a New Mexico
identification with a false name. Both officers
testified that he seemed nervous and evasive
throughout the encounter. See United States
v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994)
(“Evasive and erratic behavior may be evi-
dence of guilty knowledge.”).
Evidence tending to show that Saucedo-
Munoz purposely contrived to avoid learning
the existence of contraband is less apparent.
Because he did not testify, there was no op-
portunity for the government to conduct cross-
examination regarding his knowledge of how
the drugs were put into the tank. We are
mindful that where “the choice is simply be-
tween a version of the facts in which the de-
fendant had actual knowledge, and one in
which he was no more than negligent or stu-
pid, the deliberate ignorance instruction is in-
appropriate.” United States v. Lara-Velas-
quez, 919 F.2d 946, 951 (5th Cir. 1990). Nev-
ertheless, Saucedo-Munoz’s failure to testify
or present evidence does not render a delib-
erate ignorance instruction invalid.
A defendant’s contrivance to avoid learning
the existence of illegal conduct may be es-
tablished by direct or circumstantial evidence.
Id. at 952. As we have noted, Saucedo-Mu-
noz tried to fool the officers by putting only
three dollars worth of gas in the tank, and then
claiming the pump was broken. Depending on
how this action is construed, it could show
that Saucedo-Munoz had actual knowledge
that the tank contained contraband. On the
other hand, the charade might be construed as
an attempt to avoid discovery of that which he
believed highly probable.
Whichever it was, the court did not err by
giving a deliberate ignorance instruction. Al-
though our caselaw prohibits a deliberate ig-
norance instruction where there is evidence of
only actual knowledge, Threadgill, 172 F.3d
at 369, we are unaware of any cases sug-
gesting that a deliberate ignorance instruction
2 Although the average person might not infer
the presence of contraband from this fact alone,
Saucedo-Munoz was previously convicted of a
similar offense. He therefore was more likely than
the average person to infer that the inability to fill
a gas tank with more than nine dollars worth of gas
and a broken gas gauge were indicative of the
presence of contraband. The admissibility of
Saucedo-Munoz’s prior offense is discussed infra
part III.

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is improper where evidence may be construed
as showing either actual knowledge or con-
trivance to avoid learning the truth.
Instead, our precedent suggests that a
deliberate ignorance instruction may be given
alongside evidence of actual knowledge.3
Where, as here, a defendant claims ignorance
as his defense but refuses to testify,4 he should
not be able to avoid a deliberate ignorance in-
struction because his conduct might also be
construed as evincing actual knowledge.
By giving a deliberate ignorance instruc-
tion, the court did not create a risk that the
jury would convict Saucedo-Munoz for mere
negligence or stupidity. Saucedo-Munoz’s af-
firmative attempt to fool the officers, his pro-
duction of a false identification, and experience
in narcotics trafficking suggest that if he did
not have actual knowledge of the presence of
drugs in the tank, he was at the very least
turning a blind eye. In addition, the court pro-
vided a safeguard by instructing the jury that it
could not find him guilty if it believed he was
merely careless or negligent or did not realize
that the underlying transaction involved
narcotics.5
IV.
Saucedo-Munoz contends the district court
abused its discretion by admitting evidence of
his 1988 conviction of smuggling cocaine in
the wheel well of a pickup truck. The court
admitted the evidence for the limited purpose
of determining whether Saucedo-Munoz “had
the state of mind or intent necessary to commit
the crime charged in the indictment” and
3 See United States v. Farfan-Carreon, 935
F.2d 678, 681 (5th Cir. 1991) (affirming deliberate
ignorance instruction alongside evidence that the
defendant reacted violently when asked whether he
was carrying contraband); Lara-Velasquez, 919
F.2d at 952 (“Courts also have determined that the
circumstances of the defendant’s involvement in the
criminal offense may have been so overwhelmingly
suspicious that the defendant’s failure to question
the suspicious circumstances establishes the defen-
dant’s purposeful contrivance to avoid guilty knowl-
edge.”); United States v. de Luna, 815 F.2d 301,
302 (5th Cir. 1987) (finding deliberate ignorance
instruction proper alongside evidence that the
defendant confessed to two witnesses); United
States v. Restrepo-Granda, 575 F.2d 524, 528-30
(5th Cir. 1978) (finding deliberate ignorance
instruction proper while concurrently finding
evidence of actual knowledge).
In United States v. Threadgill, 172 F.3d 357
(5th Cir. 1999), we concluded that the district court
improperly gave a deliberate ignorance instruction
where there was strong evidence of actual knowl-
edge, but “little evidence that the defendants pur-
posefully contrived to avoid knowing that their
actions were unlawful.” Id. at 369. The evidence
revealed that “the defendants knew that their
conduct was criminal and took elaborate measures
to hide it.” Id. Although Saucedo-Munoz’s con-
duct might be similarly construed, it is also possi-
ble that he turned a blind eye to what he believed
was the presence of contraband. The jury was
entitled to convict on either theory.
4 Although Saucedo-Munoz did not offer any
evidence, defense counsel presented a theory of ig-
norance in his opening statement and closing
argument, contending that Saucedo-Diaz was the
person who had tried to “smuggle this dope.”
5 Because we conclude that the court did not err
by instructing the jury as to deliberate ignorance,
we need not undertake a harmless-error analysis.
An error in giving the deliberate ignorance instruc-
tion is “harmless where there is substantial evi-
dence of actual knowledge.” Wells, 262 F.3d at
466 (citation and internal quotation omitted).

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whether he had “acted according to a plan or
in preparation for the commission of a crime.”
Federal Rule of Evidence 404(b) provides
that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of
a person in order to show action in conformity
therewith.” FED. R. EVID. 404(b). Extrinsic
evidence may, however, be admissible for oth-
er purposes, such as proof of motive, oppor-
tunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
United States v. Bentley-Smith, 2 F.3d 1368,
1377 (5th Cir. 1993). Evidence is admissible
under rule 404(b) if it relates to an issue other
than the defendant’s character and its proba-
tive value is not substantially outweighed by
undue prejudice.6
Evidence of the prior conviction is admis-
sible to show that Saucedo-Munoz knew drugs
were concealed in the gas tank and that he in-
tended and planned to transport drugs in a hid-
den spot outside the vehicle’s passenger com-
partment or trunk.7 Nonetheless, Saucedo-
Munoz argues that the conviction is inadmis-
sible because its probative value is not sub-
stantially outweighed by its prejudicial effect.
See FED. R. EVID. 403.8
This court has “consistently . . . held that
evidence of a . . . conviction for a similar crime
is more probative than prejudicial and that any
prejudicial effect may be minimized by a
proper jury instruction.” United States v.
Taylor, 210 F.3d 311, 318 (5th Cir. 2000).
The district court properly instructed the jury
that it was to consider Saucedo-Munoz’s prior
offense only so far as it demonstrated the re-
quisite intent. This mitigated any danger that
the jury considered the evidence improperly as
proof of bad character.
V.
Saucedo-Munoz avers that the district
court erred in denying his motion to suppress
illegally obtained evidence as violative of the
Fourth Amendment. Warrantless searches are
“per se unreasonable unless they fall within a
few narrowly defined exceptions.” United
States v. Roberts, 274 F.3d 1007, 1011 (5th
Cir. 2001). Saucedo-Munoz argues that the
officers conducted a warrantless search by tap-
ping on the gas tank with their batons and that
the search was not supported by probable
cause.9
6 United States v. Misher, 99 F.3d 664, 670
(5th Cir. 1996); United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978) (en banc).
7 United States v. Ortega-Chavez, 682 F.2d
1086, 1091 & n.6 (5th Cir. 1982) (holding that
evidence of three prior convictions, in which de-
fendant had used the same vehicle with a hidden
compartment to transport illegal aliens, was pro-
perly admitted as evidence of knowledge and intent
and as showing similarity of conduct); see also
United States v. Lazcano-Villalobos, 175 F.3d
838, 845-47 (10th Cir. 1999) (affirming admission
of prior offense as proof of knowledge of the use of
concealed compartments for the transportation of
controlled substances).
8 Federal Rule of Evidence 403 states: “Al-
though relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of
undue delay, waste of time, or needless presenta-
tion of cumulative evidence.” FED. R. EVID. 403.
9 Apart from challenging the gas tank tap as an
impermissible search, Saucedo-Munoz does not
otherwise challenge the existence of probable cause
for the removal and search of the tank following his
arrest.

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In reviewing the denial of an evidentiary
suppression motion, we accept the district
court’s findings of fact unless clearly er-
roneous, but we review de novo its ultimate
conclusion as to the constitutionality of the
law enforcement action. United States v.
Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir.
1993). We review the evidence in the light
most favorable to the government. The denial
of a suppression motion will be upheld “if
there is any reasonable view of the evidence to
support it.” United States v. Tellez, 11 F.3d
530, 532 (5th Cir. 1993) (citations omitted).
We need not decide whether the baton tap
constituted a search within the meaning of the
Fourth Amendment. The automobile excep-
tion to the Fourth Amendment’s warrant re-
quirement permits authorities to search a vehi-
cle when they have probable cause to believe
it contains contraband. Maryland v. Dyson,
527 U.S. 465, 466-67 (1999). To the extent
that the actions of Garcia and Upshaw did
constitute a search, they were supported by
probable cause.
Probable cause to search exists “where the
known facts and circumstances are sufficient
to warrant a man of reasonable prudence in the
belief that contraband or evidence of a crime
will be found.” Ornelas v. United States, 517
U.S. 690, 696 (1996). “The principal
components of a determination of reasonable
suspicion or probable cause will be the events
which occurred leading up to the stop or
search, and then the decision whether these
historical facts, viewed from the standpoint of
an objectively reasonable police officer,
amount to reasonable suspicion or to probable
cause.” Id. In determining the existence of
reasonable suspicion or probable cause, we do
not isolate each factor of suspicion, but instead
look to the totality of the circumstances.
United States v. Arvizu, 534 U.S. 266 (2002).
We agree with the district court’s conclu-
sion that the officers had probable cause to tap
on the gas tank. Garcia knew, based on train-
ing and experience, that vehicles carrying con-
traband are unable to travel normal distances
on a full tank of gas and often have broken gas
gauges. Garcia had ample data in the aggre-
gateSSthe failed gas gauge, the short distance
before the truck ran out of gas, and the men’s
nervousnessSSto conclude that there was con-
traband in the tank. To hold otherwise would
erroneously impute to Garcia the crime-fer-
reting wits of a layman, rather than a trained
law enforcement officer. Ornelas, 517 U.S. at
696 (noting that probable cause is “viewed
from the standpoint of an objectively rea-
sonable police officer”) (emphasis added).
VI.
Saucedo-Munoz contends that the district
court erred by refusing to adjust his offense
level based on his claimed minor role in the
offense.10 Even if we were to accept Saucedo-
10 In his brief, Saucedo-Munoz also argues that
the district court erred in denying his request that
the jury be instructed that it could convict him for
the lesser included offense of misprision of a fel-
ony. Saucedo-Munoz admits, however, that he
raises this issue on appeal only because an objec-
tion was made at trial and that he has located no
authority in support of his argument. He acknowl-
edges that “[i]t does not appear that misprision of
[a] felony in any way relates to the delivery of-
fenses.”
Similarly, Saucedo-Munoz notes his objection
at sentencing to the court’s application of the sen-
tencing guidelines; he objects to his counts being
grouped pursuant to U.S.S.G. § 3D1.4. Saucedo-
Munoz admits, however, that the court’s applica-
(continued...)

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Munoz’s dubious contention that Saucedo-
Diaz was the principal behind the crime, while
Saucedo-Munoz acted only as a courier, we
would not reduce the offense level.11
In any event, the evidence points to the
conclusion that Saucedo-Munoz, not Saucedo-
Diaz, acted as the principal. Saucedo-Munoz
spoke to the officers, purchased the gas both
times, filled the truck at the station, and was
the one who threatened to sue at the wrecking
yard. Furthermore, the pre-sentence report
mentions that Saucedo-Munoz paid Saucedo-
Diaz $2000 to accompany him on the trip.
The district court’s decision was no error.12
AFFIRMED.
10(...continued)
tion of the sentencing guidelines was “correctly
made.” We consider these issues inadequately
briefed and therefore do not pass on their merits.
See FED. R. APP. P. 28(a)(9)(A); United States v.
Beaumont, 972 F.2d 553, 563 (5th Cir. 1992)
(waiving argument for failure adequately to argue
the issue).
11 See United States v. Edwards, 65 F.3d 430,
433 (5th Cir. 1995) (stating that this court “has
held previously that defendants . . . whose par-
ticipation is limited to holding or delivering drugs,
may not, despite their more limited role in the con-
spiracy, be eligible for a reduction their offense
level”).
12 Because we affirm Saucedo-Munoz’s convic-
tion for possession with intent to distribute mari-
huana and cocaine, we do not address his argument
that he was improperly sentenced as a Grade A
offender under U.S.S.G. § 7B1.4. A defendant
convicted of any “controlled substance offense” is
classified as a Grade A offender. See U.S.S.G. §
7B1.1(a)(1)(ii).

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