United States v. Mendoza

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-50556
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSÉ ANGEL MENDOZA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
August 29, 2000
Before JOLLY, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
José Mendoza challenges the sufficiency of
the evidence supporting his convictions of
conspiracy to possess marihuana with intent to
distribute, in violation of 21 U.S.C. § 846, and
possession of marihuana with intent to distrib-
ute, in violation of 21 U.S.C. § 841(a)(1). We
affirm.
I.
Border Patrol Agent Andrew Graham spot-
ted a Nissan Maxima traveling northbound on
Highway 118 approximately thirty-five miles
south of Alpine, Texas; about one mile behind
was a Ford Thunderbird with two occupants.
Because the occupants of the Thunderbird ap-
peared surprised when he passed, Graham
turned around to follow the vehicle. The
Thunderbird braked and swerved to the side of
the road, then slowed its speed; the Maxima
continued northbound toward the Border Pa-
trol checkpoint located about fifteen miles
south of Alpine.

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Graham continued to follow the Thunder-
bird, which pulled into a rest area approxi-
mately two miles south of the checkpoint,
whereupon the driver and passenger exited and
paced nervously around the front of the vehi-
cle, then a minute or two later returned to their
car and continued traveling northbound. A
small distance south of the checkpoint, Gra-
ham passed the Thunderbird to arrive at the
checkpoint first.
The Maxima reached the checkpoint before
Graham. Mendoza was driving, and his girl-
friend, Hermila Salazar-Benavidez (“Salazar”)
was in the passenger’s seat. After advising
Agent Frank Lopez that they were United
States citizens returning from Mexico, they
were directed to a secondary inspection, at
which Mendoza consented to a canine search
of the car.
The dog alerted to the trunk area. In the
trunk, Lopez found what he believed to be a
marihuana “twig,” but a field test came back
negative. Lopez testified that, based on his ex-
perience and the dog’s alerting aggressively on
the car, he was certain that the twig was mari-
huana residue but that the quantity was too
small to yield a positive test result. Lopez
searched for a hidden compartment but found
none.
When the Thunderbird reached the check-
point, Graham asked the occupants about their
immigration status. The male driver, Ambro-
cio Gomez, appeared nervous, and the female
passenger, Modesta Martinez, avoided eye
contact. When asked whether he had been
traveling with the Maxima, Gomez responded
in the negative. A canine search of the Thun-
derbird uncovered several hidden bundles of
marihuana totaling 119.34 pounds, and Gomez
and Martinez were arrested.
Graham believed that the Maxima and
Thunderbird had been traveling as a “lead-
car/load-car” team, the “lead car” being used
to scout ahead of the “load car” carrying the
contraband. Lopez and Agent Neal Thames
agreed that the circumstances were suspicious.
When Thames asked Mendoza and Salazar
whether they knew the occupants of the Thun-
derbird, they responded in the negative.
Thames collected driver’s licenses from
Mendoza, Salazar, Gomez, and Martinez, and
compared them. He noticed that Salazar and
Martinez (the passengers) lived in the same
city and that Mendoza and Gomez (the driv-
ers) lived in adjacent towns a few miles apart.
Graham found a receipt in the Thunderbird
signed by “Hermila Hernandez.” After com-
paring the signature on the receipt with the
one on Salazar’s driver’s license, Thames pre-
sented the receipt to Salazar, who admitted
that it was her receipt and her signature. The
registration form taken from the Thunderbird
established that the car was registered to Ser-
gio Salazar, whom Salazar identified as her ex-
husband.
After first denying she knew Martinez, Sal-
azar then “admitted” that she knew a relative
of hers. The two men denied knowing each
other or the other women. The agents none-
theless believed the two cars had acted in con-
junction and therefore placed Mendoza and
Salazar under arrest.
After they were advised of their rights,
Mendoza, Salazar, Gomez, and Martinez told
conflicting stories. Gomez told an agent that
he and his girlfriend, Martinez, had traveled
from Plainview, Texas, in the Thunderbird and
had dropped off a friend in Lajitas, Texas,
where they had stayed for several hours. Go-
mez could not, however, provide the name or

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a description of the friend he had dropped off.
Gomez admitted that he knew Mendoza, as
they worked at the same meat-packing plant.
Mendoza told agents that he had no knowl-
edge of the marihuana in the Thunderbird but
admitted that he knew Gomez and Martinez
through his girlfriend Salazar. He stated that
he and Salazar had gone to Ojinaga, Mexico,
to drop off his brother. According to Mendo-
za, after they did so, he and Salazar spent the
night in Ojinaga, then went to Lajitas to visit a
friend. Mendoza could not, however, identify
where this friend lived. In Lajitas, they ran in-
to Gomez and Martinez at a gas station, and
all proceeded to return to Plainview.
Salazar told agents that she and Mendoza
traveled to Ojinaga to drop off a friend of
Mendoza’s (as opposed to Mendoza’s account
in which they dropped off his brother). She
first denied knowing Gomez and Martinez be-
yond having seen them before, but later admit-
ted that she was Martinez’s aunt. Salazar told
agents that she had previously sold the Thun-
derbird to an unknown person. Despite these
statements, Gomez, Martinez, and Salazar
gave the same home address.
Mendoza, Salazar, and Gomez were tried
together. Martinez testified for the defense
but gave a very different account from those
offered at the time of arrest. She testified that
she traveled to Mexico in the Maxima with
Gomez, Salazar, and Mendoza. According to
Martinez, she alone picked up the Thunderbird
with its load of marihuana from a man named
“El Compadre” while Gomez, Salazar, and
Mendoza were out shopping and eating. El
Compadre was to pay her $100 per pound to
transport the marihuana. As to how El Com-
padre happened to possess a vehicle registered
to Salazar’s ex-husband, Martinez testified
that she informed El Compadre that the vehicle
was for sale when Salazar was selling the
Thunderbird. According to Martinez, none of
her companions knew about the drugs in the
car, and Mendoza was not scouting ahead to
warn of law enforcement. Gomez also testi-
fied, stating that the four traveled to Mexico in
the Maxima, that Martinez had obtained the
Thunderbird, and that it was merely coinci-
dence that Mendoza and Salazar drove ahead
of them to the checkpoint.
II.
A.
Mendoza argues that the evidence is insuffi-
cient to support his conspiracy conviction. Al-
though he admits he was not truthful regarding
his relationship with Gomez and Martinez,
Mendoza argues that there is no evidence of a
lead-car/load-car arrangement and no other
evidence connecting him with the drugs.
Mendoza made motions for judgment of ac-
quittal at the close of the government’s case
and at the close of all of the evidence, so the
standard of review in assessing his sufficiency
challenge is whether, considering all the evi-
dence in the light most favorable to the ver-
dict, a reasonable trier of fact could have
found that the evidence established guilt be-
yond a reasonable doubt. See United States v.
Gonzales, 79 F.3d 413, 423 (5th Cir. 1996);
United States v. Bell, 678 F.2d 547, 549 (5th
Cir. Unit B 1982) (en banc), aff'd, 462 U.S.
356 (1983). “Direct and circumstantial evi-
dence are given equal weight, and the evidence
need not exclude every reasonable hypothesis
of innocence.” Gonzales, 79 F.3d at 423.
“To establish a drug conspiracy under
§ 846, the government must prove beyond a
reasonable doubt (1) an agreement between
two or more persons to violate the narcotics

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laws, (2) that each alleged conspirator knew of
the conspiracy and intended to join it, and
(3) that each alleged conspirator did partici-
pate voluntarily in the conspiracy.” United
States v. Inocencio, 40 F.3d 716, 725 (5th Cir.
1994). The elements of the conspiracy may be
established by circumstantial evidence and
“may be inferred from the development and
collocation of circumstances.” Gonzales, 79
F.3d at 423 (internal quotation marks omit-
ted). The government must, however, “do
more than pile inference upon inference upon
which to base a conspiracy charge.” United
States v. Williams-Hendricks, 805 F.2d 496,
502 (5th Cir. 1986) (internal quotation marks
omitted). Likewise, “the government may not
prove up a conspiracy merely by presenting
evidence placing the defendant in a climate of
activity that reeks of something foul.” United
States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992) (internal quotation marks omitted).
We have previously considered sufficiency
challenges in lead-car/load-car scenarios. In
United States v. Barnard, 553 F.2d 389 (5th
Cir. 1977), we upheld conspiracy and posses-
sion convictions of Barnard, the lead-car driv-
er. A Border Patrol officer was passed by two
vehicles proceeding northbound approximately
one mile apart. The lead vehicle was an MG
sports car with two occupants that had a
citizen's band (CB) radio antenna, the driver of
which appeared to be talking into a micro-
phone as the MG passed. See id. at 391. The
second vehicle was a white Mercury that also
carried a CB antenna. See id. The two vehi-
cles had the same three-letter prefix on their
license plates, indicating that both automobiles
were registered in the same county. See id.
The driver of the Mercury appeared nervous,
looking repeatedly at the officer, and the rear
end of his car appeared to be riding low. See
id.
The officer followed the now erratically-
driven Mercury for a distance, during which
time the MG varied its speed to maintain a
constant distance between it and the Mercury.
See id. When the officer stopped the Mercury,
the MG accelerated out of sight. See id. The
Mercury’s trunk contained eighty-four pounds
of marihuana. See id.
We found the evidence sufficient to support
Barnard’s conspiracy conviction, considering
the evidence of concerted action already dis-
cussed and the following additional evidence:
(1) Barnard’s passenger in the MG was the
son of the owner of the Mercury; (2) that pas-
senger’s wallet was found in the glove com-
partment of the Mercury, including his driver's
license and business card; (3) a shaving kit
with the inscription “C. E. Barnard” was found
in the front seat of the Mercury; and (4) hang-
ing in the back seat of the Mercury was a
sweater with a laundry tag marked “E. Bar-
nard.” See id. at 393.
Mendoza stresses that, unlike in Barnard,
there is no evidence of concerted driving re-
sponses between Mendoza and the Thunder-
bird, except that Mendoza’s vehicle was, at
one point in time, approximately one mile
ahead of the Thunderbird. Rather than con-
forming to the erratic behavior of the Thunder-
bird, Mendoza continued driving toward the
checkpoint. Also unlike the situation in Bar-
nard, in which the vehicles were equipped with
and in which Barnard was seen using, compati-
ble communications devices, no communica-
tions device was found in the Maxima or
Thunderbird or on the person of Mendoza or
any of his co-defendants.
As in Barnard, however, there is a connec-
tion between Mendoza’s passenger and the
load car. In Barnard, the load car belonged to

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the passenger’s father, and the passenger’s
wallet was found in the load car. In the case
sub judice, the load car was registered to the
passenger’s ex-husband, and a receipt signed
by the passenger was found in the load car.
Although there were no personal items con-
necting the driver, Mendoza, to the load car,
there was testimony that Mendoza, Salazar,
Gomez, and Martinez had traveled to Mexico
together and that Mendoza gave materially
false statements to officers regarding his recent
actions and his associations with Gomez and
Martinez.
In United States v. Villarreal, 565 F.2d 932
(5th Cir. 1978), we again affirmed the conspir-
acy conviction of a lead-car driver. The evi-
dence demonstrated that the lead and load cars
had traveled together from the border for over
an hour; both vehicles were equipped with CB
radios; when the lead car approached the
checkpoint, the passenger ducked beneath the
dashboard in a manner that suggested that he
was making a furtive call to the load car; the
load car made a U-turn and turned into a rest
stop; the load car had been lent to the passen-
ger of the lead car; and both occupants of the
lead car left footprints at the site where the
marihuana had been delivered and loaded into
the load car. See id. at 934-35, 938.
In United States v. Inocencio, 40 F.3d 716
(5th Cir. 1994), we upheld conspiracy and
possession convictions in a lead-car/load-car
scenario. The following evidence supported
the existence of a conspiracy: coconspirator
testimony linking the drivers of the lead and
load cars to the pivotal figure of the conspir-
acy; two-way radios in the lead and load cars
programmed to the same frequency; agent tes-
timony that the lead car circled not far from
the checkpoint, as if waiting for the load car;
the lead car driver’s nervousness and evasive-
ness when questioned about the two-way ra-
dio; papers in the lead car containing business
and pager numbers for the driver of the load
car; a photograph in the lead car picturing the
driver of the lead and load cars together; and
evidence of cell phone calls between the driver
of the lead car and the pivotal figure of the
conspiracy. See id. at 720-21, 726.
Mendoza is correct that Villarreal and Ino-
cencio contained more evidence of a lead-
car/load-car scenario than does the case sub
judice, most notably because the Maxima and
Thunderbird did not contain electronic means
of communication. Such communication is
not, however, essential to facilitate a lead-
car/load-car transport. Absent communication
devices, the lead car could travel first to the
checkpoint, and either turn around (or not turn
around, depending on the agreement) if the
checkpoint is active, thus warning-off the load
car. Here, the load car may have felt com-
pelled to continue toward the checkpoint
because Graham followed it to the rest area
and waited for it to continue.
Moreover, to affirm a conviction we need
not find evidence so overwhelming that it
matches that contained in all our precedent.
Instead, we need only conclude that, viewed in
the light most favorable to the government, the
evidence is sufficient to allow a reasonable tri-
er of fact to find guilt beyond a reasonable
doubt. The government proved a link between
the two vehicles through Salazar’s receipt and
the registration of the Thunderbird to Salazar's
ex-husband. Martinez and Gomez testified
that all four defendants traveled to Mexico in
the Maxima.
Mendoza admits these connections between
the two vehicles but denies they were function-
ing as a lead-car and load-car. Given his ma-

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terially false statements to the police, however,
and given the connections between the Max-
ima and Thunderbird, a reasonable juror could
conclude that Mendoza had knowledge of the
marihuana and that the cars were indeed en-
gaged in a lead-car/load-car transport.
B.
To prove possession with intent to distrib-
ute under § 841(a)(1), the government must
establish, beyond a reasonable doubt, knowing
possession of contraband with intent to distrib-
ute. See id. at 724. Possession may be actual
or constructive. See id. In a hidden-compart-
ment case such as this, “[p]ossession of or
control over a vehicle does not, standing
alone, suffice to prove guilty knowledge.”
United States v. Anchondo-Sandoval, 910
F.2d 1234, 1236 (5th Cir. 1990). Nervous-
ness, conflicting statements, and implausible
stories can be sufficient to demonstrate guilty
knowledge, however. See Inocencio, 40 F.3d
at 725.
The government concedes that Mendoza
did not actually possess the marihuana but ar-
gues that he constructively possessed it as
driver of the lead car in a lead-car/load-car
scheme. Indeed, in United States v. Quiroz-
Hernandez, 48 F.3d 858, 868 (5th Cir. 1995),
we held that “[c]o-conspirators may also be li-
able for the substantive offenses committed by
other members of the conspiracy in furtherance
of the common plan” (quoting United States v.
Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992)).
“Therefore, a defendant can be liable for a pos-
session conviction on the basis of both his con-
structive possession over the contraband and
his status as a co-conspirator.” Id. (citing Lo-
pez, 979 F.2d at 1031). “[T]he jury could in-
fer [the defendant’s] joint control over the
contraband from his presence at the scene and
all the events leading to the . . . van’s ex-
change of drivers. The jury could rationally
conclude that [defendant] knowingly pos-
sessed the cocaine . . . .” Id.
Here, to the same effect, the jury could in-
fer that Mendoza constructively but knowingly
possessed the marihuana because of his obvi-
ous involvement in the conspiracy and the con-
flicting stories he gave. All this is sufficient to
establish the requisite guilty knowledge.
AFFIRMED.

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