## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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### m 01-50752

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### J OE 

### L UIS 

### S AUCEDO 

### -M UNOZ



### , A LSO K NOWN AS J OE L UIS S AUCEDO

,



### Defendant-Appellant.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

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### m 01-50904

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### J OSE 

### L UIS 

### S AUCEDO 

### -M UNOZ



### , A LSO K NOWN AS J EHOVA M IRANDA

,



### Defendant-Appellant.2 _________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________ September 23, 2002

Before D AVIS , S MITH , and B ENAVIDES

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Jose Saucedo-Mu noz appeals his convict ion

of poss ession with intent to distribute marihuana and cocaine, illegal re entry following

deportati on, and making a fal s e statement.

Finding no error, we affirm.

I.

State troopers Ruben Garcia and Ethan Upshaw 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, t hey said they had done so in Van

Horn with ni ne do llars worth of gas. Garcia

found this susp icio us, because he knew Van

Horn was 108 miles away; he would not have

expected a pickup truck to run out of gas after

traveling su ch a short distance. Garcia then

asked whether the truck’s gas gauge worked,

and the me n replied that it did not. This further aro u sed Garcia’s suspicion, because he

knew from experience and training that a vehicle’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 inconsistent with

the sound that woul d be produ ced by tapping on an empty tank or a tank

filled with fluid. Upshaw al so tapped on the

t ank with his baton and heard a similar thud.

Garcia concluded that the tank containe d

something more than gasoline.

When asked fo r identification, SaucedoMunoz produced a New Mexico identification

card bearing the name Jehova M iranda. The

o ther man produced a border crossing c ard

bearing the name G erardo Saucedo-Di az.

Sauced o -Munoz then asked the officers for a

ride to a gas station to buy more gas.

During t he tri p to the stati on, SaucedoMunoz, Garcia, and Upshaw conversed. Saucedo-Munoz stated that he had met SaucedoDiaz four years earlier at a bar in Juarez. Garcia 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

difficult y 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 h ad left his3

empty jug behind at the truck. When they arrived 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

stati on in Pyote, Saucedo-Munoz paid the attendant and filled the tank with only three dollars worth of gas before the pump stopped.

Saucedo-Munoz acted surprised and attempted to blame the problem on the station’s

pump, which he c laimed was broken. When

Upshaw observed that Saucedo-Munoz had

paid the attendant only three dollars, SaucedoMunoz paid another se ven 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 t aken to a wrecking yard,

where a drug dog alerted to the vehicle. Garcia observed that the gas gauge was b roken.

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 f orty-three

bundles of cocaine and marihuana inside.

II.

Saucedo-Munoz plead e d guilty of illegal

reentry following deportati on, 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 t o distribute marihuana and coca i ne, in violation of 21 U.S.C.

§ 8 41(a)(1), Saucedo-Munoz moved unsuccessfully to suppress evidence. A jury convicted him of both offenses. He appeals the

convictions and the revocation o f his supervised release. III.

Saucedo-Munoz argues that the district

court improperly instructed the jury regarding

deliberate ignorance. 1 The deliberate ignorance instruction is used “to inform the jury that

it may consider evidence of the defendant’s

charade of ignorance as circumstantial proof of

gui lt y knowledge.” U

nited States v. Wells

, 262 F.3d 455, 465 ( 5 th Cir. 2001) (citation

and internal q uotati on om itted). The i nstructi on allows the jury to convict withou t

finding that the defendant actually was aware

of the existence of illegal c onduct. U nited

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 “knowingly” or “inte nti

onally,” 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 w hen a

d e fendant claims a lack of guilty knowledge

and the poof at trial supports an inference of

deliberate indifferenc e .” W ells

, 262 F.3d at

1 The deliberate ignorance charge read as

follows:

You may find that a d efendant had

knowledge of a fact if you find that the defendant deliberately closed his eyes to what

would otherwise have been obvious to him.

While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent,

careless or foolish, knowled ge can be inferred if the defendant deliberately blinded

himself to the existence of a fact. However,

even so, if you find that the Defe ndant

actually believed that the transaction did not

involve marihuana or cocaine, then you

must acquit the defendant.4

465 (quoting Unit ed States v. McKinney , 53

F.3d 664, 676 (5th Cir. 1995)).

A deliberate ignorance instruction is reviewed “using the stan dard of whether the

co urt ’s charge, as a whole, is a correct statement of the law and whether it clearly instructs

jurors as to principles of law applicable to the

factual issu es confronting them.” U nited

States v. Wisenbaker

, 14 F.3d 1022, 1027 (5th

Cir. 1994) (citation and internal quotati on

omitted). The instruction is justified where

“the evidence shows (1) subjective awareness

of a high probability of the existence of illegal

co nduct and (2) purposeful contrivance t o

avoid learning of the illegal conduct.” U nited

States v. Threadgill , 172 F.3d 357, 368 (5th

Cir. 1999) (citation omitted).

The record reflects that Saucedo-Munoz

was subjectively aware o f a high probability

that the gas tank contained contraban d

. 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 stat ion in

Py ote, Saucedo-Munoz t r ied to fool the officers by purchasing o nly three dollars worth

of gas and the n claiming that the pump was

broken. He also pro duced a New Mexico

identification with a false name. Both officers

t estified that he seemed nervous and evasive

throughout the encounter. See United States v. Casilla

, 20 F.3d 600, 603 (5th Ci r. 1994)

(“Evasive and erratic behavior maybe evidence of guilty knowledge.”).

Evidence tending to show that Sau cedoMunoz purposely contrived to avoid learning

the existence of contraban d is less apparent.

Because he did not testify, there was no opportunity for the government to conduct crossex amination regarding his knowledge of how

the drugs were put into the tank . We are

mindful that w here “the choice is simply between a version of t he facts in which the defendant had actual knowl edge, and one i n

which he was no more than neg ligent or stupid, the deliberate ignorance instruction is inappropriate.” U

ni t ed States v. Lara-Velasquez

, 919 F.2d 946, 951 (5th Cir. 1990). N evertheless, Sau c edo-Munoz’s failure to testify

or present evidence does not render a deliberate ignorance instruction invalid.

A defendant’s contrivance to avoid learning

the existence of illegal conduct may be established by direct or circumstantial evidence.

Id. at 952. As we have noted, Saucedo-Munoz tried t o fo o l the officers by putting only

three dollars worth of gas in the tank, and then

claiming the pump was broken. Depending on

how this ac t ion is construed, it could show

that Saucedo-Munoz had actual knowl edge

t hat 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.

W hichever it was, the court did not err b y

giving a deliberate ignorance instruction. Although our caselaw prohi bit s a deliberate ignorance instruction where there is evidence of

only actual kno w ledge, Threadgill

, 172 F.3d

a t 369, we are unaware of any cases suggesting that a deliberate ignorance instruction 2 Although the average person migh t not infer

the pres ence of contraband from this fact alone,

Sauc edo-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 co ntraband. The admissibility of

Saucedo-Munoz’s prior offense is discussed infra

part III.5

is improper where evidence may be construed

as showing either actual knowledge or contrivance 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 instructi on because his conduct might also be

construed as evincing actual knowledge.

By giving a deliberate i gnorance instruction, the court did not cre ate a ri sk that the

jury would convict Saucedo-Munoz for mere

negligence or stupidity. Saucedo-Munoz’s affirmative attempt to fool the officers, his production 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 t ank, he was at the very least

turning a blind eye. In addition, the court provided a safeguard by instructing the jury that it

could not find him guilt

y if it believed he was

merely careless or negligent or did not realize

t hat the underlying transaction involved

narcotics. 5

IV.

Saucedo-Munoz contends the district court

abused its discretion by admitting evidence of

his 1988 convicti o n o f 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. Fa rfan-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 c o ntraband); 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 defendant’s purposeful contrivance to avoid guilty knowledge.” ); 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 t wo witnesses); U nited

States v. Restrepo-Granda

, 575 F.2d 524, 528-30

(5th Cir. 1978) (finding deliberate ignorance

instructi o n proper while concurrently finding

evidence of actual knowledge).

In Un ited 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 knowledge, but “little evidence that the d efendants purposefully contrive d to avoid knowing that their

actions were unlawful.” I d. at 369. The evidence

revealed that “the

defendants knew that their

conduct was criminal and took elaborate measures

to hide it.” I

d. A lthough Saucedo- Munoz’s conduct might be similarly construed, it is also possible that he turned a bli nd eye to what he believed

was the presence of cont raband. The jury was

entitled to convict on either theory. 4 Althoug h Saucedo-Munoz did not offer any

evidence, defense counsel presented a theory of ignorance in his opening statement and closing

argument, contendi ng 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 de liberate ignorance,

we need not undertake a harmless-error analysis.

An error in giving the deliberate ignorance instruction is “harmless where there is substantial evidence of actual knowledge.” W ells

, 262 F.3 d at

466 (citation and internal quotation omitted).6

whether he had “acted according to a plan or

in preparation for the commission of a crime.”

Federal Rule of Evidence 404(b) provides

tha t “[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.” F E D

. R. E VID . 404(b). Extrinsic

evidence may, however, be admissible for other purposes, such as proof of moti ve, opportunity, intent, prepar at ion, plan, knowledge,

identity, or absence o f 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

th an t he defendant’s character and its probative value is no t substantially outweighed by

undue prejudice. 6

Evid ence of the prior conviction is admissible to show that Saucedo-Munoz knew drugs

were concealed in the gas tank and that he intended and planned to transport drugs in a hidden spot outside the vehicle’s passenger compartment or trunk. 7 Nonetheless, SaucedoMunoz argu es that the conviction is inadmissible because its pro bat ive value is not substantially outweighed by its prejudicial effect.

See F ED

. R. E VID . 403. 8

This court has “consistent ly . . . 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

pro per jury instruction.” U nited 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

o ffense only so far as it demonstrated the requisite intent. This mitigated any danger that

the jury considered the evidence improperly as

proof of bad character.

V.

S aucedo-Munoz avers that the distric t

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

fe w narrowly defined exceptions.” U nited

States v. Roberts

, 274 F.3d 1007, 1011 (5th

Cir. 2001). Saucedo-Munoz argues that the

officers conducted a warrantless search by tapping 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, 67 0

(5th Cir. 1996); United Sta tes 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 whi ch defendant had used the same vehicle with a hidden

compar t ment to transport illegal aliens, was properly admitted as evidence of knowledge and intent

a nd as showing similarity of conduct); s ee also

United States v. Lazcano-Villalobos

, 17 5 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 Ruleof Evidence 403 states: “Although relevant, evidence may be e xcluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considera tions of

undue delay, waste of time, or n eedless presentation of cumulative evidence.” F ED

. R. E VID

. 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.7

In reviewing the denial of an ev identiary

suppression motion, we accept the district

court’s findings of fact unless cl early erroneous , but we review d e novo its ultimate

conclusion as to the constit ut io nality of the

law enforcement action. U nited States v

. Chavez-Villarreal

, 3 F.3d 124, 12 6 (5th Ci r.

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.” U

nited 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 exception to the Fourth Amendment’s warrant requirement permits authorities to search a vehicle when t hey have probable cause to believe

it contains contraban d

. M aryland v. Dyson

, 5 27 U.S. 465, 466-67 (1999). To the extent

that the actions o f 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 suffic i ent

to warrant a man of reasonable prudence in the

belief that contra band or evidence of a crime

will be found.” O rnelas v. United States

, 517

U .S. 690, 696 (1996). “The principal

co mponents of a determination of reasonable

suspicion or probable cause will be the events

which occurre d leading up to the stop or

search, and then the decision whether these

historical facts, viewed from the standpoint of

a n objectively reasonable police officer,

amount to reasonable suspicion or to probable

cause.” I d. I n determ

ining the existence of

reasonable suspicion or probable cause, we do

not isolate each factor of suspicion, but instead

look to the total

it y of the circumstances. United States v. Arvizu

, 534 U.S. 266 (2002).

We agree with the district court’s conclusion that the officers had probable cause to tap

on the gas tank. Garcia knew, based on training and experience, that vehicles carrying contraband are unable to travel normal distances

on a full tank of gas and often have broken gas

gauges. Garcia had ample data in the aggregate 

### SS the failed gas gauge, the short distance

before the truck ran out of gas, and the men’s

nervousness 

### SS

to conclude that there was contraband in the tank. To hold otherwise would

erroneously impute to Garcia the crime-ferreting wits of a layman, rather than a trained

law enforcement officer. O rnelas

, 517 U.S. at

6 96 (noting that probable cause is “v iewed

from the sta ndpoint of an objectively reasonable police officer

”) (emphasis added).

VI.

Saucedo-Munoz co n tends that the district

court erred by refusing t o adjust his offense

level based on his claimed minor role in the

offense. 10 Even if we were to accept Saucedo10 In his brief, Saucedo-Munoz also argues that

the district court erred i n denying his request that

the jury be instructed that it could convict him for

the lesser included offense of misprision of a felony. Saucedo-Munoz admits, however, that he

raises this issue on appeal only because an objectio n was made at trial and that he has located no

authority in support of his argument. He acknowledges that “[i]t does not appear that misprision of

[a] felony in any way relates to the delivery offenses.”

S imilarly, Saucedo-Munoz notes his objectio n

at sentencing to the court’s application of the sentencing guidelines; he objects to his counts being

grouped pursuant to U.S.S.G. § 3D1.4. SaucedoMun o z admits, however, that the court’s applica-

(continued...)8

Munoz’s dubious contention that SaucedoDiaz was the principal behind the crime, while

Saucedo-Munoz acted only as a couri er, we

would not reduce the offense level. 11

In any event, the evid ence poi nts to the

conclusion t hat Saucedo-Munoz, not SaucedoDiaz, acted as the principal. Saucedo-Munoz

spoke to the officers, purchased the ga s both

tim es, 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 SaucedoDiaz $2000 to acco mpany him on the trip.

The district court’s decision was no error. 12

AFFIRMED.

10 (...continued)

tion of t he sentencing guidelines was “correctly

made.” We consider these issues inadequately

briefed and therefore do not pass on th eir merits.

See F ED

. R. A PP

. P. 28(a)(9)(A); United States v.

B eaumont

, 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 defen dants . . . whose participation is limited to holding or delivering drugs,

may not, despite their more limited role in the conspiracy, be eligible for a reduction th eir offense

level”).

12 Because we affirm Saucedo-Munoz’s conviction for possession with intent to distribute marihuana and cocaine, we do not address his argument

that he was improperly sentenced as a Grade A

offe nder 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).