IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 01-50752

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOE LUIS SAUCEDO-MUNOZ,

ALSO KNOWN AS JOE LUIS SAUCEDO,

Defendant-Appellant.

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m 01-50904

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE LUIS SAUCEDO-MUNOZ,

ALSO KNOWN AS JEHOVA MIRANDA,

Defendant-Appellant.
2

_________________________

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:

JoseSaucedo-Munoz appeals his conviction

of possession with intent to distribute marihuana and cocaine, illegal reentry following

deportation, and making a false statement.

Finding no error, we affirm.

I.

State troopersRubenGarcia and EthanUpshaw stopped to assist two stranded motorists

standing next to a pickup truck with its hood

raised and gastank 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 further aroused 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 gastank with his

baton and heard a “thud” that he said was inconsistent with the sound that would be produced 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, SaucedoMunoz 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, 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-Diaz’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
3

empty jug behind at the truck. When they arrived back at the truck, Saucedo-Munoz filled

the truck with the gas and asked the officersto

follow him and Saucedo-Diaz to a nearby gas

station. After the officers followed them to a

station 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 claimed was broken. When

Upshaw observed that Saucedo-Munoz had

paid the attendant only three dollars, SaucedoMunoz 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. Garcia 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 marihuana and cocaine, in violation of 21 U.S.C.

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

convictions and the revocation of 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 informthe jury that

it may consider evidence of the defendant’s

charade ofignorance as circumstantialproofof

guilty knowledge.” United States v. Wells,

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

and internal quotation omitted). The instruction 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 “knowingly” 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 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, knowledge can be inferred 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.
4

465 (quoting United States v. McKinney, 53

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

A deliberate ignorance instruction is reviewed “using the standard of whether the

court’s charge, as a whole, is a correct statement ofthe 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 officers 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 evidence of guilty knowledge.”). 

Evidence tending to show that SaucedoMunoz purposely contrived to avoid learning

the existence of contraband is less apparent.

Because he did not testify, there was no opportunityforthe government to conduct crossexamination regarding his knowledge of how

the drugs were put into the tank. We are

mindful that where “the choice is simply between a version of the facts in which the defendant had actual knowledge, and one in

which he was no more than negligent or stupid, the deliberate ignorance instruction is inappropriate.” United States v. Lara-Velasquez, 919 F.2d 946, 951 (5thCir. 1990). Nevertheless, Saucedo-Munoz’s failure to testify

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

Adefendant’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 to fool the officers by putting only

three dollars worth of gasin 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. Although our caselaw prohibits a deliberate ignorance instruction where there is evidence of

only actual knowledge, Threadgill, 172 F.3d

at 369, we are unaware of any cases suggesting 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.
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,4he should

not be able to avoid a deliberate ignorance instruction because his conduct might also be

construed as evincing actual knowledge.

By giving a deliberate ignorance instruction, the court did not create a risk that the

jury would convict Saucedo-Munoz for mere

negligence orstupidity. Saucedo-Munoz’s affirmative attempt to fool the officers, his production ofa 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 provided 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 contendsthe 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 ofmind or intent necessary to commit

the crime charged in the indictment” and

3

See United States v. Farfan-Carreon, 935

F.2d 678, 681 (5thCir. 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 offensemay havebeen so overwhelmingly

suspicious that the defendant’s failure to question

the suspicious circumstances establishesthe 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 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

(5thCir. 1999), we concluded that thedistrict court

improperly gave a deliberate ignorance instruction

where there was strong evidence of actual knowledge, but “little evidence that the defendants purposefully 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 conduct might be similarly construed, it is also possible 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 ignorance 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 instruction is “harmless where there is substantial evidence of actual knowledge.” Wells, 262 F.3d 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

that “[e]vidence of other crimes, wrongs, or

actsis 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 other purposes, such as proof of motive, opportunity, 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 probative value is not substantially outweighed by

undue prejudice.6 

Evidence of the prior conviction is admissible to show that Saucedo-Munoz knewdrugs

were concealed in the gas tank and that he intended and planned to transport drugsin a hidden spot outside the vehicle’s passenger compartment or trunk.7

 Nonetheless, SaucedoMunoz argues that the conviction is inadmissible because its probative value is not substantially 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 wasto consider Saucedo-Munoz’s prior

offense 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.

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 warrantlesssearchbytapping 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 defendant had used the same vehicle with a hidden

compartment to transport illegal aliens, was properly 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 (10thCir. 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: “Although 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 presentation 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 existenceof probable cause

for the removal and search of the tank following his

arrest.
7

In reviewing the denial of an evidentiary

suppression motion, we accept the district

court’s findings of fact unless clearly erroneous, 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 exception to the Fourth Amendment’s warrant requirement permits authoritiesto search a vehicle 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 ofreasonable 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 ofsuspicion, 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 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 aggregateSSthe failed gas gauge, the short distance

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

nervousnessSSto 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. Ornelas, 517 U.S. at

696 (noting that probable cause is “viewed

from the standpoint of an objectively reasonable 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 Saucedo10 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 felony. Saucedo-Munoz admits, however, that he

raises this issue on appeal only because an objection 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.” 

Similarly, Saucedo-Munoz notes his objection

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. SaucedoMunoz 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 courier, we

would not reduce the offense level.11 

In any event, the evidence points to the

conclusionthat Saucedo-Munoz, not SaucedoDiaz, 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 SaucedoDiaz $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 participation is limited to holding or delivering drugs,

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

level”).

12Becausewe affirmSaucedo-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

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).