*District Judge for the Northern District of Texas, sitting by

designation.

**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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-40977

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTOS MONCIVAIS, JR.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(L-96-CR-5-ALL)

_________________________________________________________________

December 4, 1997

Before KING and JONES, Circuit Judges and KENDALL, District Judge.*

EDITH H. JONES, Circuit Judge:**

Santos Moncivais, Jr. was convicted of possession with

intent to distribute marihuana and of conspiring to possess with

intent to distribute marihuana pursuant to 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 846. Moncivais appeals the district court’s denial
2

of his motions for judgment of acquittal on the ground that there

was insufficient evidence to support his conviction. We affirm.

I. FACTUAL BACKGROUND

At trial, the government presented evidence to establish

that on December 21, 1995, Moncivais was stopped at the I-35 Border

Patrol checkpoint north of Laredo on a trip to Houston in a tractortrailer he owned and operated. Inside the cab, Border Patrol agents

found approximately 190 pounds of marihuana.

When questioned by Border Patrol agents, Moncivais

appeared nervous and avoided eye contact with the officers. He told

the Border Patrol agents that an unidentified individual in Nuevo

Laredo had contacted him, and the two had agreed to trade

Moncivais’s 1976 pick-up truck for the marihuana, which the

unidentified individual would deliver to a pick-up location in the

United States. Moncivais claimed that he picked up the marihuana

at the agreed location, stored the drugs for a few days, and then

loaded them into his tractor-trailer for transportation to an exact

location he would not disclose.

At trial, Moncivais testified that he had no knowledge of

the marihuana until it was discovered by the Border Patrol agents.

He claimed that, without his knowledge, Elias Robledo had loaded the

marihuana into his tractor-trailer. Moncivais testified that he

made up the story he told the Border Patrol agents at the checkpoint
3

because he feared that Robledo might seek retribution against him

or his family. He testified that Robledo would often accompany him

on trips and that Robledo had keys to his tractor-trailer.

According to Moncivais, Robledo had planned to accompany Moncivais

to Houston. Moncivais stated that Robledo had suggested on several

past occasions that they make money by transporting marijuana.

II. ANALYSIS

When reviewing a district court’s denial of a motion

for judgment of acquittal, this court views the evidence and the

inferences therefrom in the light most favorable to the

government to determine if a reasonable trier of fact could find

that the evidence establishes guilt beyond a reasonable doubt. 

See United States v. Willis, 38 F.3d 170, 178 (5th Cir. 1994). 

This court’s review “does not extend to weighing the evidence or

assessing the credibility of witnesses.” United States v. Lopez,

74 F.3d 575, 577 (5th Cir.), cert. denied, 116 S. Ct. 1867

(1996). “The evidence need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, and the jury is free to choose

among reasonable constructions of the evidence.” Id.

A. Conspiracy to possess with intent to distribute 

In order to establish a narcotics conspiracy under 21

U.S.C. § 846, the government must prove beyond a reasonable doubt

that (1) there existed an agreement between two or more persons
4

to violate narcotics laws; (2) the defendant had knowledge of the

agreement; and (3) the defendant voluntarily participated in that

agreement. See United States v. Simmons, 918 F.2d 476, 483-84

(5th Cir. 1990). The government need not prove the existence of

a formal agreement, but only that two or more persons in some way

or manner, positively or tacitly, came to a mutual understanding

to try to accomplish a common and unlawful plan. See id. at 484.

Considering the evidence presented at trial, a

reasonable juror, while dismissing Moncivais’s “drug-for-truck”

trade story, could have believed that Moncivais voluntarily

conspired with either an unidentified individual in Mexico or

Elias Robledo to transport drugs to Houston for distribution. 

Moncivais’s claims of picking up the drugs at a drop-off point,

storing them near his home, and then possessing them in the cab

of his tractor-trailer all point to Moncivais as a player in a

drug distribution scheme. He was arrested carrying approximately

190 pounds of marihuana, an amount unlikely to be for personal

use, packaged in 28 7-pound bags from Laredo to Houston, a major

drug distribution hub. A Border Patrol agent testified at trial

that one person could not have singlehandedly loaded all of the

marihuana into the tractor-trailer. Looking at the facts in the

light most favorable to the government, it was reasonable for the

jury to believe that Moncivais did not grow, package, or intend

to distribute the drugs himself. The jury could reasonably
5

conclude that Moncivais conspired to transport and distribute

drugs in the United States.

Moncivais also argues that his conspiracy conviction

rests only upon his uncorroborated statements to Border Patrol

agents at the checkpoint. An accused may not be convicted on his

own uncorroborated confession. See Smith v. United States, 348

U.S. 147, 152 (1954). However, “[t]he corroborative evidence

alone need not prove the defendant’s guilt beyond a reasonable

doubt, nor even by a preponderance, ‘as long as there is

substantial independent evidence that the offense has been

committed, and the evidence as a whole proves beyond a reasonable

doubt that the defendant is guilty.’” United States v. Garth,

773 F.2d 1469, 1479 (5th Cir. 1985) (quoting Smith, 348 U.S. at

156). The facts of this case and the reasonable inferences

therefrom provide substantial independent evidence of Moncivais’s

participation in a conspiracy.

B. Possession with intent to distribute

A conviction for the offense of possession of marihuana

with intent to distribute under 21 U.S.C. § 841(a)(1) requires

proof beyond a reasonable doubt that the defendant (1) knowingly

(2) possessed marihuana (3) with intent to distribute it. See

Lopez, 74 F.3d at 577. The elements of possession with intent to

distribute may be established by circumstantial evidence. See

United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993). 
6

Knowledge may be inferred from the circumstances of the

case. See United States v. Steen, 55 F.3d 1022, 1032 (5th Cir.

1995) (stating that knowledge can be inferred from suspicious

circumstances that demonstrate consciousness of guilt, including

nervousness and inconsistent, implausible, or fabricated

explanations for the defendant's possession of the drugs); United

States v. Shabazz, 993 F.2d 431, 441 (5th Cir. 1993) (holding

that knowledge of the presence of contraband may ordinarily be

inferred from the exercise of control over the vehicle in which

it is concealed). Possession may be actual or constructive. See

United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992). One

who owns or controls a vehicle that contains contraband can be

deemed to possess. See id. Intent to distribute may be inferred

from a large quantity of illegal narcotics and the value and

quality of the drug. See Cardenas, 9 F.3d at 1158.

Moncivais admitted knowledge of the marihuana at the

checkpoint. He appeared nervous and avoided eye contact with

officers. He told Border Patrol agents an implausible story

regarding a “drug-for-truck” trade. Moncivais was the owner of

the tractor-trailer and in sole control of it on the night he was

arrested. Border Patrol agents testified that the smell of

marihuana permeated the cab and that it was readily apparent that

the bunk in Moncivais’s tractor (which was located directly

behind the driver’s seat) did not fit properly because of the
7

marihuana underneath it. Finally, 190 pounds of marihuana with

a street value of between $38,000 and $150,000 is significantly

more that an amount signifying personal use. 

Looking at the facts in the light most favorable to the

government, it was reasonable for the jury to conclude the

Moncivais possessed the marihuana with the intent to distribute. 

III. CONCLUSION

Having considered all of the arguments Moncivais

presents in his brief, we conclude that the district court was

correct in denying Moncivais’s motions for judgment of acquittal. 

The government’s evidence of conspiracy and possession with

intent to distribute was sufficient to support the guilty

verdict.

AFFIRMED.