United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 21-50642 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Victor Manuel Campos-Ayala; 

Martin Moncada-De La Cruz, 

Defendants—Appellants. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 4:21-CR-38-2 

______________________________ 

Before Richman, Chief Judge, Jones, Smith, Stewart, Elrod, 

Southwick, Haynes, Graves, Higginson, Willett, Ho, 

Duncan, Engelhardt, Oldham, Wilson, Douglas, and

Ramirez, Circuit Judges.

Jerry E. Smith, Circuit Judge, joined by Jones, Stewart, 

Southwick, Haynes*, Higginson, Willett, Ho, Duncan, 

Engelhardt, Oldham, Wilson, and Ramirez, Circuit Judges: 

_____________________ 

 * Judge Haynes concurs in the judgment only. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 7, 2024 

Lyle W. Cayce 

Clerk 

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No. 21-50642 

2 

Victor Campos-Ayala and Martin Moncada-De La Cruz were found 

guilty by a jury of possession with intent to distribute one hundred kilograms 

or more of marihuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). 

They appealed. Finding the evidence insufficient, a panel, over a dissent, 

reversed. 70 F.4th 261 (5th Cir. 2023). This court granted en banc rehearing, 

thus vacating the panel opinion. 81 F.4th 460 (5th Cir. 2023) (per curiam). 

Because the evidence is sufficient, and there is no other reversible error, we 

affirm the judgments of conviction. 

I 

The panel majority aptly recounted many of the salient facts. 70 F.4th 

at 264–65. We first set forth the facts that the panel relied on. Then we present, from the record, additional facts that must be considered in order for 

the en banc court to rule on all the issues. 

The day after aliens Campos and Moncada crossed illegally from Mexico, they were given a ride for a considerable distance in a car that contained 

no contraband. Before reaching their destination, the driver dropped them 

off at a roadside park, promising to return. When he did so about thirty minutes later, the car was packed full of large bundles of marihuana. The defendants helped rearrange the bundles to provide room to ride in the crowded 

vehicle. 

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3 

Troopers, who stopped the vehicle, discovered the passengers and the 

marihuana. The panel dissent, 70 F.4th at 270 (Oldham, J., dissenting), included the following picture of the bundles, amounting to 283 pounds of 

marihuana: 

In addition to the defendants, the occupants included the driver—a male 

juvenile—and another passenger with her child. 

 The juvenile driver was immediately taken away in handcuffs. The 

defendants were questioned at the scene by Border Patrol agents, then taken 

to a station, where they were interrogated by DEA agents. The panel majority helpfully set forth its recitation of the salient details: 

Agent Ramos asked Campos-Ayala and Moncada-De La Cruz, 

“Do you know what you’re on?” One of them responded, 

“uh” or “no.” Agent Ramos asked, “the weed, right” or 

“that’s marijuana,” to which one of them nodded in the affirmative and the other state[d], “yes.” 

 Campos-Ayala and Moncada-De La Cruz were removed 

from the vehicle shortly after. While frisking Campos-Ayala, 

Agent Ramos asked, “Why did you help with the drugs?” 

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4 

Campos-Ayala responded, “I didn’t.” While escorting 

Campos-Ayala to the transport van, Agent Ramos asked, 

“Why did you cross with the drugs?” Campos-Ayala responded, “I didn’t, I just helped.” 

 Campos-Ayala, Moncada-De La Cruz, and another passenger in the vehicle were transported to a station with agents 

from the Drug Enforcement Administration (DEA). At the 

station, all three gave the same basic story. 

 The passengers were strangers but crossed the border 

together and flagged down a random car in hopes of travelling 

further into the United States. There were no drugs in the 

vehicle when they first accepted the ride. After they had been 

on the road for some time, the driver dropped the passengers 

off at a roadside park and told the passengers he would come 

back for them. When the driver returned, the car was loaded 

with the large bundles of marihuana. 

 Agents Kettani and Bustamante testified that Moncada-De 

La Cruz said “he helped rearrange [the bundles of marihuana] 

so that everybody could fit inside the vehicle, because it’s a 

small vehicle.” Agent Bustamante elaborated that the agents 

believed, in doing so, Moncada-De La Cruz “was possessing 

the marijuana inside the vehicle.” 

 DEA Agent Kettani testified that Campos-Ayala “ma[de] 

a statement that he would understand what his charge was,” 

stating, “He understood why he had been arrested. And in 

Spanish he said . . . Well, I guess that’s how it goes. Yes, I was 

in possession of the marijuana.” Agent Bustamante confirmed 

that Agent Kettani was asking Campos-Ayala if he “understood why he was being arrested,” and “what charges [were] 

being pressed against him,” to which Campos-Ayala responded in Spanish slang, “That’s just the way things are and I was 

in possession of the marijuana.” Bustamante also testified that 

Campos-Ayala said, “I guess that’s just the way things happen,” and that “he understood that he was in possession of the 

marijuana.” 

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Id. at 264–65 (some paragraph breaks inserted; alterations in original). 

II

 The matter proceeded to trial. Both defendants moved for acquittal 

at the close of the government’s case; neither renewed that motion at the 

close of all the evidence. After three hours of deliberation, the jury found 

both defendants guilty, and they appealed.1

 

 On appeal, the appellants raise three issues. First, both question the 

sufficiency of the evidence. Second, both claim the government removed, to 

Mexico, a witness who had material evidence favorable to the defendants. 

Third, they assert a Miranda violation during the questioning by law enforcement. Because the panel majority decided the evidence was insufficient, it 

saw no need to consider the other two issues. We will address all three in 

turn. 

III

A

 To convict under 21 U.S.C. § 841(a)(1) and (b)(1)(B)—possession of 

a controlled substance with intent to distribute—the government must prove 

“(1) knowledge, (2) possession, and (3) intent to distribute.” United States 

v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir. 2017) (citation omitted). The 

panel aptly set forth the governing standards, 70 F.4th at 266: Possession 

“may be actual or constructive.” United States v. McCowan, 469 F.3d 386, 

390 (5th Cir. 2006) (citation omitted). A defendant has actual possession if 

he “knowingly has direct physical control over a thing.” United States v. 

Meza, 701 F.3d 411, 419 (5th Cir. 2012) (citation omitted). A person has 

_____________________ 

1

 Both were sentenced to the mandatory minimum of 60 months, plus 5 years’ 

supervised release and a $100 assessment. 

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constructive possession by “(1) ownership, dominion or control over the 

item itself or (2) dominion or control over the premises.” Id. “[T]he government must establish [an] adequate nexus between the accused and the prohibited substance.” United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994). 

“Mere presence in the area where drugs are found is insufficient to support 

a finding of possession.” United States v. Cordova-Larios, 907 F.2d 40, 42 

(5th Cir. 1990). The evidence of possession is insufficient where it “has 

shown only that the defendant ran with bad company.” United States v. Sandoval, 847 F.2d 179, 185 (5th Cir. 1988). The determination of constructive 

possession “employ[s] a common sense, fact-specific approach.” Meza, 

701 F.3d at 419 (citation omitted). 

B

 Campos introduced no evidence, so he was not required to renew his 

motion for a directed acquittal. That means we review his sufficiency challenge de novo, considering the evidence and all reasonable inferences in the 

light most favorable to the verdict, to determine whether any rational jury 

could have found the essential elements beyond a reasonable doubt. United 

States v. Delgado, 984 F.3d 435, 446 (5th Cir. 2021). 

 Because Moncada did call a witness before failing to renew his motion 

for acquittal, we review his sufficiency issue under a more demanding standard: To prevail on appeal, he must show that the record is “devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is 

shocking.” United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) 

(en banc) (cleaned up). 

C

 The panel majority summarized, as follows, its finding of insufficient 

evidence: 

 Based on the available evidence, the jury could not reasonCase: 21-50642 Document: 189-1 Page: 6 Date Filed: 06/07/2024
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7 

ably conclude Campos-Ayala or Moncada-De La Cruz possessed the marihuana with the intent to distribute it. MoncadaDe La Cruz’s statement that he rearranged the bundles, while 

showing more than mere presence, does not establish an adequate nexus sufficient to enable a reasonable jury to find possession. Campos-Ayala’s statements that he “just helped” 

and “understood” he was in possession after Agent Kettani 

explained the charges to him are similarly insufficient for a reasonable jury to find he possessed the marijuana. 

70 F.4th at 266–67 (footnote omitted). 

 By so reasoning, the panel confined its factual observations to the 

actions of the defendants—who were the two male passengers—inside and 

immediately outside the car crammed with marihuana. But that is not all the 

pertinent evidence that the jury heard that well could have influenced its 

verdict and could explain how that verdict was reached. 

 That additional evidence centers on two groups of facts that were 

presented at trial. First, we need to consider the involvement of a female 

passenger who was not charged. Second, a fair evaluation of sufficiency 

requires consideration of all the facts leading up to the defendants’ getting 

into the subject vehicle in the first place. 

1

 First, there is the person whom the panel majority referred to only 

cursorily as “another passenger in the vehicle.” 70 F.4th at 264. She is 

Karina Castro-Hernandez, an adult female who crossed the border with the 

defendants, accompanied by her six-year-old daughter. The defendants aver 

that Castro could have given testimony favorable to them and that the government wrongly removed her from the U.S., thus making her unavailable.2

 

_____________________ 

2

 This is an issue on appeal that we will discuss separately and in more detail, infra. 

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8 

2

 Second, there is additional evidence, heard by the jury, that undercuts 

the defendants’ claim that they were only hitchhikers who innocently flagged 

a ride with what the panel majority called a “random” stranger and benignly 

became involved with a driver who was transporting contraband with intent 

to distribute. That additional evidence, heard by the jury, involves, inter alia, 

a mysterious phone call and the fact that one defendant possessed not one 

phone, but two. 

 In his opening panel brief, filed over two years ago, Campos skirted 

the details by stating only the following, in regard to the initial encounter with 

the transporting vehicle: 

 [The defendants] crossed illegally . . . into Presidio, Texas 

. . . accompanied by [Castro and her daughter]. All four of them 

hoped to travel to Odessa, Texas. They spent the evening hiding under a bridge near the border. The next day, they flagged 

down a car driven by seventeen-year-old Jose Ramos. Ramos 

picked them up and drove them to Van Horn, Texas. 

Moncada gave a similar account in his opening panel brief, referring to the 

travelers’ “good fortune of catching a ride with the young man” by “the flagging down of the car.” “[T]hey only sought to journey into the United States 

and took the ride they could find.” 

 But Campos’s account of the initial pickup at the bridge has radically 

and diametrically changed once we agreed to hear the case en banc. Campos’s supplemental en banc reply brief, filed about a month before en banc 

oral argument, admitted that the initial encounter with the car driven by 

Ramos was anything but random: 

 The evidence, however, did not suggest that HernanCase: 21-50642 Document: 189-1 Page: 8 Date Filed: 06/07/2024
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9 

dez’s[3] picking up of Campos, Moncada, Castro, and Castro’s 

daughter occurred by chance. According to [Agent] Kettani, 

Castro said: 

[T]hey crossed through Ojinaga, OJ, Mexico into Presidio. She said that she really didn’t know the other 

two defendants that they crossed with. They crossed 

in the evening. When they went to Presidio, it was during the evening. They spent the night there in a ditch 

under the bridge. She wasn’t really sure. She said it 

was outdoors. She stated that the phone rang in the 

morning, and they were trying to look for a ride. They 

flagged down an individual and that’s when the driver 

went to pick them up. 

ROA.651–52. 

 . . . . 

 What happened is clear. The smugglers with whom Castro, 

Campos, and Moncada had coordinated either gave them a 

phone or took their number to relay it to Hernandez. He called 

that number in the morning. ROA.651–52. Believing him nearby, they waved [sic] at the car nearest them, and he picked them 

up. ROA.651–52. This is a common alien-smuggling strategy. 

See, e.g., United States v. Cardenas-Menses, 532 F. App’x 505 

(5th Cir. 2013) (“‘[W]alkers guided aliens across the Rio 

Grande River into the brush and the aliens were then picked up 

by a driver and brought to a stash house. On the night of August 9, 2004, [a conspirator] drove the vehicle to the predesignated pick-up spot, honked his horn, and a large number 

of aliens rushed to the car and got in.”) 

Regarding this story of collusion between the defendants and the driver, 

Campos’s supplemental brief concluded, “The jury could not have reasonably disbelieved the accounts of Moncada, Campos, and Castro because they 

_____________________ 

3

 The teenage driver’s full name is Jose Ramos-Hernandez. 

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were sponsored by the government and corroborated by the investigation.” 

 And on the subject of telephones, there is other critical evidence: 

Campos was found to have two phones. At trial, Border Patrol Agent Ramos 

was asked, “Isn’t it really common for a lot of people who live in border areas 

or who even cross the border to have two phones, one that works in Mexico 

and one that works in America?” He answered, “No, ma’am. Actually, it’s 

common for them to have satellite phones because there is no mobile reception along the border.” And further, when asked “is it suspicious when someone has two phones?,” Ramos replied, “When it’s a government employee 

or somebody that works professionally, no. When it’s an individual that’s 

coming from the border, yes, sir.” 

 The upshot of this is that the jury heard it and could reasonably draw 

the inference that the defendants were neither innocent tourists on Christmas Eve nor just naïve victims of happenstance, but, instead and to the contrary, were part of a larger scheme. Here is the government’s theory, set 

forth in its supplemental en banc brief: 

A perceptive jury could reasonably question the credibility of 

their common account: there was a phone call, they “flagged 

down” a ride from Presidio to Odessa; Campos possessed two 

phones; and they were unsuspecting victims of Hernandez’s 

manipulations, which put them to the difficult choice of helping transport the marijuana load or staying in the roadside park. 

When it became obvious that Hernandez had two missions—

transporting non-citizens and marijuana—they could have 

abandoned Hernandez and the contraband and attempted to 

ca[tch] another ride on IH-10. Instead, they reloaded the car 

and climbed in with Hernandez and the marijuana. When the 

illegal enterprise (illegal entry and transportation) expanded in 

scope (transporting bulk marijuana), they elected to join it. At 

the very least, they committed the marijuana offense to accomCase: 21-50642 Document: 189-1 Page: 10 Date Filed: 06/07/2024
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11 

plish their own unlawful conduct. 

 In its closing argument to the jury, the government carefully raised doubt 

as to the defendants’ “innocent” conduct. The jury was free to consider that 

possibility in light of all the evidence. The government argued to the jury, 

inter alia, as follows: 

 So let’s talk about this story. They want you to believe 

that they walked into the country with a female and her daughter and saw someone that they have never met and said, Hey, 

can I have a ride? 

 Sure. I’ve never met you. Oh, and you have a female and 

her daughter? That’s not suspicious. Hop in. I’ll take you to 

a park. 

 And so they go to a park and they drop them off at a random park. This kid leaves and half an hour later he comes back. 

These grown men are putting the blame on a 17-year-old boy. 

Do you believe that that 17-year-old boy loaded up 128 kilograms by himself in 30 minutes? 

D

 Having now brought into play this additional evidence that the panel 

did not mention, we address the overriding question of sufficiency. The jury 

was properly instructed in accordance with the applicable pattern jury instructions and well-settled Fifth Circuit law, particularly our circuit’s merepresence instruction. No party challenged any of those instructions at trial 

or on appeal.4

 The court charged, ROA.725–727, as follows: 

_____________________ 

4

 “A district court does not err by giving a charge that tracks this court’s pattern 

instructions and is a correct statement of the law.” United States v. Knight, No. 23-30569, 

2024 U.S. App. LEXIS 5179, at *3–4 (5th Cir. Mar. 4, 2024) (per curiam) (unpublished) 

(citing United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009)). 

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 To “possess with intent to distribute” simply means to 

possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction. 

 Intent to distribute may be inferred from possession of an 

amount of controlled substance that is too large to be used by 

the possessor alone. But a quantity that is consistent with personal use does not raise such an inference in the absence of 

other evidence. 

 Mere presence at the scene of a crime and knowledge that 

a crime is being committed are not sufficient to establish that a 

defendant either directed or aided and abetted in the crime 

unless you find beyond a reasonable doubt that the defendant 

was a participant and not merely a knowing spectator. 

 “Possession,” as that term is used in the instructions, may 

be one of two kinds: actual possession or constructive 

possession. 

 A person who knowingly has direct physical control over a 

thing, at a given time, is in actual possession of it. 

 A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to 

exercise dominion or control over a thing, either directly or 

through another person or persons, is in constructive possession of it. 

 Possession may be sole or joint. If one person alone has 

actual or constructive possession of a thing, possession is sole. 

If two or more persons share actual or constructive possession 

of a thing, possession is joint. 

 . . . . 

 The word “knowingly,” as that term has been used from 

time to time in these instructions, means that the act was done 

voluntarily and intentionally, not because of mistake or 

accident. 

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 It is reasonable to infer that a person ordinarily intends 

the natural and probable consequences of his knowing acts. 

The jury may draw the inference that the accused intended all 

the consequences which one standing in like circumstances and 

possessing like knowledge should reasonably have expected to 

result from any intentional act or conscious omission. Any 

such inference drawn is entitled to be considered by the jury in 

determining whether or not the government has proved beyond 

a reasonable doubt that the defendant possessed the required 

criminal intent. 

The jury answered, in the affirmative, the questions (1) whether the defendants were guilty of possession with intent to distribute and (2) whether the 

amount was 100 kilograms or more. 

E

 There is ample evidence from which the jury could find possession 

with intent to distribute. The second part is easier: Once the jury finds possession, and further finds an amount above the statutory threshold, it can (but 

is not required to) draw the inference of intent to distribute. This rule of 

law—that possession of large enough quantities is sufficient, by itself, to 

prove intent to distribute—is so embedded in Fifth Circuit precedent as to 

be beyond cavil.5

 

_____________________ 

5 See, e.g., United States v. Williamson, 533 F.3d 269, 277–78 (5th Cir. 2008) (“We 

have held in the past that the mere possession of a quantity of drugs inconsistent with personal 

use will suffice for the jury to find intent to distribute.” (emphasis added) (citation omitted); 

United States v. Mays, 466 F.3d 335, 341 (5th Cir. 2006) (same); United States v. Anguiano, 

27 F.4th 1070, 1073 (5th Cir. 2022) (similar); see also United States v. Hunt, 129 F.3d 739, 

742 (5th Cir. 1997) (“Intent to distribute may be inferred solely from the possession of an 

amount of controlled substance too large to be used by the possessor alone.” (emphasis 

added)); United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir. 1986) (same); United 

States v. Grayson, 625 F.2d 66, 66 (5th Cir. 1980) (same). 

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 The government repeatedly argued that this case is all about possession, and that is so. And that is the reason we have juries. 

 Much is made of whether the process of rearranging the bundles in the 

car, to allow room for the passengers to occupy that vehicle, qualified as 

“possession” as the court carefully instructed the jury. It was for the twelve 

jurors to consider all the evidence and to decide the nature of the defendants’ 

encounter with the driver. A jury is entitled to give whatever weight it wishes 

to any part of the evidence and to draw, or not draw, the inferences that the 

law allows. 

 In examining sufficiency, we must view the evidence in the light most 

favorable to the verdict. In that regard, the jury was entitled to give any 

amount of weight or credence vel non to, inter alia, any or all of, or any combination of, the following, any one of which is enough to establish sufficiency 

of the evidence: 

• That the defendants voluntarily surrounded themselves with what 

was admittedly a controlled substance. 

• That they repeatedly handled and rearranged the contraband. 

• That, knowing that this was obviously a distribution scheme, they 

made no effort to exit the car or thwart the enterprise. 

• The substantial possibility that the initial encounter with the driver 

was pre-arranged as part of some sort of illegal enterprise. 

• The suspicious phone call under the bridge, conveniently followed 

by the arrival of a friendly driver offering a ride. 

• Campos’s possession of two phones. 

• The lack of an explanation of how it was possible for the teenage 

driver to load five large bundles of marijuana, weighing about 280 pounds, 

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into the cramped space of a small vehicle, all by himself, in about 30 minutes 

including travel time (raising the natural inference that, instead, the defendants were recruited, from the very beginning, to assist in loading, arranging, 

and unloading the contraband). 

• Whether it was plausible for the defendants to believe that RamosHernandez was going to transport them well over 200 miles, for free, for 

several hours, to their chosen destination of Odessa and to do so on 

Christmas Eve. 

• The fact that the trip from Presidio to Van Horn was way out of the 

way of the defendants’ supposed destination, which would have been a trip 

from Presidio to Odessa. 

• Whether, in accordance with the government’s hypothesis, this was 

all part of a consolidated scheme involving alien smuggling and marihuana 

distribution, using the defendants as handy workers to lift, pack, and unpack 

heavy bales of marihuana. 

• That the defendants were seemingly not the least bit worried when 

Ramos-Hernandez suddenly disappeared, apparently without explanation, 

thus abandoning them at the roadside park, on the mere promise to return 

later. 

• Perhaps most importantly, Campos’s admissions that he “possessed” and “helped with” the marihuana and of course knew it was 

marihuana. 

 Campos’s en banc reply brief, referred to above, unwittingly summarizes the likelihood that the defendants willingly engaged in a multifaceted 

unlawful enterprise: “Campos accepted a ride with Hernandez, someone 

who, having agreed to smuggle him, decided to double dip and attempt to 

profit further by smuggling marijuana at the same time.” At the very least, 

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the jury was easily entitled (but not required) to draw the inference that these 

defendants unwisely cooperated in an operation that included aliensmuggling and marihuana possession and distribution. 

 It is not the proper role of this court, sitting in what some might call 

an ivory tower with a bunch of briefs and a dry record, to second-guess a jury 

that heard evidence for two days and spent three hours poring over it. These 

defendants 

fall below the high standard required to reverse [the] verdict 

because, at the very best, there might be questions about how 

[the jury] weighed the evidence. That is far from demonstrating that the verdict is against the great weight of the evidence, 

especially when drawing all reasonable inferences in its favor 

and without substituting inferences that we might regard as 

more reasonable. 

Smith v. DG La., L.L.C., No. 23-30261, 2024 U.S. App. LEXIS 5792, at *9–

10 (5th Cir. Mar. 11, 2024) (per curiam) (unpublished) (cleaned up). 

 The twelve jurors were reasonably entitled to consider all the evidence 

and to render a verdict of guilty. Under the applicable standards of review, 

the evidence amply supports that result. 

IV

 We turn to the defendants’ claim that Karina Castro-Hernandez could 

have given testimony favorable to them and that the government wrongly 

removed her, making her unavailable as a witness.6

 Moncada contends that, 

by failing to dismiss the indictment on this ground, the district court violated 

his rights to due process and compulsory process to obtain a witness for his 

_____________________ 

6

 Given its decision that the evidence was insufficient, the panel, understandably, 

did not address this issue, though it was preserved and properly raised on appeal. 

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defense.7 The government responds that the defendants have not clearly 

shown that that Castro’s testimony would have been available and that, even 

if available, it would have been cumulative of the agents’ testimony regarding 

their interview with Castro and was not likely to have produced a different 

verdict. 

 We review de novo any alleged violation of due process or compulsory 

process. United States v. Piper, 912 F.3d 847, 853 (5th Cir. 2019) (per curiam); United States v. Tuma, 738 F.3d 681, 688 (5th Cir. 2013). 

A

 At a hearing on the motion to dismiss, defense counsel stated, as facts, 

that Castro, in an interview with DEA Agent Kettani, told “a story that 

matched our defendants’ [sic] stories in substance”: The driver picked up 

the defendants, Castro, and her daughter, then left them at a park for 30–40 

minutes and returned with the bundles of marihuana in the car. The lawyer 

stated, “There is some conversation about whether or not the driver told 

them that there were clothing in the bundles, and they were all instructed to 

get back in the vehicle. They crammed their way back in as best they could, 

and they were arrested 19 miles later . . . .” 

 Moncada’s attorney represented that Castro would “testify that neither she nor [defendants] had anything to do with bringing in the marihuana 

or possessing the marihuana . . . . They were coming in illegally to get to 

points where they wanted to be.” Importantly, counsel said that the government knew about the allegedly favorable interview and failed to disclose 

its existence before the authorities removed Castro. The government disagrees, noting that its affidavit accompanying the criminal complaint alerted 

_____________________ 

7

 Campos adopts this argument. 

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defense counsel to the interview and removal. Two days later, Moncada’s 

lawyer questioned Kettani about any relationship between Castro and the 

defendants but failed to ask about the interviews. Campos’s attorney asked 

Kettani whether Castro had been interviewed but did not inquire as to what 

Castro had said in the interview. 

 The crux of the defendants’ theory is that Castro was the only available witness to what happened the day of the incident because the seventeenyear-old driver invoked his Fifth Amendment privilege and the defendants 

declined to testify. Counsel explained that they explored obtaining a permit 

to allow Castro to re-enter the United States or, in the alternative, trying to 

depose her. Castro did send them a video statement but refused to return to 

the U.S., fearing arrest.8

 

 The government assured the district court that (1) Castro’s account 

would be presented through the agents’ testimony, (2) her statements would 

be cumulative, and (3) her absence would not be prejudicial to the defendants. Crucially, the government averred that the removal was not in bad 

faith but resulted from the fact that there were no beds available to keep the 

mother and young daughter together. Charging Castro would have separated 

them. In regard to having enough evidence to convict her, the government 

believed that a jury could see that she could not have lifted or carried the large 

bundles of marihuana. 

The district court found that there was no bad faith and that, instead, 

the government had a particular interest in deporting Castro as soon as possible because this was in the middle of the COVID pandemic (December 

_____________________ 

8

 Defense counsel never offered the video to show what Castro would have said as 

a witness after counsel acknowledged that there were “admissibility issues” with the video 

statement. 

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19 

2020). So she was referred for expedited removal. 

 Agents Kettani and Bustamante testified in detail as to both the interview with Castro and the defendants’ statements to law enforcement. It 

turns out that Castro’s and both defendants’ statements were, for all practical and legal purposes, identical.9

 The government did not dispute or object 

to the account of Castro’s or the defendants’ statements, on which defendants relied in further proceedings. 

B

 The right to compulsory process is surely implicated where the government removes an alien before defense counsel has had a chance to interview that person.10 We balance that right against the government’s responsibility faithfully to execute the immigration laws requiring prompt and efficient removal. United States v. Valenzuela-Bernal, 458 U.S. 858, 864–65 

(1982). 

 To succeed on this claim, the defendants must “make[ ] a plausible 

showing that the testimony of the deported witness[ ] would have been material and favorable . . . , in ways not merely cumulative.” Id. at 873. A defendant “must show prejudice.” Gonzales, 436 F.3d at 578. Dismissal should 

be granted “only if there is a reasonable likelihood that the testimony could 

have affected the judgment of [the jury].” Valenzuela-Bernal, 458 U.S. 

at 873–74. 

 The testimony of removed aliens is merely cumulative where other 

persons have imparted the same information. United States v. Perez, 217 F.3d 

_____________________ 

9

 The only difference is that Castro did not describe how the passengers got back 

into the vehicle with the bundles of marihuana. 

10 United States v. Gonzales, 436 F.3d 560, 577 (5th Cir. 2006), overruled on other 

grounds by United States v. Vargas-Ocampo, 747 F.3d 299, 300–02 (5th Cir. 2014) (en banc). 

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20 

323, 327 (5th Cir. 2000). As we have pointed out, the agents described Castro’s story in detail. Nothing in her reported statements contradicted the 

defendants’ admissions regarding (1) their knowledge of the presence of marihuana or (2) their rearranging the bundles in the car. Instead, Castro reinforced the defendants’ acknowledgements that they re-entered the vehicle 

knowing it was packed tight with marihuana. 

 In sum, there is no reasonable likelihood that the jury would have 

reached a different verdict just because Castro had testified in person. 

C

 Nor did the government act in bad faith by deporting Castro before 

disclosing the statement she had made to the agents.11 In an unrealistically 

perfect world, all witnesses would be easily and immediately available for 

every trial. Here, given competing considerations, the government struck a 

proper balance. 

 On the one hand, these defendants have the basic right to compulsory 

process. On the other hand, as we have said, the government has a core 

responsibility for faithful execution of the many immigration laws. Consistently with that responsibility, the government was faced with the COVID 

crisis, the lack of available detention space, and the humanitarian responsibility to keep together a mother traveling alone with a six-year-old child. 

 The district court correctly determined that the admission, without 

objection, of Castro’s hearsay statements adequately protected these defendants’ rights. The indictment should not have been—and was not—

dismissed on account of Castro’s unavailability as a witness. 

_____________________ 

11 Unlike some other circuits, this court has not adopted a requirement of bad faith 

for a defendant to succeed in complaining of the removal of a witness. See, e.g., Gonzales, 

436 F.3d at 579. The district court, nonetheless, helpfully found that there was no bad faith. 

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21 

V

 The district court denied defendants’ motion to suppress statements 

they made to Border Patrol Agent Ramos after the car was stopped on the 

highway.12 In essence, they averred that they had been in custody while waiting for some agents to arrive, and Ramos questioned them without Miranda

warnings.13 We review factual findings for clear error and conclusions of law 

de novo. United States v. Lim, 897 F.3d 673, 685 (5th Cir. 2018). 

 Trooper Foster testified that 20 to 30 minutes elapsed between the 

stop of the vehicle and the arrival of the first Border Patrol agent. The government acknowledges that in that interval, no one was taken from the car, 

nor was anyone free to leave. After BP agents arrived, they first removed 

Castro and her daughter from the car. Minutes later, Agent Ramos conversed with the defendants, who were still in the car but could see Ramos. 

 Ramos, in his words, “asked them in Spanish . . . ‘Do you know what 

you’re on?’ . . . And I said, (speaking Spanish.) ‘The weed,’ right. And then 

one of them said, ‘Yes.’ . . . And then the other one just nodded his head yes 

(speaking Spanish.).” 

 An agent removed Moncada from the vehicle and searched him. 

Ramos asked Campos (still in the car) whether he had anything dangerous. 

Then while frisking Campos, Ramos asked why he helped with the drugs; 

Campos said he did not. Ramos asked, “No?,” and Campos replied, “No.” 

Ramos asked in Spanish, “So, why did you cross with the drugs?” Campos 

answered, “I didn’t. I just helped.” Ramos retorted, “Exactly.” Campos 

_____________________ 

12 Just as with the issue regarding Castro, the panel properly determined that it 

need not decide this issue. 

13 Miranda v. Arizona, 384 U.S. 436, 474 (1966). The district court addressed this 

motion, after jury selection, and heard testimony from Ramos and Trooper Foster. 

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22 

was not in handcuffs. 

 The district court denied suppression. It found that taking 40 minutes 

for agents to arrive at the remote location and secure the scene was not an 

undue delay. The court further found that Ramos’s questioning was not formal but “more in a rapid, almost contemporaneous manner which he came 

up on this vehicle and started—and sort of asking a few questions.” Importantly, the court found that this was not a custodial setting under Miranda. 

 The court reasoned further that Campos was not handcuffed and that 

neither defendant was free to leave, there was reasonable suspicion, and, in 

the district court’s words, “they were being detained much like an ordinary 

traffic stop would happen. So no formal arrest was made at the time. They 

were never really arrested until they were taken to the transport vehicle.” 

 “Miranda warnings must be administered prior to ‘custodial interrogation.’” United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988) 

(en banc) (citation omitted). A person is “in custody” under Miranda

“when placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint 

on freedom of movement of the degree which the law associates with formal 

arrest.” Id. at 596. In evaluating the “in custody” requirement, this court 

has taken account of (1) the length of the questioning; (2) the location of the 

questioning; (3) the accusatory or non-accusatory nature of the questioning; 

(4) the amount of restraint on the person’s movement; and (5) any statements by the officers concerning the individual’s freedom to move or leave.14 

Applying these factors, the district court did not err in its findings or 

_____________________ 

14 United States v. Ortiz, 781 F.3d 221, 229–30 (5th Cir. 2015); United States v. 

Wright, 777 F.3d 769, 775 (5th Cir. 2015); United States v. Gonzalez, 814 F. App’x 838, 842 

(5th Cir. 2020) (per curiam). 

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23 

conclusions. 

 More specifically: The initial command to remain in the car was a 

routine detention to investigate whether there was a crime, not custody or a 

formal arrest. See United States v. Reyes, 963 F.3d 482, 490 (5th Cir. 2020). 

And generally, Miranda warnings are not required when officers question 

occupants during a routine traffic stop. Bodycam video indicates that Agent 

Ramos was calm and respectful instead of threatening. Further, Campos was 

not placed into a patrol car, handcuffed, or removed from the scene before 

Ramos’s questioning. 

 Questions about the presence of guns or drugs, in the early phase of a 

traffic stop, do not necessarily amount to custodial restraint. See United 

States v. Coulter, 41 F.4th 451, 459–60 (5th Cir. 2022). The inquiry as to 

Campos’s involvement with the marihuana was reasonably designed to ascertain whether the agents were dealing only with aliens or, instead, with a more 

serious situation posing a greater immediate risk. 

 Despite the fact that, as the district court stated, Campos was not free 

to leave, he was not—as a matter of law—in custody. It would have been 

unrealistic for him to think that he could leave the scene, but that was because 

he was a passenger in a car driven by a stranger; he was stopped in a remote, 

unfamiliar location; and he could not drive himself away or reasonably depart 

on foot. The roadside questioning before Campos was placed into the transport van did not subject him to the type of police interrogation that we have 

described as coercive. 

 The district court did not err in denying the joint motion to suppress. 

* * * * * 

 In summary: The evidence was sufficient, and the well-conducted 

trial was free of error. The judgments of conviction are AFFIRMED. 

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24 

Priscilla Richman, Chief Judge, joined by Elrod, Graves, and 

Douglas, Circuit Judges, dissenting: 

Our criminal justice system ensures that no person suffers the burden 

of a criminal conviction unless the government adheres to well-established 

procedural safeguards. We require the government to inform the accused of 

their constitutional rights—in the form of Miranda warnings—before 

custodial interrogation.1

 The government cannot deny the accused 

meaningful access to the only available witness with personal knowledge of 

material, non-cumulative facts favorable to the defense even if that witness is 

an illegal immigrant who would otherwise be subject to expedited removal.2

 

At trial, the government must offer sufficient evidence to establish every 

element of a criminal offense beyond a reasonable doubt.3

 These protections 

are fundamental to our understanding of due process. They safeguard every 

person from the arbitrary action of government and ensure that the 

government has borne its burden of proving a defendant’s guilt before 

depriving them of their liberty. 

Allowing the convictions in this case to stand fails to effectuate these 

safeguards in three critical respects. First, there is legally insufficient 

evidence that the defendants possessed marihuana with the intent to 

distribute it. Possession with intent to distribute cannot be inferred or 

presumed when the prosecution’s own evidence disproves intent to 

distribute. The government did not meet its burden of proof. Second, the 

district court admitted into evidence statements made by criminal defendants 

after they were restrained for forty minutes, surrounded by six officers, and 

_____________________ 

1 Miranda v. Arizona, 384 U.S. 436, 444 (1966). 

2 United States v. Valenzuela-Bernal, 458 U.S. 858, 867-68 (1982). 

3 Jackson v. Virginia, 443 U.S. 307, 316-19 (1979). 

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25 

interrogated without receiving warnings consistent with Miranda v. Arizona.

4

 

Third, those same criminal defendants could not mount an effective defense 

because the government deported the sole available witness with first-hand 

knowledge of what transpired from the time the defendants illegally entered 

this country until they were arrested. The government deported the witness 

before providing the defendants the proper notice, meaning the defendants 

could not even depose her. Her testimony would have been material and 

helpful. It would have corroborated how the defendants came to be crammed 

into the vehicle on top of the marihuana. Nevertheless, the district court 

concluded that hearsay testimony from arresting officers was adequate to 

convey what this witness had told them, and the majority opinion agrees, 

even though that conclusion finds no support in the law, and even though 

during closing argument, the government told the jury it should not believe 

the absent witness’s statements recounted by arresting officers. The 

majority opinion goes further, spinning scenarios of what might have 

transpired based on nothing more than conjecture. The arresting officers did 

not so much as hint that the statements the deported witness made to them 

were false or lacked credibility. But most importantly, the jury had no 

opportunity to see and hear the deported witness to judge her credibility. I 

respectfully dissent. 

I 

Undisputed details deserve attention. The government did not 

present witness testimony or any other evidence to contradict the following. 

_____________________ 

4

 384 U.S. 436 (1966). 

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26 

A 

Victor Campos-Ayala and Martin Moncada-De La Cruz illegally 

entered the United States through the southern border.5

 The two men 

crossed the border with Karina Castro-Hernandez and her six-year-old 

daughter, who otherwise were unaffiliated with the two men.6

 Many of the 

following facts were recounted by Castro-Hernandez when she was later 

interviewed by a federal agent. There is no evidence that the group 

transported marihuana across the border.7

 

After entering the United States, the group hid under a bridge near 

Presidio, Texas.8

 The next day, one of the men received a phone call, and 

the group began looking for a car to travel further into the United States.9

 

They successfully flagged down a driver and started their journey to Odessa, 

Texas.10 There is no evidence that drugs were inside the vehicle when the 

group entered the vehicle.11

During their journey, the driver—a seventeen-year-old juvenile—

stopped in Van Horn, Texas and dropped the passengers off at a roadside 

park.12 He left the passengers in the park for thirty to forty minutes.13 When 

_____________________ 

5

 ROA.641-52. 

6

 ROA.651. 

7

 ROA.652; ROA.515 (Agent Ramos testifying that Campos-Ayala stated he did not 

cross with drugs). 

8

 ROA.652. 

9

 ROA.652. 

10 ROA.652. 

11 ROA.652. 

12 ROA.652. 

13 ROA.652. 

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27 

he returned, the vehicle contained five large bundles of marihuana, weighing 

a total of approximately 283 pounds.14

The passengers rearranged the marihuana to fit in the compact car.15 

Castro-Hernandez sat in the front passenger’s seat with a large bundle of 

marihuana in her lap.16 Her six-year-old daughter sat to her left, straddling 

the console of the car.17 Moncada-De La Cruz was curled in a fetal position 

behind the driver’s seat, atop another large bundle of marihuana.18 CamposAyala was prone, on his side, atop one bundle, jammed against another, and 

with his legs hanging over the back seat resting on a third bundle of 

marihuana.19

As the driver and his passengers continued to Odessa, a concerned 

citizen called the authorities regarding a compact car filled with people and 

rectangular bundles.20 Troopers with the Texas Department of Public Safety 

pulled over the vehicle and immediately removed the driver from the car, 

handcuffed him, and seated him alongside the highway as they waited for 

U.S. Border Patrol.21 The troopers instructed the passengers to remain in 

the vehicle.22 Specifically, Trooper Foster testified that all occupants were 

told to “stay inside the car” and that he did not allow them to exit the 

_____________________ 

14 ROA.636-37; ROA.652-55. 

15 ROA.615-16. 

16 ROA.365. 

17 ROA.430. 

18 ROA.366-67. 

19 ROA.366-67. 

20 ROA.14; ROA.441-42. 

21 ROA.429-30. 

22 ROA.390. 

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28 

vehicle.23 While waiting for Border Patrol, Trooper Foster stated on multiple 

occasions: “I never read people their rights because I don’t talk to them” and 

“I don’t got no reason to read [the passengers] their rights. I ain’t talking to 

them.”24 It is undisputed that the state troopers did not give the passengers 

Miranda warnings. 

Approximately thirty minutes later, the first Border Patrol agent 

arrived and immediately asked: “Did you guys Miranda [the driver] yet?”25 

Trooper Foster responded: “Nope, I ain’t even ask him no questions.”26 

Five minutes later, two more Border Patrol agents arrived on the scene. At 

this point, six uniformed officers surrounded the vehicle.27 The agents 

removed Castro-Hernandez and her daughter from the passenger’s seat and 

loaded them into a Border Patrol transport van.28 The agents then 

approached the vehicle and questioned Campos-Ayala and Moncada-De La 

Cruz. Agent Daniel Walters asked where they were coming from and 

whether they were citizens of the United States.29 Agent Eric Ramos then 

asked if the men “knew what they were on.”30 The agent testified that one 

defendant shrugged and the other said no.31 Agent Ramos then questioned 

_____________________ 

23 ROA.390. 

24 Foster Bodycam at 17:09-17:25, 18:21-18:37. 

25 Foster Bodycam at 27:07. 

26 Foster Bodycam at 27:09. 

27 ROA.371; Foster Bodycam at 31:55-34:00. 

28 ROA.508-09. 

29 ROA.487. 

30 ROA.509, 511. 

31 ROA.509, 511. 

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29 

the men more specifically: “That’s marijuana?”32 Campos-Ayala said yes, 

and Moncada-De La Cruz nodded in agreement.33 It is undisputed that the 

Border Patrol agents did not give the men Miranda warnings before 

questioning them about the drugs.34

Next, Agent Estevan Arteaga removed Moncada-De La Cruz from the 

vehicle and frisked him.35 He then put Moncada-De La Cruz in the transport 

van.36 Agent Ramos next removed Campos-Ayala, and while frisking him at 

the back of the car asked, “Why did you help with the drugs?”37 CamposAyala replied that he did not.38 Ramos then found two phones on CamposAyala and asked, “Why do you need two phones? . . .You have a lot of people 

that you have to call for the drugs?”39 Campos-Ayala said no.40 Then, as he 

walked Campos-Ayala to the transport van, Ramos asked, “Why did you 

cross with the drugs?”41 Campos-Ayala replied, “I didn’t cross. I just 

helped.”42 DEA Agent Javier Bustamante later testified that he understood 

one of the defendants to say during interrogation that the defendant “helped 

rearrange [the bundles] so that everybody could fit inside the vehicle.”43 It 

_____________________ 

32 ROA.509 

33 ROA.509, 512. 

34 ROA.375. 

35 ROA.513-14. 

36 Foster Bodycam at 37:24-37:31. 

37 ROA.514. 

38 ROA.514. 

39 ROA.515. 

40 ROA.515. 

41 ROA.515. 

42 ROA.515. 

43 ROA.615-16. 

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30 

is undisputed that Agent Ramos did not give Campos-Ayala Miranda

warnings.44

B 

Campos-Ayala and Moncada-De La Cruz were indicted for possession 

with intent to distribute more than 100 kilograms of marihuana in violation 

of 21 U.S.C. § 841(a)(1) and (b)(1)(B).45 The prosecution declined to charge 

Castro-Hernandez to avoid separating the mother from her daughter.46 

Instead, federal agents interviewed the mother, who corroborated the 

defendants’ account of how they came to be in the vehicle with the 

marihuana.47 Castro-Hernandez was then processed for expedited removal 

to Mexico.48 Jose Ramos-Hernandez, the juvenile driver, invoked his Fifth 

Amendment rights, made no statements, and prosecutors decided not to 

pursue charges against him.49

Campos-Ayala and Moncada-De La Cruz both pleaded not guilty and 

requested a trial.50 Both defendants sought to suppress the statements they 

made to Agent Ramos.51 The defendants also filed motions to dismiss due to 

_____________________ 

44 ROA.375 (Agent Ramos testified “I didn’t Mirandize those gentlemen because 

I wasn’t interrogating them”). 

45 ROA.918. 

46 ROA.502. 

47 ROA.651-53. 

48 ROA.500. 

49 ROA.501-03. 

50 ROA.26; ROA.922. 

51 ROA.356-61; ROA.111-13. 

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31 

the improper removal of Castro-Hernandez, who could have served as a 

favorable witness.52

The district court denied the motions to suppress after concluding the 

defendants’ statements were not made during custodial interrogation.53 The 

district court concluded that the questioning did not violate the defendants’ 

Miranda rights.54 After a two-day trial, the jury found both Campos-Ayala 

and Moncada-De La Cruz guilty.55 Each was sentenced to the statutory 

minimum term of five years of imprisonment.56 The district court then 

issued an order denying their motions to dismiss, concluding that the 

government did not violate the defendants’ due process rights by removing 

Castro-Hernandez.57

On appeal, the defendants raise three issues. First, both CamposAyala and Moncada-De La Cruz argue that the evidence was insufficient to 

support their convictions. Second, Campos-Ayala contends that the district 

court erred by not suppressing his inculpatory statements to Agent Ramos 

because he was not warned of his Miranda rights. Third, both defendants 

assert that the government improperly removed Castro-Hernandez, making 

her unavailable to testify at trial. 

_____________________ 

52 ROA.823-32; ROA.1718-27. 

53 ROA.409-10. 

54 ROA.409-10. 

55 ROA.153-54. 

56 ROA.765. 

57 ROA.9. 

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32 

II 

Every defendant is constitutionally entitled to proof beyond a 

reasonable doubt in order to be convicted of violating a criminal law.58 This 

principle is “basic in our law and rightly one of the boasts of a free society.”59 

It is for this reason the Due Process Clause requires the government to put 

forth sufficient evidence to establish every element of a criminal offense.60

Under 21 U.S.C. § 841(a)(1) and (b)(1)(B), to sustain a conviction for 

possession of a controlled substance with intent to distribute, the government 

must prove: “(1) knowledge, (2) possession, and (3) intent to distribute the 

controlled substance.”61

A 

Under our caselaw, possession “may be actual or constructive.”62 A 

defendant has actual possession if he “knowingly has direct physical control 

over a thing at a given time.”63 A defendant has constructive possession if he 

“had (1) ownership, dominion or control over the item itself or (2) dominion 

or control over the premises in which the item is found.”64 In other words, 

_____________________ 

58 In re Winship, 397 U.S. 358, 362-64 (1970). 

59 Id. at 362 (quoting Leland v. Oregon, 343 U.S. 790, 803 (1952) (Frankfurter, 

J., dissenting)). 

60 Jackson v. Virginia, 443 U.S. 307, 316 (1979). 

61 United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir. 2017) (quoting United 

States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008)). 

62 United States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006) (footnote omitted) 

(quoting United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999)). 

63 United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012) (quoting United States v. 

Munoz, 150 F.3d 401, 416 (5th Cir. 1998)). 

64 Id.

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33 

“the government must establish [an] adequate nexus between the accused 

and the prohibited substance.”65

1 

Consider first the evidence indicating the defendants were in the 

presence of marihuana. As noted by the majority opinion, “the defendants 

voluntarily surrounded themselves with what was admittedly a controlled 

substance” and “made no effort to exit the car or thwart the enterprise.”66 

The majority opinion suggests this evidence alone is “enough to establish” 

possession.67 But our caselaw firmly establishes otherwise. We have 

consistently held that “[m]ere presence in the area where drugs are found is 

insufficient to support a finding of possession.”68 “[W]e have not hesitated 

to reverse a conviction when the evidence has shown only that the defendant 

ran with bad company . . . .”69

_____________________ 

65 United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994). 

66 Ante, at 14. 

67 Ante, at 14 (listing evidence and observing that “any one of which is enough to 

establish sufficiency of the evidence”). 

68 United States v. Cordova-Larios, 907 F.2d 40, 42 (5th Cir. 1990); see also United 

States v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983) (reversing defendant’s conviction for 

possession of marihuana with intent to distribute when the defendant was only present in 

the vehicle with the drugs and no other evidence connected him to drugs); United States v.

Ferg, 504 F.2d 914, 917 (5th Cir. 1974) (“The facts of this case illustrate the logic of this 

‘mere presence’ rule. The government presents only two pieces of circumstantial evidence 

in an attempt to link Ferg with the seized marijuana. Ferg was traveling with Shaw, the 

person who admitted having purchased the marijuana, and Ferg was a passenger in the car 

in which the marijuana was concealed. Beyond the admission by Ferg that he was a 

traveling companion of one guilty of illegal possession of marijuana, the government failed 

to establish that Ferg in any way violated 21 U.S.C. § 841(a)(1).”). 

69 United States v. Sandoval, 847 F.2d 179, 185 (5th Cir. 1988). 

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34 

Our decision in United States v. Moreno-Hinojosa70 elucidates this 

point. There, the government obtained a conviction against a defendant who 

was a passenger in a tractor-trailer rig containing roughly 450 pounds of 

marihuana.71 At trial, the government alleged the defendant—a friend of the 

driver—knew that the marihuana was in the truck and was a willing 

participant in the scheme to transport it.72 We reversed the conviction. Our 

court observed that even if the defendant knew the driver was illegally 

distributing marihuana, “this fact would not be sufficient evidence to 

establish his possession without an additional showing that he was riding in 

the truck to participate in the possession and distribution.”73 We held that 

to establish possession, “the government must show that [the defendant] 

controlled, or had the power to control, the truck or the marihuana; mere 

proximity to the drugs is not enough.”74

Despite the factual similarities between Moreno-Hinojosa and the 

present case, the majority opinion overlooks our “mere presence” 

jurisprudence. In fact, the en banc majority opinion concludes that the 

defendants’ presence in the car alone is “enough to establish sufficiency of 

the evidence.”75 This contention directly contradicts our holding in MorenoHinojosa. Whether the en banc majority intends to overrule Moreno-Hinojosa

sub silentio and the rest of our “mere presence” jurisprudence is unclear. 

_____________________ 

70 804 F.2d 845 (5th Cir. 1986). 

71 Id. at 846. 

72 Id.

73 Id. at 847. 

74 Id.

75 Ante, at 14. 

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35 

2 

Next, consider the evidence that the defendants “handled and 

rearranged the contraband.”76 Under our caselaw, “mere touching” is 

insufficient to establish possession.77 Instead, we require evidence that a 

defendant had actual possession of the contraband in the form of “direct 

physical control” or constructive possession of the contraband in the form of 

“ownership, dominion, or control.”78 Either way, our court has repeatedly 

identified control as the hallmark of possession.79

The government maintains that because the defendants rearranged 

the prepackaged marihuana to enter the vehicle, they had “direct physical 

control” over the drugs and were in actual possession of the marihuana.80 I 

disagree. The operative inquiry is whether rearranging prepackaged drugs to 

enter the vehicle constitutes “mere touching” or the level of control 

associated with possession. In my view, to define the defendants’ interaction 

with the marihuana as “possession” stretches that word beyond recognition. 

_____________________ 

76 Ante, at 14. 

77 United States v. Smith, 997 F.3d 215, 223-24 (5th Cir. 2021) (holding the district 

court erred in treating the defendant’s admission to “touching” a firearm as a sufficient 

factual basis for his guilty plea); see also United States v. De Leon, 170 F.3d 494, 498 (5th Cir. 

1999) (holding that “dominion and control” language in jury instructions “implicitly 

instruct[s]” the jury that “simply touch[ing]” is insufficient to establish possession). 

78 United States v. Hagman, 740 F.3d 1044, 1048-49 (5th Cir. 2014). 

79 See, e.g., United States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986) 

(“[T]he government must show that [the defendant] controlled, or had the power to 

control, the truck or the marihuana . . . .”). 

80 Government EB Br. at 12-13. 

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36 

To possess something, a defendant must “be master of” the thing or 

“have and hold it as property.”81 The definition of possession includes 

“[t]he fact of having or holding property in one’s power”82 and “[t]o have in 

one’s actual control.”83 These definitions are consistent with the common 

usage of the term in our caselaw: that the defendant has some right or ability 

to control the disposition of the contraband.84 In United States v. Smith,

85 we 

explained that “to possess something is to control it—it is ‘to be master of’ 

the thing.”86 We further observed that “[n]o one would confuse the simple 

act of laying a hand or finger on an item, on its own, as making someone the 

‘master’ over the item.”87

Here, the government failed to produce any evidence suggesting that 

Campos-Ayala and Moncada-De La Cruz held the bundles of marihuana in 

their power or could control the disposition of the drugs. There was no 

indication they could use, consume, or sell the marihuana, or move it from 

_____________________ 

81 Possess, Webster’s New International Dictionary 1926 (2d ed. 

1934). 

82 Bryan A. Garner, Dictionary of Legal Usage 688 (3d ed. 2011). 

83 Possess, Black’s Law Dictionary (11th ed. 2019). 

84 See, e.g., United States v. Smith, 997 F.3d 215, 219 n.5 (5th Cir. 2021) (“[B]oth 

kinds of possession—actual and constructive—require the Government to demonstrate 

control over an item.”); United States v. Moreland, 665 F.3d 137, 142 (5th Cir. 2011) 

(“Possession is defined as ‘the holding or having something (material or immaterial) as 

one’s own, or in one’s control.’” (quoting Possession, Oxford English Dictionary

(2d ed. 1989))); United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir. 1974) (“[P]ossession 

may be actual or constructive but in any event there must be dominion and control over the 

item or a power to exercise dominion and control.”). 

85 997 F.3d 215 (5th Cir. 2021). 

86 Id. at 221 (quoting Possess, Webster’s New International 

Dictionary 1926 (2d ed. 1934)). 

87 Id.

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37 

the car. On the contrary, the evidence presented by the government 

established that the driver was the sole possessor—or “master”88—of the 

contraband. The government conceded the defendants did not know the 

driver;89 that the marihuana was not in the car when they first accepted a 

ride;90 and that the driver intentionally dropped them off before going to 

obtain the marihuana by himself.91 Even the government’s own witness, 

Agent Bustamante, affirmed that the defendants adjusted the marihuana only 

to accommodate themselves in the vehicle.92 These facts are inconsistent 

with the argument that the defendants controlled the marihuana. 

Despite evidence to the contrary, according to the majority, the 

moment the defendants adjusted the marihuana to enter the “stranger[’s]”93

vehicle, they were in actual possession of the drugs.94 But the mere act of 

rearranging an item should not be equated with having mastery or control 

over it. As the Seventh Circuit aptly put it, to obtain control over drugs, “a 

defendant needs more than just mere physical contact; he must have the 

perceived right among the criminals with whom he is interacting to deal, use, 

transport, or otherwise control what happens to the drugs.”95

_____________________ 

88 See Smith, 997 F.3d at 221. 

89 Government EB Br. at 66 (observing Campos-Ayala was “a passenger in a car 

driven by someone he did not know”). 

90 ROA.652; Government EB Br. at 20. 

91 ROA.652; Government EB Br. at 20. 

92 ROA.615-16. 

93 Ante, at 23. 

94 Ante, at 14. 

95 United States v. Lane, 267 F.3d 715, 718 (7th Cir. 2001), abrogation on other 

grounds recognized by United States v. Williams, 946 F.3d 968, 970 (7th Cir. 2020); see also 

United States v. Edwards, 166 F.3d 1362, 1364 (11th Cir. 1999) (“We have previously held 

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When the only evidence in a case indicates the defendants lacked 

control over the contraband, as here, there is insufficient evidence for a jury 

to conclude the defendants possessed the controlled substance. 

3 

Lastly, consider the statements Campos-Ayala made that he 

“possess[ed]”96 and “just helped”97 with the marihuana. The majority 

opinion characterizes these statements as the “[p]erhaps most important[]” 

evidence offered by the government for proving the crime.98 But these words 

must be considered in context. 

Start with the statement “I just helped.”99 Campos-Ayala said this at 

the scene of the arrests following a series of questions by Agent Ramos. The 

agent initially asked, “Why did you help with the drugs?” to which CamposAyala responded, “I didn’t.”100 Agent Ramos then asked, “Why did you 

cross with the drugs?” to which Campos-Ayala responded, “I didn’t, I just 

helped.”101 This statement—made in Spanish and translated as “I just 

helped”—accords with Moncada-De La Cruz’s admission that the 

defendants helped rearrange the bundles of marihuana to allow the 

_____________________ 

that mere inspection of contraband, standing alone, is not sufficient to establish 

possession.”); United States v. Kearns, 61 F.3d 1422, 1425 (9th Cir. 1995) (“We hold that 

[the defendant’s] brief sampling of the marijuana, in the absence of other steps taken to 

give him physical custody of or dominion and control over the drugs, is not sufficient to 

constitute ‘possession.’”). 

96 ROA.655. 

97 ROA.370. 

98 Ante, at 15. 

99 ROA.515. 

100 ROA.514. 

101 ROA.515. 

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39 

passengers to fit in the compact car.102 As explained above, that does not 

mean the defendants controlled the marihuana. In context, rather than 

admitting anything, Campos-Ayala’s statement merely corroborates the 

defendants’ accounts of what transpired. 

Next, consider the statement Campos-Ayala made regarding 

“possession.”103 After DEA agents explained the charges against him, 

Campos-Ayala responded, “Well, I guess that’s how it goes. Yes, I was in 

possession of the marijuana.”104 Again, this statement was translated from 

Spanish and made in a specific context. The record indicates that the DEA 

agent who testified at trial interpreted Campos-Ayala to be “mak[ing] a 

statement that he understood what his charge was” after they explained the 

charges against him.105 Taken in context, the statement—“I was in 

possession of the marijuana”106—can most readily be taken to mean CamposAyala comprehended that the officers were telling him his actions constituted 

possession. It does not mean that Campos-Ayala agreed, as a legal 

proposition, that he possessed the marihuana within the meaning of 21 

U.S.C. § 841(a)(1). 

B 

Turning to intent to distribute, the majority opinion fixates on a 

“mysterious phone call” and the fact that Campos-Ayala was found with two 

_____________________ 

102 ROA.615 (Moncada-De La Cruz stated “that he helped rearrange [the bundles] 

so that everybody could fit inside the vehicle”). 

103 ROA.655. 

104 ROA.655. 

105 ROA.655. 

106 ROA.655. 

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phones.107 The majority opinion suggests this evidence indicates the 

passengers were implicated in the driver’s drug-distribution scheme at the 

outset.108 With due respect, the en banc majority—sitting in its “ivory 

tower”109—recasts the record from the bench. 

Simply put, there is no evidence in the record that the phones were 

associated with a drug-distribution scheme. The government’s witness, 

Agent Kettani, testified there was no suspicious activity on the phones and 

admitted the DEA did not do a “phone dump” to analyze the call logs, data 

history, or usage information to connect the phones to the drugs.110 In fact, 

the government conceded that “[t]here is no evidence [the defendants] began 

their venture into the U.S. with the purpose of possessing with intent to 

distribute marijuana.”111 The government has further conceded that the 

defendants were “passenger[s] in a car driven by someone [they] did not 

know.”112

Despite these concessions, the majority opinion glosses over the 

record and contends the jury “could reasonably draw the inference” that the 

defendants were part of a larger drug-distribution scheme at the outset.113 I 

_____________________ 

107 Ante, at 8-11, 14. 

108 Ante, at 10. 

109 Ante, at 16. 

110 ROA.656-57 (Agent Kettani stating “[n]othing in the phones really stuck out to 

me that they would have to be urgently processed by our intel analyst”); see also ROA.625 

(Agent Bustamante admitting the DEA “has the technology to dump [the] phones to give 

us text messages, phone calls, received, incoming”). 

111 Government Br. at 27 (emphasis added); see also Government EB Br. at 43. 

112 Government Br. at 39. 

113 Ante, at 10. 

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disagree; “[i]nferences must stop at some point.”114 The Due Process 

Clause requires courts to consider “whether the inferences drawn by a jury 

were rational, as opposed to being speculative or insupportable.”115 By 

connecting the cell phones to the drug-distribution scheme, the majority 

opinion makes several “leaps of logic, none of which is substantiated by 

evidence.”116 The government produced no evidence connecting the 

phones—or the “mysterious phone call”117—to the driver’s drugdistribution scheme. No government agent or other witness testified that the 

defendants crossed the border with the intention to transport or distribute 

drugs. Instead, the government has continued to take the position that 

Campos-Ayala and Moncada-De La Cruz illegally crossed the border with 

the purpose of getting to Odessa, Texas.118 In this respect, the majority 

opinion advances a theory that the government (understandably) disclaims. 

Under the government’s theory, Campos-Ayala and Moncada-De La 

Cruz joined the drug-distribution scheme when they rearranged the 

marihuana to enter the vehicle at the roadside park.119 The government 

_____________________ 

114 United States v. Crain, 33 F.3d 480, 487 (5th Cir. 1994). 

115 United States v. Vargas-Ocampo, 747 F.3d 299, 302 (5th Cir. 2014) (en banc); see 

also Jackson v. Virginia, 443 U.S. 307, 315 (1979) (affirming the Due Process Clause forbids 

conviction “except upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which [the defendant] is charged” (quoting In re Winship, 397 

U.S. 358, 364 (1970))); United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996) (“[A] 

verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly 

attenuated piling of inference on inference.”). 

116 Armour v. Knowles, 512 F.3d 147, 155 (5th Cir. 2007). 

117 Ante, at 8. 

118 Government Br. at 27 (“While they might not have set out on their journey from 

Mexico with the purpose of transporting marijuana, the jury could reasonably conclude that 

they joined in that crime to accomplish their own goals in Van Horn.”). 

119 Government Br. at 27. 

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argues this evidence alone is sufficient to support a conviction for possession 

with intent to distribute.120

To reach this conclusion, the government applies our “personal use” 

jurisprudence, which allows the jury to infer an intent to distribute when the 

defendant possesses a quantity of drugs inconsistent with personal use.121 

According to the government, because Campos-Ayala and Moncada-De La 

Cruz touched the marihuana at the roadside park, they possessed the 

marihuana; and because the quantity of the marihuana was approximately 

283 pounds, those two facts—touching and quantity—are sufficient to 

support a conviction for possession with intent to distribute. 

But consider the implications of the government’s position. Assume, 

for a moment, the government’s broad definition of possession is correct: A 

person is in possession of marihuana when they touch or rearrange marihuana 

in any way. Now imagine a guest (a pastor or family member, for example) 

enters a residence to express concerns about the occupant’s drug use, sees a 

large bundle of marihuana on the sofa, and moves the bundle to sit while 

attempting an intervention. Is that possession with intent to distribute? I 

cannot imagine this is the conduct § 841(a)(1) punishes, specifically when the 

_____________________ 

120 Government Br. at 27-28; Government EB Br. at 42. 

121 See, e.g., United States v. Valdez, 453 F.3d 252, 260 n.7 (5th Cir. 2006) (“Intent 

to distribute may be inferred from the large quantity of drugs involved.”); United States v. 

Cain, 440 F.3d 672, 674 (5th Cir. 2006) (noting the jury’s task is “to determine whether 

the quantity is consistent with personal use and, if so, to find no inference of an intent to 

distribute without other evidence”); United States v. Kates, 174 F.3d 580, 582 (5th Cir. 

1999) (per curiam) (“Intent to distribute may be inferred from the possession of a quantity 

of drugs too large to be used by the defendant alone. Possession of a small quantity of illegal 

drugs consistent with personal use does not support an inference of intent to distribute in 

the absence of other evidence, such as drug paraphernalia, guns, or large quantities of 

cash.” (citation omitted)). 

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government’s only evidence indicates the defendant touched the marihuana 

for a purpose other than distribution. 

In the majority opinion’s view, the moment Campos-Ayala and 

Moncada-De La Cruz rearranged the bundles of marihuana to fit in the 

compact car, the defendants were in possession of the marihuana and the jury 

could infer an intent to distribute. 

The extent to which the majority opinion blesses the drawing of 

“inferences” as a substitute for evidence exceeds the limits of what may 

reasonably be inferred. The majority opinion’s musings amount only to 

conjecture. For example, the opinion says in a bullet point that “[t]he 

substantial possibility that the initial encounter with the driver was prearranged as part of some sort of illegal enterprise” is some evidence on which 

a finding of possession with intent to distribute could be based.122 Let’s parse 

this, beginning with a “substantial possibility.” That does not approach 

proof. And then there is “some sort of illegal enterprise.” The defendants 

were not convicted and sentenced to five years in prison for some unspecified 

“illegal enterprise.” They were convicted of possession with intent to 

distribute. They were unquestionably guilty of illegal entry into this country. 

The initial encounter with the driver might have been pre-arranged as part of 

their illegal entry. But a factfinder should not be permitted to leap to the 

conclusion that a (possibly) pre-arranged encounter with a driver in a vehicle 

that has no controlled substances in it is evidence of intent to distribute 283 

pounds of marihuana. The same can be said of the next bullet point, which 

is “[t]he suspicious phone call under the bridge, conveniently followed by the 

arrival of a friendly driver offering a ride.”123

_____________________ 

122 Ante, at 14. 

123 Ante, at 14. 

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Then there is “Campos’s possession of two phones.”124 Really? That 

evidence is in and of itself sufficient to sustain a conviction for possession 

with intent to deliver 283 pounds of marihuana? 

Next up is: “The lack of an explanation of how it was possible for the 

teenage driver to load five large bundles of marijuana, weighing about 280 

pounds, into the cramped space of a small vehicle, all by himself, in about 30 

minutes including travel time (raising the natural inference that, instead, the 

defendants were recruited, from the very beginning, to assist in loading, 

arranging, and unloading the contraband).”125 Even the government does not 

contend there is evidence that the defendants were recruited “from the very 

beginning, to assist in loading, arranging, and unloading the contraband.” 

That aside, can the weight of the bundles reasonably give rise to such an 

inference? The five bundles together weighed 283 pounds, which means on 

average, they weighed 56.6 pounds each. Dog food kibble is frequently sold 

in 40-pound bags. Luggage weighing up to 50 pounds can be checked at the 

airport. Fifty-pound bags of sugar and of flour and of lawn products are 

available for purchase by consumers. It is common knowledge that many if 

not most 17-year-old males could manage to lift 56.6 pounds. It is even 

common knowledge that some, though certainly not all, 70-year-old females 

could manage to lift at least 50 pounds. Common sense also tells us that it 

would not take all that long to move five bundles weighing 56.6 pounds. It is 

also plausible that the driver could have had help from one or more people 

when he picked up the marijuana bundles. Speculation as to what might or 

might not have happened cannot be a substitute for evidence as to what 

actually did happen. 

_____________________ 

124 Ante, at 14. 

125 Ante, at 14-15. 

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Also among the bullets is this: “The fact that the trip from Presidio to 

Van Horn was way out of the way of the defendants’ supposed destination, 

which would have been a trip from Presidio to Odessa.”126 Even the 

government does not argue this. Where is the evidence that the defendants 

had the right or ability to direct what route the driver took or whether he 

planned to go to other destinations before heading to Odessa? I submit that 

the evidence strongly suggests the passengers had little or no control over the 

driver’s route. 

The other bullet points in the majority opinion are addressed 

elsewhere in this opinion. With the utmost respect for my colleagues, the 

Due Process Clause requires more than conjecture. The government has a 

burden to put forth sufficient evidence to prove every element of a criminal 

offense beyond a reasonable doubt;127 it did not meet that burden here. “[A] 

verdict may not rest on mere suspicion, speculation, or conjecture, or on an 

overly attenuated piling of inference on inference.”128 The evidence 

connecting Campos-Ayala and Moncada-De La Cruz to the marihuana was 

insufficient for the jury to find that the defendants had possession—much 

less possession with intent to distribute—beyond a reasonable doubt. 

III 

Contrary to the majority opinion, I would hold that the district court 

erred in admitting statements made by Campos-Ayala to federal agents at the 

scene of the arrest. The defendant made these statements while subjected to 

custodial interrogation without receiving Miranda warnings. 

_____________________ 

126 Ante, at 15. 

127 Jackson v. Virginia, 443 U.S. 307, 316-19 (1979). 

128 United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996). 

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The Fifth Amendment provides that “[n]o person . . . shall be 

compelled in any criminal case to be a witness against himself.”129 To 

safeguard the privilege against self-incrimination and counteract the 

“inherently compelling pressures” of custodial interrogation, a suspect must 

receive Miranda warnings.130 Statements stemming from custodial 

interrogation without Miranda warnings may not be used as evidence to 

establish guilt.131

Whether a suspect is “in custody” for Miranda purposes “is an 

objective inquiry.”132 The Supreme Court has “emphasized” that “[t]wo 

discrete inquiries are essential to the determination.”133 The Court 

elaborated in J.D.B. v. North Carolina:

134

[F]irst, what were the circumstances surrounding the 

interrogation; and second, given those circumstances, would a 

reasonable person have felt he or she was at liberty to terminate 

the interrogation and leave. Once the scene is set and the 

players’ lines and actions are reconstructed, the court must 

apply an objective test to resolve the ultimate inquiry: was there 

a formal arrest or restraint on freedom of movement of the 

degree associated with formal arrest.135

_____________________ 

129 U.S. Const. amend. V. 

130 Miranda v. Arizona, 384 U.S. 436, 444, 467 (1966) (holding that officers must 

inform suspects that they have a right to remain silent, that anything they say may be used 

as evidence against them, and that they are entitled to the presence of an attorney, either 

retained or appointed, prior to the interrogation). 

131 Id. at 444. 

132 J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011). 

133 Id. (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). 

134 564 U.S. 261 (2011). 

135 Id. (quoting Keohane, 516 at 112). 

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A year after its decision in J.D.B., the Court provided additional 

guidance in Howes v. Fields,

136 explaining that “the initial step” of 

determining whether someone is in custody for Miranda purposes “is to 

ascertain whether, in light of ‘the objective circumstances of the 

interrogation,’ a ‘reasonable person [would] have felt he or she was not at 

liberty to terminate the interrogation and leave.’”137 In this regard, the Howes

decision explained that “in order to determine how a suspect would have 

‘gauge[d]’ his ‘freedom of movement,’ courts must examine ‘all of the 

circumstances surrounding the interrogation.’”138 The Howes opinion set 

forth factors pertinent to this assessment, including the “duration” of the 

encounter,139 “statements made during the interview,”140 “the presence or 

absence of physical restraints during the questioning,”141 and “the release of 

the interviewee at the end of the questioning.”142

The Howes decision then explained that “[d]etermining whether an 

individual’s freedom of movement was curtailed [under the freedom-ofmovement test], however, is simply the first step in the analysis, not the 

last.”143 The Howes decision reminds us that “[n]ot all restraints on freedom 

_____________________ 

136 565 U.S. 499 (2012). 

137 Id. at 509 (alteration in original) (citation omitted) (first quoting Stansbury v. 

California, 511 U.S. 318, 322-23 (1994) (per curiam); and then quoting Keohane, 516 U.S. at 

112). 

138 Id. (alteration in original) (quoting Stansbury, 511 U.S. 325). 

139 Id. (citing Berkemer v. McCarty, 468 U.S. 420, 437-38 (1984)). 

140 Id. (first citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam); then 

citing Yarborough v. Alvarado, 541 U.S. 652, 665 (2004); and then citing Stansbury, 511 U.S. 

at 325). 

141 Id. (citing New York v. Quarles, 467 U.S. 649, 655 (1984)). 

142 Id. (citing California v. Beheler, 463 U.S. 1121, 1122-23 (1983) (per curiam)). 

143 Id.

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of movement amount to custody for purposes of Miranda.”144 For example, 

“the roadside questioning of a motorist who was pulled over in a routine 

traffic stop [does] not constitute custodial interrogation,” even though 

“[f]ew motorists . . . would feel free either to disobey a directive to pull over 

or to leave the scene of a traffic stop without being told they might do so.”145 

Indeed, “a person detained as a result of a traffic stop is not in Miranda

custody.”146 That is “because such detention does not ‘sufficiently impair 

[the detained person’s] free exercise of his privilege against selfincrimination to require that he be warned of his constitutional rights.’”147 

The Supreme Court’s “cases make clear . . . that the freedom-of-movement 

test identifies only a necessary and not a sufficient condition for Miranda

custody.”148 The Supreme Court has directed courts to “instead ask[] the 

additional question whether the relevant environment presents the same 

inherently coercive pressures as the type of station house questioning at issue 

in Miranda.”149

“[T]he temporary and relatively nonthreatening detention involved 

in a traffic stop . . . does not constitute Miranda custody.”150 However, 

traffic stops may become custodial. “If a motorist who has been detained 

pursuant to a traffic stop thereafter is subjected to treatment that renders him 

‘in custody’ for practical purposes, he will be entitled to the full panoply of 

_____________________ 

144 Id.

145 Id. at 509-10 (quoting Berkemer v. McCarty, 468 U.S. 420, 437 (1984)). 

146 Id. at 510. 

147 Id. at 510 (alteration in original) (quoting Berkemer, 468 U.S. at 437). 

148 Id. at 509 (omission in original) (quoting Maryland v. Shatzer, 559 U.S. 98, 112 

(2010)). 

149 Id.

150 Maryland v. Shatzer, 559 U.S. 98, 113 (2010). 

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protections prescribed by Miranda.”151 The operative inquiry is whether, 

given the circumstances, “a reasonable person in the suspect’s position 

would have understood the situation to constitute a restraint on freedom of 

movement of the degree which the law associates with formal arrest.”152

When analyzing whether an officer’s conduct during a traffic stop 

moved the encounter beyond “routine” to “custodial” our court considers 

several factors, including: “(1) the length of the questioning; (2) the location 

of the questioning; (3) the accusatory, or non-accusatory, nature of the 

questioning; (4) the amount of restraint on the individual’s physical 

movement; and (5) statements made by officers regarding the individual’s 

freedom to move or leave.”153 We also consider “the presence of other 

officers at the location,”154 the length of the detention,155 and whether 

officers confiscated the suspect’s belongings.156 Ultimately, this is an 

objective inquiry rooted in the “totality of circumstances.”157

_____________________ 

151 Berkemer, 468 U.S. at 440. 

152 United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). 

153 United States v. Nelson, 990 F.3d 947, 955 (5th Cir. 2021). 

154 United States v. Cavazos, 668 F.3d 190, 194 n.3 (5th Cir. 2012). 

155 United States v. Harrell, 894 F.2d 120, 124 n.1 (5th Cir. 1990) (agreeing with the 

defendant that a “detention of approximatley [sic] an hour raises considerable suspicion” 

that the individual was subjected to a custodial interrogation). 

156 See United States v. Chavira, 614 F.3d 127, 134 (5th Cir. 2010) (“Chavira’s birth 

certificate and Texas identification were both confiscated. Had she wanted to leave, she 

would have to first retrieve her belongings from the Government.”); United States v. 

Salinas, 543 F. App’x 458, 464-65 (5th Cir. 2013) (per curiam) (unpublished) (recognizing 

that “the retention of the phones, like the retention of the identifying documents in 

Chavira, is some evidence that the encounter was custodial”). 

157 California v. Beheler, 463 U.S. 1121, 1125 (1983); see also United States v. Wright, 

777 F.3d 769, 775 (5th Cir. 2015) (recognizing that “no one fact is determinative”). 

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In arguing that Campos-Ayala was not “in custody,” the majority 

opinion mischaracterizes the interaction as “the early phase of a traffic 

stop.”158 While the encounter may have started as a traffic stop, the situation 

evolved into Miranda custody when officers subjected the motorist “to 

treatment that render[ed] him ‘in custody’ for practical purposes.”159 In 

other words, “the case changed from” an investigatory stop “to an 

essentially criminal law enforcement case.”160 The facts are unlike a 

“routine traffic stop” and instead are consistent with detention for the 

purpose of arrest. 

Consider the encounter. Troopers with the Texas Department of 

Public Safety pulled over the vehicle and immediately removed the driver, 

handcuffed him, and seated him alongside the highway as they waited for 

U.S. Border Patrol.161 Trooper Foster testified that the passengers were then 

instructed to “stay inside the car” and that he did not allow them to exit the 

vehicle.162 By the time Border Patrol arrived at the scene, Campos-Ayala had 

been held in the vehicle for forty minutes, jammed between the 50-pound 

bundles of marihuana with no ability to move or exit the compact car. While 

in this compromising position, Campos-Ayala watched as the juvenile driver, 

the mother, and the six-year-old girl were loaded into a cage of a Border Patrol 

transport van.163 Officers then removed Campos-Ayala from the vehicle, 

confiscated his belongings, and escorted him to the transport van. The 

_____________________ 

158 Ante, at 23. 

159 Berkemer v. McCarty, 468 U.S. 420, 440 (1984). 

160 Chavira, 614 F.3d at 133. 

161 ROA.429-30. 

162 ROA.390. 

163 Campos-Ayala EB Br. at 52-53. 

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majority opinion nevertheless maintains this situation was still in “the early 

phase of a traffic stop.”164 I disagree. 

When Agent Ramos approached the vehicle—after escorting the 

mother and her daughter to the transport van—and began questioning 

Campos-Ayala about the marihuana, an objectively reasonable person in 

Campos-Ayala’s position would have thought himself subject to arrest. 

First, the nature of Agent Ramos’s questioning was accusatory. 

Questions such as “[d]o you know what you’re on?”; “[t]he weed, right?”; 

“[w]hy did you help with the drugs?”; “[w]hy did you cross with the 

drugs?”; and “[y]ou have a lot of people that you have to call for the drugs?” 

were intended to establish elements of the crime such as knowledge and 

intent to distribute.165 They were inculpatory questions. Regardless of the 

tone in which Agent Ramos asked these questions, it cannot be mistaken that 

the agent was implicating Campos-Ayala in criminal activity.166

Second, the extent of restraint on Campos-Ayala’s physical 

movement was substantial. The majority opinion correctly observes that 

Campos-Ayala “was not placed into a patrol car, handcuffed, or removed 

from the scene before . . . questioning.”167 But these conditions are not 

dispositive.168 Campos-Ayala was detained in the compact car for forty 

_____________________ 

164 Ante, at 23. 

165 ROA.366; ROA.369-70; ROA.380; ROA.509; ROA.512; ROA.514-15. 

166 Cf. United States v. Coulter, 41 F.4th 451, 468 (5th Cir. 2022) (Richman, C.J., 

dissenting) (“No matter how calmly asked or the tone of voice used, the question is an 

incriminatory, accusatory one.”). 

167 Ante, at 23. 

168 See United States v. Wright, 777 F.3d 769, 774-75 (5th Cir. 2015) (emphasizing 

that “no one fact is determinative” in deciding whether a suspect is “in custody,” rather 

this is an objective inquiry that depends on the totality of circumstances). 

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minutes, pinned against the car when he was removed, taken by the arm to 

the transport van, and had his personal belongings confiscated.169 He 

watched as officers handcuffed the driver and loaded the other passengers 

into the Border Patrol transport van.170 At no point did the officers allow 

Campos-Ayala to move freely. He was not free to exit the vehicle. He 

certainly was not free to walk away from the scene. 

Nevertheless, the majority opinion downplays the role of the officers 

in restricting Campos-Ayala’s movement. The majority opinion asserts: 

Despite the fact that, as the district court stated, Campos was 

not free to leave, he was not—as a matter of law—in custody. 

It would have been unrealistic for him to think that he could 

leave the scene, but that was because he was a passenger in a 

car driven by a stranger; he was stopped in a remote, unfamiliar 

location; and he could not drive himself away or reasonably 

depart on foot.171

With due respect, this assertion turns a blind eye to the record. Trooper 

Foster testified that “[he] didn’t allow [the passengers] to get outside of the 

vehicle,”172 and Agent Ramos confirmed that he “stood in the way of the 

door.”173 When officers removed Campos-Ayala from the vehicle, he 

remained subject to their demands. While extrinsic factors limited CamposAyala’s ability to leave, those factors did not foreclose this possibility. 

Instead, it was the state and federal officers who physically restricted 

_____________________ 

169 Foster Bodycam at 1:04; Foster Bodycam at 35:50-40:50; ROA.368-69; 

ROA.377-78; ROA.380; ROA.388-90; ROA.509; ROA.514-15. 

170 Campos-Ayala EB Br. at 52-53. 

171 Ante, at 23. 

172 ROA.390. 

173 ROA.378. 

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Campos-Ayala’s movement. After all, the passengers had traveled on foot to 

enter the United States illegally. They were physically capable of walking 

away. In my view, the full picture of the scene illustrates why Campos-Ayala 

reasonably understood himself to be in custody—even the minor driver was 

prevented from leaving because he was handcuffed and removed from the 

vehicle. 

The statements made by the officers made clear Campos-Ayala was 

not free to move or leave. Both Trooper Foster and Agent Ramos confirmed 

they instructed the defendant to remain in the vehicle on multiple 

occasions.174 Moreover, neither officer gave Campos-Ayala any reason to 

think that he was being restrained for a limited, temporary purpose, such as 

to ensure officer safety. Unlike cases in which the suspect was specifically 

told they were not “under arrest” or “in custody,”175 the officers here never 

told Campos-Ayala that he was free to leave or the purpose of the prolonged 

detention. Instead, the officers treated Campos-Ayala as if his arrest was 

inevitable. 

In spite of the evidence as to the lengthy time the defendants were 

required to stay inside the vehicle wedged alongside or on top of the 

marihuana, and how and when questioning commenced, the majority opinion 

posits that “[t]he inquiry as to Campos’s involvement with the marihuana 

_____________________ 

174 ROA.377; ROA.390; see also Foster Bodycam at 1:04. 

175 See United States v. Coulter, 41 F.4th 451, 461 (5th Cir. 2022) (“[A]ssurances 

that a suspect ‘[is] not under arrest and that he [is] free to leave’ weigh in favor of 

determining that a suspect is not in custody.” (alterations in original) (quoting United 

States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015))); United States v. Cavazos, 668 F.3d 190, 

195 (5th Cir. 2012) (finding that telling the defendant an interview is “non-custodial” is 

not the equivalent of telling him “he could ‘terminate the interrogation and leave’”); 

United States v. McNair, 444 F. App’x 769, 770 (5th Cir. 2011) (per curiam) (unpublished) 

(relying on the fact that officers told the defendant “he was not under arrest” and was “free 

to leave” to support a finding that interrogation was non-custodial). 

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was reasonably designed to ascertain whether the agents were dealing only 

with aliens or, instead, with a more serious situation posing a greater 

immediate risk.”176 But it was patently obvious to all on the scene that day 

(as well as other travelers on the highway who saw the bundles and called 

authorities) that the bundles almost certainly contained marihuana. And 

what was the danger to the officers from bundles of marihuana? The officers, 

who were armed, could have ordered the defendants to exit the vehicle if 

there were concerns about safety. Instead, the officers asked if the 

defendants knew they were riding next to or on top of marihuana and whether 

they had brought the marihuana across the border. Those questions were not 

designed to ascertain if there was a “serious situation” or “immediate risk.” 

The majority opinion suggests that the defendants “were never really 

arrested until they were taken to the transport vehicle.”177 Even on this 

understanding, Campos-Ayala was formally under arrest while being walked 

to the transport vehicle. This would mean, at the very least, that Agent 

Ramos’s question about why Campos-Ayala crossed with the drugs, and 

Campos-Ayala’s response that he only “helped,” are inadmissible under 

Miranda. But, in my view, Campos-Ayala was formally arrested even earlier, 

specifically when Agent Ramos searched him before taking him to the 

transport vehicle. That search operated more like a search incident to arrest 

than a temporary Terry frisk.178 While no weapons were found on CamposAyala, he was arrested and walked to the transport vehicle immediately after. 

This would mean that Agent Ramos’s questions accompanying the search 

_____________________ 

176 Ante, at 23. 

177 Ante, at 22 (quoting the district court). 

178 See Terry v. Ohio, 392 U.S. 1 (1968). 

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incident to arrest—regarding Campos-Ayala’s two phones—were also 

inadmissible under Miranda. 

Regardless, when viewed in totality, the encounter was far from “the 

early phase of a traffic stop” and any other stage of a traffic stop.179 Several 

of the aforementioned factors—such as the accusatory questioning, restraint 

on physical movement, and the statements by officers telling the defendant 

to stay in the car180—counsel in favor of finding that a reasonable person in 

Campos-Ayala’s position “would have understood the situation to constitute 

a restraint on freedom of movement of the degree which the law associates 

with formal arrest.”181

The custody inquiry must also focus on “whether the relevant 

environment presents the same inherently coercive pressures as the type of 

station house questioning at issue in Miranda.”182 Specifically, we must 

determine whether Campos-Ayala was subjected to “incommunicado 

interrogation . . . in a police-dominated atmosphere,”183 whether he was 

placed in an inherently stressful situation,184 and whether his “freedom of 

action [was] curtailed in any significant way.”185

The majority opinion asserts: “The roadside questioning before 

[Campos-Ayala] was placed into the transport van did not subject him to the 

_____________________ 

179 Ante, at 23. 

180 See United States v. Nelson, 990 F.3d 947, 955 (5th Cir. 2021). 

181 United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). 

182 Howes v. Fields, 565 U.S. 499, 509 (2012). 

183 Miranda v. Arizona, 384 U.S. 436, 445 (1966). 

184 See id. at 468. 

185 Id. at 467. 

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type of police interrogation that we have described as coercive.”186 In the 

majority’s view, the roadside environment did not exert coercive pressures 

akin to Miranda custody because it was in public and involved routine 

questioning incident to a traffic stop. But the features of an ordinary traffic 

stop that would mitigate the coercive pressures of Miranda custody were not 

present here. 

In Berkemer v. McCarty,

187 the Supreme Court emphasized that “[t]wo 

features of an ordinary traffic stop mitigate the danger that a person 

questioned will be induced ‘to speak where he would not otherwise do so 

freely.’”188 First, traffic stops are “presumptively temporary and brief,” 

“last[ing] only a few minutes,” setting them apart from “stationhouse 

interrogation, which frequently is prolonged.”189 Second, as the Court 

explained, “the atmosphere surrounding an ordinary traffic stop is 

substantially less ‘police dominated’ than that surrounding the kinds of 

interrogation at issue in Miranda itself.”190 The Court recognized that 

routine traffic stops typically involve “one or at most two policemen.”191 

Here, there were six federal and state officers surrounding the vehicle as 

Agent Ramos questioned Campos-Ayala.192 After nearly forty minutes of 

detention, the environment bore little resemblance to an ordinary traffic stop. 

Trooper Foster’s bodycam footage reveals the compromising position from 

_____________________ 

186 Ante, at 23. 

187 468 U.S. 420 (1984). 

188 Id. at 437 (quoting Miranda, 384 U.S. at 467). 

189 Id. at 437-38. 

190 Id. at 438-39 (quoting Miranda, 384 U.S. at 445). 

191 Id. at 438 (emphasis added). 

192 ROA.371. 

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which Campos-Ayala was initially questioned, jammed between bundles of 

marihuana:193

Against this backdrop, I would hold that this roadside environment 

was sufficiently coercive for Miranda purposes. Campos-Ayala (1) was 

surrounded by six armed, uniformed officers; (2) was verbally instructed not 

to leave the car and was physically restrained from doing so for forty minutes; 

(3) was told he would be searched; (4) watched as the handcuffed driver and 

other passengers were taken to the transport van; (5) was frisked and had his 

hands pushed forward onto the car doors; (6) had his possessions 

confiscated; (7) was asked accusatory questions; (8) was physically escorted 

to the transport van; and (9) was never told he was not under arrest or would 

be free to leave after a brief detention. 

_____________________ 

193 Foster Bodycam at 37:00. 

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The majority opinion, however, holds that as a matter of law CamposAyala was not subject to custodial interrogation.194 In light of this en banc 

decision, it is difficult to imagine when—if ever—a routine traffic stop may 

evolve into Miranda custody in our circuit. 

IV 

Another troubling aspect of today’s decision is its usurpation of the 

constitutional guarantee that all criminal defendants have the right to mount 

an effective defense. The government knowingly removed the only available 

eyewitness—Karina Castro-Hernandez—who could testify on behalf of the 

defendants. This violated the defendants’ due process and compulsory 

process rights. The majority opinion incorrectly applies the Supreme 

Court’s controlling decision in United States v. Valenzuela-Bernal.195 The 

majority opinion holds that because the Executive Branch must faithfully 

execute immigration policy, the government could deport the only material 

witness in this case even though she possessed information favorable to the 

defendants.196 That is not what Valenzuela-Bernal held. Accordingly, I 

would hold the district court erred in denying the defendants’ motions to 

dismiss. 

Under Valenzuela-Bernal, Campos-Ayala and Moncada-De La Cruz 

must demonstrate that Castro-Hernandez’s testimony would have been 

material, favorable, and non-cumulative.197 While several of our sister 

circuits require an additional showing that the government acted in bad faith 

_____________________ 

194 Ante, at 23. 

195 458 U.S. 858 (1982). 

196 Ante, at 19-20. 

197 Valenzuela-Bernal, 458 U.S. at 873. 

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in causing the unavailability of the alien witness,198 our court has never 

adopted such a requirement, and the en banc court does not adopt a bad-faith 

requirement today.199 We therefore must assess the materiality, favorability, 

and cumulative nature of Castro-Hernandez’s testimony.200 Review is de 

novo.201

It is important to recognize the unique circumstances of this case. 

Castro-Hernandez was the only witness who could testify about the events 

leading up to and during the car ride. The record reflects that only five people 

observed all or some of those events: the minor driver, a six-year-old girl, the 

two defendants, and Castro-Hernandez. The driver (once he reached the age 

of majority) pleaded the Fifth Amendment, and the six-year-old girl was too 

young to provide competent testimony to the jury.202 Therefore, unless the 

defendants “waived [their] constitutional right not to take the stand in [their] 

own defense,” Castro-Hernandez was their “one material witness.”203 The 

government nevertheless deported her. 

In United States v. Valenzuela-Bernal, the Supreme Court held that 

irrespective of its responsibility to execute immigration policy, the Executive 

_____________________ 

198 See United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000); 

United States v. Pena-Gutierrez, 222 F.3d 1080, 1085 (9th Cir. 2000); United States v. IribePerez, 129 F.3d 1167, 1173 (10th Cir. 1997). 

199 See United States v. Gonzales, 436 F.3d 560, 579 (5th Cir. 2006) (declining to 

address whether a showing of bad faith is required), abrogated on other grounds by United 

States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc). 

200 Valenzuela-Bernal, 458 U.S. at 873. 

201 United States v. Perez, 217 F.3d 323, 326 (5th Cir. 2000). 

202 ROA.403. 

203 Roviaro v. United States, 353 U.S. 53, 64 (1957). 

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Branch violates a defendant’s due process rights if it deports a witness who 

has information that is both favorable and material to the defense: 

To summarize, the responsibility of the Executive Branch 

faithfully to execute the immigration policy adopted by 

Congress justifies the prompt deportation of illegal-alien 

witnesses upon the Executive's good-faith determination that 

they possess no evidence favorable to the defendant in a criminal 

prosecution. The mere fact that the Government deports such 

witnesses is not sufficient to establish a violation of the 

Compulsory Process Clause of the Sixth Amendment or the 

Due Process Clause of the Fifth Amendment. A violation of 

these provisions requires some showing that the evidence lost would 

be both material and favorable to the defense.

204

The government does not deny that Castro-Hernandez possessed 

evidence favorable to the defendants. The defendants made a sufficient 

showing that her testimony would have been both material and favorable to 

the defense. The government’s own witnesses made that demonstration at 

trial. The decision in Valenzuela-Bernal does not say that due process is 

satisfied if the government offers hearsay testimony of law enforcement 

officials as to what the deported witness would have said at trial. Again, the 

credibility of Castro-Hernandez was critical, and there was no substitute for 

her first-hand account of all that transpired prior to the arrests. 

The Court elaborated in Valenzuela-Bernal that to establish a violation 

of the Sixth Amendment right to compulsory process or the Fifth 

Amendment right to due process, a criminal defendant must make a 

“plausible showing that the testimony of the deported witness[] would have 

been material and favorable to his defense, in ways not merely cumulative to 

_____________________ 

204 Valenzuela-Bernal, 458 U.S. at 872-73 (emphasis added). 

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the testimony of the available witnesses.”205 The Court further concluded 

that “sanctions [would] be warranted for deportation of alien witnesses only 

if there [were] a reasonable likelihood that the testimony could have affected 

the judgment of the trier of fact.”206 In this regard, the Supreme Court 

explained: 

The proper standard of materiality must reflect our overriding 

concern with the justice of the finding of guilt. . . . This means 

that the omission must be evaluated in the context of the entire 

record. If there is no reasonable doubt about guilt whether or 

not the additional evidence is considered, there is no 

justification for a new trial. On the other hand, if the verdict is 

already of questionable validity, additional evidence of 

relatively minor importance might be sufficient to create a 

reasonable doubt.”207

The materiality and favorability of the mother’s testimony are beyond 

dispute. The defendants established that Castro-Hernandez was the only

available eyewitness who could corroborate their version of events, and they 

demonstrated that her testimony would pertain to their involvement—or 

lack thereof—in the driver’s drug-distribution scheme.208 

The majority opinion concludes that because DEA Agents Kettani 

and Bustamante “described [Castro-Hernandez’s] story in detail” to the 

jury, Castro-Hernandez’s live testimony would have been “merely 

cumulative.”209 Put differently, the majority opinion declares the testimony 

_____________________ 

205 Id. at 873. 

206 Id. at 873-74. 

207 Id. at 868 (quoting United States v. Agurs, 427 U.S. 97, 112-13 (1976)). 

208 ROA.826-27; ROA.1721-22. 

209 Ante, at 20. 

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of the sole eyewitness who could corroborate the defendants’ version of 

events “merely cumulative” because two adverse government agents 

repeated the eyewitness’s out-of-court statements at trial.210 With respect, 

this is fundamentally incorrect. 

In Valenzuela-Bernal, the defendant was charged with transporting an 

illegal alien in violation of 8 U.S.C. § 1324(a)(2).211 Along with the driver, 

the government apprehended three of the car’s passengers.212 The 

government deported two of them, determining that they “possessed no 

evidence material to the prosecution or defense.”213 Nevertheless, the 

government retained the third “to provide a nonhearsay basis for 

establishing” what the defendant did.214 In holding that the deportation of 

the other two passengers did not violate the defendant’s compulsory process 

or due process rights, the Supreme Court emphasized that the third 

passenger “remained fully available for examination by the defendant and his 

attorney.”215

Two critical features from Valenzuela-Bernal are absent in this case: 

(1) the defendant in Valenzuela-Bernal had the opportunity to examine an 

eyewitness before and during trial, and (2) the government intentionally 

retained an eyewitness out of concern for offering hearsay evidence. Yet, the 

majority opinion nevertheless erroneously concludes that Castro-

_____________________ 

210 Ante, at 20 (noting that “Castro’s hearsay statements adequately protected 

these defendants’ rights”). 

211 Valenzuela-Bernal, 458 U.S. at 860. 

212 Id. at 861. 

213 Id.

214 Id. (emphasis added). 

215 Id. at 871. 

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Hernandez’s testimony would have been cumulative because the admission 

of her “hearsay statements adequately protected these defendants’ 

rights.”216 The majority opinion’s broad declaration that “[t]he testimony 

of removed aliens is merely cumulative where other persons have imparted 

the same information”217 ignores the simple fact that the defendants had no 

opportunity to examine the only available eyewitness in front of the jury. 

What support does the majority offer for its novel position? Only 

United States v. Perez,

218 in which the defendant had access to six other 

material eyewitnesses who would have imparted the same information as the 

deported illegal aliens.219 Perez does not support the majority’s proposition 

that the testimony of the only eyewitness who can offer material, favorable, 

corroborating evidence is rendered “merely cumulative” if a government 

agent can repeat out-of-court statements made by the eyewitness. 

But even if the majority opinion is correct on this point—which it 

certainly is not—Castro-Hernandez’s testimony would not have been 

cumulative on its own terms. For example, Castro-Hernandez could have 

responded to the majority opinion’s assertion that it was not plausible for the 

defendants to believe that the driver “was going to transport them well over 

200 miles, for free, for several hours, to their chosen destination of Odessa 

and to do so on Christmas Eve.”220 Likewise, she could have testified to the 

majority opinion’s supposition that “the defendants were recruited, from the 

very beginning, to assist in loading, arranging, and unloading the 

_____________________ 

216 Ante, at 20. 

217 Ante, at 19. 

218 217 F.3d 323 (5th Cir. 2000). 

219 Id. at 327. 

220 Ante, at 15. 

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contraband.”221 Indeed, we would likely have answers to many of the 

majority opinion’s inferences if not for the government prematurely 

deporting Castro-Hernandez. 

Equally important is the fact that the government impeached its own 

witnesses in closing arguments before the jury as to whether CastroHernandez’s statements to the arresting officers were credible. The 

government asked the jury to believe that the defendants did not in fact stay 

behind at the rest stop before the driver reappeared with marihuana filling 

the vehicle. The government argued to the jury, as recounted in the majority 

opinion: 

And so they go to a park and they drop them off at a random 

park. This kid leaves and half an hour later he comes back. 

These grown men are putting the blame on a 17-year-old boy. 

Do you believe that that 17-year-old boy loaded up 128 

kilograms by himself in 30 minutes?222

The government cannot have its cake and eat it too. It cannot 

plausibly contend Castro-Hernandez’s testimony would have been 

cumulative of the hearsay testimony of the government agents, and at the 

same time contend that Castro-Hernandez’s statements to the agents were 

not believable. The government should not be permitted to say that it 

accurately presented through hearsay what Castro-Hernandez would have 

said and then attack her purported statements as being false. That is not 

“cumulative” evidence. The jury was not permitted to judge the credibility 

of Castro-Hernandez’s statements because she was never present in the 

_____________________ 

221 Ante, at 15. 

222 Ante, at 11. 

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courtroom or presented via video or recording. A factfinder may well have 

believed every word she would have said. 

The majority opinion notes that the defendants did not object to the 

hearsay testimony by the agents.223 Having lost the argument that they 

should have been entitled to present Castro-Hernandez as a witness, why 

would the defendants object to testimony that, although hearsay, was 

material and favorable to them and the only source of these favorable facts? 

In any event, the lack of an objection to what was offered by the government 

entirely misses the point that the error at issue is the removal of a witness 

who possesses material evidence favorable to a criminal defendant. As 

discussed, the government’s substitution of hearsay testimony does not cure 

that harm. 

I would hold that the defendants made a plausible showing that 

Castro-Hernandez’s testimony would have been material, favorable, and 

non-cumulative to their defense. The district court erred in denying the 

defendants’ motions to dismiss. The majority opinion blesses an end-run 

around Valenzuela-Bernal, allowing the prosecution to usurp a defendant’s 

right to mount an effective defense by holding that hearsay testimony offered 

by government agents is an adequate replacement for the testimony of a sole 

eyewitness. The government’s good reasons for wanting to remove the 

witness and her young child as soon as practicable and its good faith do not 

change the equation. There was no balancing of those factors to be done. 

The defendants were entitled to due process. 

_____________________ 

223 Ante, at 20. 

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* * * 

Today, the majority opinion reaches far beyond overruling the panel 

decision about what evidence is sufficient to prove possession under 21 

U.S.C. § 841(a)(1). Our en banc court undermines the constitutional rights 

of future criminal defendants who may be subject to custodial interrogation 

stemming from a traffic stop, who need a removable alien to testify in support 

of their defense, or who may touch narcotics for a purpose other than 

distribution. For this reason, I respectfully dissent. 

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