# 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 Case: 21-50642 Document: 189-1 Page: 1 Date Filed: 06/07/2024No. 21-50642

2 Victor Campos-Ayala and Martin Moncada-De La Cruz were found guilty by a jury of possession with inte nt 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 th ere 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 cr ossed illegally from Mexico, they were given a ride for a consid erable distance in a car that contained no contraband. Before reaching their destination, the driver dropped them off at a roadside park, promising to retu rn. 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. Case: 21-50642 Document: 189-1 Page: 2 Date Filed: 06/07/2024No. 21-50642

3 Troopers, who stopped the vehicle, discovered the passengers and the marihuana. The panel dissent, 70 F.4t h at 270 (Oldham, J., dissenting), included the following picture of the bundles, amounting to 283 pounds of marihuana:

In addition to the defendants, the oc cupants included th e driver—a male juvenile—and another passenger with her child. The juvenile driver was immediate ly taken away in handcuffs. The defendants were questioned at the scen e by Border Patrol agents, then takento 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?” Case: 21-50642 Document: 189-1 Page: 3 Date Filed: 06/07/2024No. 21-50642

4 Campos-Ayala responded, “I didn’t.” While escorting Campos-Ayala to the transpor t van, Agent Ramos asked, “Why did you cross with th e drugs?” Campos-Ayala responded, “I didn’t, I just helped.”Campos-Ayala, Moncada-De La Cruz, and another passenger in the vehicle were transp orted to a station with agents from the Drug Enforcement Admi nistration (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 firs t 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 bundle s 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 unders tand 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 confirmedthat 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 th at he was in possession of the marijuana.” Case: 21-50642 Document: 189-1 Page: 4 Date Filed: 06/07/2024No. 21-50642

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

II The matter proceeded to trial. Both defendan ts 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 thr ee issues. First, both question the sufficiency of the evidence. Second, bo th claim the government removed, to Mexico, a witness who had material evid ence favorable to the defendants. Third, they assert a Miranda violation during the qu estioning by law enforcement. Because the panel majority deci ded 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 stan dards, 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 phys ical 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 mandator y minimum of 60 months, plus 5 years’ supervised release and a $100 assessment. Case: 21-50642 Document: 189-1 Page: 5 Date Filed: 06/07/2024No. 21-50642

6 constructive possession by “(1) owners hip, dominion or control over the item itself or (2) dominion or control over the premises.” Id. “[T]he government must establish [an] adequate ne xus 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 drug s 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 posse ssion is insufficient where it “has shown only that the defendan t ran with bad company.” United States v. Sandoval , 847 F.2d 179, 185 (5th Cir. 1988) . The determinatio n of constructive possession “employ[s] a common sens e, 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 a ll reasonable inferences in the light most favorable to the verdict, to determine whether any rational jury could have found the essential elemen ts beyond a rea sonable 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 sufficien cy 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 eviden ce 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: 06/07/2024No. 21-50642

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 presen ce, 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 Kettaniexplained 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 confin ed 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 hear d 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 invo lvement of a female passenger who was not charged. Seco nd, 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 f emale who crossed the border with the defendants, accompanied by her six-yea r-old daughter. The defendants aver that Castro could have given testimon y 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 w ill discuss separately and in more detail, infra

. Case: 21-50642 Document: 189-1 Page: 7 Date Filed: 06/07/2024No. 21-50642

8 2 Second, there is additional evidence , heard by the jury, that undercuts the defendants’ claim that they were on ly hitchhikers who innocently flagged a ride with what the panel majority ca lled a “random” stranger and benignly became involved with a driver who was transporting contra band with intent to distribute. That additional ev idence, 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] crosse d illegally . . . into Presidio, Texas . . . accompanied by [Castro and he r daughter]. All four of them hoped to travel to Odessa, Texa s. 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 radicallyand 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 initia l 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: 06/07/2024No. 21-50642

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 cr ossed with. They crossedin the evening. When they went to Presidio, it was during the evening. They spen t 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 an d 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 coor dinated either gave them a phone or took their number to relay it to Hernandez. He calledthat 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 co mmon 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 st ash 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 betw een the defendants and the driver, Campos’s supplemental brief concluded, “The jury could not have reasonably disbelieved the accounts of Monc ada, Campos, and Castro because they

_____________________

3 The teenage driver’s full name is Jose Ramos-Hernandez. Case: 21-50642 Document: 189-1 Page: 9 Date Filed: 06/07/2024No. 21-50642

10 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 rea lly 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 an swered, “No, ma’am. Actually, it’s common for them to have satellite phones because there is no mobile reception along the border.” And further, wh en 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 vict ims 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 co uld 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’smanipulations, 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 an d 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. Atthe very least, they committed the marijuana offense to accomCase: 21-50642 Document: 189-1 Page: 10 Date Filed: 06/07/2024No. 21-50642

11 plish their own unlawful conduct. In its closing argument to the jury, the government ca refully 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 th is story. They wa nt you to believe that they walked into the coun try 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-yea r-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 overridi ng question of sufficiency. The jury was properly instructed in accordance with the applicable pattern jury instructions and well-settled Fifth Circui t law, particularly our circuit’s merepresence instruction. No party challe nged 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 Ci r. Mar. 4, 2024) (per curiam) (unpublished) (citing United States v. Whitfield , 590 F.3d 325, 354 (5th Cir. 2009)). Case: 21-50642 Document: 189-1 Page: 11 Date Filed: 06/07/2024No. 21-50642

12 To “possess with intent to distribute” simply means topossess with intent to deliver or transfer possession of a controlled substance to another per son, with or without any financial interest in the transaction. Intent to distribute may be inferred fr om possession of an amount of controlled substance that is too large to be used bythe 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 th e 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, althou gh 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 person s, 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 actu al 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. Case: 21-50642 Document: 189-1 Page: 12 Date Filed: 06/07/2024No. 21-50642

13 It is reasonable to infer that a person ordinarily intends the natural and probable conseq uences of his knowing acts. The jury may draw the inference that the accused intended all the consequences which one stan ding in like circumstances and possessing like knowledge should reasonably have expected to result from any intentional ac t 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 inte nt to distribute and (2) whether the amount was 100 kilograms or more.

E There is ample evidence from wh ich the jury could find possession with intent to distribute. The second pa rt is easier: Once the jury finds possession, and further finds an amount abov e 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 quan tities is sufficient, by itself, to prove intent to distribute—is so embe dded 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 in consistent with personal use will suffice for the jury to find intent to distribu te.” (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). Case: 21-50642 Document: 189-1 Page: 13 Date Filed: 06/07/2024No. 21-50642

14 The government repeatedly argued th at 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 instru cted the jury. It was for the twelve jurors to consider all the evidence and to decide th e nature of the defendants’ encounter with the driver. A jury is enti tled 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 vi ew the evidence in the light most favorable to the verdict. In that rega rd, 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 whic h 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 obvi ously 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 so me 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, Case: 21-50642 Document: 189-1 Page: 14 Date Filed: 06/07/2024No. 21-50642

15 into the cramped space of a small vehicle, all by himself, in about 30 minutes including travel time (raising the natu ral inference that, instead, the defendants were recruited, from the very begi nning, 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 destin ation of Odessa an d to do so on Christmas Eve. • The fact that the trip from Pres idio to Van Horn was way out of the way of the defendants’ su pposed 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 in volving alien smuggling and marihuana distribution, using the defendants as ha ndy workers to lift, pack, and unpack heavy bales of marihuana. • That the defendants were seeming ly 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, Ca mpos’s admissions that he “possessed” and “helped with” the mari huana and of course knew it was marihuana. Campos’s en banc reply brief, re ferred to above, unwittingly summarizes the likelihood that the defendan ts willingly engaged in a multifaceted unlawful enterprise: “Campos accept ed 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, Case: 21-50642 Document: 189-1 Page: 15 Date Filed: 06/07/2024No. 21-50642

16 the jury was easily entitled (but not re quired) to draw the inference that thesedefendants unwisely cooperated in an operation that included aliensmuggling and marihuana po ssession and distribution. It is not the proper role of this court, sitting in what some might call an ivory tower with a bunc h of briefs and a dry record, to second-guess a jury that heard evidence for two days and sp ent three hours poring over it. These defendants fall below the high standard requ ired 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 reas onable inferences in its favor and without substituting inferenc es 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 en titled to consider all the evidence and to render a verdict of guilty. Unde r the applicable standards of review, the evidence amply support s 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 th is ground, the district court violated his rights to due process and compulsor y 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. Case: 21-50642 Document: 189-1 Page: 16 Date Filed: 06/07/2024No. 21-50642

17 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 no t likely to have produced a different verdict.
We review de novo any alleged violation of du e 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 DE A 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 ab out whether or not the driver told them that there were clothing in the bund les, 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.” Im portantly, counsel said that the government knew about the allegedly favora ble interview and failed to disclose its existence before the authorities removed Castro. The government disagrees, noting that its affidavit accomp anying the criminal complaint alerted

_____________________

7 Campos adopts this argument. Case: 21-50642 Document: 189-1 Page: 17 Date Filed: 06/07/2024No. 21-50642

18 defense counsel to the interview and r emoval. 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 interv iewed 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 A mendment privilege and the defendants declined to testify. Counsel explained that they explored obtaining a permit to allow Castro to re-enter the United St ates 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 wo uld not be prejudicial to the defendants. Crucially, the government ave rred that the removal was not in bad faith but resulted from the fact that th ere were no beds av ailable to keep the mother and young daughter together. Charging Castro would have separated them. In regard to having enough ev idence to convict her, the government believed that a jury could see that she co uld 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 particul ar interest in deporting Castro as soon as possible because this was in the middl e 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 ther e were “admissibility issues” with the video statement. Case: 21-50642 Document: 189-1 Page: 18 Date Filed: 06/07/2024No. 21-50642

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 defe ndants’ statements we re, 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 defens e counsel has had a chance to interview that person. 10 We balance that right agai nst the government’s responsibility faithfully to execute the immigrat ion laws requiring prompt and efficient removal. United States v. Valenzuela-Bernal , 458 U.S. 858, 864–65 (1982). To succeed on this claim, the de fendants must “make[ ] a plausible showing that the testimony of the deport ed 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 reasonab le likelihood that the testimony could have affected the judg ment 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 th e 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). Case: 21-50642 Document: 189-1 Page: 19 Date Filed: 06/07/2024No. 21-50642

20 323, 327 (5th Cir. 2000). As we ha ve pointed out, the agents described Castro’s story in detail. Nothing in he r reported statements contradicted the defendants’ admissions rega rding (1) their knowledge of the presence of marihuana or (2) their rearranging the bund les in the car. Instead, Castro reinforced the defendants’ acknowledgements that they re-entered the vehicle knowing it was packed ti ght with marihuana. In sum, there is no reasonable likelihood that the jury would have reached a different verdict just beca use Castro had testified in person.

C Nor did the government act in bad faith by deporting Castro before disclosing the statement sh e 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 co nsiderations, 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 face d with the COVID crisis, the lack of availabl e detention space, and the humanitarian responsibility to keep together a mother trave ling alone with a six-year-old child. The district court correctly determined that the admission, without objection, of Castro’s hearsay statemen ts adequately protected these defendants’ rights. The indictment sh ould not have been—and was not— dismissed on account of Castro’s unavailability as a witness.

_____________________

11 Unlike some other circuits, this court ha s 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, nonethele ss, helpfully found that there was no bad faith. Case: 21-50642 Document: 189-1 Page: 20 Date Filed: 06/07/2024No. 21-50642

21 V The district court denied defendan ts’ motion to suppress statements they made to Border Patrol Agent Ra mos 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 th e arrival of the first Border Patrol agent. The government acknowledges that in that inte rval, 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 ca r. 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 as ked why he helped with the drugs; Campos said he did not. Ramos asked, “No?,” and Campos replied, “No.” Ramos asked in Spanish, “So, why di d 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 te stimony from Ramos and Trooper Foster. Case: 21-50642 Document: 189-1 Page: 21 Date Filed: 06/07/2024No. 21-50642

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 se cure the scene was not an undue delay. The court further found that Ramos’s questioning was not formal but “more in a rapid, almost co ntemporaneous manner which he came up on this vehicle and started—and sortof 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, ther e 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 we re 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 “i n custody” requirement, this court has taken account of (1) the length of th e 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 in dividual’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). Case: 21-50642 Document: 189-1 Page: 22 Date Filed: 06/07/2024No. 21-50642

23 conclusions. More specifically: Th e initial command to r emain in the car was a routine detention to investigate whethe r 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 vi deo indicates that Agent Ramos was calm and respectf ul instead of threatening. Further, Campos was not placed into a patrol car, handcu ffed, 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 am ount 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 de signed to ascertain whether the agents were dealing only with aliens or, in stead, with a more serious situation posing a greater immediate risk. Despite the fact that, as the distri ct 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 coul d 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 be fore 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 de nying 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

. Case: 21-50642 Document: 189-1 Page: 23 Date Filed: 06/07/2024No. 21-50642

24 Priscilla Richman , Chief Judge , joined by Elrod , Graves , and Douglas , Circuit Judges , dissenting: Our criminal justice system ensures th at 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 cann ot 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 otherwis e 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 ow n evidence disproves intent to distribute. The government did not meet its burden of proof. Second, the district court admitted into evidence st atements made by criminal defendants after they were restrained for forty mi nutes, 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). Case: 21-50642 Document: 189-1 Page: 24 Date Filed: 06/07/2024No. 21-50642

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 sol e available witness with first-hand knowledge of what transpired from th e 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 test imony would have been material and helpful. It would have corroborated how the defendants came to be crammed into the vehicle on top of the marihuan a. Nevertheless, the district court concluded that hearsay testimony from arresting officers was adequate to convey what this witness had told th em, and the majority opinion agrees, even though that conclusion finds no support in the law, and even though during closing argument, the government to ld the jury it should not believe the absent witness’s statements reco unted by arresting officers. The majority opinion goes further, spi nning 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. Bu t 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 attent ion. The government did not present witness testimony or any other evidence to contradict the following.

_____________________

4 384 U.S. 436 (1966). Case: 21-50642 Document: 189-1 Page: 25 Date Filed: 06/07/2024No. 21-50642

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 Cast ro-Hernandez and her six-year-old daughter, who otherwise were unaffiliated with the two men. 6 Many of the following facts were recounted by Ca stro-Hernandez when she was later interviewed by a federal agent. Th ere 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 tr avel 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 droppe d 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 testifyi ng 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. Case: 21-50642 Document: 189-1 Page: 26 Date Filed: 06/07/2024No. 21-50642

27 he returned, the vehicle contained five large bundles of marihuana, weighing a total of approximately 283 pounds. 14 The passengers rearranged the mari huana to fit in the compact car. 15 Castro-Hernandez sat in the front passe nger’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 an other large bundle of marihuana. 18 CamposAyala was prone, on his side, atop on e 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 immediatel y removed the driver from the car, handcuffed him, and seated him alongs ide the highway as they waited for U.S. Border Patrol. 21 The troopers instructed th e passengers to remain in the vehicle. 22 Specifically, Trooper Foster te stified that all occupants were told to “stay inside the car” and th at 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. Case: 21-50642 Document: 189-1 Page: 27 Date Filed: 06/07/2024No. 21-50642

28 vehicle. 23 While waiting for Border Patrol, Trooper Foster stated on multiple occasions: “I never read people their ri ghts 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 Patr ol agents arrived on the scene. At this point, six uniformed officers surrounded the vehicle. 27 The agents removed Castro-Hernandez and her daug hter from the passenger’s seat and loaded them into a Bord er 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 Body cam at 31:55-34:00.

28 ROA.508-09.

29 ROA.487.

30 ROA.509, 511.

31 ROA.509, 511. Case: 21-50642 Document: 189-1 Page: 28 Date Filed: 06/07/2024No. 21-50642

29 the men more specifica lly: “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 inte rrogation that the defendant “helped rearrange [the bundles] so that ever ybody 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. Case: 21-50642 Document: 189-1 Page: 29 Date Filed: 06/07/2024No. 21-50642

30 is undisputed that Agent Ramos did not give Campos-Ayala Miranda warnings. 44
B Campos-Ayala and Moncada-De La Cr uz 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 separati ng the mother from her daughter. 46 Instead, federal agents interviewe d the mother, who corroborated the defendants’ account of ho w 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 di dn’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. Case: 21-50642 Document: 189-1 Page: 30 Date Filed: 06/07/2024No. 21-50642

31 the improper removal of Castro-Herna ndez, 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 ques tioning did not viol ate 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 motion s to dismiss, concluding that the government did not violate the defendan ts’ due process rights by removing Castro-Hernandez. 57 On appeal, the defendants raise th ree issues. First, both CamposAyala and Moncada-De La Cruz argue th at 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. Case: 21-50642 Document: 189-1 Page: 31 Date Filed: 06/07/2024No. 21-50642

32 II Every defendant is constitutiona lly entitled to proof beyond a reasonable doubt in order to be co nvicted of violating a criminal law. 58 This principle is “basic in our law and righ tly 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 possessi on 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 contro l 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. Case: 21-50642 Document: 189-1 Page: 32 Date Filed: 06/07/2024No. 21-50642

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 ex it the car or thwart the enterprise.” 66 The majority opinion suggest s 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 wh en 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 distri bute 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 m arijuana. 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. Beyo nd the admission by Ferg that he was a traveling companion of one guilty of illegal po ssession 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). Case: 21-50642 Document: 189-1 Page: 33 Date Filed: 06/07/2024No. 21-50642

34 Our decision in United States v. Moreno-Hinojosa 70 elucidates this point. There, the government obtained a conviction against a defendant who was a passenger in a tractor-trailer ri g 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 th e conviction. Our court observed that even if the de fendant knew the driver was illegally distributing marihuana, “this fact would not be sufficient evidence to establish his possession without an addi tional showing that he was riding in the truck to participate in the possession and distribution.” 73 We held that to establish possession, “the governmen t must show that [the defendant] controlled, or had the power to contro l, 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 majo rity intends to overrule Moreno-Hinojosa sub silentio and the rest of our “mere presen ce” 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. Case: 21-50642 Document: 189-1 Page: 34 Date Filed: 06/07/2024No. 21-50642

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 p ossession 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 wh ether 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 “pos session” 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 admissi on 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[in g]” 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. Case: 21-50642 Document: 189-1 Page: 35 Date Filed: 06/07/2024No. 21-50642

36 To possess something, a defendant mu st “be master of” the thing or “have and hold it as property.” 81 The definition of possession includes “[t]he fact of having or hold ing 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 dispositi on 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 fi nger on an item, on its ow n, as making someone the ‘master’ over the item.” 87 Here, the government failed to prod uce any evidence suggesting that Campos-Ayala and Moncada-De La Cruz held the bundles of marihuana in their power or could control the disp osition 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 ha ving 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 even t 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. Case: 21-50642 Document: 189-1 Page: 36 Date Filed: 06/07/2024No. 21-50642

37 the car. On the contrary, the ev idence 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 th e 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 de fendants 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 ma rihuana to enter the “stranger[’s]” 93 vehicle, they were in ac tual possession of the drugs. 94 But the mere act of rearranging an item should not be equa ted with having mastery or control over it. As the Seventh Circuit aptly pu t it, to obtain control over drugs, “a defendant needs more than just mere ph ysical contact; he must have the perceived right among the criminals with whom he is interacting to deal, use, transport, or otherwise contro l 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 Case: 21-50642 Document: 189-1 Page: 37 Date Filed: 06/07/2024No. 21-50642

38 When the only evidence in a case indicates the defendants lacked control over the contraband, as here, th ere is insufficient evidence for a jury to conclude the defendants posse ssed 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 seri es of questions by Agent Ramos. The agent initially asked, “Why did you he lp 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 Spanis h 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, standi ng 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. Case: 21-50642 Document: 189-1 Page: 38 Date Filed: 06/07/2024No. 21-50642

39 passengers to fit in the compact car. 102 As explained above, that does not mean the defendants controlled the mari huana. 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 interpre ted 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 we re 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. Case: 21-50642 Document: 189-1 Page: 39 Date Filed: 06/07/2024No. 21-50642

40 phones. 107 The majority opinion suggest s this evidence indicates the passengers were implicated in the driv er’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 su spicious activity on the phones and admitted the DEA did not do a “phone dump” to analyze th e 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 furt her conceded that the defendants were “passenger[s] in a car driven by someone [they] did not know.” 112 Despite these concessions, the ma jority opinion glosses over the record and contends the jury “could re asonably draw the inference” that the defendants were part of a larger dr ug-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 ph ones 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 th e 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. Case: 21-50642 Document: 189-1 Page: 40 Date Filed: 06/07/2024No. 21-50642

41 disagree; “[i]nferences must stop at some point.” 114 The Due Process Clause requires courts to consider “w hether the inferences drawn by a jury were rational, as opposed to bein g 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 go vernment (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) (affirm ing the Due Process Clause forbids conviction “except upon proof beyond a reas onable doubt of every fact necessary to constitute the crime with which [t he 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, spec ulation, 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 migh t not have set out on their journey from Mexico with the purpose of transporting mariju ana, the jury could reasonably conclude that they joined in that crime to accomp lish their own goals in Van Horn.”).

119 Government Br. at 27. Case: 21-50642 Document: 189-1 Page: 41 Date Filed: 06/07/2024No. 21-50642

42 argues this evidence alone is sufficien t to support a conviction for possession with intent to distribute. 120 To reach this conclusion, the gove rnment applies our “personal use” jurisprudence, which allows the jury to infer an intent to distribute when the defendant possesses a quantity of drug s 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 de finition of possession is correct: A person is in possession of marihuana wh en 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, spec ifically 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 th e 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 suppo rt an inference of intent to distribute in the absence of other evidence, such as drug paraphernalia, guns, or large quantities of cash.” (citation omitted)). Case: 21-50642 Document: 189-1 Page: 42 Date Filed: 06/07/2024No. 21-50642

43 government’s only evidence indicates the defendant touc hed the marihuana for a purpose other than distribution. In the majority opinion’s vi ew, 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 evid ence 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]hesubstantial 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 p ossibility.” That does not approach proof. And then there is “some sort of illegal enterprise.” The defendants were not convicted and sent enced to five years in prison for some unspecified “illegal enterprise.” They were co nvicted of possession with intent to distribute. They were unqu estionably guilty of illegal en try into this country. The initial encounter with the driver migh t have been pre-arranged as part of their illegal entry. But a factfinder sh ould not be permitted to leap to the conclusion that a (possibly) pre-arranged encounter with a driver in a vehicle that has no controlled substa nces 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 th e bridge, conveniently followed by the arrival of a friendly driver offering a ride.” 123

_____________________

122 Ante , at 14.

123 Ante , at 14. Case: 21-50642 Document: 189-1 Page: 43 Date Filed: 06/07/2024No. 21-50642

44 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 explan ation of how it was possible for the teenage driver to load five large bu ndles of marijuana, weighing about 280 pounds, into the cramped space of a small vehicle, all by hims elf, in about 30 minutes including travel time (raising th e natural inference that, instead, the defendants were recruited, from the ve ry beginning, to assist in loading, arranging, and unloading the contraband).” 125 Even the government does not contend there is evidence that the defe ndants were recruited “from the very beginning, to assist in lo ading, arranging, and unlo ading the contraband.” That aside, can the weight of the bundle s 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 co nsumers. 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 ce rtainly 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 weig hing 56.6 pounds. It is also plausible that the driver could have had help from one or more people when he picked up the ma rijuana bundles. Speculation as to what might or might not have happened cannot be a su bstitute for evidence as to what actually did happen.

_____________________

124 Ante , at 14.

125 Ante , at 14-15. Case: 21-50642 Document: 189-1 Page: 44 Date Filed: 06/07/2024No. 21-50642

45 Also among the bullets is this: “The fa ct that the trip from Presidio to Van Horn was way out of the way of th e 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 t ook or whether he planned to go to other destinations be fore heading to Odessa? I submit that the evidence strongly suggests the passeng ers 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 suffic ient 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 th at the defendants had possession—much less possession with intent to dist ribute—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). Case: 21-50642 Document: 189-1 Page: 45 Date Filed: 06/07/2024No. 21-50642

46 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 cu stodial 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 en titled 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). Case: 21-50642 Document: 189-1 Page: 46 Date Filed: 06/07/2024No. 21-50642

47 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 ‘t he objective circumstances of the interrogation,’ a ‘reasonable person [wou ld] 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 restrain ts 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 wa s curtailed [under the freedom-ofmovement test], however, is simply th e 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. Case: 21-50642 Document: 189-1 Page: 47 Date Filed: 06/07/2024No. 21-50642

48 of movement amount to custody for purposes of Miranda .” 144 For example, “the roadside questioning of a motori st who was pulled over in a routine traffic stop [does] not constitute cu stodial interrogation ,” even though “[f]ew motorists . . . would feel free eith er 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 ‘su ffi ciently 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 clea r . . . 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 no nthreatening detention involved in a traffic stop . . . does not constitute Miranda custody.” 150 However, traffic stops may become custodial. “I f 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 entitl ed 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). Case: 21-50642 Document: 189-1 Page: 48 Date Filed: 06/07/2024No. 21-50642

49 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 la w 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 leng th of the questioning; (2) the location of the questioning; (3) the accusatory , or non-accusatory, nature of the questioning; (4) the amount of rest raint on the indivi dual’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 Ci r. 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 th e 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) (recognizi ng that “no one fact is determinative”). Case: 21-50642 Document: 189-1 Page: 49 Date Filed: 06/07/2024No. 21-50642

50 In arguing that Campos-Ayala was not “in custody, ” the majority opinion mischaracterizes the interactio n as “the early phase of a traffic stop.” 158 While the encounter may have star ted as a traffic st op, 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 fr om” an investigatory stop “to an essentially criminal law enforcement case.” 160 The facts are unlike a “routine traffic stop” and instead ar e consistent with detention for the purpose of arrest. Consider the encounter. Troop ers with the Texas Department of Public Safety pulled over the vehicle and immediately removed the driver, handcuffed him, and seated him alongs ide 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 mo ve or exit the compact car. While in this compromising position, Campos-A yala 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. Case: 21-50642 Document: 189-1 Page: 50 Date Filed: 06/07/2024No. 21-50642

51 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 ha ve 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 qu estions, 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 majori ty 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 th e 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 decidi ng whether a suspect is “in custody,” rather this is an objective inquiry that depe nds on the totality of circumstances). Case: 21-50642 Document: 189-1 Page: 51 Date Filed: 06/07/2024No. 21-50642

52 minutes, pinned against the car when he was removed, taken by the arm to the transport van, and had his pe rsonal belongings confiscated. 169 He watched as officers handcuffed the driv er and loaded the other passengers into the Border Pa trol 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 be cause he was a passenger in a car driven by a stranger; he wa s stopped in a re mote, unfamiliar location; and he could not drive himself away or reasonably depart on foot. 171 With due respect, this assertion turn s a blind eye to th e record. Trooper Foster testified that “[he] didn’t allow [the passenger s] 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 factor s did not foreclose this possibility. Instead, it was the state and federa l officers who physically restricted

_____________________
169 Foster Bodycam at 1:04; Foster Bo dycam at 35:50-40:50; ROA.368-69; ROA.377-78; ROA.380; ROA.3 88-90; ROA.509; ROA.514-15.

170 Campos-Ayala EB Br. at 52-53.

171 Ante , at 23.

172 ROA.390.

173 ROA.378. Case: 21-50642 Document: 189-1 Page: 52 Date Filed: 06/07/2024No. 21-50642

53 Campos-Ayala’s movement. After all, th e passengers had trav eled 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 office rs made clear Campos-Ayala was not free to move or leave. Both Tr ooper Foster and Agent Ramos confirmed they instructed the defendant to r emain 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 suspec t 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 trea ted Campos-Ayala as if his arrest was inevitable. In spite of the evidence as to th e lengthy time the defendants were required to stay inside the vehicle wedged alongside or on top of the marihuana, and how and when question ing commenced, the majority opinion posits that “[t]he inquiry as to Ca mpos’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 cust ody.” (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). Case: 21-50642 Document: 189-1 Page: 53 Date Filed: 06/07/2024No. 21-50642

54 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 hi ghway who saw the bundles and called authorities) that the bundles almost certainly contained marihuana. And what was the danger to the officers fr om 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 marihu ana across the border. Those questions were not designed to ascertain if there was a “s erious 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 forma lly under arrest while being walked to the transport vehicle. This would mean, at the very least, that Agent Ramos’s question about why Campos-A yala crossed with the drugs, and Campos-Ayala’s response that he on ly “helped,” are inadmissible under Miranda . But, in my view, Campos-Ayala was formally arrested even earlier, specifically when Agent Ramos sear ched 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). Case: 21-50642 Document: 189-1 Page: 54 Date Filed: 06/07/2024No. 21-50642

55 incident to arrest—regarding Ca mpos-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 car 180 —counsel in favor of finding that a reasonable person in Campos-Ayala’s position “would have un derstood 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 foc us 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 wa s 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 tr ansport 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. Case: 21-50642 Document: 189-1 Page: 55 Date Filed: 06/07/2024No. 21-50642

56 type of police interrogation that we have described as coercive.” 186 In the majority’s view, the roadside environ ment 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 “pre sumptively temporary and brief,” “last[ing] only a few minutes,” se tting them apart from “stationhouse interrogation, which frequently is prolonged.” 189 Second, as the Court explained, “the atmosphere surroundi ng 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 typi cally involve “one or at most two policemen.” 191 Here, there were six federal and stat e officers surrounding the vehicle as Agent Ramos questioned Campos-Ayala. 192 After nearly forty minutes of detention, the environment bore little res emblance 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. Case: 21-50642 Document: 189-1 Page: 56 Date Filed: 06/07/2024No. 21-50642

57 which Campos-Ayala was initially qu estioned, 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 office rs; (2) was verbally instructed not to leave the car and was phys ically 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 tran sport van; (5) was frisked and had his hands pushed forward onto the ca r 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. Case: 21-50642 Document: 189-1 Page: 57 Date Filed: 06/07/2024No. 21-50642

58 The majority opinion, ho wever, 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 wh en—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 crimin al defendants have the right to mount an effective defense. The go vernment knowingly removed the only available eyewitness—Karina Castro-Hernandez—w ho could testify on behalf of the defendants. This violated the de fendants’ due process and compulsory process rights. The majority opin ion incorrectly applies the Supreme Court’s controlling decision in United States v. Valenzuela-Bernal. 195 The majority opinion holds that because th e Executive Branch must faithfully execute immigration policy, the govern ment 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-Herna ndez’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. Case: 21-50642 Document: 189-1 Page: 58 Date Filed: 06/07/2024No. 21-50642

59 in causing the unavailability of the alien witness, 198 our court has never adopted such a requirement, and the en banc court does no t 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 un ique circumstances of this case. Castro-Hernandez was the only witne ss 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] co nstitutional right not to take the stand in [their] own defense,” Castro-Hernandez wa s 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 ex ecute 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). Case: 21-50642 Document: 189-1 Page: 59 Date Filed: 06/07/2024No. 21-50642

60 Branch violates a defendant’s due proce ss rights if it deports a witness who has information that is both favora ble 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 th at 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 wi tnesses 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 depo rted witness would have said at trial. Again, the credibility of Castro-Hernandez was critic al, 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 defens e, in ways not merely cumulative to

_____________________

204 Valenzuela-Bernal , 458 U.S. at 872-73 (emphasis added). Case: 21-50642 Document: 189-1 Page: 60 Date Filed: 06/07/2024No. 21-50642

61 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 reasonab le 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 materia lity must reflect our overriding concern with the justice of the find ing of guilt. . . . This means that the omission must be evalua ted in the context of the entire record. If there is no reasonab le doubt about guilt whether or not the additional evidence is considered, there is no justification for a new tr ial. On the other ha nd, if the verdict is already of questionable validit y, additional evidence of relatively minor importance migh t be sufficient to create a reasonable doubt.” 207 The materiality and favorability of the mother’s testimony are beyond dispute. The defendants establis hed that Castro-Hernandez was the only available eyewitness who could corrobora te their version of events, and they demonstrated that her testimony woul d pertain to their involvement—or lack thereof—in the driver’s drug-distribution scheme. 208 The majority opinion concludes th at because DEA Agents Kettani and Bustamante “described [Castro-He rnandez’s] story in detail” to the jury, Castro-Hernandez’s live test imony 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. Case: 21-50642 Document: 189-1 Page: 61 Date Filed: 06/07/2024No. 21-50642

62 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, de termining 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 violat e 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 dur ing trial, and (2) the government intentionally retained an eyewitness out of concern for offering hearsay evidence. Yet, the majority opinion nevertheless erro neously concludes that Castro-

_____________________

210 Ante , at 20 (noting that “Castro’s hears ay 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. Case: 21-50642 Document: 189-1 Page: 62 Date Filed: 06/07/2024No. 21-50642

63 Hernandez’s testimony would have been cumulative because the admission of her “hearsay statements adequate ly protected these defendants’ rights.” 216 The majority opinion’s broad de claration 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 ava ilable 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 im parted 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 ex ample, Castro-Herna ndez could have responded to the majority opinion’s asse rtion 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 load ing, 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. Case: 21-50642 Document: 189-1 Page: 63 Date Filed: 06/07/2024No. 21-50642

64 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 im peached its ownwitnesses in closing arguments before the jury as to whether CastroHernandez’s statements to the arrest ing 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 dr iver reappeared wi th marihuana filling the vehicle. The government argued to the jury, as recounted in the majority opinion: And so they go to a park and th ey 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 thro ugh hearsay what Castro -Hernandez would have said and then attack her purported stat ements as being false. That is not “cumulative” evidence. The jury was not permitted to judge the credibility of Castro-Hernandez’s statements beca use she was never present in the

_____________________

221 Ante , at 15.

222 Ante , at 11. Case: 21-50642 Document: 189-1 Page: 64 Date Filed: 06/07/2024No. 21-50642

65 courtroom or presented via video or re cording. A factfinder may well have believed every word sh e 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 presen t Castro-Hernandez as a witness, why would the defendants object to test imony that, although hearsay, was material and favorable to them and the only source of these favorable facts? In any event, the lack of an objectio n 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 favora ble 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 ha ve 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 effectiv e 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 an d its good faith do not change the equation. There was no ba lancing of those factors to be done. The defendants were enti tled to due process.

_____________________

223 Ante , at 20. Case: 21-50642 Document: 189-1 Page: 65 Date Filed: 06/07/2024No. 21-50642

66 * * * Today, the majority opinion reache s far beyond overruling the panel decision about what evidence is su fficient to prove possession under 21 U.S.C. § 841(a)(1). Our en banc cour t undermines the constitutional rights of future criminal defendants who may be subject to cust odial 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. Case: 21-50642 Document: 189-1 Page: 66 Date Filed: 06/07/2024