* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 17 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARIO AMAYA-SANCHEZ,

Defendant-Appellant. Case No. 97-2079 (D.C. CR-96-460-SC) (District of New Mexico)

ORDER AND JUDGMENT *

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges

.

Mario Amaya-Sanchez appeals directly to this court from a jury verdict convicting him of drug importation in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3) and possession with intent to distrib ute more than fifty kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). His appeal states1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 2 that the evidence presented against him at trial is not sufficient to prove his guilt beyond a reasonable doubt. We rule that the eviden ce is sufficient and affirm. 1 In determining the sufficiency of the evidence, we review the record in a light most favorable to the government and ask whet her any rational trier of fact could have found the essential elements of the crim e beyond a reasonable doubt. See United States v. Johnson , 120 F.3d 1107, 1108 (10th Cir. 1997). “[W]hile t he evidence supporting the conviction must be substant ial and do more than raise a mere suspicion of guilt, it need not conclusively e xclude every other reasonable hypothesis and it need not negate all possibilities except guilt.” United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994) (internal quo tations omitted). We do not function as a jury. Instead, we are require d to accept the jury’s resolution of conflicting evidence and its assessment of the w itnesses’ credibility. See United States v. Pappert , 112 F.3d 1073, 1077 (10th Cir. 1997). Applying this standard, we set forth the following facts which we re presented to the jury. Mr. Amaya-Sanchez stopped the truck he was driving at the Colombus, New Mexico Port of Entry from Palomas, Republic of Mexico. The roads in Palomas are in poor condition. United States Immig ration Inspector James3

Varnes asked Mr. Amaya-Sanchez his citizenship, andMr. Amaya-Sanchez handed the Inspector his resident alien card. Mr. Amaya-Sanchez’s hands were shaking, and he did not make eye contact with Inspe ctor Varnes, leading the Inspector to conclude that he was nervous. Inspect or Varnes had experienced instances when drivers were nervous but no contraband was found in their vehicles and instances when drivers were not nervou s but their vehicles did contain contraband. Inspector Varnes directed Mr. Amaya-Sanchez to an area at the port of entry where other agents trained a drug-sniffing do g on the truck. The agents themselves smelled no marijuana, but the dog alerte d to the presence of drugs in the truck’s fender. An agent drilled a hole in the fender and discovered marijuana. The agents removed over seventy-eight p ounds of the drug from the fender wells and arrested Mr. Amaya-Sanchez. Three days later, as an officer was driving the tru ck away from the port of entry, he noticed that the truck shook badly when h e drove between thirty-five and sixty miles per hour. He pulled over, let some air out of the tires, and smelled marijuana. There were 118.2 pounds of the drug hidden in specially built containers in the tires. A customs agent interviewed Mr. Amaya-Sanchez who d enied that the truck was his. Mr. Amaya-Sanchez stated that he had gone to Mexico to have his truck4

repainted in Palomas, but he could not or would notidentify where or to whom he took his truck to have it painted. He said he borr owed the truck he was driving back across the border from Maria Vasquez, a friend of his who worked in Palomas for Dr. Anaya. However, when the interview ing agent contacted Dr. Anaya’s office, he found that no person named MariaVasquez worked for Dr. Anaya. The truck’s glove box contained a certificate of ti tle showing the owner as Maria Trinidad Vasquez. However, the address liste d for Ms. Vasquez on the title did not exist and there was no Maria Vasquez or Maria Trinidad listed in the Palomas phone book. Even so, not all residents of Palomas are listed in the phone book and some small towns in Mexico do not have str eet addresses for some houses. Finally, the truck had New Mexico plates, and the office where the title was issued did not require proof of identification when issuing title documents.

I. POSSESSION WITH INTENT TO DISTRIBUTE To support a conviction of possession with intent t o distribute in violation of 21 U.S.C. § 841(a)(1), the government must prove beyond a reasonable doubt (1) that Mr. Amaya-Sanchez knowingly possessed the marijuana and (2) that Mr. Amaya-Sanchez possessed the marijuana with the spec ific intent to distribute it. See United States v. Reece , 86 F.3d 994, 996 (10th Cir. 1996).5

The government relies on the following evidence to prove that Mr. AmayaSanchez knowingly possessed the marijuana with the intent to distribute it. He was the driver and sole occupant of the truck which contained the drugs and appeared nervous when he was stopped at the port of entry. Although Mr. Amaya-Sanchez claimed the truck was not his, the fr iend he named as owner did not work where he claimed she did and was not liste d in the Palomas phone book. Additionally, despite the fact that her name was on the title to the truck, the address listed on the title did not exist. Also, M r. Amaya-Sanchez lacked credibility because he could not tell the police wh ere he had taken his truck earlier that day to be painted. Finally, no person would hide over $100,000 worth of marijuana in her truck and then loan it to a fri end who did not know about the marijuana; an innocent Mr. Amaya-Sanchez would have noticed the same shaking that the officer driving the truck away from the bo rder would have and, not knowing of the marijuana, would have likely taken i t to a mechanic or some place where it would have been discovered. Thus, the gov ernment’s theory of the case was that Mr. Amaya-Sanchez knew the truck contained marijuana and lied about his friend. Viewing this evidence in a light most favorable to the government, we accept the government’s theory of the case and hold that a reasonable juror could have found Mr. Amaya-Sanchez guilty beyond a reason able doubt. In United6

States v. Hooks , 780 F.2d 1526 (10th Cir. 1986), we considered the sufficiency of the evidence supporting a conviction for possessionwith intent to distribute when the defendant was driving a borrowed vehicle contai ning PCP. We noted that possession under § 841(a)(1) may be actual or constructive and may be proved by circumstantial evidence. See id. at 1531. “[C]onstructive possession may be established by proof that the defendant exercised d ominion and control over the vehicle in which the controlled substance was conce aled.” Id. However, “proof of dominion or control, without the requisite showi ng of knowledge, is insufficient to sustain a conviction . . . .” Id. We ruled that the requisite showing of knowledge was found in the totality of the circu mstantial evidence and the reasonable inferences drawn from that evidence. Se e id. at 1532. The circumstantial evidence was that the defendant gave the police a false name, was carrying baking soda which can be used to purify PC P, seemed to be under the influence of a narcotic, approached the officer ins tead of waiting for the officer to come near the truck where he could smell the PCP, a nd was driving a truck which contained $10,000 worth of PCP. See id. As to this last bit of evidence, we noted that “it is unlikely that the owner of the truck, o r anyone else, would have left such a valuable substance in the truck . . . .” whi le loaning it to a friend who was unaware of its presence. Id.7

As in Hooks , we find the totality of the circumstantial eviden ce and the reasonable inferences from that evidence support Mr . Amaya-Sanchez’s guilt beyond a reasonable doubt as to the issue of his kn owing possession of the drug. Mr. Amaya-Sanchez appeared nervous at the border cr ossing, suggesting fear that he would be caught. He told the customs agent thathe took his truck to have it painted earlier that day in Palomas, but could not remember what the name of the shop was or where it was, leading to the inference that his story was a lie and suggesting guilty knowledge. Additionally, his sto ry about his friend who loaned him the truck proved false at least as to where the friend worked, and the fact that the friend’s address did not exist cast Mr. Amaya-S anchez’s story into further doubt. Finally, the fact that he was driving a carwith almost 200 pounds of marijuana in it also leads to the inference that he knew he was transporting drugs; it strains credulity to think that the owner of suc h a large amount of marijuana, worth over $100,000, would hide it in a truck and t hen loan that truck to an innocent Mr. Amaya-Sanchez, who would have at the l east jeopardized the shipment once the truck encountered problems across the border. As for the second element of the charge, that Mr. A maya-Sanchez had the intent to distribute the marijuana, the large quant ity of marijuana in the truck is sufficient to support a judgment that Mr. Amaya-San chez intended to distribute the marijuana. See id. Therefore, we affirm his conviction on this charg e.8 II. DRUG IMPORTATION To support a conviction of drug importation in viol ation of 21 U.S.C. § 841(a)(1), the government must prove beyond a reaso nable doubt that Mr. AmayaSanchez knowingly brought marijuana into the UnitedStates. See United States v. Flinckinger , 573 F.2d 1349 (9th Cir. 1978), overruled on othergrounds by United States v. McConney , 728 F.2d 1195 (9th Cir. 1984). The evidence presented above is equally applicable to whether Mr . Amaya-Sanchez had the requisite knowledge that he was bringing marijuana into the United States. We determine that there is sufficient evidence to f ind Mr. Amaya-Sanchez guilty beyond a reasonable doubt on the drug import ation charge as well. In United States v. Ortiz-Ortiz , 57 F.3d 892 (10th Cir. 1995), the defendant was a passenger in a car which he claimed was loaned to h im by two unknown people so he and his friend could travel across the border to buy new parts for his friend’s car. See id. at 894. The car was titled in the name of a perso n the defendant claimed he knew, but the police could not find the person. See id. The car smelled of perfume, which is commonly used to mask the odor of drugs, and when the border police looked, they discovered at least $28,000 worth of marijuana concealed under a loose back seat. See id. at 895. We held that a jury was entitled to disregard the defendant’s claims that t he car belonged to a friend or9

was given to him by strangers and instead to conclu de that he knowingly imported the marijuana. See id. While the truck in the case at bar did not smell of perfume, the evidence in our case is more compelling than in Ortiz-Ortiz because of Mr. Amaya-Sanchez’s nervousness, because his friend could not be locate d, because he could not or would not tell the border police where he had left his truck to have it painted, and, especially, because of the vast quantity of dr ugs involved which make it much less likely that a friend would have simply lo aned him the car. We hold that there was sufficient evidence from which a rat ional trier of fact could find Mr. Amaya-Sanchez guilty beyond a reasonable doubt on the importation claim. Mr. Amaya-Sanchez’s conviction is affirmed. The ma ndate shall issue forthwith. Entered for the Court,

Robert H. Henry Circuit Judge