*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### MAR 2 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.JOSE ASCENCION HERRERAHERNANDEZ, Defendant-Appellant. No. 02-2180 (D. New Mexico) (D.Ct. No. CR-01-963-LH)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.-2-

Jose Herrera-Hernandez was found guilty by a jury o f transporting illegal aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii ), (a)(1)(B)(i), and (a)(1)(A)(v)(II). He appeals the district court’s denial of his motion for a judgment of acquittal, claiming there was insuffici ent proof that he knew of, or recklessly disregarded, the fact that his passenger s were in the United States illegally. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Background We present the evidence adduced at trial in the lig ht most favorable to the Government. In April 2001, Deputy Sheriff Sean Pru itt saw a van stop at the intersection of Sumner Avenue and Fourth Street in Fort Sumner, New Mexico. The intersection had no stop sign and two vehicles behind the van were forced to stop suddenly. The van bore a Texas license plate, its rear doors were held shut with a bungee cord and the brake light above the do ors was missing. Pruitt turned on his emergency lights and stopped the van. Pruitt asked Herrera-Hernandez, the driver, to prod uce a driver’s license and vehicle registration. While waiting for the do cuments, Pruitt saw passengers in the van. After calling in the registration and driver’s license number, Pruitt learned that Herrera-Hernandez’s driver’s license h ad been suspended and the insurance on the van was expired. When Pruitt aske d the passengers for identification, he received no response. Pruitt to ld Herrera-Hernandez to follow-3-

him to the sheriff’s department, where Pruitt calle d the U.S. Border Patrol. Several hours later, border patrol agents Ochoa andHarrison arrived at the sheriff’s department from their office in Carlsbad, New Mexico, approximately 180 miles away. When they arrived, Herrera-Hernand ez agreed to answer their questions. Herrera-Hernandez said he was transport ing the passengers for his brother’s business. He said he would help the agents investigate other companies who transported illegal aliens from Houston, but wo uld not provide information about his brother’s organization. When Agent Harri son then asked him if he knew the people in the van were illegal aliens, Her rera-Hernandez gestured and said, “yeah.” Herrera-Hernandez denies this occurr ed. On July 24, 2001, a grand jury returned a two-countindictment against Herrera-Hernandez for transporting illegal aliens. At trial, the jury returned a verdict of guilty on both counts and Herrera-Hernan dez moved for a judgment of acquittal. The district court denied his motion an d sentenced Herrera-Hernandez to thirty months imprisonment. This timely appeal followed.
Discussion We review insufficiency of the evidence claims de n ovo. United States v.
Van Tieu , 279 F.3d 917, 921-22 (10th Cir. 2002). We reviewthe evidence in the light most favorable to the Government to determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt. Id . We will not-4-

weigh conflicting evidence, nor do we consider the credibility of the witnesses. Id . All conflicts are resolved in favor of the Gover nment. Id

. The Government is required to prove: “(1) the trans porting or moving of an alien within the United States, (2) that the alien was present in violation of the law, (3) that [Herrera-Hernandez] was aware of the alien’s status, and (4) that [Herrera-Hernandez] acted willfully in furtherance of the alien’s violation of the law.” United States v. Barajas-Chavez , 162 F.3d 1285, 1287 (10th Cir.) ( en banc ) ( quoting United States v. Diaz , 936 F.2d 786, 788 (5th Cir. 1991), cert. denied, 528 U.S. 826 (1999). Herrera-Hernandez claims the Government did not offer adequate proof that he knew the people in the van w ere illegal aliens. Although Herrera-Hernandez admits Harrison testified that He rrera-Hernandez confessed to knowledge of the passengers’ status by gesturing an d saying “yeah,” he claims that, even if he made the gesture and comment, the response was made during interrogation when he was not under oath. Because his testimony at trial denying knowledge was under oath, he claims it should be gi ven greater weight. This argument is without merit. The jury heard evidence that Herrera-Hernandez admi tted he knew he was transporting illegal aliens. Even though there was testimony to the contrary, the jury obviously believed the agent. As we do not de termine the credibility of the witnesses or the weight of the evidence, this fact alone is sufficient proof of-5-

Herrera-Hernandez’s knowledge. The denial of the motion for acquittal is AFFIRMED

. Entered by the Court: Terrence L. O’Brien United States Circuit Judge