UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 01-40633

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS GUTIERREZ-FARIAS,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

June 12, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jose Luis Gutierrez-Farias (“Gutierrez”) appeals his conviction and sentence for conspiracy

and po ssessio n with intent to distribute in excess of 100 kilograms of marijuana in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), & 846. We affirm.

Gutierrez arrived at a United States Border Patrol checkpoint driving a white pick-up truck

pulling a farm tractor on a flat-bed trailer. In accordance with standard procedure, agents inspected

the truck and tractor and asked Gutierrez about his citizenship. Gutierrez stated that he was in the-2-

process of adjusting his status from non-immigrant to lawful permanent resident status. The agent

noted that Gutierrez appeared nervous during questioning. After another agent’s dog alerted to the

tires of the tractor, Gutierrez was referred to a secondary inspection area for a more thorough search.

Gutierrez was then asked several questions about his destination and the load he was towing.

Gutierrez answered that he was towing the tractor to a ranch “further up the road,” but claimed not

to know the name of the ranch. When asked where he got the tractor, Gutierrez responded that he

got it from another ranch, but did not specify the location of the ranch, from whom he had received

the tractor, or to whom he was delivering the tractor.

At the secondary inspection area, agents found the appearance and condition of the tractor

to be suspicious. To begin, the tractor was very clean, even though Gutierrez had told agents that

it had been outside for three to four months. The agents also observed fresh, clean grease all the way

around the rims of the tractor tires, and fresh threads on the lug nuts and bolts, suggesting that the

tires had recently been taken off and put back on the tractor. The agents also noticed that the tires

were put on backwards with the stems on the inside. The agents each checked the air in the tires and

noticed that it smelled sweet, not stale, and that no water came from the valve stem, a significant fact

b ecause water is often inserted into tractor tires for balance. During the course of the inspect io n,

Gutierrez looked away from the vehicle and appeared nervous. Agents observed him pacing back

and forth, fidgeting, and chain smoking cigarettes. At the secondary inspection area, Gutierrez told

one of the agents that he had previously been arrested for marijuana possession.

The tractor was then taken to a tire shop in Hebbronville so that the tires could be removed.

The removal process was labor intensi ve, requiring several tools and the help of four men.

Ultimately, the tires were completely cut. In total, twenty-three bundles of marijuana were removed-3-

from the tires, weighing 309 pounds. Thereafter, Gutierrez was arrested and charged with conspiracy

and possession with intent to distribute in excess of 100 kilograms of m arijuana in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), & 846. The government filed a notice of enhancement based on

Gutierrez’s prior drug conviction. After a trial, during which Border Patrol agents testified to the

above facts, a jury convicted Gutierrez on both counts. He was sentenced to two concurrent terms

of 120 mo nt hs’ imprisonment to be followed by eight years of supervised release. Gutierrez now

appeals his conviction and sentence.

Gutierrez first argues that the evidence presented by the government at trial was insufficient

to support his convictions. When reviewing the sufficienc y of the evi dence to support a conviction,

we view the evidence in the light most favorable to the verdict and determine whether a rational jury

could have found the elements of the offense beyond a reasonable doubt. U nited States v. Dean

, 59

F.3d 1479, 1484 (5 th Cir. 1995). We recognize that the jury was “free to choose among all reasonable

constructions of the evidence,” United States v. Chaney

, 964 F.2d 437, 448 (5 th Cir. 1992), and we

“accept all credibility choices that tend to support the jury’s verdict.” U nited States v. Anderson

, 933

F.2d 1261, 1274 (5 th Cir. 1991).

We begin with Gutierrez’s assertion that there was insufficient evid ence to support hi s

conviction for possession with intent to distribute marijuana. In order to convict Gutierrez of this

offense, the government had the burden to prove three elements at trial: (1) knowing (2) possession

of marijuana (3) with intent to distribute it. U nited States v. Moreno-Hinojosa , 804 F.2d 845, 847

(5 th Cir. 1986). Gutierrez argues that the government failed to satisfy this burden because it failed

to present evidence establishin g t hat he knew marijuana was hidden in the tractor tires beyond a

reasonable doubt. Specifically, Gutierrez contends that the government’s evidence at trial merely-4-

established control of a vehicle containing drugs in a hidden compartment, wh ich this court has

previously found insufficient without more to establish knowledge. U nited States v. Ortega Reyna

,

148 F.3d 540, 544 (5 th Cir. 1998) (stating that mere control of a vehicle containing drugs secreted

in a hidden compartment, without more, is normally insufficient to show that the driver of the vehicle

knowingly possessed the drugs with intent to distribute them); United States v. Pennington

, 20 F.3d

593, 598 (5 th Cir. 1994) (“The knowledge element in a possession case can be inferred from control

of the vehicle in some cases; when the drugs are hidden, however, control alone i s insufficient to

prove knowledge.”).

Contrary to Gutierrez’s assertion, we find ample evidence in the record beyond mere control

of the tractor from which a rational jury c o uld have inferred guilty knowledge. First, one of the

agents at the checkpoint testified that Gutierrez appeared nervous, even before he was directed to the

secon dary inspecti on area. See United States v. Crooks , 83 F.3d 103, 107 (5 t h Cir. 1996) (citing

nervous behavior as circumstantial evidence supporting jury’s finding that defendant know ingly

possessed or imported narcotics). The agent also testified to the in c ompleteness of Gutierrez’s

answers whe n asked where he picked up the tractor, and where he was taking it. Based on

Gutierrez’s demeanor at the checkpoint and the vagueness of his answers, the jury could have inferred

that he knew the marijuana was in the tires but was trying t o hide that fact. See United States v.

Casilla

, 20 F.3d 600, 603 (5 th Cir. 1994) (“Evasive and erratic behavior may be evidence of guilty

knowledge.” ); U

nited States v. Diaz-Carreon

, 915 F.2d 951, 953 (5 th Cir. 1990) (stating that

evidence of consciousness of guilt coupled with control over the vehicle in which drugs are found is

sufficient to establish knowledge in a hidden compartment case). The jury also could have inferred

that Gutierrez was covering up something based on the inconsistency between Gutierrez’s story and1 The jury was also presented evidence that Gutierrez lied to agents about his emplo yment.

Gutierrez had told agents that he was employed by Mario Rios Lumberyard in Roma, Texas, but the

phone number he gave was incorrect and the only Rios Lumberyard in Roma had no record of his

employment there.

-5- the appearance of the tractor. 1 U nited States v. Richardson

, 848 F.2d 509, 5 13 (5 th Cir. 1988)

(stating that “‘a less-than-credible explanation’ is ‘part of the overall circumstantial evidence from

which possession and knowledge may be inferred’” (quoting United States v. Phillips

, 496 F.2d 1395,

1398 n.6 (5 th Cir. 1974))). Finally, the jury could have inferred knowledge from the fact that

Gutierrez had been convicted of possession of marijuana that was found in a hidden compartment in

a vehicle he was driving across the border the previous year. See F ED

. R. E VID

. 404(b) (providing

that evidence of past crimes may be admissible as proof of knowledge). When viewed in the light

m ost favorable to the guilty verdict, this circumstantial evidence combined with his co ntrol of the

tractor containing marijuana was sufficient to establish knowledge.

Next, we address Gutierrez’s assertion that there was insufficient evidence to support hi s

conviction for conspiracy to possess marijuana with intent to distribute it. In order to convi ct

Gutierrez of the further offense of conspiracy under 21 U.S.C. § 846, the government was required

to prove both the existence of an agreement to commit the underlying offense and that each

conspirator knew of, intended to join, and participated in the conspiracy. U nited States v. Basey

, 816

F.2d 980, 1002 (5 th Cir. 1987). In addition to arguing that the government failed to prove the

underlying offense, Gutierrez contends that the government failed to present any evidence at trial that

he entered into an agreement with others to violate the law.

We find the evidence in the record sufficient to support Gutierrez’s conspiracy conviction.

As noted above, the evidence in the record was sufficient to support the jury’s finding that Gutierrez2 At trial, an expert witness for the government estimated that the marijuana removed from the

tractor would be worth $54,000 wholesale in the United States near the border. The value would

increase substantially the further the marijuana was transpo rted from the border, and woul d reach

$309,000 wholesale if taken to Chicago.

3 At trial, the government presented evidence that Ignacio Rodriguez was the last registered

owner of the truck, but that title of the truck was held by someone else outside of South Texas.

-6- was aware of the marijuana in the tractor tires. The reco rd also contains sufficient evidence from

which the jury could have inferred that others were involved and that Gutierrez acted pursuant to an

agreement to violate the nar co t ics laws. To begin, the jury could have inferred from the large

quantity and value of marijuana, and the difficult y of secreting it in the tires, that others were involved

in the scheme. 2 U

nited States v. Barnard

, 553 F.2d 389, 393 (5 th Cir. 1977). The jury also could

have inferred that Gutierrez had entered into an agreement with others ba sed on his rel uctance to

offer any ident ifying information about those involved in the transport of the tractor, and the fact that

he lied about his employment in Roma, Texas. Finally, the jury could have inferred the involvement

of others from the fact that Gutierrez did not own the pickup truck he was driving and the apparent

concealment of the true owner’s identity. 3 When viewed in the light most favorable to the guilty

verdict, the evidence presented at trial was sufficient to support Gutierrez’s conspiracy conviction.

Gutierrez next argues that the district court committed reversible error when it admitted the

t est imony of DEA Agent Robert Afanasewicz as an expert on the business of transporting illegal

narcotics northwards through South Texas. Specifically, Gutierrez challenges the portion of Agent

Afanasewicz’s testimony in which he described the manner in which drug trafficking organizations

generally select people to transport their drugs and the extent to which those selected are aware of4 Gutierrez does not challenge all of Agent Afanasewicz’s testimony as an expert witness.

Gutierrez concedes that the district c ourt properly admitted Agent Afanasewicz’s testimony regarding

the approximate value of the marijuana removed from the tractor tires.

-7- the drugs they are transporting. 4 Although the government insists the challenged t est imo ny was

admissible evidence of the modus operandi of drug trafficking organizations in the area, Gutierrez

contends that Agent Afanasewicz was really giving an opinion as to whether Gutierrez personally had

knowledge of the marijuana in the tires. In addition, Gutierrez argues that the district court failed to

make a determination as to whether the agent possessed specialized knowledge that could assist the

jury.

We review a district court’s decision to admit or exclude evidence for abuse of d iscretion.

United States v. Jackson

, 50 F.3d 1335, 1340 (5 t h Cir. 1995). Review of evidentiary rulings is

heightened in a criminal case. U nited States v. Anderson

, 933 F.2d 1261, 1268 (5 th Cir . 1991)

(explaining that evidence in a criminal trial must be strictly relevant to the particular offense charged).

The Federal Rules of Evidence set forth the circumstances in which a district court may permit expert

testimo ny o n a matter in dispute at trial. An expert witness may testify at trial if his “scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue.” F ED

. R. E VID

. 702. An expert may testify “in the form of an opinion or

otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product

of reliable principles and methods, and (3) the witness has applied the principles and methods reliably

to the facts of the case.” I d. An expert in a criminal case may not, however, offer “an opinion or

inference as to whether the defendant did or did not have the mental state or condition constituting

an element of the crime charged.” F E D

. R. E VID

. 704(b). “Such issues are matters for the trier of fact

alone.” Id.-8-

Agent Afanasewicz’s challenged testimony can be summed up as follows: (1) drug owners

have managers and other people who work for them; (2) people higher up in the organization hire

other people to transport the drugs; and (3) the people doing the hiring “look for people, individuals,

approach individuals t hat have knowledge, that they’re involved in this kind of business, and they

charge a price.” In closing, Agent Afanasewicz described the manner in which people are chosen to

transport drug:

The way it usually works in that respect is that I don’t think they would target

somebody just off the st reet t hat, you know, has no knowledge. Usually, it’s

somebody that is a friend of a friend. It could start that way.

Usually they want to use people that are—that can be—have a certain amount

of trust and responsibility because you have to realize as we showed before here, the

amount of money that the narcotics communicates too. It’s a lot of money and, you

know, this is, like I said, a business. So I mean, just as in any other business, the

people need a certain amount of c redentials, if you will, to be employed or to be

sought out by a narcotics trafficking organization.

On cross-examination the agent confirmed that he had done no work on the present case.

Having carefully reviewed the record, we agree with Gutierrez that the government exceeded

its bounds when it solicited the above testimony from Agent Afanasewicz. To begin, we have doubts

about whether Agent Afanasewicz’s testimony regarding what a person in Gutierrez’s position would

have known about the drugs he wa s t ransporting can fairly be considered “expert.” Rather than

assisting the jury to understand evidence presented or complicated fact issues in the case, Agent

Afanasewicz presented the jury with a simple generalization: In most drug cases, the person hired

to transport the drugs knows the drugs are in the vehicle. S ee United States v. Washington

, 44 F.3d

1271, 1283 (5 th Cir. 1995) (stating that a narcotics agent may testify about the significance of certain

conduct or methods of operati on unique to the drug business so long as the testimony is helpful and

its relevance is not substantially outweighed by the possibility of unfair prejudice or confusion). More5 The government attem pts to defend Agent Afanasewicz’s testimony on the ground that only

a direct statement of the defendant’s intent violates Rule 704(b). S peer

, 30 F.3d at 610 (“Rule 704(b)

is not strictly construed and prohibits only a direct statement of the defendant’s intent); U nited States

v. Moore

, 997 F.2d 55, 57-58 (5 th Cir. 1993) (upholding, without expressly mentioning Rule 704(b),

testimony of expert who “never testified explicitly as to the defendant’s intent or state o f mind”).

Although the government is correct that we have previously endor sed a narrow reading of Rule

704(b), the cases cited by the government are all distinguishable. In each, the expert was called to

interpret the behavior of persons and of facts in evidence in light of the expert’s experience. S ee, e.g.,

Speer

, 30 F.3d at 609-10 (up h olding expert testimony that defendant’s purchase of 30 grams of

cocaine and use of scales in purchase was more consistent with drug trafficking than with personal

use). Cf. Washington , 44 F.3d at 1283 n.45 (stating without explanation that the admission o f five

“expert” opinions relating to certain conduct and met ho ds unique to drug trafficking did not

constitute error (citing United States v. Armendariz-Mata , 949 F.2d 151, 155 (5 t h Cir. 1991)

(upholding D EA agent ’s t estimony as to the meaning of certain “code words” and significance of

some of defendant’s actions)). Although these cases describe in broad t erms t he admissibility

ge nerally of expert testimony in drug trafficking cases, none involved the type of generalizations

relied upon here.

-9- importantly, we believe Agent Afanasewicz’s testimony crosses the borderline long recognized by this

court between a “mere explanation of the expert’s analysis of the facts” and a “forbidden opinion on

t he ‘ultimate legal issue’” in the case. U nited States v. Speer

, 30 F.3d 605, 610 (5 th Cir . 1994);

United States v. Dotson

, 817 F.2d 1127, 1132 (5 th Cir. 1987). The clear suggestio n o f Agent

Afa nasewicz’s testimony is that, because most drivers know there are drugs in their vehicles,

Gutierrez must have known too. Although admittedly Agent Afanasewicz did not say the magic

words—“In my expert opinion, Gutierrez knew the marijuana was in the tires.”—we b elieve his

testimony amounted to the functional equivalent of such a statement. 5

Although we find that the district court abu sed it s discretion by permitting the challenged

porti on of Agent Afanasewicz’s testimony, we nonetheless affirm Gutierrez’s conviction because the

error was harmless. To begin, the statements made by Agent Afanasewicz constituted only a small

porti on of an

ot herwise strong case. W ashington

, 44 F.3d at 1283 (assuming expert testimony

admitted in error, error was harmless in light of overwhelming evidence of guilt). Moreover, we note6 Gutierrez renewed his objection after the jury instruction was given.

-10- that the district court attempted to cure any defects in Agent Afanasewicz’s testimony by instructing

t he jury that it could not rely on the agent’s testimony alone as proof that Gutierrez knew that

marijuana was hidden i n the tractor ti res. 6 Although the government is warned against relying on

such testimony in the future, in light of the strong evidence supporting Gutierrez’s conviction in this

case, we do not believe reversal is required. U nited States v. Williams

, 957 F.2d 1238, 1242 (5 th Cir.

1992) (“[U]nless there is a reasonable possibility that the improperly admitted evidence contributed

to the conviction, reversal is not required.”).

Finally, Gutierrez argues that it was unconstitutional for the district court to impose an

enhanced statutory mandatory minimum sentence based on his prior drug convicti o n when the

conviction was not alleged in t he indictment or ruled on by the jury. Gutierrez concedes that this

claim is foreclosed by precedent. A lmendarez-Torres v. United States

, 523 U.S. 224 (1998); United

States v. Keith , 230 F.3d 784, 786-87 (5 th Cir. 2000). Thus, it fails.

For the foregoing reasons, Gutierrez’s convictions and sentence for conspiracy and possession

with intent to distribute marijuana are AFFIRMED.