UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 01-40633

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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 possession 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
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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 ofthe tractor, Gutierrez wasreferred 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

because water is often inserted into tractor tires for balance. During the course of the inspection,

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 intensive, requiring several tools and the help of four men.

Ultimately, the tires were completely cut. In total, twenty-three bundles of marijuana were removed
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fromthe tires, weighing 309 pounds. Thereafter, Gutierrez was arrested and charged with conspiracy

and possession 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. 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 nths’ 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. Whenreviewing the sufficiencyofthe evidence 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. United States v. Dean, 59

F.3d 1479, 1484 (5thCir. 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 (5th Cir. 1992), and we

“accept all credibility choicesthat tend to support the jury’s verdict.” United States v. Anderson, 933

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

We begin with Gutierrez’s assertion that there was insufficient evidence to support his

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. United States v. Moreno-Hinojosa, 804 F.2d 845, 847

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

to present evidence establishing that he knew marijuana was hidden in the tractor tires beyond a

reasonable doubt. Specifically, Gutierrez contends that the government’s evidence at trial merely
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established control of a vehicle containing drugs in a hidden compartment, which this court has

previously found insufficient without more to establish knowledge. United States v. Ortega Reyna,

148 F.3d 540, 544 (5th 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 (5th 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 is 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 could have inferred guilty knowledge. First, one of the

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

secondary inspection area. See United States v. Crooks, 83 F.3d 103, 107 (5th Cir. 1996) (citing

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

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

answers when 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 jurycould have inferred

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

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

knowledge.”); United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th 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 and
1The jury was also presented evidence that Gutierrez lied to agents about his employment.

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.

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the appearance of the tractor.1 United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988)

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

which possessionand knowledgemaybe inferred’” (quoting United States v. Phillips, 496 F.2d 1395,

1398 n.6 (5th 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 FED. R. EVID. 404(b) (providing

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

most favorable to the guilty verdict, this circumstantial evidence combined with his control of the

tractor containing marijuana was sufficient to establish knowledge.

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

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

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. United States v. Basey, 816

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

underlying offense, Gutierrez contendsthat the government failed to present anyevidence at trialthat

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 wassufficient to support the jury’sfinding that Gutierrez
2At trial, an expert witnessfor the government estimated that the marijuana removed fromthe

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

increase substantially the further the marijuana was transported from the border, and would reach

$309,000 wholesale if taken to Chicago.

3At 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.

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was aware of the marijuana in the tractor tires. The record 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 narcotics laws. To begin, the jury could have inferred from the large

quantity and value ofmarijuana, and the difficulty ofsecreting it in the tires, that others were involved

in the scheme.2 United States v. Barnard, 553 F.2d 389, 393 (5th Cir. 1977). The jury also could

have inferred that Gutierrez had entered into an agreement with others based on his reluctance to

offer any identifyinginformation 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

testimony 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 of
4Gutierrez does not challenge all of Agent Afanasewicz’s testimony as an expert witness.

Gutierrez concedesthat the district court properly admitted Agent Afanasewicz’s testimony regarding

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

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the drugs they are transporting.4 Although the government insists the challenged testimony was

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

contendsthat Agent Afanasewicz wasreallygiving an opinion asto 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 discretion.

United States v. Jackson, 50 F.3d 1335, 1340 (5th Cir. 1995). Review of evidentiary rulings is

heightened in a criminal case. United States v. Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991)

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

The FederalRules ofEvidence set forth the circumstancesin which a district court may permit expert

testimony on 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.” FED. R. EVID. 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 methodsreliably

to the facts of the case.” Id. 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.” FED.R.EVID. 704(b). “Such issues are matters for the trier of fact

alone.” Id.
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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 that 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 worksin that respect isthat I don’t think they would target

somebody just off the street that, you know, has no knowledge. Usually, it’s

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

Usually theywant 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 credentials, 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 fromAgent Afanasewicz. To begin, we have doubts

about whether Agent Afanasewicz’stestimonyregarding what a person inGutierrez’s positionwould

have known about the drugs he was transporting 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 knowsthe drugs are in the vehicle. See United States v. Washington, 44 F.3d

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

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

itsrelevance is not substantiallyoutweighed bythe possibilityof unfair prejudice or confusion). More
5The government attemptsto defend Agent Afanasewicz’stestimony on the ground that only

a directstatement ofthe defendant’sintent violates Rule 704(b). Speer, 30 F.3d at 610 (“Rule 704(b)

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

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

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

Although the government is correct that we have previously endorsed 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 offactsin evidence in light ofthe expert’s experience. See, e.g.,

Speer, 30 F.3d at 609-10 (upholding 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 of five

“expert” opinions relating to certain conduct and methods unique to drug trafficking did not

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

(upholding DEA agent’s testimony as to the meaning of certain “code words” and significance of

some of defendant’s actions)). Although these cases describe in broad terms the admissibility

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

relied upon here.

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importantly, we believeAgent Afanasewicz’stestimonycrossesthe borderline long recognized bythis

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

the ‘ultimate legal issue’” in the case. United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994);

United States v. Dotson, 817 F.2d 1127, 1132 (5th Cir. 1987). The clear suggestion of Agent

Afanasewicz’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 believe his

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

Although we find that the district court abused its discretion by permitting the challenged

portion of Agent Afanasewicz’stestimony, we nonetheless affirmGutierrez’s conviction because the

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

portion of an otherwise strong case. Washington, 44 F.3d at 1283 (assuming expert testimony

admitted in error, error was harmlessin light of overwhelming evidence of guilt). Moreover, we note
6Gutierrez renewed his objection after the jury instruction was given.

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that the district court attempted to cure any defectsin Agent Afanasewicz’stestimony by instructing

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

marijuana was hidden in the tractor tires.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 isrequired. United States v. Williams, 957 F.2d 1238, 1242 (5th 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 conviction when the

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

claim isforeclosed by precedent. Almendarez-Torres v. United States, 523 U.S. 224 (1998); United

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

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

with intent to distribute marijuana are AFFIRMED.