* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-40860

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

MODESTO RAMIREZ,

Defendant-Appellant.

---------------------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-98-CR-620-3

October 31, 2000

Before REAVLEY, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

Modesto Ramirez appeals his conviction on one count of

conspiracy to possess in excess of 1000 kilograms of marijuana

with intent to distribute in violation of 21 U.S.C. §§ 846,

841(a)(1) and 841(b)(1)(A), and on one count of possession with

intent to distribute 416 pounds of marijuana in violation of 21

U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. 

Ramirez argues that the evidence was insufficient to support his

conviction on either count. We disagree and AFFIRM his
2

conviction.

This Court reviews a claim of insufficient evidence to

determine whether a rational trier of fact could have found that

the evidence proved the essential elements of the crime beyond a

reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62

S.Ct. 457 (1942); United States v. Ramirez, 145 F.3d 345, 350

(5th Cir. 1998). The evidence, both direct and circumstantial,

and all inferences reasonably drawn from it, is viewed in the

light most favorable to the jury’s verdict. United States v.

Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).

To prove a drug conspiracy, the Government must establish

“1) the existence of an agreement between two or more persons to

violate federal narcotics laws; 2) the defendant’s knowledge of

the agreement; and 3) the defendant’s voluntary participation in

the agreement.” United States v. Gonzales, 79 F.3d 413, 423 (5th

Cir. 1996). The Government produced ample evidence, through the

testimony of Osvaldo Serrano Martinez and Georgi Kirilov, of a

conspiracy to distribute illegal narcotics. Each testified that

they had transported drugs for Roberto Ramirez and Frank

Hernandez, two charged conspirators. Martinez further testified

to conversations regarding drug shipments that he overheard while

working construction at the home of charged conspirator Jose

Ramirez.

Mere presence or association with conspirators alone will

not support an inference of participation in the conspiracy, 
3

United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992), there

must be some further evidence from which the jury could infer the

defendant’s knowledge and participation. Id. at 748. In this

case, Esmeraldo Guerra testified that Ramirez, during a

conversation with other truck drivers following the arrest of

Georgi Kirilov, had stated that “they had set up Georgi . . .

[and] something else had gone through.” The government then

called Agent Butler to impeach Guerra’s testimony that the

remarks were merely idle conversation, or gossip, between

drivers. Regardless of the context in which the statements were

made, they are consistent with the government’s theory at trial

that the conspirators would “set up” an individual transporting a

relatively small load of marijuana, so a larger load could pass

through undetected. It would not have been unreasonable for the

jury to infer that the statements described by Guerra evinced

Ramirez’s involvement in and knowledge of the conspiracy.

Count Three of the indictment charged that Jose and Modesto

Ramirez, “aiding and abetting each other,” possessed with intent

to distribute 416 pounds of marijuana. On September 14, 1993,

outside the home of Juan Gerardo Sanchez, police seized a

tractor-trailer containing seven duffel bags filled with

marijuana. Sanchez had been hired to drive the trailer to

California. The government presented significant circumstantial

evidence placing Modesto at the scene when the marijuana was

loaded into the trailer. First, Modesto had delivered the
1 Believing the evidence is insufficient to support Ramirez’s

conspiracy conviction, Judge Dennis would reverse the conviction

under Count 2 of the indictment. As to the substantive count,

Judge Dennis joins the opinion of the Court.

4

trailer to Sanchez’s home. After which, a witness reported

seeing several men in a white Cadillac and a white El Camino

loading something into the trailer. A later government witness

testified to seeing Modesto driving a white El Camino on several

occasions. Modesto’s brother-in-law, Valentine Espinoza, owned a

white Cadillac. Espinoza’s wife, Modesto’s sister, testified

that on the night in question Valentine and Modesto were supposed

to be together. Modesto also turned in a false log book showing

that he was supposedly between Eloy, Arizona and Buckeye, Arizona

on the night the loading took place. Fuel records, however,

showed that he was in fact in Laredo, Texas. This false

assertion is probative of Modesto’s guilty knowledge. See United

States v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984) (stating that

“[f]alse exculpatory statements may be used . . . as substantive

evidence tending to prove guilt”). The evidence is sufficient to

show Modesto’s constructive possession of the marijuana, see

United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998), and

the large quantity of marijuana involved in this case is

sufficient to establish the intent to distribute. United States

v. Sanchez, 961 F.2d 1169, 1176 (5th Cir. 1992). We, therefore,

AFFIRM the conviction in its entirety.1