* District Judge of the Western District of Louisiana,

sitting by designation. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-7150

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ISAI ISAURO GARZA, a/k/a JESUS ISAURO GARZA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(April 20, 1993)

Before WISDOM, DUHÉ, Circuit Judges, and DOHERTY *

, District Judge.

WISDOM, Circuit Judge.

In t his case, the defendant, Isai Isauro Garza, appeals his

conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(A) for possession

of 447 kilograms cocaine with the intent to distribute. He

contends that the evidence was insufficient to sustain his

conviction. Additionally, he contends that the trial court's

admission of testimony concerning the computer listings of the Drug

Enforcement Administration (DEA) constitutes reversible error.Fin ally, he contends that he was denied effective assistance of

counsel based on his lawyer's failure to object to the admission of

t he allegedly inadmissible testimony. We hold that the evidence

was sufficient to support the jury's verdict and we find no

reversible error. We affirm.

I.

In August 1991, a United States Boarder Patrol agent stopped

Garza at the Falfurrias Checkpoint in Texas for a routine

inspection. Garza was driving his tractor trailer. In response to

questioning, Garza told the agent that he had come from Edinburg,

Texas with a load of limes he was taking to Los Angeles. The agent

then asked to see a copy of Garza's bill of lading. The bill of

lading list ed Los Angeles as the destination of the load. The

agent testified that Garza seemed nervous, his voice trembled, and

his hand shook as he hand ed over the document. Based on these

observations, the agent asked Garza for permission to sea rch his

trailer. Garza immediately granted permission.

The agent looked through a small ventilation hatch located

behind the driver's door and spotted several burlap sacks on top of

the lime boxes. He asked Garza to move his truck to the secondary

inspection area and to open the rear doors of the trailer. Garza

complied. As the agent crawled forward in the trailer on top of

the lime boxes, he discovered additional burlap sacks stacked in

between the boxes. Cocaine was inside the sacks in the form of

bricks. Over the next half hour, with the help of a second boarder

agent and a forklift, the two agents unloaded 447 kilograms of2 Garza's log book listed his departure from the loading dock

as 10:30 p.m. He admitted at trial that he departed from the

loading dock at 9:00 p.m.

3 The DEA system includes the names of all persons or

entities that have been, or are suspected of having been, involved

in prior drug trafficking schemes.

3 cocaine from the truck, worth approximately fifteen million

dollars.

A search of the cab of the truck turned up a package of blank

bills of lading hidden beneath the ca rpeting on the floor of the

cab and a second handwritten bill of lading giving the name of a

non-existent buyer and falsely listing Houston as Garza's

destination. The defendant admitted that he had purchased the

package of bills of lading and that he had prepared the second,

false bill of lading. In addition, Garza admitted to falsifying

his logbook to reflect an inaccurate departure time. 2

Garza was charged under 21 U.S.C. § 841( a)(1) and (b)(1)(A)

with one count of possession of 447 kilograms of cocaine with

intent to distribute. The case was tried to a jury for two days in

December 1991. At trial Garza's counsel called a DEA special agent

and asked him to identify any of the government witnesses whose

names were listed in the DEA computer system. 3 The agent named one

government witness and went on to name London Fruit, the lime

supplier, and B & R Trucking, the company that provided Garza with

the lime shipping job. On cross-examination, the government asked

the agent if any additional persons involved in the Garza case

appeared in the system. The agent testified that Garza's name

appeared in the system in connection with a 5200 pound seizure of4 At oral argument on appeal, Garza's counsel suggested,

without citing the record, that trial counsel had made some form of

objection to the admissibility of this evidence. After reviewing

the record carefully, we conclude that he is mistaken. There is no

such objection in the record.

4 marijuana in 1990. He also testified that approximately twenty of

the names in Garza's address book, seized from his truck, also

appeared in the system. Garza's counsel did not object to the

admission of the agent's testimony. 4 The court, however, twice

cautioned the jury that Garza was not on trial for the 1990

marijuana seizure.

The district court denied Garza's motion for a directed

verdict at the close of the gov ernment's case and again at the

close of evidence. The jury returned a guilty verdict. In March

1992, Garza was sentenced to 235 months confinement to be followed

by a five year term o f supervised release. He also received a

$1,000 fine and a $50 special assessment.

Garza appeals his conviction on three grounds. First, he

contends that the evidence was insufficient to support the jury's

guilty verdict. Next, he argues that the DEA agent's testimony on

cross examination was improperly admitted and constitutes

reversible error. Finally, he argues that his trial counsel was

constitutionally ineffective in failing to object to the agent's

allegedly inadmissible testimony.

II.

"The standard for review for sufficien cy of evidence is

whether any reasonable trier of fact could have found that the5 U nited States v. Martinez , 975 F.2d 159, 160-61 (5th Cir.

1992), cert

. denied

,

___ U.S.

___, 113 S.Ct. 1346 (1993) (citing

Jackson v. Virginia , 443 U.S. 307, 319 (1979).

6 I d

. at 161 (citing Glasser v. United States , 315 U.S. 60,

80 (1942)).

7 Id

.

8 Id . (citations omitted).

9 United States v. Richards , 638 F.2d 765, 768 (5th Cir.),

cert

. denied , 454 U.S. 1097 (1981).

1 0 Control will suffice on its own if the drugs are clearly

visible or readily accessible. United Sates v. Richardson

, 848 F.2d

509, 513 (5th Cir. 1988). In this case however, the drugs were in

burlap sacks partially concealed in the trailer of the truck

between the lime boxes and not readily accessible.

5 evidence established guilt beyond a reasonable doubt." 5 In

reviewing a c ase for sufficiency of the evidence, reasonable

inferences from the evidence will be construed in favor of the jury

verdict. 6 In addition, "determining the weight and credibility of

the evidence is within the sole province of the jury". 7 We "will

not supplant the jury's determination of credibility with that of

[our] own." 8

Under 21 U.S.C. § 841(a)(1) and (b)(1)(A), the government must

prove three elements beyond a reasonable doubt in order to convict

Garza: (1) knowledge, (2) possession, and (3) in tent to

distribute. 9 Garza contests only the knowledge element.

T he knowledge element in a possession case can rarely be

establ ished by direct evidence. Knowledge can be inferred from

control of the vehicle in some cases; however, when the drugs are

hidden, control over the vehicle alone is not sufficient to prove

knowledge. 10 The general rule in this Circuit is that knowledge can11 United States v. Anchondo-Sandoval , 910 F.2d 1234, 1236

(5th Cir. 1990)).

1 2 This is a close case. Although the drugs were not secreted

in a hidden compartment, they were not in "plain view" or "readily

accessible". Instead, the drugs were concealed in burlap sacks

stacked in and behind the lime boxes.

6 be inferred from control over the vehicle in which the drugs are

hidden "if there exists other circumstantial evidence that is

suspicious in nature or demonstrates guilty knowledge". 11

Garza argues th at because the drugs were hidden, 1 2 the

government was required to show more than control of the vehicle.

We agree. In addition, he contends that the government failed to

bring forward sufficient "other circumstantial evidence" and

consequently his conviction should not be sustained. We disagree.

At trial the government offered several pieces of evidence to

support Garza's guilt. Specifically, this evidence includes

Garza's nervousness, his control and own ership of the truck

containing the cocaine, the large amount of cocaine, the false bill

of lading, the falsified log book, the pa ckage of blank bills of

lading, the gap in time between when Garza left the loading station

with the truck and his actual departure time, and finally, the fact

that Garza admittedly left his loaded truck unlocked and unattended

f or over an hour at a dark truck stop before departing for Los

Angeles. For reasons discussed below, we do not consider the DEA

Agent's testimony regarding the contents of its computer files in

analyzing the sufficiency of the evidence.

First, Garza maintains that his alleged nervousn ess was1 3 Garza contends that he was not nervous and backs this

contention with the fact that he did not hesitate to consent to the

search of his truck. We are not retrying the case, however. The

agent testified that Garza was nervous and it was up to the jury to

weigh his credibility against Garza's.

14 915 F.2d 951, 954 (5th Cir. 1990).

7 improperly considered as evidence of guilty knowledge. 13 In U nited

States v. Diaz-Carreon

, this Court held that nervousness, "[i]n the

absence of facts which suggest that [the nervousness] ... derives

from an underlying consciousness of criminal behavior ... is

insufficient to support a finding of guilty knowledge". 14 Applying

this rule, in Diaz-Carreon

, this Court held that inconsistent

statements made to custom officials in addition to an implausible

story constituted persuasive evidence of the defendant's

consciousness of guilt; thus, the Court allowed nervousness to be

considered as evidence of guilty knowledge. Although the

f acts in the instant case are not identical with those in DiazCarreon

, they do share so me similarities. Both cases contain

evidence of an implausible explanation for suspicious

circumstances. When the false bill of lading was discovered hidden

in Garza's truck, Garza stated that he had completed it to provide

a substitute bill of lading for his trip when he realized he would

be unable to acquire the form from th e shipper. According to

Garza, he filled out the second bill of lading as practice. He

maintains that he had planned to telephone the shipper to determine

if he had filled out the bill correctly and to see if the shipper

wanted him to fill out the substitute because he had been unable to

acquire one before he departed. He maintains that he listed8

Houston as the final destination because that was the destination

on the last delivery he had m ade. He offered no explanation for

listing a non-existent buyer.

At trial, a representative for Amerifresh testif ied that he

had placed an order for the limes with London Fruit. London Fruit

was listed as the supplier on the first, original bill of lading.

He stated that it was the policy of Amerifresh to substitute its

name as supplier for fear its customers would deal directly with

the real supplier, cutting Amerifresh out of future deals. The

fruit shipping company's agents testimony corroborates Garza's

belief that they wanted to alter the name of the fruit supplier on

the bill for business reasons. Yet, his contention that he was

"practicing" does not explain why the bill listed Houston and not

Los Angeles as his destination or indeed wh y the bill of lading

listed a non-exis tent buyer. Thus, his explanation is arguably

implausible.

Although Garza made no inconsistent statements to the boarder

agent, his arguably implausible explanation of the bill of lading

in combination with his admission that he had falsified his log

books opens the door to allowing his nervousness to be considered

as evidence of guilty knowledge under the Diaz-Carreon standard.

Next, G arza contends that the presence of the second false

bill of lading listing Houston and not Los Angeles as the final

destination of the cargo does not constitute "other circumstantial

evidence" sufficient to support t he jury's finding of guilty

knowledge. According to Garza, because he characterizes his1 5 Uni ted States v. Lindell , 881 F.2d 1313, 1322 (5th Cir.

1989), cert

. denied

, 496 U.S. 926 (1990); United States v. Bell

, 678 F.2d 547, 549 (5th Cir. 1982), affirmed on other grounds , 462

U.S. 356 (1983)..

1 6 In U nited Sates v. Williams-Hendri cks , 805 F.2d 496, 501

(5th Cir. 1986). This Court sustained a jury's finding of guilty

knowledge based on little more than is present in this case. In

Williams-Hendricks

, the evidence against the defendant included

9 explanation of the second bill as "plausible", it cannot be used to

infer guilty knowledge. This contention is unfounded.

At trial, the governm ent argued that Garza had created the

Houston bill of lading so that if sto pped en route to Houston to

deliver the drugs, he could offer a Houston bill of lading to avoid

suspicion. The jury is the ultimate arbiter of witnesses'

credibility and is free to choose among reasonable constructions of

evidence. 15 The jury, therefore, was free to reject Garza's

explanation and accept the government's version. The false bill of

lading was correctly allo wed as evidence of Garza's guilty

knowledge.

Garza's arguments place each individual piece of evidence in

a vacuum. We do not consider each piece of potential evidence

separately, rather we review the evidence as a whole to determine

its sufficiency. In so doing, we conclude that the government

offered ample evidence of Garza's guilty knowledge to support his

conviction.

Further, Garza fails even to add ress the remaining evidence

against him offered at trial by the government. First, this Court

has considered the fact that the amount of drugs was exceedingly

large as evidence of guilty knowledge. 16 Second, Garza ignores hisonly the large amount of drugs present (Thirty-eight pounds of

marijuana), the defendant's nervousness at the inspection station,

his lack of credibility on the stand, and the fact th at his son,

who was present in the vehicle when the drugs were seized confessed

to the charges in spite of the fact that he maintained that his

father had no knowledge of the drugs.

17 936 F.2d 184 (5th Cir. 1991).

10 own admission that he falsified his log book to reflect a

significantly later departure time that actually ex isted. And

third, Garza overlooks the damaging evidence concerning his leaving

his rig unlocked and unattended for o ver an hour at a dark truck

stop. Although he testified that he did so because he thought that

the shipper would place the substitute bill of lading in the truck

while he was gone, the jury was not bound to believe him. The

record clearly reflects that the defendant admitted that he drove

his truck, after it was loaded, to the Union 76 Truck Stop, left it

unlocked with the keys in the ignition, hitchhiked home, and then

w aited an hour before returning to depart on his journey t o Los

Angeles.

Convictions based on such evidence as the United States

presented in this case are not uncommon. In United States v.

Gonzalez-Lira

, 17 we upheld a finding of guilty knowledge based on

the same amount of if not less evidence than is present in this

case. In G onzalez-Lira

, the only evidence presented to show the

defendant's guilty knowledge was the large amount of drugs present,

discrepancies in the bill of lading, an implausible story, and the

fact that the defendant had been aware that his truck had been used

in a prio r drug smuggling attempt before he purchased it. Here,11

the defendant was nervous and trembling; a false bill of lading was

discovered hidden in the truck; the defendant admitted to

falsifying his log book, for which he offered an implausible story;

an enormous quantity of drugs was discovered in the truck; and

ample evidenc e of suspicious circumstances pertaining to the

defendant's delayed departure and abandonment of his truck prior to

that departure was presented at trial.

III.

Next, Garza contends that the trial court's admission of the

DEA agent's testimony regarding the presence of Garza's name in the

NADDIS computer constitutes grounds for reversal. At trial Garza's

counsel called a DEA agent to testify. In response to questioning

by Garza's counsel, the agent testified that the supplier and the

trucking company involved in this case, in addition to one of the

government's witn esses, were listed in their system. On crossexamination, the government asked if any of the other people

involved in this case were listed in this same computer system.

The agent testified that Garza's name appeared in the system in

connection with an earlier drug smuggling case. In addition, he

reported that 20 names found in Garza's address book, including the

names of some of Garza's family members, were also in the system.

Garza's counsel did not object.

Because no objection to the evidence was made, "this Court may

reverse

... only if the district court committed plain error" in1 8 U nited States v. Mar rero , 904 F.2d 251, 259 (5th Cir.

1990), cert

. denied , 498 U.S. 1000 (1990).

1 9 United States v. Fortenberry , 914 F.2d 671, 673 (5th Cir.

1990), cert

. denied , ___ U.S. ___, 111 S.Ct. 1333 (1991).

20 Fed. R. Civ. P. 404(b).

21 582 F.2d 898 (5th Cir. 1978) (en banc), cert

. denied , 440

U.S. 920 (1979).

22 Id . at 911.

12 allowing the evidence to reach th e jury 1 8 and such admission

prejudiced the defendant. Plain error is "so obvious that our

failure to notice it would seriously affect the fairness,

integrity, or public reputation of [the] judicial proceedings and

result in a miscarriage of justice". 19

Under this analysis we must first determine if it was error to

admit the complained of evidence. We conclude that it was indeed

error. Evidence of an extrinsic offense is never admissible purely

to show the defendant's bad ch aracter. 2 0 In U nited States v.

Beechum 21

, we set forth the test for when evidence of a defendant's

extrinsic offenses may be admitted for some other purpose such as

proving intent. The B eechum test requires the evidence to be

logically relevant and that its p robative value outweigh its

prejudicial effect. 22

Garza contends that the evidence in question fails both parts

of the test for admissibility. First, Garza argues that the

government failed to show that the evidence was logically relevant.

In Beechum

, this Court held that the evidence of an extrinsic

offense is relevant "only if an offense was in fact committed and23 Id . at 912.

24 U nited States v. Lemaire

, 712 F.2d 944, 947 (5th Cir.

1983), cert

. denied , 464 U.S. 1012 (1983).

25 Id . at 913.

2 6 A different man was stopped at the same checkpoint at which

Garza was stopped carrying 500 pounds of marijuana. In some

unknown way, the DEA found a connection between the man stopped and

Garza's brother and possibly Garza himself. Basically, the DEA has

nothing on Garza concerning the marijuana bust.

13 the defendant in fact committed it". 2 3 Without such proof, the

evidence fails to reveal anything about Garza. 24 The government was

therefore required to offer proof "demonstrating that the defendant

committed the offense". 25 As Garza points out, the government made

no such offer of proof. Rather, it merely asked the witness if

Garza's name appeared in the computer. By his own testimony, the

agent conceded that the presence of a name in the system did not

prove that the individual committed the offense he was for which he

was listed. Rather, the presence of the name in the system merely

proved that he was suspected by t he DEA of involvement in an

offense. 26 Thus, the government failed to show that the evidence

was logically relevant.

We could end our discussion of admissibility at this juncture;

however, we a lso hold that the evidence fails the second part of

the Beechum test as well. Obviously linking the defendant to a

similar crime is prejudicial. The only possible probative value of

this evidence is the possibility that if the defendant had guilty

knowledge in the extrinsic offense, this might tend to show he had

g uilty knowledge in this case. For the same reason that we hold2 7 914 F.2d at 673 (quoting U nited States v. Graves

, 669 F.2d

964, 971 (5th Cir. 1982)).

28 Id

.

29 Id . The defendant was convicted with conspiracy to commit

arson, possession of an unregistered firearm, and transportation of

the firearm on a commercial airliner.

14 that the evidence is not logically relevant, we also hold that it

had little to no probative va lue. The government failed to show

that Garza had guilty knowledge concerning the extrinsic offense,

so it cannot use this offense to show guilty knowledge in this

case. Due to the lack of probative value, it is clear that any

such value is outweighed by the prejudicial effect of this

evidence. Thus the evidence was inadmissible under 404 (b) and

Beechum

.

Our analysis of this issue does not end with our determination

t hat the evidence was inadmissible. Because Garza's counsel did

not object to admission of this evidence, a finding of plain error

is required for reversal. In U nited States v. Fortenberry

, this

Court held that plain error is an error "so obvious that our

failure to notice it would seriously affect the fairness,

integrity, or public reputation of [the] judicial proceedings and

result in a miscarriage of justice". 27 In F ortenberr y , the Court

held that the admission of e vidence of the defendant's previous

bomb threat did not constitute plain error. 28 The Court noted the

fact that this evidence constituted "only a tiny part" of the

Government's case against the defendant. 29 In addition it noted the

absence of emphasis of this evidence by the prosecutor before the30 Id . at 673.

3 1 We note U nited States v. Anderson

, 933 F.2d 1261, 1268 (5th

Cir. 1991), where this Court held that the admission of irrelevant

facts that have a prejudicial effect reqires a reversal. We find

this case to be inapplicable. In A nderson

, the Court was not bound

by the plain error standard.

15 jury.

Although this case is very different, we hold that admission

of the evidence did not constitute plain error for similar reasons.

The presence of Garza's name in the computer system was not only a

"tiny part" of the Government's case, it was not even a part of the

Government's case-in-chief. The Government did not present this

testimony as part of its attempt to prove the defendant's guilty

knowledge- -it extracted the evidence on cross examination in an

attempt to rebut the defendant's implication that the other parties

in the case were responsible for the drugs' presence in his truck.

Further, the government did not emphasize this evidence in its

remarks to the jury. Finally, the trial court explicitly

instructed the jury that Garza was not on trial for the marijuana

seizure mentioned by the agent. As the Court in F ortenberry

decided, so we decide, "[a]fter a careful review of the record, we

concluded that admission of the

... testimony does not rise to such

an egregious level" as to constitute plain error. 30 Reversal is not

appropriate in this case. 31

Because we find that the admission of the DEA ag ent's

testimony was not reversible error we do not reach the government's

alternate argument that the testimony was the consequ ence of

invited error.3 2 U nited States v. Kinsey

, 917 F.2d 181, 182 (5th Cir. 1990).

33 Id

.

16 IV.

In his final point of appeal, Garza contends that he was

denied effective assistance of counsel because of his lawyer's

failure to object to the DEA Agent's testimony concerning Garza's

involvement in the prior drug deal. "In this circuit the general

rule is that a claim of ineffective assistance of counsel cannot be

resolved on direct appeal unless it has first been raised before

the district court." 32 Exception to this general rule is made only

where the record is sufficiently developed with respect to the

merits of the claim. 33 The record has not been developed with

respect to this claim . Therefore, we decline to resolve it on

appeal.

V.

The judgment of conviction is affirmed. The appellant remains

free to pursue his claim for ineffective assistance of counsel in

accordance with 28 U.S.C. § 2255.