* Circuit Judge of the Seventh Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-7165

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN WAYNE PENNINGTON

and JOHN MITCHELL MARGIOTTA,

Defendants-Appellants.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________ (March 14, 1994)

Before WOOD * , SMITH, and DUHÉ, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

John Margiotta and John Pennington appeal the district court's

denial of their motions for acquittal based upon insufficient

evidence made after a jury found Marg iotta guilty of possession

with intent to distribute marihuana and found Pennington guilty of

pos session with intent to distribute marihuana and conspiracy to

possess with intent to distribute marihuana. Furthermore,

Pennington raises sever al assignments of error regarding the2

prosecutor's comments on his post-arrest silence, the district

court's refusal to submit a jury instruction on the knowing

possession element of his offenses, and the enhancement of his

sentence for posse ssion of a firearm. We find that there was

sufficient evidence for a rational jury to have convicted the

defendants and therefore affirm as to Margiotta. Nevertheless, the

district court erred in refusing to submit Pennington's jury

instruction; we reverse his conviction and remand for a new trial.

I.

On September 17, 1992, Pennington and Margiotta, inexperienced

truckers who lived in Miami, had just completed a delivery that

left them in Laredo, Texas. Pennington contacted a broker to

determine whether there were any loads in the West Texas area bound

for Florida. The broker informed him that a load of unglazed

Mexican tile in Rio Grande City needed to be shipped to Miami.

The defendants testified that they left Laredo around noon and

arrived at the warehouse office in Rio Grande City at approximately

3:00 p.m. They talked to the warehouse owner and made arrangements

for the shipment. They then drove to the warehouse across town and

backed th eir trailer up to the loading dock, where it was loaded

for a bout thirty minutes. The trailer had been empty prior to

loading, and the defendants testified that they did not observe the

entire loading process, but neither did they observe anyone place

anything other than the tiles in the trailer.1 The warehouse owner testified that the bill of lading was legitimate

and that the incorrect date was his error.

3 After the trailer was loaded, the defendants went back to the

office, picked up the bill of lading, and headed toward Edinburg to

spend the night. They arrived in Edinburg at around 6:30 p.m. and

parked the rig in a truck stop. Because each pallet of tile

weighed approximately 3200 pounds, the trailer was not locked. The

defendants checked into a motel and went to sleep.

The defendants left Edinburg the next day at around 2:00 p.m.

and went to a truck stop in Harlingen to weigh their truck. After

determining that their drive axle was overweight, they adjusted the

fifth wheel to try to redistribute the weight. The adjustment did

not correct the weight problem, so they left Harlingen overweight.

They also spent several hours copying the log book information into

a separate log book for Pennington because of a new federal

regulation.

Margiotta drove the stretch between Ha rlingen and Sarita,

arriving at approximately 7:00 p.m. As he approached the primary

inspection area at the Sarita check point, Margiotta held the bill

of lading out the window. Customs agent Jerry Welsh took the bill

of lading and asked the defendants stan dard questions about the

load and their nationality. He noticed that the bill of lading was

dated July 16, 1992, two months earlier. 1 He asked Margiotta when

he had loaded his truck, and Margiotta responded that he had done

so the day before.4

Welsh asked whether he could look in the ba ck of the truck,

and the defendants consented. When Margiotta opened the doors,

Welsh observed pallets of tile but did not see anything else at

that time. Welsh did not detect any odor, either. Welsh climbed

into the trailer and began counting the pallets. He saw several

cardboard boxes, picked one up, and noticed a perfume smell. Welsh

came out of the trailer and asked Margiotta to move the trailer to

the secondary inspection area. A narcotics dog indicated that

drugs were present in the cardboard boxes; one of the boxes was

removed from the trailer and opened. Marihuana was discovered in

the boxes, and the defendants were arrested.

After the defendants w ere read their M iranda warnings, each

agreed to talk to Welsh. Both defendants denied knowing that the

marihuana was in the truck and disclaimed any knowledge of how it

got there. Welsh asked Pennington to speculate about how 591

pounds of marihuana could get into the back of the trailer, to

which Pennington responded, " I don't want to talk about it

anymore."

II.

Pennington and Margiotta were indicted on one count of

possession of marihuana with intent to distribute and one count of

conspiracy to possess marihuana with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846. The

jury found Margiotta guilty of the possession count but not guilty5

on the conspiracy charge; it foun d Pennington guilty on both

counts.

III.

Both defendants moved for judgment of acquittal at the end of

the state's evidence but did not renew the motion at the end of

their own evidence. The standard for reviewing a conviction

allegedly based upon insufficient evidence is whether a reasonable

jury could find that the evidence establishes the guilt of the

defendant beyond a re asonable doubt. U nited States v. Sanchez

,

961 F.2d 1169, 1173 (5th Cir.) (c itation omitted), c ert. denied

,

113 S. Ct. 330 (1992).

The evidence is reviewed in the light most favorable to the

government, drawing all reasonable inferenc es in support of the

verdict. J ackson v. Virginia

, 443 U.S. 307 (1979). But if the

evidence viewed in the light most favorable to the prosecution

gives equal or nearly equal circumstantial support to a theory of

guilt and a theory of innocence, the conviction should be reversed.

United States v. Menesses

, 962 F.2d 420, 426 (5th Cir. 1992)

(citations omitted). It is not necessary that the evidence

exclude every reasonable hypothesis of innocence, United States v.

Stone

, 960 F.2d 426, 430-31 (5th Cir. 1992); the jury is free to

choose among reasonable con s tructions of the evidence, United

States v. Bell

, 678 F.2d 547, 549 (5th Cir. 1982), aff'd

, 462 U.S.

356 (1983 ). The only question is whether a rational jury could

have found each essential element of the offense beyond a reason-2 The government claims that because the motion for acquittal was not

renewed after the close of the defendants' cases, the failure to grant a

motion for acquittal should be reviewed under the plain error standard. See

United States v. Vaquero , 997 F.2d 78, 82 (5th Cir.), cert. denied , 114 S. Ct.

614 (1993). Pennington responds by noting that the standard should be the

same, regardless of whether the motion is renewed or made at all, because a

conviction on insufficient evidence is necessarily a miscarriage of justice

under the plain error standard. The government eventually concedes that the

standards are indistinguishable, citing United States v. Davis , 583 F.2d 190,

199 (5th Cir. 1978) (Clark, J., concurring). Furthermore, where the trial

court's action renders the motion for acquittal "an empty ritual," the failure

to renew the motion does not constitute waiver by the defendant. United

States v. Gonzalez , 700 F.2d 196, 204 n.6 (5th Cir. 1983). Thus, it is

irrelevant that the defendants did not renew their motions; the only question

is whether there was sufficient evidence for a rational jury to have convicted

them.

3 Pennington does not dispute a finding of constructive possession or

that the quantity was enough to impute the intent to distribute. He only

challenges the "knowing" component of the offense. Margiotta seems to challenge all three components of the charge, but his objections are without

merit; possession can be imputed to him as a passenger and a driver, and

intent to distribute can be inferred from the quantity of drugs. United

States v. Garcia , 917 F.2d 1370, 1377 (5th Cir. 1990).

6 able doubt. U nited States v. Jackson

, 700 F.2d 181, 185 (5th Cir.)

(citation omitted), cert. denied , 464 U.S. 842 (1983). 2

To establish possession of marihuana with intent to distribute, the government must prove be yond a reasonable doubt (1)

knowing (2) possession of marihuana (3) with intent to distribute

it. U nited States v. Gonzalez-Lira

, 936 F.2d 184, 192 (5th Cir.

1991). To establish a conspiracy under 21 U.S.C. § 846, the

government must prove beyond a reasonable doubt (1) a n agreement

between two or more persons to violate the narcotics laws, (2) that

each alleged conspira tor knew of the conspiracy and intended to

join it, and (3) that each alleged conspirator did participate

volun tarily in the conspiracy. U nited States v. Leed

,

981 F.2d 202, 204-05 (5th Cir.), ce rt. denied , 113 S. Ct. 2971

(1993). Both defendants contend that they did not know of the

marihuana's existence, and therefore, they cannot be guilty of

either offense. 37

The knowledge element in a possession case can be inferred

f rom control of the vehicle in some cases; when the drugs are

h idden, however, control alone is not sufficient to prove knowledge. U nited States v. Garza

, 990 F.2d 171, 174 (5th Cir.), cert.

denied

, 114 S. Ct. 332 (1993). Since the marihuana was not

concealed in a hidden compartment, the government contends that the

jury was entitled to infer knowledge of the marihuana from the

ownership and control of the trailer. Defendants claim, however,

that the marihuana was hidden in the trailer, and therefore, other

evidence was required to prove knowledge.

The threshold issue is whether the marihuana was "hidden" in

the trailer, requiring the government to have produced furt her

evidence of knowledge. We conclude that the marihuana was hidden.

The governmen t merely asserts that the marihuana was "stacked in

the midst" of the cargo and not "hidden in a secret compartment."

But the control of the vehicle will suffice to prove knowledge only

where the dru gs "are clearly visible or readily accessible."

United States v. Richardson

, 848 F.2d 509, 513 (5th Cir. 1988). In

Garza

, 990 F.2d at 174 nn.10 & 12, the court determined that drugs

concealed in burlap sacks stacked on and behind lime boxes in the

trailer o f a truck were not in "plain view" or "readily accessible." The drugs need not be concealed in "hidden compartments,"

id. at 174 n.12; even though the sacks were visible from outside

the trailer, the court held that the government was required to

show more than control of the vehicle.8

In Gonzalez-Lira

, 936 F.2d at 192, the court requi red

additional proof of knowledge even though the border agent could

s mell the marihuana from the rear of the trailer. Here, the

marihuana was concealed in boxes that were stacked in spaces

between the pallets. The boxes were not visible from outside the

trailer and there was no noticeable odor of marihuana. Therefore,

the government co uld not rely upon the control of the vehicle as

proof of knowledge of the marihuana.

Add itional evidence of guilt may come from nervousness,

inconsistent statements, implausible stories, or possession of

large amounts of cash by the defendants. U nited States v. Shabazz

,

993 F.2d 431, 442 (5th Cir. 1993). The government claims that the

following factors add to the inference of knowledge: (1) the

circuitous route taken by the defendants; (2) the length of time

taken; (3) the explanation of the trip offered by defendants; and

(4) their disheveled appearance, despite ten hours' sleep.

Defendants claim that they we re not nervous, they took the

route suggested by their broker, their stories were consistent, and

their explanation was not implausible. In particular, the

defendants no te that the trailer was never locked and that had

they known of the marihuana, they certainly would have locked it.

Agent W elsh confirmed that the trailer was unlocked at the

checkpoint. Furthermore, the defendants note that they did not

supervise the loading of the pallets, and the government presented

no evidence of fingerprints on the boxes. They did not have large

sums of money, they did not attempt to flee, the bill of lading was4 Margiotta waives the remaining issues by failing to brief them and by

failing to incorporate by reference his codefendant's arguments. See United

States v. Miller , 666 F.2d 991, 998 n.6 (5th Cir.), cert. denied , 456 U.S. 964

(1982); F ED. R

. A PP. P

. 28(a) & 28(i). He argues only for insufficiency of the

evidence.

9 not falsified, see supra note 1, the defendants did not appear

nervous when the trailer was searched, their stories were consistent with each other's, and their stories did not change over time.

Moreover, the fact that they drove the truck overweight, risking a

likely ticket and inspection, indicates a lack of knowledge.

Nevertheless, evidence of the defendants' circuitous route and

the timing of their trip supported the jury's conclusion that they

had picked up a load of marihuana. The jury was free to choose

among reasonable constructions of the evidence, Bell , 678 F.2d at

549; the focus is not on "whether the trier of fact made the

correct guilt or innocence determination, but rather wheth er it

made a rational decision to convict or acquit." H errera v.

Collins

, 113 S. Ct. 853, 861 (1993). After weighing the evidence,

the jury chos e to disbelieve the defendants' story and concluded

that they were guilty beyond a reasonable doubt. There was

sufficient evidence to support that conclusion.

IV.

Pennington 4 also argues that the prosecution improperly

commented on his post- Miranda silence in violation of Doyle v.

Ohio

, 426 U.S. 610, 618 (1976). U nder Doyle

, the Due Process

Clause prohibits the impeachment of a defendant's exculpatory story

by using the defendant's post-arrest, post- Miranda silence.5 It is uncertain whether Pennington properly objected to the comments.

When the witness said, "He didn't deny knowing about it, he just said he had

nothing to say," Pennington's counsel objected, "Excuse me. He has already

testified he denied knowing about it." Although this objection is related to

the subject of Pennington's silence, it is not specific enough to constitute a

valid objection. Therefore, reversal of the conviction is required only if

the statements rise to the level of plain error. United States v. Johnson

, 558 F.2d 1225, 1230 (5th Cir. 1977). Nevertheless, a court should scrutinize

an error more closely, even under the plain error standard, where the failure

to preserve the precise grounds for objection is mitigated by an objection on

related grounds. United States v. Lopez , 923 F.2d 47, 50 (5th Cir.), cert.

denied , 111 S. Ct. 2032 (1991).

10 Although "virtually any descripti on of a defendant's silence

following arrest and a Miranda warning will constitute a Doyle

violation," a prosecutor's comments must be viewed in context.

United States v. Shaw

, 701 F.2d 367, 381-82 (5th Cir. 1983), cert.

denied

, 4 65 U.S. 1067 (1984). The test is whether the "manifest

intent" of the remarks was to comment on the defendant's silence,

or (stated another way), whether the character of the remark was

such that the jury would naturally and necessarily construe it as

a comment on the defendant's silence. I d. at 381. 5 And the

defendant's willingness to give some statements after arrest does

not give the prosecutor the right to impeach him by commenting on

what he did not say. United States v. Laury , 985 F.2d 1293, 1304

n.10 (5th Cir. 1993).

The relevant testimony comes from the government's examination

of Welsh:

Q: What did Mr. Pennington tell you when you asked him

if he could explain how 591 pounds of marihuana got

in his truck?

A: At that time he just became silent and he said

he didn't have anything to say about it.

Q: He didn't deny knowing about it, he just said

he had nothing to say?11 Objection: Excuse me . He has already testified he

denied knowing about it.

Court: Re-direct. He may ask the question.

What is the question again?

Q: Mr. Pennington didn't deny knowing about it,

he merely told you that, "I have not hing to

say."

A: That is correct.

Furthermore, during its rebuttal argument, the government argued,

"And at some point finally the border patrol agent said, `How else

can you explain 591 pounds of dope in your truck?' And he says, `I

don't have anything to say about that.'"

The government contends that the prosecutor was only commenting o n what Pennington said, not what he did not say. Moreover,

the testimony only served to impeach Pennington's claim not to have

known about t he marihuana. The prosecutor's comments do not

reflect an intent to comment on Pennington's right to remain

silent. Given the narrow scope of the comments, the jury was

unlikely to interpret them as a comment on the defendant's silence.

V.

Pen nington also claims that the district court erred in

refusing to submit his proposed jury instruction. We review the

court's decision for abuse of discretion. U nited States v.

Sellers

, 926 F.2d 410, 414 (5th Cir. 1991). Discretion, though,

cannot be based simply upon a court's inclination, but rather must

be made with reference to sound legal principles. U nited States v.

Taylor

, 487 U.S. 326, 336 (1988). The refusal to give a jury12

instruction constitutes error only if the instruction (1) was

substantially correct, (2) was not subst antially covered in the

charge delivered to the jury, and (3) concerned an important issue

so that the failure to give it seriously impaired the defendant's

ability to present a given defense. S habazz

, 993 F.2d at 440 n.13.

Since we conclude that the marihuana was "hidden" so that

additional proof of knowledge was required, the instruction was a

correct statement of the law. The government does not fully

address the second and third components of the test. Pennington

contends, however, that the instruction concerning knowledge was

insufficient to cover Pennington's defense. The instruction

stated, "An act is done knowingly if the defendant is aware of the

act and does not act through ignorance, mistake, or accident." It

did not menti on the effect of constructive possession on the

defendant's knowledge.

We conclude that the instruction did not substantially cover

t he issue of constructive possession, and therefore Pennington

satisfied the second part of the test. And given the fact that his

sole defense rested upon his lack of knowledge of the marihuana's

existence, the failure to give the instruction seriously impaired

his defense. Therefore, we must reverse his conviction and remand

for a new trial.

VI.

We need not reach Pennington's remaining issues, having

concluded that the error in refusing to allow his jury instruction13

warranted a new trial. We therefore REVERSE as to Pennington and

REMAND for a new trial. Margiotta's conviction is AFFIRMED.