IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41165

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MARTHA SILVIA BARBA DE GARZA, also known as Martha Silvia Garza,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

(09-CR-1487)

Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:

*

After a jury trial, Martha Silvia Barba de Garza (“Barba”) was convicted

of possessing methamphetamine with intent to distribute and importing

methamphetamine into the United States from Mexico. On appeal, she

United States Court of Appeals

Fifth Circuit

F I L E D

March 7, 2011

Lyle W. Cayce

Clerk

 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.

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No. 09-41165

challenges only the district court’s denial of her motion for a judgment of

acquittal. Finding no error, we AFFIRM.

I

Barba, a legal permanent resident of the United States, was charged in a

superceding indictment of three offenses: (1) knowingly and intentionally

possessing more than 50 grams of methamphetamine with intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1); (2) conspiring to commit such an

offense, in violation of 21 U.S.C. § 846; and (3) knowingly and intentionally

importing a controlled substance into the United States from Mexico, in violation

of 21 U.S.C. §§ 952(a) and 960. The Government presented the following

evidence at trial.

Late in the evening on June 19, 2009, Barba and her twenty-five-year-old

daughter drove to a port of entry in Laredo, Texas, where a U.S. Customs and

Border Protection (“CBP”) officer conducted a primary inspection of their vehicle.

Barba told the officer that she and her daughter were driving back from Nuevo

Laredo, Mexico, where they had gone for the day to visit family members. Barba

also stated that she was the owner of the car, a Ford Freestyle, and that they

had no items to declare. The officer, after inspecting their entry documents,

began a customary inspection of the vehicle to check for illegal or undeclared

goods. When he observed a small lump on the floor of Barba’s car, he retrieved

some tools to investigate the car’s undercarriage. The officer noted that Barba’s

daughter became nervous when she saw that he was further scrutinizing the

vehicle. Based on the nervous behavior of Barba’s daughter and the

unidentifiable lump on the car floor, the officer decided to refer the vehicle for

a secondary inspection.

During the secondary inspection, another CBP officer inspected the

vehicle’s engine compartment and noticed that the car battery was unusually

clean and large for the vehicle. When the officer inserted a probe into the

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battery, the probe would not fully insert. The officer then ordered a canine

inspection of the car; because no canines were available, she sent Barba’s vehicle

for an X-ray inspection instead.

An X-ray of the vehicle revealed the existence of an anomaly in the

vehicle’s battery. A CBP officer dismantled the battery and found inside several

bundles of a white substance that was later proven to be methamphetamine.

Only a fraction of the battery contained actual battery cells; the rest had been

removed to make room for the bundles. In all, 3.97 kilograms of

methamphetamine were found in the battery, an amount that commanded a

retail value at the time of at least $176,000 in Laredo, Texas and $246,400 in

San Antonio, Texas.

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An agent with U.S. Immigration and Customs Enforcement (“ICE”)

searched Barba’s vehicle and found three tools inside her center console: a pair

of “vice grips,” a “Gerber” multi-functional tool, and a socket wrench with a 5/16

inch socket attached. He also found a package of battery terminal protectors and

a pack of battery terminal grease, both unopened, in the vehicle’s glove

compartment, and a set of battery cables. After testing the socket wrench, the

agent discovered that the 5/16 inch socket was an exact fit for the bolts on the

battery cables. The agent found no other tools or tool accessories in the car.

Barba, who did not present any evidence, moved for a judgment of

acquittal after the close of the Government’s case. She argued that the

Government’s evidence did not prove beyond a reasonable doubt that she knew

of the drugs in her car, and therefore she was entitled to a judgment of acquittal

under Federal Rule of Criminal Procedure 29. Specifically, Barba argued that

there was insufficient evidence to rule out the possibility that her daughter had

hidden the drugs without Barba’s knowledge. In support of her argument,

An expert for the Government testified that the price of the drugs increased the 1

further north they traveled due to the increased risk the drug smugglers incurred.

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Barba noted that there was testimony that her daughter was seen driving the

vehicle on two prior occasions.

The district court denied the motion. The jury then returned a verdict

acquitting Barba of the conspiracy count, but finding guilt on the substantive

offenses of possession and importation of methamphetamine. The district court

sentenced Barba to two concurrent sentences of 235 months and five years of

supervised release.

II

A

Where, as here, the defendant rests without introducing any evidence, her

Rule 29 motion at the close of the Government’s case suffices to preserve her

challenge to the sufficiency of the evidence. United States v. Frye, 489 F.3d 201,

207 (5th Cir. 2007). We therefore apply de novo review and decide “whether,

viewing all the evidence in the light most favorable to the verdict, a rational trier

of fact could have found that the evidence established the essential elements of

the offense beyond a reasonable doubt.” United States v. Villarreal, 324 F.3d

319, 322 (5th Cir. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

2

We must draw all reasonable inferences and make all credibility determinations

in the light most favorable to the verdict. Villarreal, 324 F.3d at 322. Finally,

we note that under the narrow scope of our review, “[w]e are concerned only with

‘whether the jury made a rational decision, not with whether its verdict was

correct on the issue of guilt or innocence.’” Frye, 489 F.3d at 207 (quoting United

States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001)).

In contrast, a defendant generally waives the issue when he “moves for a judgment 2

of acquittal after the government rests but fails to renew the motion after presenting his case.”

United States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995). In such instances, our

review of the defendant’s sufficiency of the evidence claim is much narrower; it “is normally

limited to whether there was a manifest miscarriage of justice.” Id.

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B

To sustain a conviction for the offense of possessing a controlled substance

with intent to distribute, the Government must prove beyond a reasonable doubt

that the defendant knowingly possessed the controlled substance with intent to

distribute it. 21 U.S.C. § 841(a)(1); see also United States v. Lopez, 74 F.3d 575,

577 (5th Cir. 1996). Similarly, to prove the crime of importation of a controlled

substance, the Government must show beyond a reasonable doubt that the

defendant had knowledge that she was bringing the controlled substance into

the United States. 21 U.S.C. §§ 952(a), 960(a)(1); see also Lopez, 74 F.3d at 577

(Government must establish that “defendant knowingly played a role in bringing

the [controlled substance] into the country”).

This common element of guilty knowledge “can rarely be established by

direct evidence.” United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993).

Instead, proof of a defendant’s knowledge “will usually depend on inference and

circumstantial evidence. No single piece of circumstantial evidence need be

conclusive when considered in isolation; the question, rather, is whether the

evidence, when considered as a whole, provides a substantial basis for the jury

to find that the defendant’s possession was knowing.” United States v. Miller,

146 F.3d 274, 280–81 (5th Cir. 1998) (citing United States v. Richardson, 848

F.2d 509, 514 (5th Cir.1988)).

Ordinarily, a jury may infer a defendant’s knowledge of the presence of

drugs from her “control over the vehicle in which they are found.” Villarreal, 324

F.3d at 324. If the drugs are hidden, however, we “normally require[] additional

circumstantial evidence that is suspicious in nature or demonstrates guilty

knowledge.” Resio-Trejo, 45 F.3d at 911 (internal quotation marks omitted).

One example of circumstantial evidence that “may be probative of knowledge is

the value of the drug being transported.” Villarreal, 324 F.3d at 324. Here,

Barba was transporting more than 3.9 kilograms of methamphetamine, which

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the evidence showed was conservatively valued at $176,000 in Laredo, Texas and

$246,400 in San Antonio, Texas. As in Villarreal, the jury could have reasonably

inferred that Barba “would not have been entrusted with that extremely

valuable cargo if [s]he was not part of the trafficking scheme.” Id.

In this case, another piece of probative evidence—indeed, one that must

tip the scales in favor of affirmance—is the presence of the ameliorative tools

and battery accessories in Barba’s car, coupled with the battery’s malfunction

during the car’s inspection. When viewed in the light most favorable to the

verdict, Barba’s awareness that her battery might fail or malfunction due to

inadequate battery power is inferred from the presence of the three tools and the

unopened battery accessories in her car. And when combined with Barba’s

ownership of the car—which is undisputed—and the high value of the hidden

drugs, a jury could rationally infer beyond a reasonable doubt that Barba had

knowledge of the hidden methamphetamine. Again, we do not sit in judgment

of the correctness of the jury’s verdict; we consider only whether the evidence as

a whole “provides a substantial basis for the jury to find that [Barba’s]

possession was knowing.” Miller, 146 F.3d at 280–81. Finding that the evidence

provides such a basis, we must conclude that the Government presented

sufficient evidence to prove Barba’s guilt beyond a reasonable doubt.

III

Because the evidence was sufficient to convict Barba for importation of

methamphetamine and possession of methamphetamine with intent to

distribute, we AFFIRM her conviction.

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