* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

September 23, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50884

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN CERVANTES-MOSCOSO; 

GUADALUPE JAVIER HERNANDEZ-TENORIO,

Defendants-Appellants.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. DR-01-CR-409-2-OG

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

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

Martin Cervantes-Moscoso and Guadalupe Javier HernandezTenorio appeal their convictions for conspiracy to import,

possession with intent to distribute, and importation of more

than five kilograms of cocaine and more than 100 kilograms of

marijuana. They argue that the evidence is insufficient to

support their convictions in that the Government did not present

sufficient evidence to establish that they had knowledge that the

cocaine and marijuana were hidden in a secret compartment of the
No. 02-50884

-2-

bus that they were driving. After Hernandez-Tenorio presented

evidence on his behalf and rested his case, he did not renew his

motion for a judgment of acquittal at the close of all of the

evidence and did not file a posttrial motion for judgment of

acquittal. Therefore, review of his claim is limited to

determining whether there was “a manifest miscarriage of

justice.” United States v. Green, 293 F.3d 886, 895 (5th Cir.

2002). Even if his claim is reviewed under the usual standard of

review applicable to Cervantes-Moscoso’s claim, viewing all of

the evidence in the light most favorable to the verdict, a

rational trier of fact could have found that the evidence

established beyond a reasonable doubt that they conspired to

import, possessed with intent to distribute, and imported more

than five kilograms of cocaine and more than 100 kilograms of

marijuana. See United States v. Villarreal, 324 F.3d 319, 322

(5th Cir. 2003).

The Government presented sufficient evidence to establish

that the men knew the drugs were hidden in the bus, that they

knowingly and willingly participated in the conspiracy, and that

they knowingly and willingly possessed and imported the drugs. 

They did not know the location of the hotel in San Antonio,

Texas, where they were supposed to pick up a group of people. 

They gave inconsistent stories to customs officials concerning

their prior entries into the United States, the bus’s itinerary,

and their ultimate destination. See United States v. Ramos-
No. 02-50884

-3-

Garcia, 184 F.3d 463, 466 (5th Cir. 1999)(inconsistent statements

and implausible explanations are evidence of guilty knowledge). 

During the course of an interview by United States Customs

Inspector Daniel Silva, the men’s demeanor changed from polite to

shaking and being unable to answer. Customs Inspector Michael

Pena observed that during an interview conducted while the bus

was screened by the Vehicle and Cargo Inspection System using

gamma radiation, Hernandez-Tenorio started stuttering and

murmuring and beads of sweat broke out on his forehead. See

United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir.

2002)(nervous behavior is evidence of guilty knowledge), cert.

denied, 537 U.S. 1114 (2003). A Customs official went to the

hotel in Dallas, Texas, where the bus was scheduled to stop and

found that a large luxury bus such as the one driven by

Hernandez-Tenorio and Cervantes-Moscoso would have great

difficulty getting into this hotel’s parking lot because the

surrounding streets were very narrow and angled. The extensive

use of air fresheners on the bus was extremely unusual. Further,

the large amount of cocaine and marijuana hidden on the bus was

worth approximately $35 million dollars. A reasonable jury could

conclude that Hernandez-Tenorio and Cervantes-Moscoso would not

have been entrusted with millions of dollars of drugs if they

were unknowing, innocent drivers. See United States v. White,

219 F.3d 442, 447-48 (5th Cir. 2000); United States v. MartinezMoncivais, 14 F.3d 1030, 1035-36 (5th Cir. 1994).
No. 02-50884

-4-

AFFIRMED.