*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this opinion should not be published and is not precedent except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. 00-40674

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO LOPEZ-JIMENEZ,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-00-CR-19-1

 

September 6, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Alberto Lopez-Jimenez appeals from his conviction for

possession with intent to distribute cocaine in violation of 21

U.S.C. §§ 841(a)(1) & 841(b)(1)(A). Lopez-Jimenez argues that the

evidence is insufficient to support the jury's finding of the

knowledge element of the charge and that the district court erred

in giving a deliberate ignorance instruction.
1 United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001).

2 United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir.

2001).

3 Barton, 257 F.3d at 439.

4 United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.

1998).

5 See United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th

Cir. 1999).

2

In reviewing a challenge to the sufficiency of the evidence,

we must determine whether a rational jury could have found that the

evidence established guilt beyond a reasonable doubt on each

element of the offense, drawing all reasonable inferences from the

evidence and viewing all credibility determinations in the light

most favorable to the verdict.1 We do not evaluate the weight of

the evidence or the credibility of the witnesses.2 If this review

of the evidence gives equal or nearly equal circumstantial support

to a theory of guilt and a theory of innocence of the offense

charged, we are required to reverse.3 On the other hand, the

evidence presented need not exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except

that of guilt, and we have noted that the jury is free to choose

among reasonable constructions of the evidence.4

Although the cocaine was found in a hidden compartment of the

Ford Expedition Lopez-Jimenez was driving, there was sufficient

other direct and circumstantial evidence that supports a finding of

guilty knowledge.5 The jury heard evidence that Lopez-Jimenez
6 See id. at 466.

7 See id.; see also United States v. Mendoza, 226 F.3d 340,

345 (5th Cir. 2000).

3

confessed to knowing there was contraband in the Expedition and

even to knowing there were hidden drugs, but claimed to be ignorant

of what kind of drug. This is direct evidence in support of a

finding of knowledge which the jury was free to believe, despite

Lopez-Jimenez's explanation at trial that he was just telling the

Border Patrol and DEA agents what they wanted to hear.

Moreover, the jury could have found that Lopez-Jimenez's

alleged ignorance of the drugs in the face of suspicious

circumstances, i.e., driving a virtual stranger's new vehicle

across the border to a vaguely-described hotel from which he was to

call someone to discuss arrangements for the vehicle, was

implausible.6 Likewise, the jury could rationally have found

implausible Lopez-Jimenez's explanation of his trip to San Antonio,

since he was being paid $1,500 to make the trip and traveling over

the border without luggage or arrangements for returning to Nuevo

Laredo for an important business meeting the next morning.7

The government also argues that the sheer quantity of drugs in

the new, specially-outfitted Expedition render unreasonable the

claim that Lopez-Jimenez was entrusted with the vehicle to cross

the border without his awareness of the contraband. We have found
8 See Ramos-Garcia, 184 F.3d at 466; see also United States

v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir. 2001).

9 See Ramos-Garcia, 184 F.3d at 466-67; Ortega Reyna, 148

F.3d at 544.

10 See Ortega Reyna, 148 F.3d at 544.

11 United States v. Dien Duc Huynh, 246 F.3d 734, 738 (5th

Cir. 2001).

12 Id.

4

this supports a finding of knowledge under similar circumstances.8

Moreover, Lopez-Jimenez's nervousness during the search and his

failure to watch the search may also constitute circumstantial

evidence in support of a finding of guilty knowledge.9 Finally,

Lopez-Jimenez's apparent lack of surprise upon the discovery of the

contraband also supports a finding of guilty knowledge.10

On the basis of this direct and circumstantial evidence, we

find the evidence sufficient to support an inference by the jury

that Lopez-Jimenez knew that the Expedition contained drugs. 

Lopez-Jimenez also challenges the district court's deliberate

ignorance instruction. We review challenges to jury instructions

for abuse of discretion and will find a jury instruction was

erroneous only if the court's charge, as a whole, is not a correct

statement of the law and does not clearly instruct the jurors as to

the principles of the law applicable to the factual issues

confronting them.11 The district court has broad discretion in

framing the instructions.12
13 United States v. Peterson, 244 F.3d 385, 395 (5th Cir.

2001).

14 Id. (quoting United States v. Threadgill, 172 F.3d 357, 368

(5th Cir.), cert. denied, 528 U.S. 871 (1999)).

15 See United States v. Farfan-Carreon, 935 F.2d 678, 680-81

(5th Cir. 1991); United States v. McDonald, 905 F.2d 871, 876 (5th

Cir. 1990).

16 See Farfan-Carreon, 935 F.2d at 680 & n.4.

5

A deliberate ignorance instruction is appropriate where a

defendant denies knowledge of the presence of drugs and the proof

at trial supports an inference of deliberate indifference.13 Here,

Lopez-Jimenez denied knowing of the presence of the drugs. We have

further held that the evidence supports an inference of deliberate

indifference "'where the evidence shows (1) subjective awareness of

a high probability of the existence of illegal conduct, and (2)

purposeful contrivance to avoid learning of the illegal conduct.'"14

As we have held in past cases, this defendant's repudiation of

inculpatory statements, his admission to the agents that he knew

something was in the vehicle, his previously-discussed implausible

explanation for his trip to San Antonio, and the evidence

supporting a finding of willful ignorance in the face of suspicious

circumstances, discussed above, lead us to conclude that there was

no error in giving the instruction in this case.15 Under these

circumstances, and since the district court phrased his instruction

in accordance with a version we have previously approved warning

against substituting negligence for the knowledge requirement,16
17 See Threadgill, 172 F.3d at 369.

6

Lopez-Jimenez's fear that the deliberate ignorance instruction

allowed the jury to convict him on the basis of mere negligence is

unfounded. Moreover, Lopez-Jimenez admitted actual knowledge to a

DEA agent, and this evidence renders any error in giving the

deliberate ignorance instruction harmless.17

AFFIRMED.