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this opinion should not be published and is not precedent except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

March 30, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50513

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REGINALD BARNARD PAYNE,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:05-CR-1683-ALL

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

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Reginald Barnard Payne appeals his convictions, following

a jury trial, of possession of 100 kilograms or more of marijuana

with intent to distribute, in violation 21 U.S.C. § 841(a), and

carrying a firearm during and in relation to a drug-trafficking

offense, in violation of 18 U.S.C. § 924(c)(1). The district

court sentenced Payne to 78 months in prison as to the marijuana

count and 60 months as to the firearm count, with the terms to

run consecutively, and to five years of supervised release. 

Payne contends that the trial evidence was insufficient to

support the knowledge element of the conviction. He asserts that
No. 06-50513

-2-

he did not know that the 1774.5 pounds of marijuana were

concealed in Wrangler Jeans boxes in the trailer portion of his

truck. Payne was stopped by Border Patrol agents near the Sierra

Blanca, Texas, checkpoint while he was transporting a load of

jalapeno peppers that he had retrieved earlier that day at Border

Foods in Deming, New Mexico, and that he was purportedly

delivering to a distributor in Marietta, Georgia. 

The standard for reviewing a claim of insufficient evidence

is “whether, viewing all of the evidence in the light most

favorable to the verdict, a rational trier of fact could have

found that the evidence establishes 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)). When contraband is concealed or

hidden within a vehicle, mere control of the vehicle is not

sufficient to establish guilty knowledge, and the Government must

adduce “additional evidence that is suspicious in nature or

demonstrates guilty knowledge.” See Villarreal, 324 F.3d at 322. 

Even if it is assumed arguendo that the marijuana in Payne’s

trailer was concealed or hidden such that evidence beyond Payne’s

control of the vehicle was necessary to prove guilty knowledge,

we hold that the evidence was sufficient for the jury to find

that Payne knew that he was transporting marijuana. See id.;

United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999). Payne

owned and operated the tractor-trailer that he was driving. Upon

being stopped on the highway, Payne was “quite nervous," was

pacing and fidgeting, and was not making eye contact with agents. 

See Jones, 185 F.3d at 464. The street value of the marijuana,
No. 06-50513

-3-

approximately $2.1 million, allows an inference that a drug

smuggler would not have entrusted the marijuana to an unwitting

party. See Villarreal, 324 F.3d at 324.

The number of the bill of lading that Payne presented to

agents from Border Foods did not match the number on the seal

removed by border patrol agents from the trailer’s doors; the

number, however, did fall within a sequence of numbers on unused

seals found in the cab of Payne’s truck. There was no evidence

that the tractor-trailer had ever been out of Payne’s possession

at a time when a third party could have secreted the drugs within

his trailer. The pallets containing marijuana were too heavy to

have been loaded on the truck without heavy equipment. Testimony

from a Border Foods employee indicated that it would have been

almost impossible for the marijuana to have been loaded at Border

Foods itself. No evidence was presented to suggest that the

Wrangler Jeans boxes had been loaded prior to Payne’s arrival at

Border Foods or that he had arranged to transport a legitimate

load of Wrangler jeans. Finally, Payne was carrying a loaded

pistol and four cellular telephones, accoutrements that often

indicate involvement in drug trafficking. 

The circumstantial evidence was more than sufficient to

prove to a rational trier of fact that Payne knew that he was

transporting marijuana. See Villarreal, 324 F.3d at 322. 

Accordingly, the convictions are AFFIRMED.