IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 97-40142

____________________________

UNITED STATES,

Plaintiff-Appellee,

versus

JESUS ORTEGA REYNA,

Defendant-Appellant.

_____________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_____________________________________________________ July 28, 1998

Before JOLLY, WIENER, and STEWART, Circuit Judges.

PER CURIAM:

Defendant-Appellant Jesus Ortega Reyna (“Ortega”) was

convicted by a jury on charges of possession with intent to

distribute over 400 grams of heroin and 7,000 grams of

amphetamines, in violation of 21 U.S.C. § 841 (a)(1). On appeal,

Ortega argues that the district court erred in denying his motion

for acquittal, asserting that Plaintiff-Appellee the United States

(“the government”) failed to produce sufficient evidence that his

possession of the illegal drugs was “knowing.” After thoroughly

reviewing the record, the arguments of counsel, and the applicable

law, we agree that no reasonable jury could have concluded beyond

a reasonable doubt that Ortega’s possession of the drugs was

knowing. Accordingly, we reverse his conviction.

I2 FACTS AND PROCEEDINGS

Accompanied by his wife and two children, Ortega, who is a

native of Mexico and resident alien of the United States, was

driving a pickup truck north from the Mexican border when he came

to and entered the Border Patrol checkpoint at Falfurrias, Texas.

Border Patrol Agent Oziel Puente noticed that the truck was

“leaning to one side,” and that the right rear tire was larger than

the rest. When Puente asked Ortega if he was aware of the truck’s

condition, Ortega responded that the truck was not his, but

belonged to a friend in Roma, Texas. According to Puente, he was

told by Ortega that he and his family were going to El Campo,

Texas.

While the truck remained at the pri mary checkpoint, Puente

inspected its undercarriage and noticed several balancing weights

on the right rear ti re, indicating to him that the tire might

contain hidden compartments for the transport of drugs. After

obtaining Ortega’s consent to search the vehicle further, Puente

had Ortega move the truck to a secondary inspection area. There

P uente released air from the tire but was not able to detect any

odor of marijuana.

Agent Armando Diaz, a K-9 handler, arrived to assist in the

search. When his drug-sniffing dog alerted the agents to the

larger tire, they cut it open and discovered over sixteen pounds of

amphetamines and fourteen ounces of heroin. Puente testified that

Ortega did not appear to be nervous, and Diaz confirmed that Ortega

“didn’t appear to be very interested” in the search. Shortly1 The record shows that Puente read Ortega his ri ghts in

Spanish but does no t reflect whether the rest of Puente’s

questioning of Ortega was in Spanish or English. The record does

show that Ortega neither reads nor writes either English or Spanish, but is not clear whether he speaks an y English at all.

The record does show that Ortega used an interpreter at trial.

3 thereafter, Puente took Ortega in side and advised him of his

rights. 1 Puente then showed him one of the bundles found in the

tire and asked “if he had any knowledge of it.” Puente states that

Ortega glanced down, paused for “around 15 seconds,” repeated that

the car w as not his, and responded that he “had no knowledge” of

the presence of the drugs.

Some time later, Elizabeth Gonzales, an officer with the

Corpus Christi Police Department and a member of the DEA Task

Force, interviewed Ortega in more detail and also spoke with his

wife and older son. According to Gonzales, Ortega told her that

“he was from Houston and he had been in the Valley area because his

f ather had been sick so he had to go to Monterrey to see his

father.” Gonzales also recalled Ortega’s stating that he “had been

in the Valley area for about a month and wh ile he was in Miguel

Aleman, which is a small town across [the border] from Roma,

[Texas] that his truck ha d broken down so he had borrowed this

truck to come home in.” Ortega indicated to Gonzales that he was

returning to Houston to enroll his children in school. He

initially gave the name of the friend from whom he had borrowed the

truck as simply “Jesus,” later provid ing the last name “Barrera”

and ultimately giving the full name as “Jesus Aleman Barrera.”

Gonzales asked Ortega how he was going to return the truck to4

Barrerra. Ortega answered that Barrerra was planning to retrieve

the truck in Houston. When Gonzales inquired as to whether

B arrerra knew where in Houston Ortega lived, he said that he did

not know whether Barrerra had this information. At trial, however,

Ortega explained that although he did not know if Barrerra knew

precisely where to find him in Houston, he assumed that Barrerra

would locate him through Barrerra’s mother-in-law, who also lives

in Houston and knows Ortega’s sister, with whom he would be staying

while in Houston. In addition, Ortega acknowledged that he did not

have an address or telephone number for Barrerra. He further

testified, however, that Barrerra lived in the same neighborhood in

Miguel Aleman where Ortega somet imes stays with his family, and

that, even though the houses do not have street numbers, he knew

where to find Barre rra’s house and could communicate those

directions to others.

At the time of his arrest, Ortega was carrying $731 in cash.

When Gonzales asked him if “he had been working,” Ortega responded

that he “had done some odd jo bs”; but Gonzales failed to ask him

w here or for whom. At trial, Ortega explained that the $731 was

all that remained of approximately $1500 that he had received as a

tax refund, and produced a copy of his tax return, which

substantiated this statement.

During her interrogation, Go nzales failed to ask Ortega

whether he had any luggage with him, but she and the other agents

testified at trial that they did not recall seeing any with Ortega

or in the vehicle. Although each officer testified that someone2 United States v. Alix , 86 F.3d 429, 435 (5th Cir. 1996).

5 with the border patrol always conducts a thorough, wr itten

inventory of any vehicle stopped for a drug violation, the

government failed to introduce a copy of an inventory of the truck

Ortega had driven. In contrast to this testimony of customary

checkpoint procedure and the absence of physical evidence of such

an inventory, both Ortega and his wife testified unequivocally that

they had a large suitcase with them in the truck.

Ortega was indicted on charges of p ossession with intent to

distribute over 400 grams of heroin (count one) and over 7,000

grams of amphetamines (count two), in violation of 21 U.S.C. § 841

(a)(1). After a two-day trial —— and three days of deliberation ——

a jury found Ortega guilty of both counts. The district court

sentenced him to 130 months in the custody of the Bureau of Prisons

and a four-year ter m of supervised release. Ortega timely

appealed.

II

ANALYSIS

A. Standard of Review

As Ortega move d for a judgment of acquittal at the close of

all the evidence, we must determine whether any reasonable trier of

fact could have found that the evidence established the essential

elements of the crime beyond a reasonable doubt. 2 We consider the

evidence in the light most favorable to the government, drawing

“all reasonable inferences and credibility choices made in support3 Uni ted States v. Ivy , 973 F.2d 1184, 1188 (5th Cir. 1992),

cert. denied , 507 U.S. 1022 (1993).

4 United States v. Lopez

, 7 4 F.3d 575, 577 (5th Cir.), c ert.

denied , 517 U.S. 1228 (1996).

5 Id. (quoting United States v. Sanchez

, 961 F.2d 1169, 1173

(5th Cir.), cert. denied

, 506 U.S. 918 (1992) (emphasis omitted)).

6 United States v. Resio-Trejo

, 45 F.3d 9 07, 911 (5th Cir.

1995); United States v. Diaz-Carreon , 915 F.2d 951, 953 (5th Cir.

1990).

6 of the verdict.” 3 “The evidence need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every

conclusion exc ept that of guilt, and the jury is free to choose

among reasonable constructions of the evidence.” 4 If the evidence

tends to give “equal or n early equal circumstantial support” to

guilt and to innocence, however, reversal is required: When the

evidence is essentially in balanc e, “‘a reasonable jury must

necessarily entertain a reasonable doubt.’” 5

B. Applicable Law

To prove Ortega’s guilt of the charged offense in this case,

the governmen t was required to prove three elements beyond a

reasonable doubt: (1) knowing (2) possession of the drugs in

que stion (3) with intent to distribute them. 6 Only the first

element —— knowledge —— is at issue in this appeal, i.e., whether

the evidence is sufficient to satisfy the scienter element beyond

a reasonable doubt.

As a general rule, a jury may infer knowledge of the presence

of drugs from the exercise of control of a vehicle containing such7 Resio-Trejo , 45 F.3d at 911.

8 Id. (quoting United States v. Anchondo-Sandoval

, 910 F.2d

1234, 1236 (5th Cir. 1990)).

9 Diaz-Carreon , 915 F.2d at 954.

1 0 During his interview with Gonz ales, Ortega explained that

after he borrowed the t ruck from Barrerra but before he left for

Houston, Barrerra and another person told him they needed to use

the truck briefly. They took the truck and returned it shortly, in

time for the Ortegas to leave, as scheduled, a few hours later.

1 1 See, e.g.

, United States v. Crooks , 83 F.3d 103, 107 (5th

Cir . 1996); U nited States v. Casilla

, 20 F.3d 600, 607 (5th Cir.

1994), cert. denied by 513 U.S. 892 (1994) and 513 U.S. 899 (1994)

and 513 U.S. 949 (1994); Diaz-Carreon

, 915 F.2d at 954; United

States v. Richardson , 848 F.2d 509, 513 (5th Cir. 1988).

1 2 See, e .g.

, Resio-Trejo , 45 F.3d at 913 (relying on Resio’s

“calm demeanor and indifference while the agents dismantled the gas

7 contraband. 7 When the drugs are secreted in hidden compartments,

however, “this Court has normally required additional

‘circumstantial evidence that is suspicious in na ture or

demonstrates guilty knowledge.’” 8 This requirement stems from our

recognition that, in hidden compartment cases, there “is at least

a fair assumption that a third party might have concealed the

controlled substances in the vehicle with the intent to use the

unwitting defendant as the carrier in a smuggling ent erprise.” 9

This assumption is heightened when, as here, the vehicle is a

“loaner” or has otherwise been in the possession of the suspect for

only a short time. 10

Among the types of behavior that we have previously recognized

as circumstantial evidence of guilty knowledge are:

(1) nervousness; 11 (2) absence of nervousness, i.e., a cool and calm

demeanor; 12 (3) failure to make eye contact; 1 3 ( 4) refusal ortanks on his truck” as circumstantial evidence of guilt).

1 3 See, e.g.

, United States v. Price , 869 F.2d 801, 803 (5th

Cir. 1989).

1 4 See, e.g.

, id. ; United States v. Muniz-Ortega

, 858 F.2d 258,

259 (5th Cir. 1988) (“Appellant was . . . hesitant to answer

questions.”).

1 5 See, e.g.

, Price , 869 F.2d at 803; United States v. RomeroOrtega , 867 F.2d 834, 836 (5th Cir. 1989).

1 6 See, e.g.

, Casilla

, 20 F.3d at 606 (stating that defendant’s

“trial testimony was also inco nsistent with the varying stories

that he had earli er told the customs agents, which were in turn

contradicted by the physical evidence”); Diaz-Carreon

, 915 F.2d at

955 (noting that defendant gave agents contradictory s tatements

regarding his destinati on and place of residence); A nchondoSandoval

, 910 F.2d at 1237 (pointing out that defendant made

inconsistent statements to the customs and DEA agents concerning

“his motivations for traveling and his intended destinations”).

1 7 See, e.g

. , C asilla

, 20 F.3d at 606 (“Casilla offered an implausible explanation that he was hired as a chauffeur who lacked

a driver’s li cense for a trip to California by way of Texas,

Mexico, and Guatemala.” ); Diaz-Carreon , 915 F.2d at 955 (finding

implausible defendant’s story that a man named Ruben, whom

defendant had kno w only for a couple of days, had loaned him a

truck so he could find employment, as defendant did not know where

Ruben lived or where he would retrieve the truck); Richardson

, 848

F.2d at 513 (finding “inherent implausibili ty in [defendant]’s

flying to Los Angeles to see his sick mother without enough money

to return, and then leaving at two o’clock the next m orning in a

mysterious rent car,” which was left by a mysterious benefactor

“without any announcement whatever except dropping the ignition key

through the mail slot”).

18 See, e.g.

, Crooks , 83 F.3d at 107.

8 reluctance to answer questions; 14 (5) lack of surprise when

contraband is discovered; 15 (6) incon sistent statements; 1 6

(7) implausible explanations; 17 (8) possession of large amounts of

cash; 18 and (9) obvious or remarkable alterations to the vehicle,

especially when the defendant had been in possession of the vehicle1 9 See, e.g.

, Resio-Trejo

, 45 F.3d at 913 (“The evidence of the

recent alterations and the fresh marihuana, consid ered together

with the evidence of Resio’s possession and control of the truck in

the t en months preceding his arrest . . . provide a sufficient

basis for the inference that Resio knew the marihuana was concealed

in his truck.”); see also United States v. Inocencio

, 40 F.3d 716,

724 (5th Cir. 1994) (noting that “the bed of the vehicle was higher

than normal” and finding suspicious the “discovery of fresh paint

(on a brand new truck)”); Anchondo-Sandoval

, 910 F.2d a t 1235

(noting that defendant’s “vehicle, a 1978 Th u nderbird bearing

expired Ari zona plates, ‘met a good profile’ for closer scrutiny

because it was in poor condition and thus could readily be

junked”).

9 for a substantial period of time. 19

C. Evidence of Mens Rea

To prove the requisite scienter, the government relies on the

following circumstantial evidence, which it maintains is

“suspicious in nature and demonstrates guilty knowledge”:

(1) Ortega’s non-verbal behavior at the checkpoint, including the

absence of nervousness and his momentary delay and downward glance

when, immediately after hearing the Miranda warning, he was asked

the “$64,000 question” about h is awareness of the presence of

contraband; (2) his statements regarding the origin and destination

of his trip, which the government characterizes as inconsistent;

(3) the absence of luggage; (4) his possession of over $700 in

cash; and (5) the condition of the truck. When we review the

sufficiency of circumstantial evidence to prove mens rea beyond a

reasonable doubt, we must examine the defendant’s behavior from his

perspective, here an illiterate, poverty-level Mexican national who

performs odd jobs in this cou n try for a living, and who is

traveling through a part of Texas where immigration a nd drug

enforcement personnel are numerous and properly suspic i ous of20 See supra notes 10 and 11 and accompanying text.

10 person’s meeting Ortega’s profile. We remain mindful as well that

in Ortega’s native culture, where there is no Fourth Amendment,

relatively minor abuses of power by the authorities are not

unexpected and are best accepted without protest.

After examining each piece of evidence from that perspective,

we conclude that, like Newton’s Third Law, for every inference of

guilt that may be drawn from the evidence, there is an equal and

opposite b enign inference to be drawn. This in turn places the

evidence in equipoise and thus makes it incapable, as a matter of

law, of serving as the basis of a jury finding that Ortega’s

possession of illicit drugs was “knowing” beyond a reasonable

doubt.

i. Non-verbal Responses

We consider first the evidence of Ortega’s non-verbal behavior

at the scene of the search from which the government argues that a

jury could have inferred the existence of guilty knowledge. For

openers, the government woul d have us infer guilt from Ortega’s

lack of nervousness; in contrast, Ortega would have us draw a

contrary inference. We have ourselves allowed that an inference of

guilty knowledge may be drawn from th e presence, as well as from

the absence, of nervousness. 20 Evidence of Ortega’s composure thus

provides equal circumstantial support for a finding of either guilt

or innocence.

Then there is Ortega’s failure to object or appear concerned

when the agents started slicing open the oversized tire. Again, we21 See 858 F.2d at 259.

11

are unconvinced. We speculate that, had Ortega vehemently objected

t o the agents’ actions, the government would have argued that

Ortega’s behavior justified an inference of guilty knowledge with

respect to the contents of the tire. Similar to the evidence of

Ortega’s maintained calm, the inferences to be drawn from his

failure to protest the destruction of the tire are twofold--an

inference of guilt and an inference of innocence--and they are

nearly equally balanced.

The government also emphasizes that when asked whether he was

aware of the presence of the drugs, Ortega he sitated —— for an

estimated fifteen seconds

—— befo re answering that the truck did

not belong to him. Such a momentary delay is truly indicative of

nothing in this context. Ortega’s single hesitation and downward

glance fall well short of the generalized hesitancy to answer

questions or delayed responses that we accepted as circumstantial

evidence of guilty knowledge in such cases as Muniz-Ortega

. 21 The

g overnment nevertheless proffers the inference that Ortega was

stalling while he confected an answer to cover his guilt. But an

equally plausible inference is that an innocent person, astonished

by the agents’ discovery of hidden contraband in his vehicle and

confronted with such a question, would take a few seconds to calm

his nerves and formulate his answer, lest he inadvertently trip

over some inculpatory nuance.

We do not take lightly the limitations of our review in that

we must consider the evid ence in the light most favorable to the12

government; s till, we conclude that all of Ortega’s non-verbal

behavior at the border patrol checkpoint was at least as consistent

w ith innocence as with guilt. Indeed, both a drug “mule” and an

innocent resident alien might well behave as Ortega did, both

before and after the discovery of contraband in a hidden

compartment of a borrowed vehicle.

ii. Verbal Responses

The government also points to those of Ortega’s oral responses

that it views as inconsistent and thus as circumstantial evidence

of guilty knowledge. For instance, Ortega told Puente that he was

traveling to El Campo, but told Gonzales that he was on his way to

Houston. Given Ortega’s plausible explanation at trial, however,

these statements are not necessarily inconsistent. Ortega

testified that he planned to stop in El Campo, which is directly on

the way from Roma to Houston, to pick up barbecue “disks,” and then

to continue on to Houston to enroll his children in school.

Similarly, while Ortega was telling the agents that he and his

family were coming from Miguel Aleman, Mrs. Ortega was telling them

t hat the family was on its way from Roma, Texas. Again, as with

the purported inconsistency in their destination, any perceived

inconsistency in the Ortegas’ statements about their point of

depar ture evaporates when it is recognized that Miguel Aleman,

Mexico, and Roma, Texas, are simply sister cities on opposite sides

of the Rio Grande River —— two municipalities comprising a single

metropolitan area, which is separated by but one natural and one

artificial boundary. The most direct route north from Miguel2 2 Compare Diaz-Carreon

, 915 F.2d at 955. In that case, we

determined that the defendant had told inconsistent stories because

“Diaz-Carreon first told customs officials that he was traveling to

Canutillo, Texas, and later told [them] that he was traveling to

Anthony, New Mexico,” a town about six or seven miles from

Canutillo and a straight shot along Interstate 10. The facts in

Diaz-Carreon are distinguishable from those in this case, however,

as the court found additional support for a finding of guilty

knowledge in the defendant’s nervous behavior at the stop

(“[B]efore being told that the agents had discovered marijuana in

the pickup truck, Diaz-Carreon volunteered, ‘If the truck is

loaded, I didn’t know about it.’”) and in his implausible story

about being loaned a truck by a man he met only a few days earlier

and known only as “Ruben.” Id. at 954-55 (emphasis omitted).

23 See Herbert v. Wal-Mart Stores, Inc.

, 911 F.2d 1044, 1 046

(5th Cir. 1990) (citing 2 Wigmore on Evidence § 285, at 192

13 Aleman is across the international bridge to and through Roma, and

from there to the checkpoint. 22

iii. Luggage

The government next argues that if Ortega had been in Mexico

for an ex tended family visit and was returning to Houston to put

his children in school —— as he contends —— rather than on a drug

run, he would have had luggage with him. As noted, each of the

government’s agents testified that they did not recall seeing

luggage either in Ortega’s possession or in the truck itself. Each

also testified, however, that he was not charged with taking an

official inventory. Furthermore, even though the agents asserted

that standard procedure would call for the taking of a full,

written inventory of the borrowed vehicle at the checkpoint, the

government —— curiously —— chose not to produce such a writing at

trial, thus failing to adduce affirmative documentary evidence that

the Ortegas did not have luggage and thereby settle this contested

fact. 23 For their part, both Mr. and Mrs. Ortega stated(Chadbourn ed. 1970):

The failure to bring before the t ribunal some

circumstance, document, or witness, when either the party

himself or his opponent claims that the facts would

thereby b e elucidated, serves to indicate, as the most

natural i nference, that the party fears to do so; and

this fear is some evidence that the circumstance or

document or witness, if brought, would have exposed facts

unfavorable to the party.

14 unc onditionally that they were carrying a large suitcase in the

truck. But even if we assume arguendo that the jury exercised its

credibility prerogative and chose to believe the agents rather than

the Ortegas on the luggage question, the mere absence of luggage

would not make the explanation of a month-long family visit

“implausible,” given Ortega’s uncontradicted testimony that (1) he

had a house in Miguel Aleman, (2) he lived semi-permanently with

his sister in Houston, and (3) his children had clothes there.

iv. Possession of Funds

Then there is Ortega’s possession of over $700 in cash at the

time of his arrest. We remain mindful, of course, of our prior

prono uncements to the effect that possession of large amounts of

cash may be circumstantial evidence of guilt. Considering Ortega’s

possession of the cash and his description of his employment, a

jury might well question his ability to accumulate this much cash

while supporting his family with odd jobs. In the context of this

case, however, the government’s contention that th e $731 is

circumstantial evidence that Ortega was participating in a drug run

is contradicted by his explanation, fully documented, that the24 See supra note 19 and accompanying text.

15 mon ey was what was left of a tax refund of more than twice that

amount. As Ortega’s tax return shows that the $1500 refund

constituted nearly 15 percent of his expected annual salary, it is

reasonable that he would be unlikely to have spent it all at once.

v. Condition of the Truck

Finally, the government would make much of the condition of

the vehicle. The sole discrepancy noted, however, is that the old,

borrowed truck’s right rear tire was larger than the other three,

causing the truck to “lis t” to the left. The government did not

contradict Ortega’s testimony, ho wever, that the truck drove

normally and that he noticed no problems with its handling.

Our point is not to question that a Border Patrol inspector

would be suspicious of the oversized tire on the borrowed truck.

Rather, it is to note that Ortega, borrowing a vehicle for a oneway trip with his family, would not have been likely to examine the

teeth of his gift horse. More significantly, the relatively minor

discrepancy of one larger tire on the borrowed truck is properly

distinguishable from more significant discrepancies like the

obvious alterations that we have accept ed as evidence of guilty

knowledge in such cases as Resio-Trejo

. 24

Although readily recognizing that the government does not have

to refute every possible inference pointing to innocence, we also

remain faithful t o our complementary rule of decision that, when

circumstantial evidence and the reasonable inferences to be drawn

from it permit conclusions of both guilt and innocence that are16

essentially in balance, there has to be reasonable doubt. When

that is the case, we have no choice but to reverse the conviction.

Our review of the record convinces us that

—— whether viewed

separately or globally

—— the evi dence that Ortega k nowingly

possessed the drugs in question fails to satisfy the constitutional

standard of guilt beyond a reasonable doubt.

III

CONCLUSION

The evidence presented at trial d oes not the support the

jury’s finding that Ortega k nowingly possessed the illegal dr ugs

found in the hidden compartment of the borrowed truck’s tire beyond

a reasonable doubt . Accordingly, we hold that the district court

erred in denying Ortega’s motion for acqu ittal and that Ortega’s

conviction must be —— and therefore is ——

REVERSED.