IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40029

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARWAN M. ABUHASAN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:09-CR-530-1

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

*

At a border checkpoint, Marwan M. Abuhasan, a citizen of Jordan, was

found with nearly 400 kilograms of marijuana in the trailer of his truck. He was

convicted by a jury of possessing with intent to distribute more than 100

kilograms of marijuana and falsely representing that he was a citizen of the

United States. He challenges his convictions, arguing that the evidence was

insufficient to establish that he knew the marijuana was in the trailer and that

he misrepresented his citizenship. He also argues that there was a fatal

United States Court of Appeals

Fifth Circuit

F I L E D

November 22, 2010

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. 10-40029

variance between the indictment and the Government’s proof on the falserepresentation-of-citizenship count.

Because Abuhasan properly preserved his sufficiency-of-the-evidence

argument by moving for a judgment of acquittal at the close of the Government’s

case and at the close of all the evidence, our review is de novo. See United States

v. Shum, 496 F.3d 390, 391 (5th Cir. 2007). We will uphold the jury’s verdict if

a reasonable trier of fact could conclude from the evidence that the Government

established all of the elements of the offense beyond a reasonable doubt. United

States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). The evidence, both direct

and circumstantial, is viewed in the light most favorable to the jury’s verdict.

United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995). The jury may

choose any reasonable construction of the evidence, and we accept the credibility

decisions that support the verdict. United States v. Mata, 491 F.3d 237, 242 (5th

Cir. 2007). However, we will reverse if the evidence equally or nearly equally

provides circumstantial support theories of innocence and guilt. United States

v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).

Abuhasan attacks the credibility of the Government’s witnesses, faulting

them for failing to record interviews with Abuhasan and to obtain a written

statement from him. However, the jury was responsible for determining the

weight of the evidence and the credibility of the witnesses and was entitled to

credit the testimony of the Government’s witnesses over Abuhasan’s own

testimony. See United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994).

Border Patrol agents and Immigration and Customs Enforcement agents

testified that Abuhasan changed his story regarding the loading of the trailer

and whether he or the workers at the loading dock sealed the trailer.

Inconsistent statements to law enforcement officials constitute evidence of guilt.

United States v. Cano-Guel, 167 F.3d 900, 905 (5th Cir. 1999). Moreover, other

circumstantial evidence supported the drug conviction. Video confirmed that no

marijuana was loaded into the trailer with the legitimate cargo and Abuhasan

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had control of the trailer from the time it left the loading dock until the

marijuana was found, making it less likely that a third party secreted the drugs

in the trailer. A package of seals nearly identical to the seal given to Abuhasan

by the warehouse employees was found in the truck and one of those seals was

missing, which could create an inference that the seals were intended for use in

drug smuggling. Abuhasan became nervous when agents questioned him about

names stored in his mobile phones, and Abuhasan’s log books contained false

entries. The amount—nearly 400 kilograms—and value—$701,000—of the

marijuana also supports the conclusion that Abuhasan knew the marijuana was

in the trailer because the jury could reasonably have inferred that he would not

have been entrusted with such extremely valuable cargo without his knowledge.

See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). Abuhasan

points to other evidence that he says could support a conclusion that a third

party secreted the marijuana in the trailer unbeknownst to him, but for a jury

to convict, the evidence does not have to rule out every possible theory of

innocence or be incompatible with every conclusion other than guilt. United

States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). The jury was free to reject

Abuhasan’s theory. Moreover, the Border Patrol agent’s testimony that

Abuhasan falsely represented his citizenship, credited by the jury, was sufficient

to support the conviction for misrepresenting himself as a U.S. citizen.

As for the variance claim, the indictment alleges that Abuhasan falsely

represented that he was a U.S. citizen at the Falfurrias, Texas, checkpoint, but

the proof at trial showed that he made the statement at the checkpoint in Sarita,

Texas. Abuhasan did not preserve the error in the district court because he did

not object; thus, we review for plain error. See United States v. Ratner, 502 F.2d

1300, 1302-03 (5th Cir. 1974). Abuhasan, though, cannot succeed because the

place where he made the false statement was extraneous to the offense; thus,

there was no error, plain or otherwise. To secure a conviction, the Government

is not required to prove irrelevant or nonessential facts recited in the indictment

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as long as it proves other facts that are charged and that satisfy the essential

elements of the crime. United States v. Robinson, 974 F.2d 575, 578 (5th Cir.

1992). Here, the place where Abuhasan made his false statement is not an

element of the crime. See 18 U.S.C. § 911; United States v. Harrell, 894 F.2d

120, 126 & n.2 (5th Cir. 1990). It was sufficient that the Government prove, as

it did, that Abuhasan falsely declared that he was a U.S. citizen to the Border

Patrol agent.

The judgment of the district court is AFFIRMED.

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