UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-60054

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO RESIO-TREJO,

Defendant-Appellant.

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Appeal from the United States District Court for the

Southern District of Texas

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(February 8, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Pedro Resio-Trejo (Resio) appeals his conviction, following a

jury trial, for possession with intent to distribute marihuana in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). In this appeal,

Resio raises two points of error, arguing that the evidence

introduced at trial was insufficient to support his conviction and

that statements made by the prosecutor during the trial constituted

reversible error. We affirm.

Facts and Proceedings Below

At approximately 10:30 p.m. on April 29, 1993, Resio, heading

in a northerly direction on Interstate 35, approached the United1 Resio truthfully responded that he was a United States

citizen.

2 States Border Patrol checkpoint north of Laredo, Texas, driving a

truck tractor with no trailer attached. Resio was the sole

occupant of the truck. While Border Patrol Agent Stephen Williams

(Williams) was ask ing Resio routine citizenship questions, 1 a

Border Patrol canine alerted to the gas tank on the driver's side

of the tractor. The Border Patrol agents then sent the tractor to

the secondary inspection area. After Resio exited the tractor, the

canine handler conducted a search of the entire vehicle. During

this search, the dog alerted to the gas tank on the driver's side

as well as the gas tank on the passenger's side. When Williams

removed the cap of one of the gas tanks and inserted a coat hanger,

he felt something solid in the gas tank, which he suspected to be

a secret compartment. At this point, the agents began looking for

a trap door for loading contraband into the tank.

After visually examining th e gas tanks, Border Patrol Agent

Marco Antonio Cordero (Cordero) detected the odor of bondo, a

sealant used in body repairs of vehicles. As Cordero scratched off

the paint on the surface of the tank, a bright pink bondo sealant

became visible. Cordero testified that bondo usually fades and

discolors as it dries. Given the bright pink color, Cordero

surmised that it was a fresh application. The gas tanks, placards,

and straps were all pain ted black. When the agents pounded the

tanks with a hammer and screwdriver, the sealant cracked, revealing

cut-out trap doors located on the top of each gas tank. After

removing the bolts securing the trap doors, the agents discovered2 Fernando Lozano, a Laredo police officer, testified that the

marihuana seized from the tractor would be worth approximately

$130,400 in Laredo. He added that the same marijuana would be

worth approximately $195,600 in San Antonio and $228,200 in

Houston. Lozano explained that the higher risks involved in

transporting marihuana north drive up the price of the drug.

3 54 bales of marihuana weighing approximately 326 .4 pounds. 2 Drug

Enforcement Agency (DEA) Agent Colin McN ease (McNease), who was

c alled to the scene at 11:00 p.m. that night, testified that the

marihuana seized from the gas tanks appeared to be fresh.

Cordero testified that whoever altered the tanks and concealed

the secret compartments "did a very good job." Border Patrol Agent

Mario Ernesto Moreno (Moreno), who had training in we lding,

testified about the complexity of the alterations and explained

that the 115-gallon steel fuel tanks could only be cut with a torch

or a grinder. The secret compartments, each with a 51-gallon

capacity, wer e specially welded to fit inside the gas tanks,

leaving less than two-thirds of the original tank capacity for

fuel. Moreno also testified that the persons altering the tanks

would have to remove the tanks from the truck, an operation that

would require lifting the cab. In order to avoid the danger of

explosion, the tanks would have to be drained, flushed, and dried

before construction of trap doors could begin. Moreno testified

that the alterations to the g as tanks would take several days to

complete and that the alterations appeared recent. From the time

the canine first alerted to the driver's side gas tank, the search

and removal of the marihuana took over one hour. During the search

of the vehicle and the subsequent dismantling of the gas tanks, the

agents described Resio's demeanor as indifferent and stated that he3 The government introduced the testimony of a mortician who

testified that Rodriguez died on May 14, 1992, in Ciudad

Guerrero, Mexico.

4 The entries of May 16, 1992, through June 5, 1992, list

F.J.W. Trucking Services as the carrier. Beginning June 6, 1992,

the entries consistently list L.J.W. Trucking Services as the

carrier.

5 The insignia "P.R.T. Express Laredo, Tex." was painted on

4 never asked any questions about what was being done to the tractor.

After discovering the marihuana, Resio was arrested, and the truck

was impounded.

DEA Agent McNease found various documents under the mattress

in the truck's sleeper. At trial, the government used this

documentary evidence to show that Resio had been in possession of

the truck for the ten months prio r to his arrest. Documents

introduced at trial showed that a Luis Jaime Rodriguez (Rodriguez)

had purchased the truck on February 15, 1992, and obtained title on

April 21, 1992. The government introduced documents showing that

Rodriguez secured insurance coverage for the truck effective April

14, 1992. The insurance agent who issued the policy testified that

the policy was cancelled on May 14, 1992, the date of Rodriguez's

death. 3 A driver's daily log book found in the tractor listed the

carrier as L.J.W. Trucking, Inc. and the driver as Rodriguez. The

entries in this log started on April 28, 1992, and ended on May 3,

1992. A second daily log found in the tractor recorded trips of a

driver listed as "Pete Resio" beginning May 16, 1992, for L.J.W.

Trucking Services. 4 Beginning on November 24, 1992, the name

P.R.T. Express began appearing in the daily entries as the name of

the carrier, with Resio still lis t ed as the driver. 5 These dailyboth the driver's side and passenger's side doors of the truck.

5 log s also included daily inspection reports starting on July 1,

1992. There are two months, December 1992 and March 1993, for

which the gove rnment did not introduce daily logs or inspection

reports. However, the government did introduce daily log entries

and inspection reports for the period January 1, 1993, to February

28, 1993, and April 1, 1993, to April 29, 1993, the date of Resio's

arrest. These daily logs and inspection reports were signed "Pete

Resio."

An insurance policy for the truck discovered in it identified

Resio as the insured, effective July 20, 1992, with expiration date

of July 20, 1993. Another similar insurance policy found in the

truck also listed Resio as the insured for the same truck,

effective March 18, 1993, and expiring March 18, 1994. Under Texas

law, any carrier operating trucks with a gross weight in excess of

26,000 pounds must obtain a permit by registering the truck with

the Texas Railroad Commission (TRC) and filing proof of insurance.

TRC records reflected that the truck was registered by "Rodriguez"

as a private carrier in August 1992 and that this registration was

renewed in April 1993. The August 1992 application listed Pedro

Resio as the owner of the tractor. The permit number identified on

the April 1993 renewal application matched the Interstate Commerce

Commission number on the doors of the truck under the "P.R.T.

Express" insignia.

In April 1993, Res io applied to the Texas Department of

Transportation for a reassignment of the certificate of title. The6

Texas Certificate of Title application requires the signa ture of

the owner of the vehicle. The application submitted by Resio

contained the purported signature of Rodriguez, dated April 16,

1993, as the owner transferring title to the tractor. The

government also introduced the taxpayer's copy of a Heavy Vehicle

U se Tax Return dated April 13, 1993; the return is si gned by

Rodriguez. Finally, the agents found an annual vehicle inspection

report dated June 15, 1992, and Texas vehicle registration receipts

for March 1992 and March 1993, all of which wer e in Rodriguez's

name.

On August 3, 1993, a federal grand jury returned an indictment

charging Resio with one count of conspiracy to possess with intent

to distribute 326.4 pounds of marihuana in violation of 21 U.S.C.

§§ 846, 841(a)(1) and (b)(1)(B) (Count One) and one count of

pos session with intent to distribute the same marihuana in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count Two).

After a jury was empaneled and sworn, the government announced that

it would proceed only on Count T wo and moved to dismiss the

conspiracy count. The district court denied Resio's motion for a

judgment of acquittal at the close of the government's case. The

defense rested without presenting any evidence. On October 19,

1993, the jury found Resio guilty of Count Tw o. On December 30,

1993, the district court sentenced Resio to sixty-six months of

imprisonment and four years of supe rvised release and imposed a

$500 fine and a $50 manda tory special assessment. Resio filed a

timely notice of appeal.

Discussion6 Where a defendant moves for a judgment of acquittal after

the government rests but fails to renew the motion after

presenting his case, this failure to renew the motion generally

constitutes a waiver, and our review of his sufficiency of the

evidence claim is normally limited to whether there was a

manifest miscarriage of justice. United States v. Daniel , 957

F.2d 162, 164 (5th Cir. 1992). However, where, as here, a

defendant rests without introducing any evidence, he need not

renew the motion for judgment of acquittal in order to preserve

his objection to the sufficiency of the evidence. Clark v.

United States , 293 F.2d 445, 448 (5th Cir. 1961); see also 2

Charles A. Wright, Federal Practice and Procedure § 463 (1994).

7 Resio's first point of error is that the government failed to

introduce sufficient evid ence to support his conviction for

possession with intent to distribute approximately 326.4 pounds of

marihuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). In

reviewing challenges to the sufficiency of the evidence, we review

the evidence, whether direct or circumstantial, in the light most

favorable to the jury verdict. U nited States v. Nguyen

, 28 F.3d

477, 480 (5th Cir. 1994). 6 All credibility determinations and

reasonable inferences are to be resolved in favor of the verdict.

Id. We hold the evidence sufficient if we conclude that a rational

trier of fact could have found therefrom the essential elements of

the crime beyond a reasonable doubt. U nited States v. Villasenor

,

894 F.2d 1422, 1425 (5th Cir. 1990). In making such a

determination, "[i]t is not necessary that the evidence exclude

every reasonable hypothesis of innocence or be wholly inconsistent

with every conclusion except that of guilt." U nited States v.

Bell , 678 F.2d 547, 549 (5th Cir. 1982)(en banc), a ff'd o n other

grounds , 103 S.Ct. 2398 (1983).

In order to obtain a conviction for possession with intent to8

distribute marihuana, the government must prove that Resio

knowingly possessed marihuana with the i ntent to distribute it.

United States v. Carrillo-Morales , 27 F.3d 1054, 1064 (5th Cir.

1994). Possession may be actual or constructive, and the intent to

distribute may be inferred from the quantity and value of the

marihuana possessed. U nited States v. Casilla

, 20 F.3d 600, 603

(5th Cir.); cert. denied , 115 S.Ct. 240 (1994). In this appeal,

Resio challenges only the knowledge element, contendi ng that the

government failed to prove that he knew marihuana was concealed in

the fuel tanks of the truck he was driving.

Knowledge of the presence of narcotics often may be inferred

from the exercise of control over the vehicle in which the illegal

drugs are concealed. U nited States v. Richardson

, 848 F.2d 509,

513 (5th Cir. 1988) In secret compartment cases, we have generally

stated that the knowledge element may not be inferred solely from

the defendant's control of the vehicle in which the contraband is

hidden because 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." U nited States v. Diaz-Carreon

, 915 F.2d

951, 954 (5th Cir. 1990). Thus, in order to satisfy the knowledge

element in hidden compartment cas es, this Court has normally

required additional "circumstantial evidence that is suspicious in

nature or demonstrates guilty knowledge." United States v.

Anchondo-Sandoval

, 910 F.2d 1234, 1236 (5th Cir. 1990). We have

relied on sev eral factors to meet this other-circumstantialevidence requirement in hidden compartment cases. S ee Casilla

, 209

F.3d at 606-07 (relying on defendant's nervousness an d his

implausible explanations for a false bill of lading); United States

v. Shabazz

, 993 F.2d 431, 441-42 (5th Cir. 1993)(relying on, inter

alia, defendants' nervousness and inconsistent explanations for

their stay in Houston); Diaz-Carreon , 915 F.2d at 954-55 (relying

on defendant's nervousness, inconsistent statements, and

implausible story); Anchondo-Sandoval

, 910 F.2d at 1237 (relying on

defendant's contradictory statements to DEA and customs agents).

Resio contends th at, because none of the additional factors

previously relied on by this Court is present in this case, his

knowledge of the presence of the concealed marihuana cannot be

inferred merely from his control over the vehicle. Resio argues

that he exhibited no signs of nervousness during the encounter at

the border checkpoint and that he made no inconsistent or

implausible state ments to the agents conducting the search. We

agree that the knowledge element in hidden compartment cases

generally cannot be inferred solely from the defendant's control

over the vehicle in which the contraband is concealed. S ee United

S tates v. Garza , 990 F.2d 171, 174 (5th Cir.), c ert. denied

, 114

S.Ct. 332 (1993); Diaz-Carreon , 915 F.2d at 954-55. Moreover, it

is undisputed that this is a hidden compartment case. However, we

find that there is amply sufficient additional ci r cumstantial

evidence from which the jury could reasonably infer that Resio knew

that the marihuana was concealed in the truck he was driving.

The government introduced documentary evidence at trial that

Resio began driving the truck on May 16, 1992, two days after the

death of the previous owner. Documentary evidence introduced at7 For instance, the evidence admitted at trial included daily

inspection reports completed by Resio for the following periods:

January 1-29, 1993; February 1-28, 1993; April 1-29, 1993.

10 trial also showed that Resio completed daily inspection reports on

the truck's condition and made daily log entries. Although the

government did not introduce the inspection reports or log entries

for December 1992 or March 1993, ther e is no evidence that Resio

did not inspect the truck during these months; moreover, there is

no evidence that the truck was in the possess ion of anyone other

than Resio during that time. In April 1993, shortly before his

arrest, Resio applied to transfer title of the truck from

Rodriguez's name to his own. The jury also had before it evidence

that Resio obtained liability insurance for the tractor in his name

in July 1992 and again in March 1 993. Resio also registered his

truck with the TRC in August 1992, listing himself as the owner,

and renewed this TRC registration in April 1993. The government

introduced evidence that Resio had possession and exclusive control

of the truck for the 10 months preceding the discovery of some 326

pounds of marihuana in the hidden compartments. Through the logs

and inspection reports, the government showed that Resio was the

truck's primary driver and that he frequently inspected the

vehicle. 7

We decline to adopt Resio's argument that the list of

additional factors necessary to prove the knowledge element in

hidden compartment cases is limited to a defendant's nervousness,

implausible explanations, and inconsistent statements, or matters

similar or analogous thereto. In the typical hidden compartment11

case, the driver disclaims ownership of the vehicle and the

government does not disprove the disclaimer. S ee United States v.

Gibson

, 963 F.2d 708, 711 (5th Cir.1992)(defendant claimed that she

borrowed car from aunt's boyfriend); United States v. PinedaOrtuno , 952 F.2d 98, 103 (5th Cir.), cert. denied , 112 S.Ct. 1990

(1992)(both defen dants denied ownership of vehicle with hidden

compartment containing cocaine); Diaz-Carreon

, 915 F.2d at 952

(driver told agents he was driv ing truck to New Mexico for its

owner); Anchondo-Sandoval

, 910 F.2d at 1235 (dr iver told agents

that he was driving the car across the border for the brother of a

friend). In such cases, the government has not introduced evidence

of the defendant's exclusive control and possession of the vehicle

for a long period of time preceding the discovery of the concealed

contraband.

In other cases, however, we have observed that the defendant's

ownership and control over the vehicle constitutes evidence showing

that the defendant knew the vehicle contained illegal drugs. S ee,

e.g., Garza

, 990 F.2d at 174 (listing other circumstantial evidence

showing that defendant knew of th e concealed cocaine such as

"Garza's nerv ousness, his control and ownership of the truck

containing the cocaine, the large amount of cocaine, the false bill

of lading. . ."). In U nited States v. Olivier-Becerril

, 861 F.2d

424 (5th Cir. 1988), Border Patrol agents found seventy-nine

kilograms of cocaine in a hidden compartment in the trunk of a car

driven by the defendant. Addressing the defendant's argument that

t he government failed to prove the knowledge element, this Co urt

reaffirmed the rule that normally control of the vehicle, standing12

alone, does not constitute sufficient proof that the defendant knew

t he concealed drugs were in the car. I d. at 427. The Court,

however, held that there was sufficient evidence that the defendant

knew the cocaine was in the car based on several factors. In

addition to the defendant's nervousness, the Court in O livierBecerril noted that "[t]he repa ir receipt found in the car

reflected that Olivier was in possession of the vehicle one week

prior to the search, suggesting that he was in possession when the

hidden compartment was built one to three days prior to his

arrest." I d. In this case, the government introduced evidence

that Resio wa s in possession of the truck for the ten months

preceding his arrest. Furthermore, the government presented

testimony that the alterations to the vehicle had been done

recently, and DEA Agent McNease testified that the marihuana seized

from Resio's truck a ppeared to be fresh. The evidence of the

recent alterations and the fresh marihuana, considered together

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

the ten months preceding his arrest, weigh in favor of the jury's

verdict and provide a sufficient basis for the inference that Resio

knew the marihuana was concealed in his truck.

Moreover, w e find that there is additional circumstantial

evidence that convinces us that Resio was not an "unwitting . .

. carrier in a smuggling enterprise." Diaz-Carreon , 915 F.2d at

954. Although Resio did not appear nervous or provide implausible

explanations for his travels, we note that his calm demeanor and

indifference while the agents dismantled the gas tanks on his truck

provide additional "circumstantial evidence that is suspicious in13

nature or demonstrates guilty knowledge." I d. at 954. Further,

the government introduced evidence that the secret compartments

reduced the fuel capacity of each tank by one-third. Because the

evidence showed that Resio drove the truck for almost one year, the

jury could rationally infer that Resio would notice such a dramatic

decrease in the fuel capacity of his truck. Finally, we note that

Border Patrol Agent Williams discovered the secret compartments by

simply inserting a coat hanger in the gas tank. Given the ease

with which Williams disco vered the hidden compartments, the jury

could reasonably infer that Resio would have made a similar

discovery during his daily inspections or while refueling his

truck. In sum, we hold that all this evidence, taken in

conjunction with the evidence of Resio's ownership of and control

over the vehicle in the ten months preceding his arrest, provide a

sufficient basis for a rational jury to infer that Resio knew the

marihuana was concealed in the gas tanks. We note that we find the

alternative e xplanation for what happened incredulous: that

someone would take Resio's truck and, without his knowledge, spend

several days constructing secret compar tments in the gas tanks,

load these compartments with over $130,000 worth of marihuana, and

return the truck to him.

Resio's second point of error on appea l is that certain

statements made b y the prosecutor during her opening and closing

statements amounted to reversible e rror. Because Resio did not

raise these objections at trial, our review is limited to plain

error. U

nited States v. Calverle y , 37 F.3d 160, 162 (5th Cir.

1992)(en banc). In order to be eligible to gain relief under this14

standard, Resio must show that (1) the district court deviated from

a legal rule, (2) the error was clear or obvious, and (3) the error

affected substantial rights and influenc e d the district court

proceedings. U

nit ed States v. Olano , 113 S.Ct. 1770, 1777-78

(1993).

Resio first complains that the prosecutor told the jury that

the construction of the secret compartments in the gas tanks was

the work of professionals, assertedly thereby implying that Resio

was experienced in the business. The comment actually made is

adequately supported by the evidence. At trial, Border Patrol

Agent Cordero testified that the persons who bu ilt the secret

compartments did a "very good job." In addition, Border Patrol

Agent Moreno testified about the dangers and complexities involved

in building such secret compartments in the fuel tanks of a truck.

Because the evidence adequately supports this comment, we hold that

it does not constitute error, much less plain error.

Resio also challenges the prosecu tor's statement in her

closing argument that drug dealers would not turn over so much

marihuana to a person whom they did not trust, thereby implying

that he was a trusted member of the underworld. Because Resio has

not shown that this comment amounts to plain error, we reject this

argument. Finally, Resio complains that the prosecutor labelled

him a forger, pointing to the following statement during the

prosecutor's closing argument: "[Resio] also has copies of some

obviously forged documents." We cannot accept Resio's contention

that the prosecutor called him a forger; rather, we find that the

prosecutor merely stated that Res io had some forged documents in15

his possession. Because Resio cannot show that this statement

rises to the level of plain error, we reject this argument as well.

Conclusion

For the foregoing reasons, Resio's conviction is

AFFIRMED.