* 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this opinion should not be published and is not precedent except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 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-50623

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAY HEREDIA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:04-CR-287-ALL

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

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Ray Heredia appeals his conviction for aiding and abetting

the possession of less than 50 kilograms of marijuana with intent

to distribute. Heredia argues that the district court abused its

discretion when it admitted evidence concerning two of Heredia’s

prior convictions and that the evidence was not sufficient to

prove he knowingly possessed marijuana. 

Through a letter mailed to the clerk of this court after

appointed counsel had filed an appellate brief on Heredia’s
No. 05-50623

-2-

behalf, Heredia has moved this court for an order relieving

counsel and allowing Heredia to proceed pro se on appeal. As

Heredia’s motion was filed after his counsel filed an appellate

brief, the motion was untimely and is denied. See United States

v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998); see also

Martinez v. Court of Appeal of California, 528 U.S. 152, 163

(2000).

Evidence of Heredia’s prior felony convictions was

admissible under Fed. R. Evid. 404(b) to show Heredia’s knowledge

and intent, which were placed at issue by Heredia’s “not guilty”

plea. See United States v. Walker, 410 F.3d 754, 759 (5th Cir.

2005); United States v. Beechum, 582 F.2d 898, 911 (5th Cir.

1978) (en banc). The evidence possessed considerable probative

value that was not substantially outweighed by undue prejudice

under Fed. R. Evid. 403. Beechum, 582 F.2d at 911. 

Heredia properly preserved his challenge to the sufficiency

of the evidence by moving for a judgment of acquittal at the

close of the Government’s case and at the close of all evidence. 

Therefore, this court reviews his conviction to determine whether

a rational trier of fact could have found that the evidence

established the essential elements of the offense beyond a

reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540,

543 (5th Cir. 1998). This court considers the evidence in the

light most favorable to the Government, drawing all reasonable

inferences and credibility choices made in support of the
No. 05-50623

-3-

verdict. Id. The court looks to whether the trier of fact made

a rational decision, rather than to whether it correctly

determined the defendant’s guilt or innocence. United States v.

Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995). 

The elements of possession of marijuana with intent

to distribute are “that the defendant (1) knowingly (2) possessed

marijuana (3) with intent to distribute it.” United States v.

Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Heredia challenges only

the knowledge element. “The knowledge element for possession . .

. of drugs can rarely be proven by direct evidence.” Lopez, 74

F.3d at 577. Knowledge “can be inferred from control of the

vehicle in some cases; when the drugs are hidden, however,

control alone is not sufficient to prove knowledge.” United

States v. Pennington, 20 F.3d 593, 598 (1994). 

“[A]dditional circumstantial evidence that is suspicious in

nature or demonstrates guilty knowledge is required.” United

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

evidence “may include nervousness, conflicting statements to law

enforcement officials, and an implausible story.” Id.

Heredia was transporting approximately 55 pounds of

marijuana with a value of $44,000. The substantial value of the

marijuana being transported is circumstantial evidence that is

probative of Heredia’s knowledge. See United States v.

Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). The jury could

reasonably have inferred that Heredia would not have been
No. 05-50623

-4-

entrusted with such valuable cargo if he was not part of the

trafficking scheme. Villarreal, 324 F.3d at 324.

When questioned by government agents, Heredia stated that he

was homeless, that he had arrived in the area the day before to

visit a friend in Presidio, Texas, and that he was on his way

home, across the state, to Amarillo, Texas. However, he could

not provide the last name of his friend. Further, at the time of

his arrest, Heredia had $114.68 but no luggage or toiletries,

though he had an extra pair of underwear and socks. Moreover,

although he never mentioned being in Mexico, a toll certification

recovered from the truck indicated that Heredia had crossed the

United States-Mexico border approximately one hour before he

entered the checkpoint. Heredia’s inconsistent and incredible

story to government agents provided further circumstantial

evidence of his guilt. See Jones, 185 F.3d at 464. 

Border Patrol agent Borrero indicated that Heredia was

nervous, hesitated, and avoided eye contact when answering

questions and looked away from his truck while it was being

searched. Given the other circumstantial evidence, the jury

reasonably could have interpreted his nervousness as another

indication that he knew the marijuana was in the truck. Ortega

Reyna, 148 F.3d at 544.

Based on the foregoing evidence, the jury reasonably could

have inferred that Heredia knowingly possessed marijuana. See,

e.g., Ortega Reyna, 148 F.3d at 543 (it is not necessary that
No. 05-50623

-5-

every reasonable hypothesis of innocence be excluded); United

States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)

(reasonable inferences are to be resolved in favor of the

verdict); Pennington, 20 F.3d at 598-99 (issue is whether jury

made a rational decision to convict or acquit based on the

evidence). 

For the foregoing reasons, Heredia’s conviction is affirmed. 

MOTION DENIED; CONVICTION AFFIRMED.