               IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT
                                                 _______________

                                                   m 99-40159
                                                 _______________




                                        UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

                                                       VERSUS

                                         EUFEMIO MORENO-GARCIA,

                                                                     Defendant-Appellant.



                                          _________________________

                                 Appeal from the United States District Court
                                     for the Southern District of Texas
                                              (L-98-CR-380-2)
                                      _________________________
                                               August 9, 2000




Before SMITH and DENNIS, Circuit                            JERRY E. SMITH, Circuit Judge:**
  Judges, and ROETTGER, District Judge.*
                                                               Eufemio Moreno-Garcia appeals, on
                                                            grounds of insufficient evidence, his conviction


                                                                **
                                                                  Pursuant to 5TH CIR. R. 47.5, the court has
                                                            determined that this opinion should not be published
   *
      District Judge of the Southern District of Florida,   and is not precedent except under the limited
sitting by designation.                                     circumstances set forth in 5TH CIR. R. 47.5.4.
of conspiracy and possession with intent to               Serna then changed his story,
distribute marihuana. Because he did not re-           acknowledging that he knew there was
new his motion for acquittal at the close of all       marihuana in the truck and stating that he was
evidence, we review only for plain error.              being paid $1500 to deliver it to Rogelio in
Finding none, we AFFIRM.                               Dallas and then drive back to Nuevo Laredo
                                                       with an unknown amount of currency. When
                       I.                              he arrived in Dallas, he was to call Rogelio at
   Moreno-Garcia (“Moreno”), Juan Serna-               the number on the paper.
Arrambide (“Serna”), and Carlos Rios were
charged in a two-count indictment with                     The agents and Serna proceeded to Dallas
conspiracy and possession with intent to               with the truck and attempted a controlled de-
distribute marijuana, in violation of 21 U.S.C.        livery. Before noon on April 4, the agents
§ 841(a)(1), 21 U.S.C. § 841(b)(1)(D), and             parked the loaded truck outside of Grandy’s
18 U.S.C. § 2. Serna and Rios pleaded guilty           Restaurant, and Serna called the number for
to the possession count, and the government            Rogelio, saying that he had arrived in Dallas
dismissed the conspiracy count as to them. A           and needed someone to pick him up because
jury found Moreno guilty on both counts.               he did not know his way around Dallas. They
                                                       agreed to meet at Grandy’s.
   On April 3, 1998, Serna was attempting to
enter the United States from Nuevo Laredo,                Meanwhile, agents conducted surveillance
Mexico, when Customs agents discovered ap-             of a residence at 702 Ely Street, Dallas, to
proximately fifty pounds of marihuana secreted         which the phone number on the slip of paper
in a hidden compartment under the driver’s             was assigned. Shortly after Serna’s phone call,
seat of the truck he was driving. The                  three Hispanic males left 702 Ely Street in a
inspectors had noticed a zipper in the seat that       white car with yellow license plates. The
opened from the driver’s side. The seat was            group included Moreno, a 20-year-old man,
hard as a rock and unusually high. They                and a 40-year-old man who drove the car.
opened the zipper on the seat and found a tray
containing foam, baby powder, and vacuum-                 Rios had met Rogelio at the bus stop in Nu-
sealed plastic packages of marihuana.                  evo Laredo, in December 1997. At about
                                                       2:30 p.m. on April 4, he received a call on his
   Serna indicated his desire to cooperate and         cellular telephone from Rogelio, who offered
gave the inspectors a slip of paper with the           to pay him $500 to deliver marihuana to
name “Rogelio” and “331-0438” written on it.           another person. Rogelio told Rios to meet him
Serna said that he had been approached by a            at a gas station, where Rios would pick up
man he did not know, who gave him $177 to              someone who would know whom to contact at
cover expenses and asked him to drive the              Grandy’s Restaurant.
truck to Dallas and to call the phone number
upon arrival. Serna told Special Agents Dami-             Rios drove a gold car to a gas station near
en Vega and Eric Wilson that he did not know           Grandy’s. Rogelio arrived, driving a white car
what was in the truck, but that he was being           with yellow license plates, which Rios
paid $250 to drive it either just across the           previously had seen Rogelio driving in Nuevo
border or to Dallas.                                   Laredo. Moreno exited Rogelio’s car and
                                                       entered Rios’s car.

                                                   2
    Rios drove Moreno to Grandy’s. Rios tes-           driver’s seat of the load truck.
tified that when they arrived in the Grandy’s
parking lot, Moreno said, “That’s the pickup.”            The agents testified that there were twenty
Moreno entered the restaurant and came out a           people inside the garage but that only the three
short time later with Serna. Rios testified that       defendants were arrested. Agents spoke to ev-
he had not seen the truck or Serna before.             eryone inside the garage, and apparently no
                                                       one had information about the transfer of the
   Rios told the pair to follow him. Serna             marihuana or about Moreno’s actions inside
drove the load vehicle, and Moreno rode as a           the garage.
passenger. Rios drove on Highway 35, then
exited and pulled into the parking lot of the              Vega testified that he believed Moreno’s
Elms Apartments. He waited there for a call            role in the conspiracy was that of a middleman
from Rogelio, who instructed him to go to an           between Rogelio and Serna and as a “lookout”
auto shop at 200 North Marcella Street. Ac-            at the garage. Vega stated that it is unusual
cording to Rios’s testimony, Moreno walked             for participants in a drug conspiracy to
up to Rios’s car but said nothing. Rios told           associate with persons not participating in the
Moreno to follow him.                                  conspiracy when they are doing acts in
                                                       furtherance of the conspiracy. Another agent
   Vega testified that Rios first told him that        testified that Moreno’s actions were
Moreno had gotten into his car at the                  characteristic of an individual involved as a
apartments and that Moreno called Rogelio.             lookout.
Rios changed his story and told Vega that
Rogelio had called Rios and that Moreno had               Rios testified that he did not know More-
merely asked why they had stopped.                     no’s role in the conspiracy, but only that Mo-
                                                       reno would know the person at the restaurant.
   Serna and Moreno then followed Rios to              Rios testified that only he, Serna, and Rogelio
200 North Marcella Street. The car and truck           knew that marihuana was being transferred
pulled into the garage of an auto tint shop.           from the truck to his car at the auto shop.
Rios testified that when the truck got near his
car inside the garage, Moreno was no longer in            Moreno testified that he worked as a
the truck. The last time he saw Moreno, Mo-            mechanic’s assistant making about $40 to $50
reno had been close to the front door. Rios            a week. He had known Serna, who lived
testified that Serna placed the marihuana into         around the corner from him, for about five
the trunk of Rios’s car.                               years. He saw Serna on April 2, 1998, driving
                                                       the brown truck that was the load truck.
   After about five to ten minutes, as the             Serna offered to pay Moreno $100 to drive a
agents prepared to enter the garage and arrest         truck to Nuevo Laredo that Serna was going
the participants, the gold car exited. An agent        to buy in Dallas.
pulled in behind the car and blocked it, and
other agents secured the garage. Agents re-               Serna planned to leave for Dallas on April 3
covered nine bundles of marihuana from Rios’s          and said that someone was going to come get
trunk, the same marihuana that had been in the         Moreno. On April 3, Rogelio, whom Moreno
load truck and seized by Customs the previous          had not met before, arrived at Moreno’s
day. Moreno was arrested while seated in the           house, said that Serna had sent him, and asked

                                                   3
whether Moreno was going to Dallas to help             told him to get back into the truck because
drive the pickup.                                      they were going to keep going.

   Moreno rode with Rogelio and Rogelio’s                 When they arrived at the auto tint shop,
wife and son to the bridge at the border. Ro-          Serna told Moreno to wait for him near the
gelio told Moreno to cross into the United             door, and Serna proceeded inside the garage
States and wait for him at the H.E.B. grocery          with the truck. Moreno testified that he was in
store in downtown Laredo. Rogelio, his wife,           the driver’s seat of the truck when he was ar-
and son picked Moreno up from the store at             rested, because Serna said he was tired and
about noon, and they traveled to Dallas in the         asked whether Moreno would drive the truck
same car that later delivered Moreno to the            out of the garage. Moreno testified that he did
gas station near Grandy’s.                             not know who transferred the marihuana from
                                                       the pickup to Rios’s car, did not use marihua-
   They arrived in Dallas at about 8 p.m. and          na, had never participated in the distribution of
spent the night at the Ely Street home of peo-         marihuana or other drugs, and did not know
ple Moreno did not know. Moreno testified              that Serna was taking marihuana to Dallas.
that he did not ask when he was going to meet
up with Serna and that he did not have a phone                                II.
number or any way to contact Serna.                        Moreno argues that the evidence was insuf-
                                                       ficient to support his convictions and that the
    The next morning, after Rogelio received a         court erroneously denied his motion for
phone call, Moreno, Rogelio, and his son left          judgment of acquittal. He argues that the
the house and drove to the gas station. Roge-          government did not prove that he was a willing
lio told Moreno to get into a gold car with Ri-        and knowing conspirator doing his part to
os and that Rios would take him to meet Serna          further the conspiracy. He contends that the
at a restaurant. Moreno testified that this was        evidence showed only that he associated with
the first time he met Rios.                            individuals who were engaged in the
                                                       transportation of marihuana and that he was
    Rios drove Moreno to Grandy’s but did not          merely present during the transportation of the
tell Moreno anything. Moreno recognized the            drugs from Grandy’s to Marcella Street.
brown truck in the parking lot as the one he
had seen Serna driving in Nuevo Laredo. Mo-               Only “[p]lain errors or defects affecting
reno found Serna inside Grandy’s and told              substantial rights may be noticed although they
Serna, “They’re looking for you outside.”              were not brought to the attention of the
They exited the restaurant, and Moreno got             court.” FED. R. CRIM. P. 52(b). Because Mo-
into the passenger side of the truck with Serna.       reno failed to renew his motion for judgment
Moreno stated that he did not know where               of acquittal after the close of all the evidence,
Serna was going.                                       we are limited to a review for plain error. See
                                                       United States v. McCarty, 36 F.3d 1349, 1358
   Moreno testified that he did not know why           (5th Cir. 1994).
Rios stopped at the apartments. Moreno
asserted that he got out of the truck at the              It is not enough, therefore, for us merely to
apartments to look for a place to get a drink of       find that the district court would have erred
water. When he walked up to Rios’s car, Rios           had it denied a motion for judgment of

                                                   4
acquittal at the close of evidence. See United          be proved by direct evidence. Moreover,
States v. Olano, 507 U.S. 725, 732 (1993).              “[o]nly slight evidence is needed to connect an
Rather, the error is reversible “only if it is          individual to an illegal conspiracy once the
‘plain’ and ‘affect[s] substantial rights.’” Id.        United States has produced evidence of that
“‘Plain’ is synonymous with ‘clear’ or,                 conspiracy.” United States v. Vaquero, 997
equivalently, ‘obvious.’” Id. at 734 (citations         F.2d 78, 82 (5th Cir. 1993).
omitted).
                                                           Thus, while mere presence and association
   Rule 52(b) was intended to afford a                  with conspirators, alone, will not support an
   means for the prompt redress of                      inference of participation in the conspiracy, see
   miscarriages of justice. By its terms,               Maltos, 985 F.2d at 746, evidence of concert-
   recourse may be had to the Rule only on              ed action can indicate both agreement and vol-
   appeal from a trial infected with error so           untary participation in the conspiracy. See
   “plain” the trial judge and prosecutor               United States v. Quiroz-Hernandez, 48 F.3d
   were derelict in countenancing it, even              858, 866 (5th Cir. 1995). A jury may infer
   absent the defendant’s timely assistance             participation and membership in a conspiracy
   in detecting it. The Rule thus reflects a            when the facts make it unlikely that
   careful balancing of our need to                     conspirators would permit an innocent person
   encourage all trial participants to seek a           to be present or act. See United States v.
   fair and accurate trial the first time               Martinez-Moncivais, 14 F.3d 1030, 1034-35
   around against our insistence that                   (5th Cir. 1994).
   obvious injustice be promptly redressed.
                                                           While Moreno’s plea of innocence and ig-
                                                        norant acquiescence is not wholly lacking in
United States v. Frady, 456 U.S. 152, 163               plausibility, it is not sufficiently supported in
(1982).                                                 the record to call for plain error reversal. He
                                                        was not only present and associating with the
   Thus, for Moreno to prevail, he must do              co-conspirators, but played an active role in
more than show t hat the evidence was                   effecting the goals of the established
insufficient; he must also show that                    conspiracy. While it is not impossible that
insufficiency was “so ‘plain’ the trial judge and       Moreno did so blindly, without knowledge that
prosecutor were derelict in countenancing it.”          he was participating in criminal activity, it was
Id. Moreno cannot meet that high standard               not plain error to al low the jury to conclude
with respect to either count.                           otherwise.

                      A.                                                     B.
   A defendant is guilty of conspiracy if                  “Conviction for possession with intent to
(1) there is agreement between two or more              distribute requires proof of (1) knowing
persons to commit a crime and the defendant             (2) possession (3) with intent to distribute.”
(2) knew of the agreement, and (3) voluntarily          United States v. Anchondo-Sandoval, 910
participated in the agreement. See United               F.2d 1234, 1236 (5th Cir. 1990). Possession
States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.          of contraband may be either “actual or
1994); United States v. Maltos, 985 F.2d 743,           constructive and may be joint among several
746 (5th Cir. 1992). These elements need not            defendants.      This court has defined

                                                    5
‘constructive possession’ as ‘the knowing
exercise of, or the knowing power or right to
exercise dominion and control over the
proscribed substance.’” United States v.
Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993)
(citations omitted).

    When the contraband is hidden in a
compartment within a vehicle, “[p]ossession of
or control over a vehicle does not, standing
alone, suffice to prove guilty knowledge.” An-
chondo-Sandoval, 910 F.2d at 1236. But,
“knowing possession can be inferred from the
defendant’s control over the vehicle in which
the illicit substance is contained if there exists
other circumstantial evidence that is suspicious
in nature or demonstrates guilty knowledge.”
Id.

   For the same reasons that Moreno’s
conspiracy conviction survives plain error
review, there is sufficient circumstantial
evidence to support an inference of knowing
possession of marihuana. The suspicious
surrounding circumstances supporting
Moreno’s knowing participation in the
conspiracy can serve double duty and establish
his constructive possession of the seized
contraband.

    Possession of an amount of marihuana larg-
er than is necessary for personal consumption
supports a finding that the defendant intended
to distribute the drug. See United States v.
Williams-Hendricks, 805 F.2d 496, 501-02
(5th Cir. 1986). The fifty-one pounds seized
here falls squarely within that inference. It
therefore was not plain error to allow the jury
to convict Moreno for possession with intent
to distribute marihuana.

   AFFIRMED.



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