Summary
upholding conviction where jury heard testimony from a van's passenger that the driver knew the drugs were hidden in the car and had accompanied the passenger on previous drug smuggling trips and been paid for doing so
Summary of this case from U.S. v. HendersonOpinion
No. 08-50455 Summary Calendar.
February 11, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Scott M. Tidwell, Tidwell Tidwell, Odessa, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 7:07-CR-214-1.
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
Carlos Mario Molina appeals his conviction for aiding and abetting the knowing and intelligent possession with intent to distribute 50 kilograms or more of a mixture containing a detectible amount of marijuana. He asserts that there was in-sufficient evidence to prove that he knowingly possessed with the intent to distribute the marijuana that was found in the van he was driving. However, the jury heard testimony from the van's passenger, Molina's former fiancée, that Molina knew the marijuana was hidden in the van's gas tank and that he was to be paid for helping to smuggle it. She also testified that he had accompanied her on previous smuggling trips, knowing there was marijuana in the van, and received payment for doing so. Although Molina challenges the witness's credibility, we must view it in the light most favorable to the guilty verdict. See United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003). The element of intent also is supported by the testimony of the arresting state trooper that Molina suspiciously answered the trooper's questions. Because a rational trier of fact could have found beyond a reasonable doubt that Molina aided and abetted the knowing possession of marijuana with the intent to distribute, his challenge to the sufficiency of the evidence fails. See United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir. 1995).
Molina also asserts that he is entitled to a new trial because the district court admitted receipts showing a financial transaction between his former fiancée and an unindicted coconspirator that were more prejudicial than probative under Federal Rule of Evidence 403. Although Molina asserts that harmless error review applies, the issue was not preserved. See United States v. Jimenez Lopez, 873 F.2d 769, 773 (5th Cir. 1989). He fails to establish plain error because he does not explain how the admission of the receipts affected his substantial rights. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
AFFIRMED.