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Click here for the full text of this decision FACTS:At trial, the government presented testimony that at about 10 p.m. on Dec. 20, 2005, a walking sensor near Valentine, Texas, was activated. When Border Patrol agents went to the area, they saw tracks, indicating that people were in the area. The agents positioned themselves to intercept the individuals, and a Loris infrared night vision scope was set up on a hill nearby. Agent Joe Lewis operated the Loris. Images caused by body heat are visible on the Loris scope but not faces or other identifying characteristics. Around 2 a.m., Lewis told other agents that he saw seven people bearing heavy loads on their backs, walking through the desert. When the seven arrived at the highway, they stopped and waited. Shortly, a vehicle pulled off the highway near the seven, who jumped up and loaded their backpacks into the vehicle. The vehicle drove away, and the seven persons returned toward the desert. Lewis testified that he kept his eyes on the seven as they crossed the highway and the railroad tracks and lay down in the pasture. He guided other agents to that location, and those agents arrested the seven persons. When the agents arrested the group, they were told by the agents to pick up their belongings, but no one picked anything up. They carried nothing but a jug of water and a roll of plastic bags. Agent Russell Church testified that people entering the country to look for work bring personal belongings with them while drug traffickers have nothing with them but a small amount of food. None of the suspects attempted to flee nor to avoid arrest. None of them had strap marks on their bodies from backpacking, but all of them wore thick jackets. The vehicle was stopped and agents found that it contained seven army-style duffel bags, each containing 57 pounds of marijuana. The driver of the vehicle was Elizabeth Gomez. Jose Rangel-Rosales, one of the seven persons arrested, pleaded guilty and testified at trial for the government. He identified the five suspects as members of a group of seven who crossed from Mexico to the United States, each carrying a backpack of marijuana, but he did not know their names. He testified that they put the bags into a pickup with a closed cabin, and that they had been led by a guide, who left them 100 to 200 meters from where they loaded the vehicle. He said that he was to be paid $2,000. Officer Raymond Rodriguez testified that each of the five suspects made statements to him following their arrest, and that each of them admitted that they carried backpacks to the road and either were present or helped to load the narcotics into the vehicle. He also testified that Hernandez-Vasquez stated that he carried marijuana and was to be paid $2,000. According to Rodriguez, Gabriel and Elier Quinones-Muela, who are brothers, admitted that Gomez, the driver of the vehicle, was their cousin. Rodriguez testified that he knew Spanish and spoke it his whole life, although he admitted that he had no special expertise in translation. He also admitted that he did not tape record the statements. All of the suspects testified, through a translator, that they had entered the United States to find work and denied telling Rodriguez that they carried marijuana or loaded it into a vehicle. They said that they carried backpacks containing food and water, but that the guide told them to discard the backpacks before they got to the highway, because they wouldn’t need them any longer. Arturo and Elier denied telling Rodriguez that Gomez, the driver of the vehicle into which the marijuana was loaded, was their cousin. Gabriel and Elier testified that they did not understand the Miranda warnings and could not understand Rodriguez’s Spanish. Elier also testified that, when he signed a Miranda waiver, he was “very tired . . . cold and hungry” and did not pay attention. The trial court convicted the suspects of possession with intent to distribute marijuana, and aiding and abetting possession with intent to distribute. The trial court sentenced each suspect to 60 months of imprisonment. HOLDING:Affirmed. Guanespen-Portillo, Gabriel Quinones-Muela, Hernandez-Vasquez, and Arturo Quinones-Muela contended on appeal that insufficient evidence supported their convictions. To prove possession of marijuana with intent to distribute, the government must prove beyond a reasonable doubt knowing possession of marijuana with intent distribute it. Possession, the court stated, may be actual or constructive and may be proved by either direct or circumstantial evidence. Constructive possession is the knowing exercise of or the knowing power or right to exercise dominion and control over the proscribed substance. Intent to distribute may be inferred from the large quantity of drugs involved. To prove aiding and abetting of a criminal venture, the court stated, the government must prove beyond a reasonable doubt that the defendants associated with the criminal enterprise participated in the venture and sought by their action to make the venture succeed. Considering the evidence in the light most favorable to the verdict, the court held that a rational jury could have found that the suspects knowingly possessed marijuana and aided and abetted each other’s possession. Taylor’s testimony, the court stated, indicated that he observed seven individuals load backpacks into a vehicle and run to the area where the suspects were later arrested. The suspects’ co-defendant Rangel testified that he and the suspects were members of a group of seven who each carried a backpack of marijuana and loaded it into a vehicle. In addition, Rodriguez testified that the suspects each confessed to possessing a backpack full of marijuana. The court then turned to the appeal of the fifth suspect, Elier Quinones-Muela. Elier contended that his conviction should be reversed, because the district court erred by failing, sua sponte, to hold a hearing on the voluntariness of his Miranda waiver and confession, despite his failure to request one, and by failing, sua sponte, to instruct the jury on the voluntariness of his waiver and confession. The court declined to do so, holding that the district court did not err in failing to hold a voluntariness hearing nor in failing to give a specific instruction regarding the voluntariness of Elier’s confession. Elier, the court noted, did not move before trial to suppress his confession; nor did he object to the introduction of his confession during trial; nor did he request at trial a hearing to determine the voluntariness of his Miranda waiver or confession. He contended, nevertheless, that the trial court had a duty to hold a hearing sua sponte, because the evidence clearly reflected a question of voluntariness. The court found that the evidence as a whole did not clearly raise a question before the judge of the voluntariness of Elier’s waiver or confession; thus, the trial court did not err by failing to hold a hearing sua sponte. Elier also contended that under 18 U.S.C. �3501(a), the district court erred in failing to instruct the jury that they were “permitted to disregard his statements if he did not knowingly and voluntarily waive his Miranda rights.” But the court found that Elier failed to show that the outcome of his trial would have been different had the instruction required by �3501(a) been given. Therefore, the court found that he did not show that the omission of such an instruction constituted plain error. OPINION:Jolly, J.; Jolly, Davis and Wiener, JJ.

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