Page 33 - TPA Journal January February 2025

directed acquittal. That means we review his suf- First, there is the person whom the panel majority
ficiency challenge de novo, considering the evi- referred to only cursorily as “another passenger in
dence and all reasonable inferences in the light the vehicle.” She is Karina Castro-Hernandez, an
most favorable to the verdict, to determine adult female who crossed the border with the
whether any rational jury could have found the defendants, accompanied by her six-year-old
essential elements beyond a reasonable doubt. daughter. The defendants aver that Castro could
Because Moncada did call a witness before failing have given testimony favorable to them and that
to renew his motion for acquittal, we review his the government wrongly removed her from the
sufficiency issue under a more demanding stan- U.S., thus making her unavailable. She is Karina
dard: To prevail on appeal, he must show that the Castro-Hernandez, an adult female who crossed
record is “devoid of evidence pointing to guilt or the border with the defendants, accompanied by
if the evidence is so tenuous that a conviction is her six-year-old daughter. The defendants aver
shocking.” that Castro could have given testimony favorable
to them and that the government wrongly removed
The panel majority summarized, as follows, its her from the U.S., thus making her unavailable.
finding of insufficient evidence:
Second, there is additional evidence, heard by the
Based on the available evidence, the jury could jury, that undercuts the defendants’ claim that they
not reasonably conclude Campos-Ayala or were only hitchhikers who innocently flagged a
Moncada-De La Cruz possessed the marihuana ride with what the panel majority called a “ran-
with the intent to distribute it. Moncada-De La dom” stranger and benignly became involved with
Cruz’s statement that he rearranged the bundles, a driver who was transporting contraband with
while showing more than mere presence, does not intent to distribute. That additional evidence,
establish an adequate nexus sufficient to enable a heard by the jury, involves, inter alia, a mysteri-
reasonable jury to find possession. ous phone call and the fact that one defendant pos-
sessed not one phone, but two.
Campos-Ayala’s statements that he “just helped”
and “understood” he was in possession after Agent In his opening panel brief, filed over two years
Kettani explained the charges to him are similarly ago, Campos skirted the details by stating only the
insufficient for a reasonable jury to find he pos- following, in regard to the initial encounter with
sessed the marijuana. the transporting vehicle:

By so reasoning, the panel confined its factual [The defendants] crossed illegally . . . into
observations to the actions of the defendants— Presidio, Texas . . . accompanied by [Castro and
who were the two male passengers—inside and her daughter]. All four of them hoped to travel to
immediately outside the car crammed with mari- Odessa, Texas. They spent the evening hiding
huana. But that is not all the pertinent evidence under a bridge near the border. The next day, they
that the jury heard that well could have influenced flagged down a car driven by seventeen-year-old
its verdict and could explain how that verdict was Jose Ramos. Ramos picked them up and drove
reached. That additional evidence centers on two them to Van Horn, Texas.
groups of facts that were presented at trial. First,
we need to consider the involvement of a female Moncada gave a similar account in his opening
passenger who was not charged. Second, a fair panel brief, referring to the travelers’ “good for-
evaluation of sufficiency requires consideration of tune of catching a ride with the young man” by
all the facts leading up to the defendants’ getting “the flagging down of the car.” “[T]hey only
into the subject vehicle in the first place. sought to journey into the United States and took

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