*1 America, Appellee, followed, the contract United States of this does not render most, the circumstances here void. At v. may a contract have

may present Rios, Appellant. Elvia through appropriate action been voidable 03-1525, 03-1526, Nos. 03-1540. corpo- such as the aggrieved party, Appeals, United States Court No such action has been ration itself. Eighth Circuit. taken. 20, 2003.

Submitted: Oct. 3,May Filed: CONCLUSION Rehearing Rehearing En Banc case, Armstrongs In this tax ask this Denied June 2004 and June that a assignment court to hold 24, 2004.

Larry Armstrong’s annuity as contracts for a loan was void and thus not

collateral so, necessarily

taxable. To do we would eye

turn a to what the district court blind transactions,” “reality of the

termed the Armstrongs themselves have not

since

challenged legality assignment and, fact,

through any proceeding, other enjoyed the of using

have benefits

assignment as collateral for the loan. We permit Armstrongs

refuse to to collat-

erally a contract attack when have

neglected directly, to do so affirm thus

the district court. America,

UNITED STATES of

Appellee,

v. SERRANO-LOPEZ, Appellant.

Isidro America, Appellee,

United States Lopez-Urias,

Eleodoro also known Lole, Appellant. *3 NE, Monzon, Lincoln, argued, A.

Carlos appellant Serrano-Lopez. for NE, Bubak, Omaha, argued, Mark W. Lopez-Urias. for Jr., Bellevue, Smith, argued, E. Bryan NE, appellant for Rios. Stecher, argued,

Joe Asst. Attor- U.S. NE, Omaha, ney, appellee. *4 RILEY, SMITH, BEAM, and Before Judges. Circuit BEAM, Judge. Circuit jointly and con Defendants were tried possessing than victed more of mixture or kilograms five substance containing a detectable amount of cocaine to it with the intent distribute in violation 841(a)(1) 841(b)(1). §§ of 21 and U.S.C. appeals, asserting Each the dis defendant denying trict erred in their motions court1 trial on insuffi acquittal for new based evidence, give in to a “mere refusing cient in jury, instruction to the presence” calculating drug quantity improperly Rios in the involved offense. Defendant court’s2 denial appeals also district drugs to seized. suppress her motion We affirm.

I. BACKGROUND Rios, Serrano-Lopez, and Isidro Elvia traveling from Lopez-Urias were Eleodoro Omaha, Nebraska, on Inter- to California Trooper in a Maxima. state 80 Nissan Pa- Ayers of the Nebraska State Kenneth speeding for near stopped trol car driving. Rios Kearney, was Nebraska. braska, adopting report Camp, recommenda- Laurie United 1. The Honorable Smith Jaudzemis, Judge District of Ne- States District for the the Honorable Kathleen A. tion of Judge braska. the Dis- Magistrate United States Nebraska. trict of Camp, Laurie Smith Honorable Judge District of Ne- States District for the in front-passenger was Serrano-Lopez officers continued their search but in the found no Lopez-Urias Unper- seat. backseat. controlled substances. vehicle, suaded that to Ayers asked Rios sit Trooper Trooper Ayers retrieved a cordless drill patrol ques- he could ask her some car so equipped awith screwdriver bit and re- citation proceed pro- tions and with the moved the screws that secured mold- was coming cess. stated she Rios ing panel— above the ear’s left rear rocker California, Compton, traveling from to just the body panel below the left rear Omaha, Nebraska, cousin, visit Maria. passenger removing door. After passenger She identified the front-seat screws, Trooper Ayers see cello- and she Serrano-Lopez, stated phane packages pan- hidden the rocker stopped during trip Arizona el. these Believing packages contained get fuel. substances, controlled the officers arrested the occupants. Trooper Ayers drew his Ayers then Trooper approached the car sidearm, ordered the individuals Serrano-Lopez questions. and asked some ground, and handcuffed According them. did not speak English, so Trooper Ayers, the defendants did not Trooper Ayers Spanish used the limited *5 appear arrest, surprised the and no one Serrano-Lopez knew. he said was coming why asked they being were arrested. The California, Angeles, from Los and travel- car impounded. was Omaha, Nebraska, ing visit family to to member, they Pablo. He said had impounded, not Once the interior of the car dismantled, stopped along way. in Arizona the was and packages were re- trieved panel, from the rocker behind the Ayers Trooper then returned to pa- dashboard, kickplate behind just trol questioning car and resumed Rios. to the pedal left of the brake of the car. Among things, other Rios said she had left packages were not any- visible from day California before she was where the car until the car was disman- going in Omaha stay for about a week. Eighteen tled. packages were retrieved She she also said knew but and a of packages field test one of the didn’t know the backseat passenger. revealed of presence The offi- cocaine. weighed cers packages on certified Ayers Trooper warning issued a to Rios scale. weight pack- The combined all of for speeding. He then her asked for con- ages kilograms. was 5.94 packages Four sent to search the vehicle. She consented individually were also weighed. Theses occupants and the out were ordered of the packages weighed kilograms, .59 .54 kilo- insistence, car. At officer’s stood grams, kilograms, .59 kilograms. and .50 about twenty-five feet in front the car Core samples were then from taken those during meantime, the search. In the four packages and sent to the Nebraska Trooper Dan Covert of the Nebraska State State Patrol’s crime lab testing. Test- Patrol to help arrived search the car. ing revealed that samples core con- searched, When trunk Trooper was tained a detectable amount of cocaine. Ayers recognized could smell what he as The remaining packages were never indi- the distinct odor of methamphetamine. vidually weighed sampled. When passenger compartment was searched, the officers noticed fresh tool Lieutenant Dennis Leonard of the Ne- marks on the securing screws the dash- braska State Patrol Rios interviewed after board and box. glove According her arrest. to Lieutenant that, Leonard, had cause. The district court denied although probable she Rios said motion. belonged car to her Trooper Ayers the told it cousin, thought belonged she now trial, At testified Lieutenant Leonard said man someone else. She that, on experi- based his law enforcement her paid of Pica had four-hundred name ence, equal an amount of cocaine to the occupants to Omaha dollars drive of the amount substance seized from that, she ago, two weeks had done use, personal car is not indicative of but car different thing in another same And rather associated with distribution. driving she occupants. She said was an he testified that the street value of such had no passenger because he be approximately backseat amount cocaine would $130,000. she had no Celeste Laird the Nebraska driver’s license. She admitted Maria, Laboratory Patrol Criminalistics also Pica’s sister State named but said cousin testing of the done testified the results she named Maria and was where was Trooper Ayers the core sub- samples on going. four mitted. Ms. Laird testified that all also interviewed Lieutenant Leonard samples positive core tested for cocaine. his arrest. He did Lopez-Urias after testify, though, weight could not She to the Lieutenant Leonard en- speak English, so only packages because Holm interpreter Agent Randall listed — submitted, samples core and she Patrol. Border the United States testify to the contents at Lo- Holm testified trial to what Agent packages. did unsampled fourteen She Lopez-Urias said. said pez-Urias that, she testify past, had encoun- Serrano-Lopez because the two resembling packages the fourteen tered up going He said he was grown together. in- unsampled packages, and that in each *6 Polio, a man named El to Omaha visit stance, she controlled found contained He provide no for him. but could address substances. man first he did not know a said at that for after acquittals Defendants moved Pica, of a named and later said he knew The motions were government rested. Pica, him did know man named but offered further ev- denied. Defendants no personally. acquittals. moved for again idence Those motions were also denied. pos- were all indicted for Defendants more sessing with the intent distribute Jury then instructions were addressed. of a or sub- in kilograms than five mixture requested the court Defendants in 21 cocaine of containing jury setting stance violation forth clude instruction 841(a)(1) 841(b)(1). §§ Defen- theory presence.” of U.S.C. defense—“mere refused, gov suppress sustaining dants moved to the evidence court district automobile, objection in existing in of found the search ernment’s conveyed involuntary and the sub claiming adequately the consent was structions by of the defendants’ defense.3 unsupported the search was otherwise stance assigns only combina- requested omission as error in Serrano-Lopez also an instruc- its regarding argument the refusal Eighth In- tion with his tion modeled on Circuit Model He offers mere-presence of of the instruction. struction Statement One Defendant 2.15: why argument opening as to Model no in his brief Trial. Manual Multi-Defendant of jury of on the use Jury District the failure instruct Criminal Instructions for (West 2003). was codefendant statements erroneous Eighth Circuit Courts support position. of his cites no case law in district refused to include this instruc- court regard Fed. we issue as abandoned. charge, and So tion in its final 634 States, (8th jury. 540, to the

The case was submitted 270 F.3d 544 Cir. 2001) Rios, Lopez-Urias, and Serra- Baker, Defendants (quoting United States v. 98 guilty no-Lopez (8th Cir.1996) (further 330, were found crime F.3d 338 quota entered, verdict charged. omitted)). After the tion government’s “[T]he ‘evi- all their defendants renewed motions for dence every ” need not exclude reasonable and, alternatively, acquittal moved for new hypothesis of innocence.’ United States trials. Those motions denied. Ser- Butler, (8th 1001, 1004 Cir. to 121 rano-Lopez was sentenced 2001) months Jolivet, (quoting United States v. 224 by of imprisonment, years followed five (8th Cir.2000) 902, (further F.3d 907 quota- supervised release. Rios was sentenced to omitted)). tion imprisonment, 120 months of followed Evidentiary sufficiency challenges years five release. supervised And Lo- taking the form of new-trial motions are pez-Urias to 135 was sentenced months of evaluated differently. “The court [district] imprisonment, years followed five only will set aside the verdict if the evi supervised release. weighs enough dence heavily against the Rios, Lopez-Urias, and Serrano-Lopez verdict miscarriage justice that a may appeal. have occurred. will not We reverse the district court’s absent a decision clear and II. DISCUSSION manifest abuse of discretion.” United Sufficiency A. of the Evidence (8th States v. Rodriguez, F.2d 417 We review the denial of a motion Cir.1987). judgment acquittal de novo. We For the to find the defen light evaluate the evidence most guilty, dants government prove government favorable to the and draw all beyond a doubt reasonable that each de reasonable its favor. inferences “We (1) (2) cocaine, fendant possessed only reverse if no reasonable possessed what he was a guilty beyond have found the controlled defendant (3) substance, and intended to reasonable doubt.” United States v. distribute Frank, Cir.2004) substance possessed. U.S.C. 841(a)(1).4 omitted). § (quotation can This Possession be actual standard is *7 quite strict; lightly not constructive. Ojeda, “we will overturn United States v. 23 (8th Cir.1994). jury’s Cruz, 1473, the F.3d verdict.” United States v. 1475 Actual “ Cir.2002). 692, (8th possession 285 F.3d direct, 697 ‘If is knowing, the the rationally physical evidence supports two conflict a thing. control over “[Construc ing hypotheses, reviewing possession tive the court will requires knowledge of an ” Ortega object,5 disturb the conviction.’ it, v. the ability control to and the 28(a)(9)(A); Eldeeb, R.App. P. United States v. 5. The knowledge contemplated by the statute 841, Cir.1994). (8th 20 F.3d 843 possession is two-fold in a constructive case. knowledge defendant must have of both 4. We drug quantity note that "must often be object's presence the illegal and its character. treated as an the element of offense.” United Ability knowledge to control without of the 766, (8th Sheppard, States v. F.3d 219 767 object's presence posses- is not constructive Cir.2000); Lee, accord States v. Nos. sion. possession Nor is illegal constructive 03-1324, 03-1376, (8th WL 2003 23094970 without knowledge possessed the object that Dec.31, 2003) Cir. (describing quantity as the is a controlled substance. fourth citing element Shep- of the offense and ). This, however, pard is such a case. See post II.C.

635 Lee, they it 356 since left California. And traveled to United States v. intent do so.” Cir.2003). nonstop they until from California were Kearney, stopped Nebraska. This is near quantity drugs, of stand large A which a reason- sufficient evidence from third alone, evidence of the ing is sufficient infer able the offense—intent to distrib element of the Lopez-Urias ability had to control the Also, 1476. the Ojeda, 23 F.3d at ute. It likely that other vehicle. seems someone to an intent to distrib used show evidence given joint than Rios the na- drove. And case, can, possession in a constructive ute of the trip, occupants likely ture the direct- to establish that individual also serve movements, solely ed the car’s either an item. intended to exercise control over jointly. Lee, 831. This case is one for, as possession, govern constructive issue, it fighting as in most is concedes, no evidence of ment there is cases, possession constructive is whether then, the possession. In this case actual drugs'-were knew the defendants quantity of involved serves large drugs drugs car. The large quantity involved to of both the intent sufficient evidence knowledge. is evidence of defendants’ to con .and the intent exercise distribute if drugs Even were not owned Likewise, do not trol. the defendants defendants, unlikely it is owner if had contra claim that even known $130,000 place approximately would worth car, they did not band was concealed people of cocaine in the hands of who do Thus, it substance. know was a controlled not even know it is Maryland there. Cf. are to whether sufficient we left evaluate — U.S. -, -, Pringle, S.Ct. remaining re exists as to the evidence (“The (2003) 801, 157 quantity L.Ed.2d possession. quirements of constructive —(cid:127) drugs ... in the car indicated the likeli- object’s and the knowledge presence of the drug dealing, enterprise hood of ability object. to control unlikely admit which a dealer would be potential conclude the evidence person We an innocent him.”).6 First, evi against sufficient. we find sufficient furnish evidence Rios, the fact Serrano- dence control Ayers also Trooper testified vehi Lopez, Lopez-Urias securing glove the dash and the screws nonstop cle the vehicle had traveled them, tool marks on indicat box fresh the ve driving from California. Rios was recently. ing the dash had been removed thus, her stop; hicle at time support an inference Signs tampering (and ability control the vehicle thus car occupant drugs) undisputable. Ortega, 270 F.3d Ortega, were hidden therein. Although person’s pres mere at *8 F.3d at 546. in is containing ence contraband a vehicle guilty him the of Additional evidence of defendants’ enough not to find of fense, knowledge can came from their own state- other evidence presence and Here, following the ments and their demeanor give rise to an inference of control. First, in each had a differ- appellant had the vehicle arrest. the defendants all been experience training. With evidence government points to fact the and no 6. The also any had ever smelled methamphetamine. We find defendants trunk smelled before, car- methamphetamine this evidence largely unpersuasive given the this factor is identify weight regard to Ayers only defendants’ Trooper fact was able to ries little through knowledge. (inaccurately) years of the smell traveling to infer reasonably ent reason for Omaha. Rios that each did so because (who going she to visit Maria at they drugs said was were in car and want- cousin, first she claimed Rios’s by ed to giving avoid detection the officer sister), Pica’s who she later claimed was story. a believable Serrano-Lopez going said he was to visit cognizant We are of the inferential na- Pablo, and said he was Lopez-Urias going ture of proof knowledge. But a Polio, provide to visit El but could no knowledge generally defendant’s is diffi- Though for him. these destina- address prove way. cult to in guard other We necessarily contradictory— are not tions against the use unreasonable inferences could traveling each defendant have been review, through our standard of but we do a different destination Omaha—the require that the inferences themselves jury just easily could conclude be shown by evidentiary standard ap- each a making defendants were not-too- plicable to of guilt. the determination To to explain believable effort their travels. jury do so would take from the the ardu- Second, Trooper Ayers testified that the ous it assigned. task that is We let the appear by surprised defendants did jury guilt decide and on appellate review discovery drugs or of the the arrest and we indulge all inferences that could rea- why they did not were question being sonably have Indulging been made. these (lack at arrested. See id. 545—46 of sur- all considering inferences and of the evi- prise concerning drugs concealed indicates totality, dence its we are unable to knowledge). jury conclude that no reasonable could The defendants’ inconsistent accounts of have beyond found the guilty defendants trip finding support also knowl doubt, reasonable and we cannot conclude edge. example, For Serrano-Lopez made clearly district court and manifestly a statement which conflicted with informa abused denying its discretion in defen- provided Rios. by tion de dants’ new-trial Ojeda, motions. See Arizona, through nied traveling while Rios (defendant’s F.3d at 1476 n. 3 purported & claimed had group through traveled explanation traveling that he was to visit a Arizona.7 Rios further contradicted her provide relative for whom he could no concerning identity person self address, “extended car trip large she was Omaha going only to see. And quantity with a high street value” reluctantly, arrest, her after did she admit were knowledge factors indicative of being paid Lopez- to drive the car Pica. verdict). sufficiently supported jury’s only Urias admitted he knew of Pica after knowledge. first such denied Eval B. Mere-Presence Instruction uating these light inaccuracies most A criminal defendant is enti government favorable to the and drawing tled theory-of-defense to a all instruction govern reasonable inferences in favor, timely correctly is requested, ment’s we conclude a reasonable states the law, supported could conclude the defendants evidence. concocting Claxton, stories inconsistent with those States (8th Cir.2002). of their compeers. And the *9 To Serrano-Lopez attempts presented the jury extent to the and its assessment of the explain away any reasonable inferences that testifying credibility ground officer's not a is could be drawn from this and other conduct appellate for review. United States v. McCar- by pointing language to the barrier between 998, (8th Cir.2001). thy, 244 F.3d 1001 Trooper Ayers, him and that evidence was

637 guilty, jury dis- each defendant the indicated court has considerable The district it and each offense involved framing in the instructions defendant’s cretion actually kilograms if instruction more than five of cocaine. And is sufficient the court, adequately trial the of given by adopting findings the court the district own, the of correctly report covers the substance as its found at presentence the We requested sentencing instruction. determine that the amount attributable to looking of instructions adequacy the of was more than five each the defendants as a whole and kilograms, kilograms. at the instructions less but than fifteen the context of trial. challenge sufficiency of Defendants the cita- (quotation at marks and Id. 423-24 drug regarding quantity. the evidence omitted). tions trial The evidence adduced at showed: timely requested Each defendant eighteen packages four of seized were the correctly mere-presence instruction testing; sent for the com- sampled and v. Dun law. See United States stated the these was weight packages of four bined (8th Cir.1994). 823, 28 826 lap, F.3d kilograms, positive 2.2 and each tested essence, was, in that the theory of defense cocaine; not remaining packages carry had its burden government failed tested; sampled the com- or otherwise posses on two elements of constructive all 5.94 weight packages bined of was Thus, the knowledge and control. all same kilograms; packages sion— giving mere-presence instruction of general appearance. in duplicated the

this would have case outlining the elements structions Lopez-Urias Defendants Rios offense, possession, and the definition of to the contend that the evidence submitted v. proof. United States the burden it jury was insufficient because would (8th Cir.), Jordan, 182, 185-86 893 jury to any reasonable determine enable 902, grounds, vacated on other 496 U.S. beyond a reasonable doubt. quantity (1990) 2581, 110 L.Ed.2d 262 S.Ct. was Serrano-Lopez contends this error (finding mere-presence instruction was thus, sentencing; challenge one of construc supported by evidence and in terms of clear error. Rios’s couched no tive-possession instruction covered the hinge on Lopez-Urias’s arguments Claxton, 276 F.3d presence); tion of mere prov had to drug quantity be whether the Jordan). con (following 423-24 We at beyond a reasonable doubt. jury en to did not abuse clude the district court points to the fact five support, As Rios framing it has in the instruc discretion quantity in the kilograms charged was the tions. argues Ap Lopez-Urias indictment. 530 U.S. prendi Jersey, New Drug Quantity

C. (2000), re 147 L.Ed.2d S.Ct. case, be determined quires quantity verdict that the In defendant’s each it “has the jury case where jury required form submitted mini increasing cocaine effect real terms quantity determine form, punishment that could jury mum or maximum to the According involved. (Br. (emphasis if omit imposed.” be at only quantity question to answer the ted)). nor the fact that Apprendi guilty defendant Neither found the charged the amount intent to the indictment possessing with the distribute that we find the requires containing a detecta- involved mixture or substance finding under the standard Along evidence sufficient ble amount of cocaine. *10 638 proof-beyond-a-reason- of apply twenty years

review we amount cocaine is when “death bodily injury able-doubt determinations. neither or serious re from the sults use of such substance” and is to a a defendant sentenced When prior the defendant has no convictions statutory term that not exceed the does felony drug 21 offenses. U.S.C. for an maximum indeterminate allowed 841(b)(1)(C). § Each defendant was sen involved, drug jury’s of amount twenty years.9 tenced to less than There drug quantity practical- determination of is fore, Apprendi require does not that the ly irrelevant. our cases estab- As have quantity determine the a drug beyond lished, presented even when a is not reasonable doubt. We therefore review im- quantity question, sentence sentencing the district court’s calculation statutory al- posed below the maximum issue, relevant the jury’s. not by jury’s prop- lowed determination is Contrary argument, to Rios’s the fact er, long sentencing so as the court was drug quantity that a was included presented sup- with sufficient evidence to change analysis. indictment does not our port drug its calculation. United v. States statute, indictment, It is the not the (8th Caldwell, Cir.2001) 532, 255 F.3d 533 sets the elements of the offense that must curiam); Ortiz, (per States v. 236 proven beyond be a reasonable As (8th doubt. 420, Cir.2001); 422 F.3d United States explained, drug we quantity have not is 926, Aguayo-Delgado, v. 220 F.3d 928-34 quantity such an element (8th unless can Cir.2000); accord United v. States imposition lead to does of a Johnston, (8th sen- 617, 353 F.3d 624-26 Cir. 2003) greater tence than applica- the otherwise (holding that sentencing court’s statutory Here, ble maximum. the sen- drug-quantity calculation can exceed statutory tence was within the maximum jury’s drug-quantity -by over calculation'— cocaine, for an amount of indeterminate so fifty long times—so as the im sentence drug quantity did have to be in- posed does not exceed the maximum al proven cluded in the indictment to the by jury’s calculation and the lowed jury beyond a reasonable doubt under Ap- sentencing sup court’s calculation was prendi The fact it evidence). was included in the ported sufficient It follows indictment irrelevant to our sufficiency- that even if quantity the evidence of inquiry. of-the-evidence United States jury’s insufficient for of a purposes quanti Cf. 905, (8th Mora-Higuera, 269 F.3d 911 calculation,8 ty pur sufficient evidence for Cir.2001), denied, 828, cert. 537 U.S. poses justify would sen sentencing 123, (2002). S.Ct. 154 L.Ed.2d 40 imposed, tence if the sentence does maximum statutory regardless exceed A drug-quantity district court’s quantity. clearly calculation will be upheld unless The statutory for possession Quintana, maximum erroneous. United States v. (8th Cir.2003). with intent to distribute indeterminate Serrano- express We opinion on drug quantity no whether the evi- 9. The fact determination sufficiently dence in support this case would subjected mandatory to a defendants min- quantity determination that must be made years imprisonment, imum ten see 21 jury. sampling use But the 841(b)(1)(A), § U.S.C. Apprendi does not make quantity upheld has been as a calculation applicable. Aguayo-Delgado, 220 F.3d at proving sufficient means of the elements of 933-34. the offense under the circumstances one Bowersox, See. case. Gibson v. 1996). Cir.

639 parties as to the insufficient the district court what claims evidence was Lopez the error; First, he the evi- or did for clear we review respects. claims said the in two weight finding all the the Fourth the district court’s that concerning dence Second, claims violated he Amendment has been de drugs was insufficient. sufficiently Bloomfield, v. weights if were novo.” United States 40 even the that (8th Cir.1994) (en banc). accurate, evidence F.3d there was insufficient court, in drugs adopting report district concerning the kind of contained The and judge, unsampled packages. magistrate recommendation of the fourteen voluntarily con- concluded that Rios testimony en- that officer’s find We to the search and that the officers sented judge weights conclude the abled developed probable cause for the warrant- Troop- given by the officer were accurate. as they less vehicular search soon certi- that the scale was Ayers er testified opened trunk and smelled metham- testified that such and Ms. Laird fied fact, phetamine. see no clear error of We provided from a purchased are list scales nor error of law. We affirm for the Patrol the Ne- Nebraska State to the by the district court. reasons stated See Laboratory. braska Criminalistics 47B(1) (4). R. & 8th Cir. established, sufficiently the weight With pack- dispute sampled no there is III. CONCLUSION cocaine. kilograms 2.2 ages contained affirm. We remaining question is whether kilo- packages unsampled fourteen —3.7 RILEY, in Judge, concurring Circuit cocaine. grams of material —contained dissenting part. in part and in many packages a few of found Sampling majority I in affirming concur with held area has been sufficient the same (Rios) of Elvia Rios and the convictions packages that all contained establish Lopez-Uria (Lopez-Uria). I Eleodoro controlled substance. See same I separately, conclude Isidro write because Brett, States Serrano-Lopez (Serrano-Lopez) was enti- Cir.1989) out sampling of six (holding presence” to have a “mere instruction tled packages was suffi- eighty-two similar jury. to the submitted cient). wrapped These packages were car, they in similarly, all found Theory Defense A. Mere Presence at trial. they were before court from which theory This is sufficient evidence majority opinion believes the aby preponderance court conclude all defendants was focused of defense for all contained pos- of the evidence the two of constructive on elements hold that the dis- Stvpra We therefore session-knowledge cocaine. and control. at clearly concluding did err in trict court his Serrano-Lopez focused defense five over defendant’s offense involved solely alleged presence. each his mere theory on kilograms trial, of cocaine. Consistently throughout Serrano-Lo- argued was arrested pez specifically Suppress Motion Denial

D. charged presence on his mere based vehicle, proximity to con- his mere district Rios contends vehicle, sup drugs discovered denying her motion to cealed court erred vehicle’s oc- In mere association with the from the car. press the retrieved argu- closing During sup cupants owner. reviewing the of motion denial ment, argued to Serrano-Lopez’s counsel findings of press, the factual “[w]e review *12 “[mjere jury presence is not evi- presence at a place where contraband is possession.” Serrano-Lopez’s dence of may found may purely be coinci- counsel also tendered to the court a pro- dental. The attendant circumstances instruction, posed jury which correctly tell the tale-and the culpability of a de- physical proximity stated the law: “Mere presence fendant’s hinges upon whether is insufficient to contraband convict a fairly circumstances imply participa- person possession with intent to distrib- tory In words, involvement. other a ute.” The district court denied the re- defendant’s presence” “mere argument quested language, noting the court’s in- will fail situations where the “mere” is defining “possession struction with intent lacking. is the circuit’s distribute” model Echeverri, 675, States v. 982 F.2d instruction, and the model instruction is (1st Cir.1993) (internal 678 citation omit- adequate. Jury Model Criminal Instruc- ted). Thus, dispositive question is § tion Eighth of the Circuit 6.21.841A. whether the government’s against case Serrano-Lopez rested upon pres- mere B. Mere Presence Instruction ence, mere proximity, or mere association. In this circuit a defendant is entitled to theory defense, instruction on his if I government’s conclude the case there support is evidence to the instruc- against Serrano-Lopez rested almost ex- tion, and if the instruction contains a cor- clusively on Serrano-Lopez’s presence in rect statement of the law. United States seat; front passenger proximity Gonzales, 1363, 90 F.3d Cir. drugs dash, concealed inside the rocker 1996); Crow, Long United States v. 37 and panels; kickers his association with (8th Cir.1994). 1319, We review the occupants; vehicle’s and his admission de question novo the of whether sufficient that he knew who owned the vehicle. The evidence existed to submit an affirmative government’s case particular- adduced no theory defense, but we review for an ized evidence that Serrano-Lopez knew abuse of discretion a district court’s refusal drugs were concealed inside the vehicle or to give “theory of defense” instruction. that he exercised or intended to exercise Id.; Davis, United States v. dominion or control drugs. over the In its (8th Cir.1996). statement, opening government never propriety giving pres- “mere discussed Serrano-Lopez other than iden- ence” proximity” or “mere instruction de- tifying him as the front seat passenger. In pends government on what proved summation, its government only ar- about the alleged defendant’s involvement gued Serrano-Lopez inwas pas- front in the crime. The First Circuit has noted: senger position; he knew who owned the car, and presence”

The “mere the name gave defense corresponded has be- come, with time, at one and the name on registration; the same both and he license, the last haven of had a the innocent driver’s and the from which refuge last could reasonably scoundrel. Although infer Serrano-Lopez at courts have it applicable point found some certain must have driven the car dur- situations, presence ing the mere trip defense from Angeles Los to Nebras- not so ubiquitous as to envelop every ka. After defense counsel delivered their drug-trafficking case in which gov- closing arguments, with Serrano-Lopez’s ernment lacks direct evidence of a de- counsel arguing presence, mere gov- complicity. fendant’s The defendant’s ernment in rebuttal never addressed Ser- from his admission that he mentioned nor even rano-Lopez’s defense name of the vehicle’s owner cou- Serrano-Lopez. inconsistent pled Serrano-Lopez’s slim evi- transcripts reflect The trial government’s brief ex- statements. In February Serrano-Lopez. against dence sufficiency pends three sentences on the Ayers stopped vehicle for Trooper Serrano-Lopez’s supporting evidence in80 central Ne- speeding on Interstate *13 conviction: seated in the Serrano-Lopez was braska. Trooper Ay- seat. After passenger

front Ayers stated that Serrano-Lo- Trooper Rios, driver, trooper the spoke to the ers pez only one who knew the was speak Serrano-Lopez. to to attempted the owner of car. name of Serrano- Ayers Serrano-Lopez Trooper asked Lopez the only was also defendant other (1) whether Serrano- questions: series of an operator’s than Rios to have license. and knew the name of driver Lopez Thus, reasonable could infer not (2) owner; of the vehicle’s where the name only and Rios drove Serrano-Lopez departed from and des- had its the vehicle and controlled the Nissan and therefore (3) tination; stopped the vehicle whether cocaine, had but that possession (4) Arizona; Serrano-Lopez in whether were hidden there. (5) identification; why Serra- had evidentiary The of whether these issue traveling to Omaha. no-Lopez was are inferences deducible from reasonable trial, Trooper Ayers testified At Serra- or unreasonable inferences evidence Troop- spoke English, little no-Lopez bridge gaps government’s used to conceded he did not understand Ayers er Regard- into proof polemics. descends us him, told Serrano-Lopez everything less, presented de mini- government every- Serrano-Lopez did not understand evidence, argument, mus and even less trooper saying. Trooper thing the was theory Serrano-Lopez supporting its Serrano-Lopez him Ayers testified told control, knew of and exercised or intended “Sylvia”; name was vehicle the driver’s control, to over the concealed exercise “Gonzalo”; the name was four oc- owner’s drugs. Los traveling Angeles from cupants Omaha; had not in stopped vehicle contends its government The also Arizona; traveling to and he Omaha was Serrano-Lopez brief made incon- Trooper Pablo. visit a relative named Ayers, but Trooper sistent statement Serrano-Lopez pro- Ayers also testified why or explain fails how Serrano-Lo- operator’s a valid California license duced coming to pez’s statement about alleged later, and, arrested an hour when Serra- his relative named Pablo Omaha to visit or surprised did not act ask the no-Lopez government The must was inconsistent. Testimony for his arrest. from reason the in- reasonably can infer presume we law enforcement witnesses estab- other government presented consistency. third Serrano-Lopez person was the lished changed or Serrano-Lopez no re- evidence California, picked that he knew the up suppression At the canted this statement. at an passengers, backseat and he worked Serrano-Lopez’s pointed counsel hearing, International House of Pancakes. troop- Trooper Ayers out to that when during the questioned Serrano-Lopez er government contends its appeal,

On not, as Trooper he stop, Ayers traffic against Serrano-Lopez is a mere case believed, Spanish case, Serrano-Lopez rea- asked presence arguing a traveling to Oma- why occupants were knowledge sonably Serrano-Lopez’s infer ha, instruction, Serrano-Lopez had instead asked session” but Fifth Circuit held traveling “possession” to Omaha. instruction why was obviated the need separate presence” for a “mere in record establishes driver’s first struction, “possession” requires because “Elvia,” rhymes name was which finding of intent to exercise dominion “Sylvia,” Trooper Ayers the name believed control over contraband. United States stated; Serrano-Lopez regis- vehicle’s Prudhome, 149-50 Cir. tration was issued to an individual with the 1994). “Gonzalo”; surname the vehicle had de- The Second also Circuit held a “mere parted Angeles from the Los area destined presence” instruction was be- unnecessary Omaha; and, government for all the cause the definitional instruction of “actual knew, traveling to possession” required constructive Omaha to visit a relative named Pablo. *14 jury to find the defendant to intended jury heard no that The evidence Serrano- exercise or dominion control over con- Lopez drugs were secreted inside traband “possession and added vehicle, that contraband was found on be by established accident or mistake.’’ that person, payment his he had received United Vasquez, States v. making trip, used or (2d Cir.1996) added). (emphasis jury The charged previously had been with drug a Vasquez instructions in further instructed: offense, he, or that during at time person knowingly [T]he who’s in posses- journey, drove the vehicle. Serrano-Lo- sion, possession voluntarily occurs pez’s presence theory mere of defense has and intentionally and not because of mis- adequate an foundation the evidence. take or simply accident. The defendant inquiry The final jury is whether the may not be possession convicted a instructions, as to the jury, submitted ade- firearm if he did not intend it. possess to quately correctly and covered the sub- Id. requested stance of the instruction. See cases, In relatively few such as this Manning, States v. one, government presents where the (8th Cir.1980) district (reversing court and exceptionally evidentiary slim case of con- noting the given instructions did not cover possession structive against one or more defense). the substance of the The district defendants, Eighth Circuit model Serrano-Lopez’s court denied requested “possession with intent to distribute” and presence” language, “mere opting instead instructions, “possession” model standing jury only to instruct on “possession alone, do not adequately convey a “mere intent “possession,” with to and distribute” presence” theory defense de- which a two using model instructions. See Model fendant is justly entitled. Unlike Jury Eighth Criminal Instructions of Cir- aiding model abetting and and con- model §§ cuit 6.21.841A & From 8.02. the rec- spiracy instructions, agreement the model ord, appears it the district court did not “possession with intent in- distribute” consider submitting separate instruction struction no express contains language presence.” on “mere stating “merely being present at the At least two of our sister circuits have event, scene of an merely or acting addressed the issue of a separate whether way same or merely associating as others presence” “mere instruction is needed others, with prove does not that a person” addition to a model instruction defining had knowledge of the contraband in- n “possession.” Reviewing a longer and tended to it. possess Compare Model detailed, worded, similarly more but “pos- Criminal Jury Instructions for the Eighth trial, 5.06B, force 5.01, day §§ does not have the 6.21.841A. §§ with Circuit jury by effect of a instruction delivered model instruc- “possession” Nor does conforming in- cannot court. The absence of jurors possession inform tion omission, may jury, struction tell the its or mistake.” “accident be established are Jury arguments Instruc- that defense counsel’s Criminal Model Compare 8.02, § the law. Eight tions for the Circuit F.3d at 577.

Vasquez, 82 transcript The trial reveals district jury deliberations, received a note from the stat- the Serrano- court During its two have a verdict on “pos- ing, model “We reached jury grappled with the Lopez are a deadlock on “pos- the defendants. We intent distribute” session with steps?” two. What are the next jury submitted the other session” instructions. counsel, court, approval all dis- With the questions to the district four written verdicts, concept jury’s received two legal trict court concerned the three of which asked, Urias-Lopez guilty and Rios jury finding first both of “possession.” with intent to deliver five possession, given possession constructive “Would Next, more contain- element, kilograms of a substance be relevant?” second Later, jury returned a asked, ing cocaine. possession “Must it actual be against Thirty- guilty verdict all essential satisfy elements?” asked, acquittal the fourth de- later, against is verdict of “What five minutes *15 cannot, confidence, I fendant. with of ‘Controlled Substance’?” definition [the] was not substan- of ‘Domin- conclude definition [the] and “What by tially the court’s refusal to replied prejudiced ion’?” The district court on jury presence. mere advising the instruct jury’s questions, first two relevant, and that all the instructions were I reverse Serrano- Consequently, would all elements could be satisfied the essential case remand his for Lopez’s conviction and possession finding the defendant’s presence trial a mere a new court declined The district constructive. instruction. the terms “controlled substance” to define jury. Given and “dominion” understanding difficulty in

jury’s patent key concepts critical applying with intent “possession in the model

terms instruc- “possession” to distribute” Myron GARRETT, behalf of Annie on tions, pres- hindsight a “mere indicates MOORE, Plaintiff-Appellant, have as- probably would ence” instruction jury. sisted BARNHART, Anne B. Commission Jo provide “A court’s refusal district Security er, Administra Social reversal instruction warrants requested tion, Defendant-Appellee. prejudices the defen- only if the refusal No. 03-2081. Davis, 237 F.3d States v. dant.” United Cir.2001). argued could be It Appeals, States Court a mere give court’s refusal to the district Eighth Circuit. presence prejudice Ser- instruction did 19, 2003. Submitted: Nov. per- counsel was rano-Lopez, because his 4, 2004. May Filed: An theory. argue mitted to defense counsel, if repeated oral statement even a two- during course of

several times