UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID VALADEZ-GALLEGOS, Defendant-Appellant.
No. 98-2017
United States Court of Appeals, Tenth Circuit
DEC 17 1998
SEYMOUR, PORFILIO and BRORBY, Circuit Judges
PUBLISH; Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-97-84-2-JC); PATRICK FISHER Clerk
Todd B. Hotchkiss of Frechette & Associates, Albuquerque, New Mexico, (Peter J. Giovannini, Las Cruces, New Mexico, on the briefs), for Defendant-Appellant.
Before SEYMOUR, PORFILIO and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
Defendant-Appellant David Valadez-Gallegos appeals his jury conviction
FACTUAL BACKGROUND
Around midnight on January 17, 1997, New Mexico State Police Officer Urbie Johnston stopped a vehicle after radar showed it going substantially slower than the speed limit, and weaving and straddling the white shoulder line. The vehicle – a late 1980‘s model white Chevy pickup with a camper shell – contained the driver, Horacio Marquez-Munoz, and a front cab passenger, Mr. Valadez-Gallegos. On request, Mr. Marquez-Munoz produced his license and registration, showing the vehicle registered to Jose Vasquez of Modesto, California. During his conversation with Officer Johnston, Mr. Marquez-Munoz seemed very preoccupied, and displayed a shaky voice and trembling hands. He advised Officer Johnston he was going to Modesto, California.
New Mexico State Police Officer Landis Hartranft and United States Border Patrol Agent Steve Rose arrived at the scene while Officer Johnston was questioning Mr. Valadez-Gallegos. Agent Rose assisted in translating. Mr. Valadez-Gallegos reiterated he was heading to Modesto from El Paso, and again explained he: (a) did not know the driver‘s name, but he had known him for three or four months; (b) did not know who owned the vehicle, but said it belonged to a friend of the driver; and (c) did not know the name of the driver‘s aunt, but he stayed at her house in El Paso.
Both Mr. Valadez-Gallegos and Mr. Marquez-Munoz granted permission for a search of the truck. Inside the truck‘s cab, officers found a roll of black,
During the search, Officer Johnston lifted the camper door and immediately detected an overwhelming odor of fabric softener. Examination of the camper showed only a sleeping bag, pillow, large blanket, suitcase, and “odds and ends.” Officer Johnston next deployed his narcotics dog, Nero, who “reacted” to the camper shell and, when directed inside, stuck his nose to the ceiling and its light. Officer Johnston removed the light and inserted a drill bit, producing a white piece of cloth smelling of fabric softener. Because of the presence of fabric softener, Officer Johnston decided to investigate further. However, because of the severe cold and wind, the officers removed the vehicle and its occupants to a nearby border patrol station for everyone‘s safety.
On re-examination of the camper, it appeared a hidden compartment existed in the ceiling, with black sticky tape, similar to that previously found in the cab, stuck along the ceiling and seams where the roof and sides meet. The screws also
Further inspection of the cab revealed a road map of the United States marked with annotations for time and distances between locations, and a lipstick smudge. Although no annotation appeared near El Paso, some of the circled locations on the map included Needles, California; Tucumcari, New Mexico; and Amarillo, Texas – all high narcotic interdiction areas. The cab contained no guns, knives, beepers, cell phones, or large amounts of cash – items commonly associated with drug trafficking. The cab emitted no odor of fabric softener sheets, and until removal of the camper ceiling, they emitted no odor outside the shell.
Mr. Valadez-Gallegos acknowledged he and Mr. Marquez-Munoz received the traffic citation near Tucumcari but said they drove a northern route because of bad weather to the south. However, the officers noted the weather to the south had been no worse than that in the northern part of the state. When Agent Cordova questioned Mr. Valadez-Gallegos about the $200 the officers seized from him, Mr. Valadez-Gallegos explained he left California with $600, but in the two days of travel, spent $400 on gas and food.
Mr. Valadez-Gallegos said they made no significant stops nor did any sight-
According to Mr. Valadez-Gallegos, the aunt traveled in the camper. However, the camper contained no women‘s clothing or articles. When advised the speeding citation showed no other person accompanied them, Mr. Valadez-Gallegos recanted, stating Mr. Marquez-Munoz told him to say the aunt traveled with them to El Paso. Later, on being told of Mr. Valadez-Gallegos’ statement, Mr. Marquez-Munoz appeared angry, denied he gave those instructions, and wanted to confront Mr. Valadez-Gallegos.
The next interview occurred at the task force headquarters in Deming, New Mexico. While Drug Enforcement Administration Agent Luis Medina took biographical information from Mr. Valadez-Gallegos and Mr. Marquez-Munoz, Agent Richard Sanders advised them that some of the substance field tested positive for heroin. On hearing this, Mr. Marquez-Munoz immediately turned to Mr. Valadez-Gallegos and, in Spanish, stated “I didn‘t know this was heroin.” Mr. Valadez-Gallegos did not reply.
Agent Cordova also interviewed the driver, Mr. Marquez-Munoz, whose story varied substantially from Mr. Valadez-Gallegos‘. Mr. Marquez-Munoz indicated they drove the northern route to El Paso because he did not know the road – not due to bad weather. They traveled to El Paso, not to transport his aunt but to look for her. Since they could not find her, they stayed overnight at a rest stop in El Paso.
At trial, Officer Johnston testified that during the entire stop and search, Mr. Marquez-Munoz showed signs of extreme nervousness, including vomiting several times, shaky legs, acting antsy and not sitting still, defecating, urinating at least two times, and lighting up several cigarettes. Mr. Valadez-Gallegos, however, showed no signs of nervous behavior. He also testified Mr. Valadez-Gallegos sat the same way during the trial as he sat the night of the arrest – stiffly and straight up, avoiding eye contact – which Officer Johnston admitted may be normal for him. Although Mr. Valadez-Gallegos gritted his teeth and appeared
PROCEDURAL BACKGROUND
Prior to trial, the government filed a notice of crimes, wrongs or acts, pursuant to
A. No, sir, he did not.
Q. Did he tell you what Mr. Villa Senor had stated about that stop?
A. Yes, sir.
Q. And was it cocaine?
Before the witness answered, the trial court interrupted and requested a bench conference. The prosecutor asked the court to permit the testimony because of its similarity to the present arrest, and offered the evidence as a “statement against interest” because the defense, through cross-examination of witnesses, was attempting to show nothing connected Mr. Valadez-Gallegos with the drugs found in the vehicle. Defense counsel objected, claimed the testimony “tainted” the jury, and requested a mistrial. The trial court denied the motion for a mistrial, ruled the witness could not be asked any more questions concerning the prior arrest, and allowed the prosecution to reserve such questioning for its last two witnesses. The judge then instructed the jury to disregard the questions and answers relating to Mr. Villa Senor.
Prior to calling its last two witnesses, the prosecution again requested
The prosecution then called Oklahoma Highway Patrolman Mark Nelson, who testified that on August 15, 1996, he stopped a blue Dodge pickup truck, traveling from Dallas, Texas, to Modesto, California, and containing the driver, Samuel Villa Senor, and a passenger, Mr. Valadez-Gallegos. Officer Nelson smelled an odor similar to fabric softener sheets, but called for assistance due to his inability to speak Spanish.
Oklahoma Bureau of Narcotics Agent Frank Maldonado then testified he spoke in Spanish with Mr. Valadez-Gallegos, who was traveling from Modesto to Dallas and then to Houston, on vacation. Mr. Valadez-Gallegos told Agent
At the close of the government‘s case, Mr. Valadez-Gallegos moved for judgment of acquittal under
The judge provided, in relevant part, the following jury instructions: (1) the government must prove Mr. Valadez-Gallegos guilty beyond a reasonable doubt; (2) the government must prove beyond a reasonable doubt that (a) Mr. Valadez-Gallegos knowingly possessed a listed chemical, (b) the listed chemical was pseudoephedrine, and (c) Mr. Valadez-Gallegos possessed the listed chemical with intent to manufacture methamphetamine, or knowing, or having reasonable
The jury found Mr. Valadez-Gallegos guilty of one count of violating
The trial court subsequently denied Mr. Valadez-Gallegos’ Rule 29 motion for judgment of acquittal.2 The trial court ruled the government presented
adequate evidence from which a reasonable jury could conclude Mr. Valadez-Gallegos committed the crime charged. In addition to the massive quantities of ephedrine found in the camper, the trial court concluded the following evidence established Mr. Valadez-Gallegos’ knowledge of the presence of ephedrine: (1) his inherently inconsistent, contradictory, and incredible stories told to various police officers on many occasions and different settings; (2) the annotated road map found in the cab where he was a passenger; (3) the overwhelming and pervasive smell of perfumed dryer sheets within the truck; (4) Mr. Marquez-Munoz‘s statement to Mr. Valadez-Gallegos that he “didn‘t know there was heroin;” (5) Mr. Valadez-Gallegos’ failure to respond when asked how the ephedrine could have been put in the ceiling of the camper “if he never left the vehicle.” At sentencing, Mr. Valadez-Gallegos received seventy-eight months in prison and three years supervised release.
ANALYSIS
Mr. Valadez-Gallegos argues his conviction should be set aside because (1) insufficient evidence exists to support either the jury verdict or the trial court‘s
Sufficiency of the Evidence
Mr. Valadez-Gallegos claims insufficient evidence supports the verdict because neither his joint occupancy in the vehicle nor his presence and proximity to the contraband is sufficient to show actual or constructive possession of the ephedrine. He asserts the government failed to meet its burden of proof since even knowledge of the presence of ephedrine is insufficient to show the requisite dominion and control necessary for possession. Finally, he contends his inconsistent statements and contradictions, and failure to respond to questions on how the ephedrine got into the camper ceiling, may create a general suspicion but do not prove he knew of the ephedrine‘s existence.
Our standard of review on a motion for acquittal is the same as the trial court‘s in ruling on the motion in the first instance. United States v. Miles, 772 F.2d 613, 615 (10th Cir. 1985). We review the evidence in the light most favorable to the government and “‘then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt.‘” Id. (quoting United States v. White, 673 F.2d 299, 301 (10th Cir. 1982)). The jury, as fact finder, has discretion to resolve all conflicting testimony, weigh the evidence, and draw inferences from the basic facts to the ultimate facts. See United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995), cert. denied, 516 U.S. 1081 (1996). However, we may not uphold a conviction obtained by piling inference upon inference. United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995). “An inference is reasonable only if the conclusion flows from logical and probabilistic reasoning.” Id. The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt. United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997).
In this case, the determinative issue is whether Mr. Valadez-Gallegos constructively possessed the ephedrine. Generally, a person has constructive possession when he or she knowingly holds ownership, dominion or control over the object and premises where it is found. Id. at 1144-45. Exclusive possession of the premises supports an inference of constructive possession. However, joint occupancy of a premises cannot sustain such an inference. Id. (citing United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994)). To prove constructive possession when there is joint occupancy of a vehicle, the government must present direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the contraband. See United States v. Miller, 84 F.3d 1244, 1253 (10th Cir.) (relying on Mills, 29 F.3d at 549), cert. denied, 117 S. Ct. 443 (1996), 118 S. Ct. 419 (1997). The government must present “‘some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the ... contraband.‘” Taylor, 113 F.3d at 1145 (quoting United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993)), cert. denied, 510 U.S. 1198 (1994); see also Mills, 29 F.3d at 549-50.
On careful review of the record and the trial court‘s order concerning the motion for acquittal, we conclude the evidence fails to link Mr. Valadez-Gallegos to the narcotics in any way, other than presence and proximity. Presence and proximity are inadequate to support a conviction.
In so holding, we first address the evidence considered by the trial court. As the trial court indicates, Mr. Valadez-Gallegos did make inconsistent and contradictory statements concerning the dates and time of travel, night-time accommodations, weather, and the presence of another passenger on the trip. However, conflicting or inconsistent statements do not always provide evidence sufficient to show knowledge or constructive possession of drugs. See, e.g., United States v. Leos-Quijada, 107 F.3d 786, 795 (10th Cir. 1997) (inconsistent stories about travel plans, along with other factors, were not sufficient to connect
The fact “massive quantities” of ephedrine were hidden in the camper ceiling does not directly link Mr. Valadez-Gallegos, a passenger in the cab of the same vehicle, to the contraband. While a pervasive smell of perfumed dryer sheets permeated the camper, the evidence clearly establishes the sheets emitted no odor in the cab. Moreover, no evidence establishes Mr. Valadez-Gallegos ever opened the door of the camper.
Even though authorities found the lipstick-smudged, annotated road map in the cab where Mr. Valadez-Gallegos was the only passenger, nothing shows a
Even though Mr. Valadez-Gallegos said the vehicle never left his sight, his failure to respond when asked how the ephedrine got in the camper is not dispositive. No evidence establishes whether Mr. Valadez-Gallegos slept in the cab or camper, drove or had keys to the vehicle, or accessed or accompanied Mr. Marquez-Munoz into the camper, or even looked in it. Likewise, no evidence establishes when the ephedrine was hidden in the ceiling.
Mr. Valadez-Gallegos’ statement he knew others must be involved but did not know who they were or the destination for the ephedrine, is not dispositive, but merely an inference. Similarly, Mr. Marquez-Munoz‘s statement to Mr. Valadez-Gallegos he “didn‘t know there was heroin,” creates only an attenuated inference, insufficient to establish a direct link between Mr. Valadez-Gallegos and the ephedrine.
The other evidence presented to the jury also does not establish Mr.
Finally, even assuming proper admission of the 404(b) evidence of Mr.
In instances where there is joint occupancy, as here, constructive possession requires a link or nexus between Mr. Valadez-Gallegos and the contraband. See Miller, 84 F.3d at 1253. Here, the government failed to present evidence sufficiently linking Mr. Valadez-Gallegos with the contraband found in the camper. Consequently, the evidence cannot sustain the conviction and sentence.
Rule 404(b) Evidence
Having found the evidence, including the Rule 404(b) evidence at issue, insufficient to find Mr. Valadez-Gallegos guilty beyond a reasonable doubt, we need not reach the remaining issue presented by Mr. Valadez-Gallegos on appeal. The evidence being insufficient, the judgment on conviction is REVERSED.