Opinion
Case No. 00-40061-03-SAC.
January 9, 2001.
MEMORANDUM AND ORDER
This case comes before the court on defendant Ramona Alvarez's motion for acquittal notwithstanding the verdict. Defendant seeks relief from the jury's verdict of guilty on the sole count of the indictment, i.e., possession with intent to distribute approximately 3.5 kilograms of cocaine, in violation of 21 U.S.C. § 841(b)(1)(B) and § 812, and 18 U.S.C. § 2. Defendant alleges that there is insufficient evidence to support her conviction.
Although immaterial to the issues here, the parties agreed that this weight included packaging, and that their stipulation at trial that the substance was tested and found to contain approximately 3.5 grams was in error.
"In determining the sufficiency of the evidence, we review the record de novo, . . . and ask only whether, taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Urena, 27 F.3d 1487, 1489 (10th Cir.) (citations and internal quotations omitted), cert. denied, 513 U.S. 977 (1994).
In order to support a conviction for possession with intent, the government must prove knowing possession of a controlled substance, with intent to distribute. United States v. Verners, 53 F.3d 291, 294 (10th Cir. 1995). Possession need not be actual, but may be constructive. United States v. Culpepper, 834 F.2d 879, 881-82 (10th Cir. 1987). "In order for an individual constructively to possess property, he must knowingly hold the power and ability to exercise dominion and control over it. . . . With regard to narcotics, we have defined constructive possession as `an appreciable ability to guide the destiny of the drug.'" Id. at 881 (quoting United States v. Massey, 687 F.2d 1348, 1354 (10th Cir. 1982) (internal citations omitted)).
In cases of constructive joint possession, such as this, the government is required to show some connection or nexus linking the defendant to the cocaine by presenting "evidence supporting at least a plausible inference that the defendant had knowledge of and access to the . . . contraband." United States v. McKissick, 204 F.3d 1282, 1298 (10th Cir. 2000), quoting United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998) (quotation marks and citation omitted).
The court has reviewed the cases cited by both parties, and finds no need to independently discuss or distinguish them herein. None is so close on its facts to the present case as to have any true precedential value here. The review of evidence to determine the sufficiency thereof is necessarily a fact-specific inquiry.
Defendant argues that the government had no evidence to connect her to the cocaine except for her presence in the car, and this was insufficient to convict her on the sole count charged. As this court instructed the jury, mere presence with others who had possession is not possession.
It is true that defendant did not own the car, and was not driving it at the time the cocaine was found therein. No cocaine was in plain view of this defendant at the time of the stop, unless she looked over the front seat to the floorboard of the back seat, where one of the six packages of cocaine was found. No cocaine was found on this defendant's person or in any luggage, purse, or other personal item which contained her personal identification.
The evidence at trial established that the defendant was a passenger in a vehicle owned by her sister, and which was driven by her sister at the time of the stop. Mr. Castorena was a passenger in the back seat at that time, although the three had taken turns driving and resting in the back seat. The three were traveling from Los Angeles, California when they were stopped for a traffic violation in Kansas. During the course of the stop, Trooper Rule noticed in plain view on the floor of the back seat, a "brick" of what he believed to be cocaine. Trooper Rule then recovered the package and, by doing a simple field test, determined that the substance was cocaine. The trooper then had Mr. Castorena exit the vehicle.
Mr. Castorena pled prior to trial, and the case was tried against defendants Trejo and Alvarez only. Mr. Castorena did not appear or testify at trial.
While arresting Mr. Castorena, Trooper Rule saw defendant Alvarez bend over and move around in her seat, with her head forward, causing him to believe that she was putting something into or taking something out of her waist area or her pants. The trooper asked defendant Alvarez to exit the vehicle, which she did, and he noticed a black bag on the floor of the seat where defendant Alvarez had just been. That black bag, admitted as Exhibit 6 at trial, contains fringe, beadwork or other detailing common to purses typically carried by women, and does not appear to be a gym bag or other nondescript type of luggage.
This black purse contained three bricks of cocaine which were packaged in the same manner as was the one in the back seat. Two other packages of cocaine were located on Castorena's person, packaged in the same manner. A search of the trunk disclosed a purse containing information personally identifying defendant Trejo. Defendant Alvarez subsequently made conflicting statements, at first stating that she did not know the packages were in the vehicle, and later saying that she did know that the packages were in the vehicle.
The above evidence, although not overwhelming, is sufficient to support the verdict reached by the jury. This was not a quick jaunt across town, but a lengthy cross-country trip. Although some of the cocaine was located in the back seat or on Castorena's person, three of the six packages of cocaine were located in the purse which had been at this defendant's feet immediately before she exited the vehicle. The jury could reasonably have inferred, from the facts that two female occupants were in the car, that two purses with contents were found, and that the purse in the trunk contained papers belonging to defendant Trejo, that the black purse containing the three packages of cocaine belonged to defendant Alvarez.
But even if the jury determined that defendant Alvarez did not own the black purse, the cocaine was at her feet in an amount an in a place where it could hardly have escaped her knowledge, making an inference of constructive possession proper. See United States v. McCoy, 781 F.2d 168, 171(10th Cir. 1985). This evidence, coupled with the gestures made by this defendant and with her contradictory statements after the cocaine was found, is sufficient to support the jury's finding that defendant Alvarez knowingly possessed cocaine.
The jury was asked to determine the amount of cocaine this defendant knowingly possessed. Although the jury might reasonably have found that defendant Alvarez knowingly possessed only the amounts of cocaine contained in the black purse, it attributed the total amount of the six packages to each defendant. This too, is supported by sufficient evidence, given the fact each of the six packages of cocaine was substantially similar if not identical in appearance, the length of time the defendants were together in the vehicle, and the other facts set forth above.
Counsel for defendant Alvarez alleges that when defendant Alvarez bent forward, she may have been attempting to put on her shoes, instead of trying to conceal or move the cocaine, and that the black bag was not proven conclusively to have been hers. The test for sufficiency, however, is not one of excluding every reasonable hypothesis except guilt. See United States v. Hooks, 780 F.2d 1526, 1530 (10th Cir.), cert. denied, 475 U.S. 1128 (1986). On a sufficiency review, the court "cannot ignore the synergistic nature of the evidence which must be viewed as a whole." United States v. Alvarado, 25 F.3d 1058 (Table) (10th Cir. 1994).
The government's proof has gone beyond showing defendant Alvarez's mere presence near or association with a transporter of contraband, or mere presence near the contraband. See United States v. Espinosa, 771 F.2d 1382, 1397 (10th Cir.), cert. denied, 474 U.S. 1023 (1985). Based upon the evidence admitted at trial, a rational jury could conclude beyond a reasonable doubt that Ms. Alvarez knowingly possessed the cocaine.
Defendant Alvarez does not seriously dispute that if she possessed the cocaine, she did so with the intent to distribute it. Testimony at trial was uncontradicted that a typical user amount of cocaine is approximately one gram, and that the larger amounts admitted at trial constitute dealer or distributor amounts. Accordingly, a rational jury could conclude beyond a reasonable doubt that Ms. Alvarez knowingly possessed the cocaine with the intent to deliver it to another person.
IT IS THEREFORE ORDERED THAT defendant Alvarez's motion for acquittal notwithstanding the verdict is denied.