United States v. Nevarez

UNITED STATES COURT OF APPEALS
Filed 6/27/96
FOR THE TENTH CIRCUIT
______

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No.95-5059
) (D.C. No. 94-CR-127-B)
JAIME OGAZ-NEVAREZ, ) (N. Dist. of Okla.)
)
Defendant-Appellant. )
______

ORDER AND JUDGMENT*
______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
______

After examining the briefs and the appellate record, this

panel has determined unanimously to honor the parties’ request for

a decision on the briefs without oral argument. See Fed. R. App.

P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Jaime Ogaz-Nevarez (Ogaz-Nevarez) appeals from his jury

conviction of conspiracy to distribute 100 kilograms or more of

marijuana, Count I, and possession of 100 kilograms or more of

marijuana with intent to distribute, Count II.

Facts

*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
 At trial, Ogaz-Nevarez’s testimony as to the events leading up

to his arrest is as follows. He contends that from August 22,

1994, through September 5, 1994, he visited El Paso, Texas, during

which he admits that he knew Alberto Carreones (Carreones), an

alleged coconspirator, from different bars and parties in Mexico

and El Paso. Ogaz-Nevarez states that after he returned to his

home in Tulsa, Oklahoma, Carreones contacted him and asked him to

help a friend, Jamie Wood (Wood), who had car trouble with a white

Lincoln Continental (the Lincoln) on the way to Tulsa.

Ogaz-Nevarez asserts that, although he received several phone

calls from Wood, he was unable to understand the conversations

because of his inability to understand the English language. He is

a native born Mexican. He claims that many of the conversations

were actually between Olivia Miranda (Miranda), the woman he was

staying with in Tulsa, and Wood.

When Wood arrived in Tulsa, Ogaz-Nevarez met him at a Git-N-Go

convenience store. He then had Wood follow him to his apartment

where Wood parked the Lincoln. Ogaz-Nevarez alleges that he helped

Wood obtain lodging for the evening and lent him $200. Ogaz-

Nevarez contends that his only contact with the Lincoln occurred

the next day, after he took Miranda to work, when he pulled the

Lincoln forward approximately two to three feet so that it would be

properly parked in the apartment parking lot. Soon thereafter, a

search warrant was executed on the apartment and he was arrested.

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 At trial, the government offered a much different version of

the events supported by the testimony of Wood, as follows. In

September, 1994, Carreones contacted Wood and arranged for Wood to

drive a shipment of marijuana from El Paso, Texas, to Tulsa,

Oklahoma, for $7,000. Wood agreed and accompanied Carreones to the

Howard Johnson’s Motel in El Paso where he was introduced to

“Oscar.” Oscar was later identified as Ogaz-Nevarez. At the

meeting between Carreones, Wood, and Ogaz-Nevarez, the details of

transporting the marijuana were discussed and Carreones provided

Wood with a telephone number where Ogaz-Nevarez could be reached in

Tulsa. Thereafter, Carreones took Wood to 801 Luna Street, El

Paso, Texas, where the Lincoln’s trunk was loaded with marijuana.

Wood also testified that in addition to what was loaded in the

Lincoln, he saw 10-11 more blocks of marijuana in the garage at 801

Luna Street. (Tr. Vol. V at 153).

On September 7, 1994, at approximately 1:00 a.m., an Amarillo

Police Officer stopped the Lincoln driven by Wood to investigate a

faulty tag light. Thereafter, a drug dog alerted to the trunk of

the Lincoln where officers found approximately 290 pounds of

marijuana. At this point, Wood became a cooperating government

witness.

With the aid of Amarillo narcotics officers, Wood called Ogaz-

Nevarez to explain that his arrival in Tulsa would be delayed due

to car trouble. The officers then accompanied Wood to Tulsa to

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complete a controlled delivery of the marijuana.

At midnight on September 7, 1994, Wood placed a recorded call

to Ogaz-Nevarez’s phone number during which he spoke to a Hispanic

man and a Hispanic women. He also received directions to a Git-N-

Go convenience store located in south Tulsa. Wood again called

Ogaz-Nevarez from the Git-N-Go and was told by a Hispanic female

that they would meet him there shortly. At approximately 12:35

a.m., Wood followed Ogaz-Nevarez and Miranda to the apartment and

gave Ogaz-Nevarez the keys to the Lincoln. Ogaz-Nevarez rented

Wood a room for the night at a nearby hotel and made arrangements

for Wood to be picked up in the next day, presumably, when

Carreones was arriving.

In addition, the government asserts that during the early

morning hours, approximately 4:00 a.m., Ogaz-Nevarez left the

apartment, went to the parking lot, and examined the Lincoln. At

approximately 8:00 a.m., Ogaz-Nevarez and Miranda left the

apartment in their other vehicle. Ogaz-Nevarez returned shortly

thereafter, moved the Lincoln a few feet forward, and entered the

apartment.

When the search warrant was executed, the officers recovered

the key to the Lincoln from a pair of mens shorts lying on the

floor of the bathroom where Ogaz-Nevarez was showering, as well as

various documents establishing Ogaz-Nevarez’s presence in El Paso

around the end of August and early September, 1994.

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 On October 7, 1994, the grand jury returned an indictment

charging Ogaz-Nevarez with conspiracy to possess with intent to

distribute 100 kilograms or more of marijuana (Court I), in

violation of 21 U.S.C. § 846, and possession of 100 kilograms or

more of marijuana with intent to distribute (Court II), in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii).

After a four day jury trial, Ogaz-Nevarez was convicted of

both counts. On March 8, 1995, he was sentenced to 63 months

imprisonment on each count, to run concurrently, and fined $2,000.

Issues

On appeal, Ogaz-Nevarez contends that: (1) there was

insufficient evidence to convict him of conspiracy to possess with

the intent to distribute or of possession with intent to distribute

100 kilograms or more of marijuana; (2) the district court erred in

allowing the government to use a preemptory challenge to dismiss

one of the jury veniremen; and (3) the district court erred in

allowing the government to introduce 404(b) evidence.

Discussion

I. Sufficiency of the Evidence

Ogaz-Nevarez contends that there was insufficient evidence to

convict him of conspiracy to possess with intent to distribute 100

kilograms or more of marijuana or of possession with intent to

distribute 100 kilograms or more of marijuana. Ogaz-Nevarez

alleges that the government failed to establish that he knew

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anything about the alleged conspiracy or that he knew anything

about the marijuana discovered in the Lincoln. Ogaz-Nevarez argues

that the government cannot rely solely on the uncorroborated

testimony of a coconspirator, Wood.

“In reviewing the sufficiency of evidence to sustain a jury’s

guilty verdict, we examine the evidence in the light most favorable

to the government in order to determine whether the evidence, both

direct and circumstantial, together with all reasonable inferences

to be drawn therefrom, is substantial enough to establish guilt

beyond a reasonable doubt.” United States v. Johnson, 42 F.3d

1312, 1319 (10th Cir. 1994), cert. denied, ___ U.S. ___ (1995)

(internal quotation omitted). In making this determination, we

review the record de novo. United States v. Sloan, 65 F.3d 861,

863 (10th Cir. 1995), cert. denied, ___ U.S. ___ (1996).

We will not reverse a conviction merely because the verdict

was grounded on the uncorroborated testimony of a coconspirator.

See United States v. McGuire, 27 F.3d 457, 462 (10th Cir. 1994)

(the general rule is that in a criminal case a jury may convict a

defendant on the uncorroborated testimony of an accomplice).

Therefore, the fact that the government may have relied solely on

the testimony of Wood, a coconspirator/accomplice is irrelevant to

our inquiry into the sufficiency of the evidence.

A. Conspiracy

In order to sustain a conviction for conspiracy, the
government must show that there was an agreement to

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 violate the law, that the defendant knew the essential
objectives of the conspiracy, and that the defendant
knowingly and voluntarily took part in the conspiracy,
and that the coconspirators were interdependent.

United States v. Anderson, 981 F.2d 1560, 1563 (10th Cir. 1992).

An alleged conspirator must have a “general awareness of both the

scope and the objective of the enterprise to be regarded as a

coconspirator.” United States v. Evans, 970 F.2d 663, 670 (10th

Cir. 1992), cert. denied, 507 U.S. 922 (1993). It is not enough

for the government to show only “mere association” with

conspirators or “casual transactions” between the defendant and

conspirators. Id. at 669. The government must show, by clear and

unequivocal evidence, Ogaz-Nevarez’s knowledge that the object of

the conspiracy was the distribution of marijuana and his agreement

to cooperate in achieving that object. See Anderson, 981 F.2d at

1564 (quoting United States v. Austin, 786 F.2d 986, 988 (10th Cir.

1986)). However, “[a] jury may presume the defendant is a knowing

participant in the conspiracy when he acts in furtherance of the

objective of the conspiracy.” United States v. Brown, 943 F.2d

1246, 1250 (10th Cir. 1991).

Upon review of the record, we hold that the evidence is more

than adequate to support Ogaz-Nevarez’s conspiracy conviction. At

trial, the government relied on the testimony of coconspirator

Wood. Wood testified that he and Carreones discussed transporting

a large amount of marijuana from El Paso, Texas, to Tulsa,

Oklahoma, Tr. Vol. IV at 86; he met with Carreones and Ogaz-Nevarez

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in El Paso regarding transporting the marijuana, id. at 87;

Carreones agreed to pay him $7,000 to transport the marijuana with

payment to be received when he reached Ogaz-Nevarez’s house in

Tulsa, id. at 88; Ogaz-Nevarez was present when Carreones gave him

the phone numbers where he could reach Ogaz-Nevarez in Tulsa, id.

at 91; Carreones told him to call Ogaz-Nevarez at those phone

numbers when he reached Tulsa and that he was to take the shipment

of marijuana to Ogaz-Nevarez’s house, id.; Ogaz-Nevarez repeated

that he was to call those phone numbers immediately upon reaching

Tulsa, id.; and Carreones took him to 801 Luna Street, El Paso,

Texas, where Carreones and Julio loaded the Lincoln’s trunk with

approximately 290 pounds of marijuana. Wood further testified that

once in Tulsa, he called Ogaz-Nevarez and followed Ogaz-Nevarez to

Ogaz-Nevarez’s apartment. At the apartment, Wood testified that

Ogaz-Nevarez asked for the keys to the Lincoln; therefore, he gave

Ogaz-Nevarez the ignition key to the Lincoln, id. at 117, and told

Ogaz-Nevarez that the trunk key was “in the seat inside the car.”

Id. at 118.

Based on the foregoing evidence and the reasonable inferences

drawn therefrom, a reasonable jury could find Ogaz-Nevarez guilty

of conspiracy to possess with intent to distribute 100 kilograms or

more of marijuana beyond a reasonable doubt.

B. Possession

In order to support a conviction of possession of narcotics

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with intent to distribute in violation of 21 U.S.C. § 841(a)(1),

the evidence must prove beyond a reasonable doubt that: “(1) the

defendant knowingly possessed the illegal drug, and (2) the

defendant possessed the drug with the specific intent to distribute

it.” United States v. Gonzales, 65 F.3d 814, 818 (10th Cir. 1995),

petition for cert. filed, 64 U.S.L.W. 3692 (U.S. Apr. 4, 1996) (No.

95-1605). A conviction for possession with intent to distribute a

controlled substance may be supported by a finding of constructive

possession. United States v. Jones, 49 F.3d 628, 632 (10th Cir.

1995). “‘Constructive possession may be found if a person

knowingly has ownership, dominion or control over the narcotics and

the premises where the narcotics are found.’” Id. (quoting United

States v. Coslet, 987 F.2d 1493, 1495 (10th Cir. 1993) (emphasis

original). “Dominion, control, and knowledge, in most cases, may

be inferred if a defendant had exclusive possession of the

premises.” United States v. Mills, 29 F.3d 545, 549 (10th Cir.

1994).

Based on the evidence presented, we hold that a reasonable

jury could have found that Ogaz-Nevarez had possession of the

marijuana due to his dominion and control over the Lincoln. It is

undisputed that Ogaz-Nevarez had exclusive possession and control

over the keys to the Lincoln which was parked at his residence. In

addition, based on Wood’s testimony, a jury could reasonably infer

that Ogaz-Nevarez knew of the marijuana in the trunk.

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 II. Preemptory Challenge

Ogaz-Nevarez contends that the district court erred in

allowing the government to use a preemptory challenge to dismiss

the only jury veniremen of color “that would have known the feeling

of isolation, the difficulty in communication and the feelings of

frustration involved in being an alien in a foreign land.”

During voir dire, the government utilized its last preemptory

challenge to dismiss prospective juror Malabika Sen (Sen). Ogaz-

Nevarez objected on the grounds that Sen was “the only person of

color on the whole jury.” (Tr. Vol. IV at 62). The district court

observed that Sen was a woman from India with an appearance of

Indian heritage, but that she was not of Hispanic origin. Id.

Upon inquiry from the court, the government responded that it was

its practice to dismiss prospective jurors who work in the social

services field, as Sen did. Id.

Under Batson v. Kentucky, 476 U.S. 79 (1986), the government

is prohibited from using preemptory challenges to remove members of

the venire panel based on race. However, to prevail under Batson,

a defendant must establish a prima facie case of purposeful

discrimination in the selection of the petit jury by showing that:

(1) he is a member of a cognizable racial group; (2) the government

exercised its preemptory challenges to remove venire members of the

defendant’s race; and (3) the facts and any other relevant

circumstances raise an inference that the prosecutor used his

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preemptory challenges to exclude veniremen from the jury on the

basis of their race. Id. at 96. Only after the defendant has

established a prima facie case does the burden shift to the

prosecutor to make a clear and reasonably specific explanation for

challenging the minority juror. Id. at 97.

In United States v. Johnson, 941 F.2d 1102 (10th Cir. 1991),

we concluded that where the prosecutor offers a race neutral

explanation for his preemptory challenge and the trial court ruled

on the ultimate issue of intentional discrimination, the

preliminary question of whether a defendant has actually made a

prima facie of discrimination is moot. See Sledd v. McKune, 71

F.3d 797, 800 (10th Cir. 1995). Therefore, while it appears that

Ogaz-Nevarez has failed to establish a prima facie case because he

is of Hispanic origin and the challenged venireman, Sen, is of

Indian origin, that issue is moot and we must proceed to consider

the explanation offered by the government for striking Sen and the

district court’s acceptance thereof.

In reviewing a Batson challenge, we analyze the prosecutor’s

explanation for his actions as a legal issue de novo. Johnson, 941

F.2d at 1108. At this step in the inquiry, the issue is the facial

validity of the prosecutor’s explanation. Id. (quotation omitted).

Therefore, unless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed race

neutral. Id. Next, we review the district court’s ultimate

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factual rulings on whether the prosecutor intentionally

discriminated for clear error. Id.

After reviewing the record, we agree with the district court

that the government provided a valid race-neutral reason for

excluding Sen. We are not left with a definite and firm conviction

a mistake was committed. Therefore, we hold that the district

court’s ruling is not clearly erroneous and the government’s

preemptory challenge was exercised in a constitutionally

permissible manner.

III. 404(b) Evidence

Ogaz-Nevarez contends that the district court erred in

allowing the government to introduce 404(b) evidence regarding the

140 pounds of marijuana that was seized from 801 Luna Street, El

Paso, Texas, after he was arrested.1 Ogaz-Nevarez argues that

there was no evidence presented at trial that he knew of the 140

pounds of marijuana so seized and that, even if this evidence is

1
Federal Rule of Evidence 404(b) provides that:

(b) Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of such evidence
it intends to introduce at trial.

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relevant, it should be excluded because its probative value is

outweighed by its prejudicial effect.

We review a district court’s evidentiary rulings for an abuse

of discretion. United States v. Record, 873 F.2d 1363, 1373 (10th

Cir. 1989). “In reviewing a court’s determination for abuse of

discretion, we will not disturb the determination absent a distinct

showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifest a clear error of judgment.”

Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995).

It must be remembered that rule 404(b) applies only to

evidence of other crimes, wrongs, or acts extrinsic to the crimes

charged. Fed. R. Evid. 404(b) (emphasis added). See United States

v. Orr, 864 F.2d 1505, 1510 (10th Cir. 1988). “An uncharged act

may not be extrinsic if it was part of the scheme for which a

defendant is being prosecuted, or if it was “inextricably

intertwined” with the charged crime such that a witness’ testimony

‘would have been confusing and incomplete without mention of the

prior acts.’” Record, 873 F.2d at 1372 n.5 (quoting United States

v. Richardson, 764 F.2d 1514, 1521-22 (11th Cir.), cert. denied,

474 U.S. 952 (1985)) (internal citation omitted).

The district court concluded that the evidence of the 140

pounds of marijuana found at 801 Luna Street was not extrinsic

404(b) evidence, but “[was] all part and parcel and intrinsic to

the alleged conspiracy.” (Tr. Vol. V at 155-57). In overruling

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Ogaz-Nevarez’s objection, the district court stated that:

I am very convinced after hearing the testimony of
Mr. Wood wherein he identified at the time he left the
garage there at 801 Luna in El Paso, Texas with the 294
pounds of marijuana in the trunk of the white Lincoln he
was driving, he indicated that the approximately 140
pounds of marijuana, in the ten bales that were left
behind, was there at that time, that that [sic] makes it
intrinsic to our factual scenario in the instant matter
and therefore takes it out of the character of 404(b),
and I think it’s clearly part and parcel of the evidence
in this case . . .

(Tr. Vol. VI at 324). We agree.

Therefore, we hold that the district court did not abuse its

discretion in admitting the evidence regarding the 140 pounds of

marijuana seized at 801 Luna Street, El Paso, Texas.

We also reject the assertion that the district court abused it

discretion in refusing to exclude the evidence on the basis that

its probative value was substantially outweighed by unfair

prejudice. See Fed. R. Evid. 403. At trial, Ogaz-Nevarez failed

to object to this evidence of the grounds of prejudice. Thus, he

waived this argument, unless we should concluded that it was plain

error. See Orr, 864 F.2d at 1511 n.6. Nothing in the record or

in Ogaz-Nevarez’s arguments indicates that the district court’s

determination was so erroneous as to constitute plain error.

AFFIRMED.

Entered for the Court:

James E. Barrett,
Senior United States
Circuit Judge

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