United States v. Velasquez-Tello

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 7 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 96-1302
v. (D.C. No. 95-CR-427-WD)
(D. Colo.)
CARLOS VELASQUEZ-TELLO,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

*
This order and judgment is not binding precedent except under the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 10th Cir. R. 36.3.
 Mr. Carlos Velasquez-Tello was convicted by a jury of multiple federal

drug and firearm offenses. On appeal, Mr. Velasquez claims (1) the district court

erred in denying his motion in limine to exclude $500 in currency; (2) the

evidence was insufficient to support his firearm convictions; and (3) the district

court erred in including 500 grams of cocaine as relevant conduct used to

compute his sentence. This court exercises jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a). We affirm.

Denver police arranged a drug purchase between an informant and Mr.

Manuel Rodriguez. Mr. Rodriguez agreed to sell ten ounces of cocaine to the

informant. On October 31, 1995, Mr. Rodriguez arrived at a designated parking

lot in a blue Toyota driven by Mr. Velasquez, and accompanied by Mr. Ruben

Hernandez. Mr. Rodriguez and Mr. Hernandez exited the blue Toyota and entered

the informant's car. After the informant confirmed they had the cocaine, Mr.

Rodriguez and Mr. Hernandez were arrested. Mr. Velasquez then left the parking

lot at a high rate of speed. The police pursued, stopped his car, and arrested him.

After Mr. Velasquez' arrest, Officer James Wiley observed a shotgun

resting on the floor behind the passenger seat in Mr. Velasquez' car. Officer

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Wiley testified that when he sat in the driver's seat, the loaded weapon was

accessible.

During a search of Mr. Velasquez and his car, officers discovered several

documents listing Mr. Velasquez' address as Apartment 308, 850 South Federal in

Denver. Based on this information, the officers went to the apartment where they

met Mr. Velasquez' fourteen-year-old girlfriend, Ms. Diana Cortez. After getting

Ms. Cortez' consent to search the apartment, the officers found in the bedroom

approximately 500 grams of cocaine, a mixing bowl with cocaine residue, and

$500 in currency, located in Ms. Cortez' purse.

Mr. Velasquez and Mr. Hernandez were charged in a five-count indictment

with (1) conspiracy to possess cocaine with intent to distribute in violation of 21

U.S.C. §§ 846 and 841(a)(1); (2) possession of cocaine with intent to distribute in

violation of 21 U.S.C. § 841(a), and aiding and abetting the possession of cocaine

with intent to distribute in violation of 18 U.S.C. § 2; (3) using and carrying a

firearm during and in relation to a drug trafficking offense in violation of 18

U.S.C. § 924(c); (4) illegal alien in possession of a firearm in violation of 18

U.S.C. § 922(g)(5); and (5) possession of an unregistered firearm in violation of

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26 U.S.C. § 5861(d). Mr. Hernandez pleaded guilty and testified for the

government at trial.

Mr. Hernandez testified that on the day of the drug purchase, he and Mr.

Velasquez went to Apartment 308 to obtain ten ounces of cocaine for the sale.

Mr. Hernandez testified Mr. Velasquez retrieved the cocaine and a bowl from the

bedroom to weigh the cocaine.

According to Mr. Hernandez, he and Mr. Velasquez then drove to Mr.

Rodriguez' house where, once inside, Mr. Rodriguez asked permission to bring a

sawed-off shotgun. Mr. Hernandez testified he and Mr. Velasquez agreed Mr.

Rodriguez could bring it. According to Mr. Hernandez, Mr. Rodriguez carried the

weapon into Mr. Velasquez' car underneath his jacket and placed the gun on the

top of the back seat on the driver's side. Mr. Velasquez then drove to the parking

lot to conduct the drug sale.

Mr. Velasquez filed a motion in limine to exclude the $500 currency found

in Ms. Cortez' purse. After hearing arguments on the motion, the court reserved

its ruling until the government sought to introduce the evidence at trial. At that

time, the court overruled Mr. Velasquez' objection and admitted the currency.

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 The jury found Mr. Velasquez guilty on all five counts. He was sentenced

to 123 months imprisonment.

On appeal, Mr. Velasquez claims the district court erroneously admitted the

$500 in currency found in Ms. Cortez' purse. He argues the "evidence [is]

irrelevant under Fed. R. Evid. 402 and inadmissible under Fed. R. Evid. 403."

The determination of the relevancy of evidence and whether the evidence's

probative value is substantially outweighed by its prejudicial effect under Rule

403 are matters within the trial court's discretion. Beacham v. Lee-Norse, 714

F.2d 1010, 1014 (10th Cir. 1983). We will not disturb the trial court's findings

absent a showing of a clear abuse of discretion. Id.

Pursuant to Federal Rule of Evidence 402, only relevant evidence is

admissible. Rule 401 defines relevant evidence as "evidence having any tendency

to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence."

Fed. R. Evid. 401. Moreover, under Rule 403, even "relevant[] evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice." Fed. R. Evid. 403.

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 The government proffered the money as evidence of Mr. Velasquez' drug

dealing. Mr. Velasquez claims the evidence is irrelevant because the link

between the money and his alleged drug activities was too attenuated to conclude

the money made his involvement in the sale of drugs more or less probable. Mr.

Velasquez asserts the $500 found in his girlfriend's purse located in an apartment

and in which he claimed no possessory interest, is unconnected to the drug sale on

October 31, 1995.

Although we agree with Mr. Velasquez as to its relevance, 1 we find the

admittance of the $500 harmless error. "'A non-constitutional error is harmless

unless it had a "substantial influence" on the outcome or leaves one in "grave

doubt" as to whether it had such effect.'" United States v. Birch, 39 F.3d 1089,

1094 (10th Cir. 1994) (quoting Kotteakos v. United States, 328 U.S. 750, 765

(1946)). We review the entire record de novo in determining whether a trial

court's error was harmless. See id. The evidence in the record against Mr.

Velasquez, apart from the $500, is sufficient for the jury to have found him guilty

of conspiring to possess cocaine with intent to distribute. Mr. Velasquez was

1
Typically, a defendant's possession of a small quantity of cash is not
"indicative of very much" in a drug-related case. United States v. Cepeda, 768
F.2d 1515, 1518 (2d Cir. 1985); see also United States v. Spell, 789 F.2d 143, 144
(2d Cir. 1986). This is especially true in Mr. Velasquez' case since the money
was found on a third party.

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present at the October 31, 1995 drug sale. Mr. Hernandez testified that prior to

the drug sale on October 31, 1995, Mr. Velasquez took him to Apartment 308

where Mr. Velasquez retrieved cocaine from the bedroom and weighed out ten

ounces for the sale. After obtaining the address of Apartment 308 from

documents listing Mr. Velasquez' address, officers seized 500 grams of cocaine

from the bedroom at the apartment. Because this evidence is sufficient to sustain

the verdict, we find the district court's admittance of the $500 harmless.

Mr. Velasquez also contends the evidence in the record is insufficient to

support his firearm convictions. In making this argument, Mr. Velasquez faces a

high hurdle because in reviewing the sufficiency of the evidence to support a jury

verdict, we review the record de novo in the light most favorable to the

government and ask only whether, taking all direct and circumstantial evidence,

together with reasonable inferences drawn therefrom, a reasonable jury could find

the defendant guilty beyond a reasonable doubt. United States v. Voss, 82 F.3d

1521, 1524-25 (10th Cir.), cert. denied, 117 S. Ct. 226 (1996).

Mr. Velasquez was convicted of three firearm offenses relating to the

shotgun found in his car. All three offenses require Mr. Velasquez to have had

knowledge of the shotgun's presence. Mr. Velasquez contends the evidence in the

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record is insufficient to show he had the requisite knowledge. Under the

vehicular carrying prong of 18 U.S.C. § 924(c), Mr. Velasquez must have

"knowingly" carried the weapon or known of its presence in his car. United

States v. Dirden, 38 F.3d 1131, 1142 n.15 (10th Cir. 1994). Similarly, for his two

remaining firearms convictions, 18 U.S.C. § 922(g)(5) (illegal alien in possession

of a firearm) and 26 U.S.C. § 5861(d) (possession of an unregistered firearm), the

government was required to prove Mr. Velasquez "knowingly" possessed the

shotgun. See United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994) (stating

possession must be "knowingly" to support a conviction under 18 U.S.C.

§ 922(g)); United States v. Mittleider, 835 F.2d 769, 774 (10th Cir. 1987) (ruling

the government must prove a defendant knowingly possessed an unregistered

firearm under 26 U.S.C. § 5861(d)), cert. denied, 485 U.S. 980 (1988).

Mr. Hernandez testified that Mr. Rodriguez asked Mr. Velasquez'

permission to bring the shotgun, and Mr. Velasquez responded yes. Mr.

Hernandez also stated when he and Mr. Rodriguez rode in Mr. Velasquez' car, Mr.

Rodriguez sat in the front passenger seat and placed the shotgun in the back seat.

In addition, according to Officer Wiley, the shotgun was in plain view in Mr.

Velasquez' car at his arrest. Officer Wiley further testified the shotgun was

accessible to him as he sat in the driver's seat of the car. Although Mr. Velasquez

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claims Mr. Hernandez' testimony is incredible, we are not in a position to weigh

conflicting evidence or pass on the credibility of witnesses. United States v.

Winchell, 129 F.3d 1093, 1097 (10th Cir. 1997). Reviewing the evidence in the

light most favorable to the government, we find sufficient evidence on the record

for the jury to have found Mr. Velasquez "knowingly" possessed the shotgun.

Finally, Mr. Velasquez claims the 500 grams of cocaine found in Apartment

308 should not have been included as relevant conduct used to compute his base

offense level for sentencing. Mr. Velasquez failed to raise this issue at his

sentencing hearing. Where an objection is not raised at the sentencing hearing,

we review challenges to the sentence imposed only for plain error. United States

v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir.), cert. denied, 117 S. Ct. 596

(1996). When the record supports the district court's findings concerning relevant

conduct, plain error does not exist. United States v. Richards, 27 F.3d 465, 468-

469 (10th Cir. 1994).

United States Sentencing Guidelines § 1B1.3(a)(1)(B) defines "relevant

conduct" for the purpose of sentencing "jointly undertaken criminal activity" to be

"all reasonably foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity." In drug cases, a person is accountable not

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only for the quantity of drugs with which he was directly involved, but also for

any quantity reasonably foreseeable within the scope of his criminal activity.

U.S.S.G. § 1B1.3, comment. (n.2). The government must prove the drug quantity

at sentencing by a preponderance of the evidence. United States v. Segien, 114

F.3d 1014, 1021 (10th Cir. 1997), petition for cert. filed, (U.S. Aug. 26, 1997)

(No. 97-6568). The record supports the district court's computation of Mr.

Velasquez' base offense level using the 500 grams of cocaine. Mr. Hernandez

testified that before the drug deal, he and Mr. Velasquez went to Apartment 308

where Mr. Velasquez retrieved cocaine and a bowl from the bedroom to weigh out

ten ounces. When Mr. Velasquez was arrested, the officers found documents

listing Apartment 308 as Mr. Velasquez' address. In addition, while searching

Apartment 308, the officers found 500 grams of cocaine along with a bowl

containing cocaine residue. In view of this evidence, we do not find the district

court's computation of Mr. Velasquez' sentence plain error.

Accordingly, we AFFIRM Mr. Velasquez' convictions and sentence.

Entered for the Court

WADE BRORBY
United States Circuit Judge

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