F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-2031
(D . N.M .)
TO M A S PO N CE-G A RC IA , (D.Ct. No. CR-04-1512 RB)
Defendant-Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
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)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Tomas Ponce-Garcia was convicted of one count of importation
*
This order and judgment is not binding precedent except under the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.
of marijuana under 21 U.S.C. § 952(a) and § 960(a)(1) and (b)(3), and one count
of possession with intent to distribute fifty kilograms and more of marijuana
under 21 U.S.C. § 841(a)(1) and (b)(1)(C). He now appeals his conviction,
contending insufficient evidence supported the jury verdict. W e exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm M r. Ponce-Garcia’s
conviction.
On M ay 5, 2004, Steve Ehrlich, a Bureau of Customs and Border Protection
agent with twenty-five years of law enforcement experience, was on duty at the
port of entry in Columbus, New M exico. At trial, Agent Ehrlich testified that at
6:00 a.m. he noticed a red Chevy Cavalier, which he had seen entering the United
States the day before, enter the primary lane for entry again into the United
States. W hile the driver, M r. Ponce-Garcia, explained to another agent that he
was traveling to Deming, New M exico, Agent Ehrlich noticed M r. Ponce-Garcia
was “sitting higher in the car than he had the day prior”; “ the rear of the vehicle
seemed lower than it had the day prior”; and “his head was almost to the roof of
the car.” Based on his experience with smugglers at the port, Agent Ehrlich
suspected the vehicle contained some form of contraband. W hen Agent Ehrlich
looked into the back seat of M r. Ponce-Garcia’s car with the aid of a flashlight, he
saw ripples and humps which “were not normal.” M eanwhile, another officer
used a tool called a “buster” to check the corner of the rear seat and told Agent
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Ehrlich the vehicle w as “loaded” w ith contraband. Agent Ehrlich then asked M r.
Ponce-G arcia to step out of the vehicle, handcuffed him, and escorted him into
the main building. Agent Ehrlich, who was trained to detect drivers under the
influence of alcohol, detected neither the odor of alcohol nor any behavior
indicating M r. Ponce-G arcia was impaired during this period.
Agent Ehrlich further testified that when he returned and moved M r. Ponce-
Garcia’s car to the secondary inspection area, he noticed the driver’s seat was
unusually high and “extremely hard to the touch,” and the inside of the vehicle
smelled “fairly strong” of marijuana. A Vehicle and Cargo Inspection System
(VACIS) image, or x-ray, of the vehicle showed the seats of the car w ere
“extremely dense.” W hen officers searched the car, they found a total of 191
marijuana bundles, weighing 210 pounds, hidden in the back rests of the seats and
between the foam padding and springs of the seats. During trial, the government
offered, without objection, a series of photos taken that day of M r. Ponce-Garcia,
his vehicle, and the contraband as it w as removed from the seats in various stages.
Another agent testified the value of the marijuana totaled approximately $84,000,
with the value increasing if the marijuana had been transported away from the
international border. 1
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M r. Ponce-Garcia stipulated 191 bundles of marijuana, with a total
weight of 210.5 gross pounds or 95.68 net kilograms, were found in the vehicle.
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At trial, agents also testified smugglers often make “trial runs” through the
port of entry to determine the type and thoroughness of the inspections, and the
automated system at the port confirmed M r. Ponce-Garcia’s car crossed into the
United States the day before at a similar time – 6:09 a.m. Agent Ehrlich also
testified 6:00 a.m. is the time farm workers typically cross the border, but most of
those workers travel in vehicles dirty from field travel and which contain several
workers, their lunches, farm tools, and other personal items. In contrast, M r.
Ponce-G arcia drove alone in a clean car w ithout personal items or tools.
After agents found the marijuana in his car, Immigration and Customs
Enforcement Agents Alfredo Chavez, Jr., and Brian Thompson interview ed M r.
Ponce-G arcia. A ccording to Agent Chavez, M r. Ponce-Garcia appeared to
understand his questions and did not seem to be under the influence of alcohol or
drugs. He testified M r. Ponce-Garcia told him he was unemployed and he bought
the vehicle the day before at 4:00 p.m. in M exico from a man named “Octavio”
for $100. Although he claimed he was not planning to buy a vehicle in M exico,
he told the agent he could not pass up a deal that good. He also stated this was
the first time he drove the vehicle across the border and did so for the purpose of
traveling to Deming to change the vehicle papers to his name.
Agent Thompson testified “mules” are often used to transport narcotics and
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defined a “mule” as someone hired to transport drugs across the border into the
United States. He also testified the fingerprints of those acting as “mules” are not
usually found on the concealed drugs because “mules” are not typically involved
in packaging or concealing the drugs placed in the vehicle.
After the government concluded its case-in-chief at trial, M r. Ponce-
Garcia’s counsel moved for a directed verdict of acquittal on grounds M r. Ponce-
Garcia did not admit knowledge of the existence of the contraband or hold title to
the vehicle, and any incriminating evidence was destroyed when agents tore the
vehicle’s seats apart. The district court denied the motion, holding sufficient
evidence established M r. Ponce-Garcia knew about the contraband because he
was the vehicle’s sole occupant, it contained 191 bundles of marijuana which
were obvious or could be felt, the vehicle smelled of marijuana, and M r. Ponce-
Garcia’s statement he purchased the vehicle the day before negated the fact it was
titled in someone else’s name.
M r. Ponce-Garcia then offered evidence in support of his case-in-chief
through the testimony of Clarissa M cClintock, the laboratory manager at M imbres
M emorial Hospital in D eming, New M exico. She testified the blood test
conducted on M r. Ponce-Garcia the day of his arrest indicated a blood alcohol
level of 52.3 milligrams per deciliter, which showed he experienced an elevated
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level of alcohol which could interfere with medication or treatment but would not
necessarily render an individual intoxicated or impaired.
At the conclusion of the trial, a jury convicted M r. Ponce-Garcia of one
count of importation of marijuana under 21 U.S.C. § 952(a) and § 960(a)(1) and
(b)(3), and one count of possession with intent to distribute fifty kilograms and
more of marijuana under 21 U.S.C. § 841(a)(1) and (b)(1)(C). Prior to
sentencing, M r. Ponce-Garcia’s counsel filed a motion for judgment of acquittal
or a new trial on grounds insufficient or incompetent evidence supported the
jury’s verdict. In support of his motion, M r. Ponce-Garcia claimed no competent
evidence existed establishing the offense occurred in the United States and the
District of New M exico because: 1) the government did not offer the video
recording of his entry and arrest as evidence; 2) the agent who first detained and
questioned him did not testify at trial; and 3) another officer on duty the day
before did not testify regarding M r. Ponce-Garcia crossing the border the day
before. Following the government’s opposition to the motion, the district court
issued a memorandum opinion and order denying M r. Ponce-Garcia’s motion for
acquittal or a new trial. After reviewing the record, the parties’ arguments, and
the applicable law and then articulating in detail the evidence supporting the
verdict, the district court determined substantial, competent evidence established
M r. Ponce-Garcia committed the criminal offenses for which he was convicted in
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the United States and the District of New M exico.
Next, a probation officer prepared a presentence report, calculating M r.
Ponce-Garcia’s base offense level at 24 under United States Sentencing
Guidelines (“G uidelines” or “U .S.S.G.”) § 2D1.1(a)(3). After factoring in M r.
Ponce-G arcia’s criminal history at Category I, the probation officer calculated his
sentencing range at fifty-one to sixty-three months imprisonment.
M r. Ponce-Garcia did not file formal written objections to the presentence
report, but prior to sentencing his counsel submitted a letter requesting a role
adjustm ent under U .S.S.G . § 3B 1.2 for the purpose of reducing his sentence. At
sentencing, his counsel argued a role adjustment was appropriate due to M r.
Ponce-Garcia’s alcohol-related poor health, his lack of sophistication with respect
to the marijuana organization, and his intoxication and inability to comprehend
the circumstances at the time of the incident. In a cursory manner, his counsel
also suggested insufficient evidence supported the jury verdict because no
evidence established M r. Ponce-Garcia’s fingerprints were on the packaged and
loaded contraband. After considering M r. Ponce-Garcia’s request for a role
adjustment and the government’s objections, the district court granted M r. Ponce-
Garcia a two-point role adjustment, resulting in a Guidelines range of forty-one to
fifty-one months, and sentenced him to forty-one months imprisonment.
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On appeal, M r. Ponce-Garcia contests the district court’s denial of his
motion for acquittal on grounds the government presented insufficient evidence to
support the jury’s verdict. Instead of continuing his claim the offense happened
outside the jurisdiction of this country and the district court, M r. Ponce-Garcia
now renews the same claim raised at trial – that the government presented no
evidence to show he knew the marijuana was in the car at the time of his arrest.
Specifically, he argues no prints, residue, or other physical link existed between
M r. Ponce-Garcia and the marijuana because: 1) the vehicle was titled to
someone else; 2) irregularities in the vehicle were only visible w ith a flashlight,
an x-ray machine, and other tools; 3) he was not acting nervously or suspiciously;
4) agents found no receipts or significant cash showing he smuggled narcotics; 5)
no evidence established he noticed the raised seat and the smell of contraband,
which he would not have noticed given his intoxication; and 6) no one identified
him as the driver of the same vehicle the day before. Finally, he argues no
reasonable person would place valuable contraband in a car with a drunk driver as
a “mule” for the purpose of going through a checkpoint inspection.
To begin, we rely on our decision in United States v. Serrata, 425 F.3d 886
(10th C ir. 2005), in articulating the standard of review and other applicable law :
W e review de novo whether the prosecution presented sufficient
evidence to support a conviction. In conducting this review ... we
ask whether, taking the evidence – both direct and circumstantial,
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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. W e will not re-
weigh the evidence or assess the credibility of witnesses. Under this
standard, we will not reverse a conviction ... unless no rational trier
of fact could have reached the disputed verdict. The evidence
necessary to support a verdict need not conclusively exclude every
other reasonable hypothesis and need not negate all possibilities
except guilt. Instead, the evidence only has to reasonably support the
jury’s finding of guilt beyond a reasonable doubt.
Id. at 895 (quotation marks and citations omitted). Because M r. Ponce-Garcia
presented his case-in-chief after the district court denied his motion for judgment
of acquittal, he waived his right to limit our review to the government’s case-in-
chief alone, and we consider the entire record on appeal. See United States v.
Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004).
Applying these principles, it is apparent the evidence offered at trial
reasonably supported the jury’s finding of guilt beyond a reasonable doubt. As
the district court pointed out, M r. Ponce-Garcia was the driver and sole occupant
of the vehicle, it smelled of marijuana and contained 191 bundles which w ere
“obvious” in the seats or could be felt, and “Agent Ehrlich recognized the driver
and the vehicle from the day before” and “[a]t trial, ... identified the driver as
Ponce[-Garcia].” The district court further noted Agent Ehrlich also testified “the
vehicle looked different than it did the day before because Ponce[-Garcia] was
sitting higher in the vehicle and the back of the vehicle was riding lower.” The
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jury clearly credited this evidence, as well as Agent Ehrlich’s testimony the
driver’s seat was unusually high and extremely hard to the touch, M r. Ponce-
Garcia’s head almost touched the ceiling, and ripples and humps in the seats
“were not normal,” for the purpose of determining M r. Ponce-Garcia knowingly
comm itted the offenses for which it convicted him. The agents’ use of an x-ray
or imaging device, a flashlight, and a “buster” to assist them did not establish M r.
Ponce-Garcia had no knowledge of the existence of the bundles of marijuana,
especially since their presence in the vehicle was obvious through smell, touch,
and unassisted sight, as M r. Ehrlich initially noticed the driver riding higher in his
seat well before using the aid of a flashlight. In addition, even though the
government did not provide evidence of M r. Ponce-Garcia’s fingerprints on the
bundles of marijuana, it was not unreasonable for the jury to credit the testimony
of another agent that fingerprints of “mules” transporting contraband are often not
found on the contraband or its packaging.
In crediting the government’s evidence, the jury also plainly rejected M r.
Ponce-Garcia’s claim he bought the vehicle the day before in M exico from a man
named “Octavio” for $100 and it was the first time he drove the vehicle across the
border. W hile M r. Ponce-Garcia now contends he was too intoxicated to notice
any signs the vehicle contained marijuana, the evidence at trial indicated he did
not appear or act intoxicated and that while he may have had an elevated level of
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alcohol which could interfere with medication or treatment, it was not necessarily
a level w hich w ould render an individual intoxicated or impaired. In addition, w e
have long determined it is permissible to infer that the owner or driver of a
vehicle has knowledge of the contraband found within it, especially in
circumstances where there is a large amount of contraband with a high street
value and the driver or owner is the sole occupant of the vehicle. See United
States v. Badilla, 419 F.3d 1128, 1132 n.1 (10th Cir. 2005), cert. denied, 126 S.
Ct. 1344 (2006); United States v. Cota-M eza, 367 F.3d 1218, 1224 (10th Cir.),
cert. denied, 543 U.S. 876 (2004); United States v. Rodriguez, 192 F.3d 946, 949
(10th Cir. 1999). Contrary to M r. Ponce-Garcia’s assertion, it is unlikely
someone would entrust a vehicle containing such a large amount of high-value
contraband to someone who did not know of its presence. See Badilla, 419 F.3d
at 1132 n.1.
As to M r. Ponce-Garcia’s other contentions he was not acting nervously or
suspiciously and agents found no receipts or significant cash showing he
smuggled narcotics, such evidence was not necessary for a reasonable or rational
jury to render a guilty verdict under the other circumstances presented, and, as
previously stated, “[t]he evidence necessary to support a verdict need not
conclusively exclude every other reasonable hypothesis and need not negate all
possibilities except guilt” but “only has to reasonably support the jury’s finding
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of guilt beyond a reasonable doubt.” Serrata, 425 F.3d at 895. After considering
the relevant direct and circumstantial evidence, “together with the reasonable
inferences to be drawn therefrom – in the light most favorable to the
government,” we can easily conclude “a reasonable jury could find the defendant
guilty beyond a reasonable doubt.” Id.
For these reasons, we A FFIRM M r. Ponce-G arcia’s conviction.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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