F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 26, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 06-7054
YOLANDA TRIANA, also known as
Yolanda Jean Rodriguez,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E EASTERN DISTRICT O F O K LAH O M A
(D.C. NO . 05-CR-74-S)
J. Lance Hopkins, Tahlequah, Oklahoma, for D efendant - Appellant.
Gregory Dean Burris, Assistant United States Attorney, (Sheldon J. Sperling,
United States Attorney, with him on the brief), M uskogee, Oklahoma, for Plaintiff
- Appellee.
Before BR ISC OE, B AL DOC K , and HA RTZ, Circuit Judges.
HA RTZ, Circuit Judge.
A jury found Yolanda Triana guilty on one count of possession with intent
to distribute more than 50 grams of methamphetamine, see 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(viii), and one count of possession of a firearm in furtherance of a
drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(I) and (c)(2). She was
sentenced in the United States District Court for the Eastern District of Oklahoma
to consecutive terms of 121 months’ imprisonment on the drug count and 60
months on the firearm count. She appeals her conviction, contending that there
was insufficient evidence that she possessed the drugs or a firearm, and that the
district court erred in defining deliver in a jury instruction. W e have jurisdiction
under 28 U.S.C. § 1291; we reject her contentions and affirm her conviction.
I. B ACKGR OU N D
On July 25, 2005, Oklahoma H ighway Patrol Trooper Scott M iller noticed a
PT Cruiser convertible going 92 miles per hour on Interstate 40. He stopped the
vehicle and asked the driver for his license and proof of insurance. The driver
(later identified as Ricardo Callirgos-Navetta) was unable to produce the
requested documents. Because it was difficult to converse over the highway noise
and dangerous to stand on the side of the road, M iller asked M r. Callirgos-
Navetta to accompany him to his patrol car.
Once M r. Callirgos-N avetta entered the patrol car, Trooper M iller told him
to sit tight and he returned to the PT Cruiser. He asked the passenger,
M s. Triana, for her license. She told him that M r. Callirgos-N avetta had never
had a license, and gave him hers. M iller went back to his patrol car and asked
M r. Callirgos-N avetta who owned the car that he w as driving, where they were
going, and where they had been. He responded that they had been in California to
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visit his daughter, and that the car was a rental. M iller went to the PT Cruiser to
get the rental agreement from M s. Triana, but she was unable to find it. W hen
M iller asked her w here they were coming from, she responded that they were
returning from Albuquerque, New M exico, where they had been to visit her
daughter. He again went to the patrol car and questioned M r. Callirgos-N avetta
further in an attempt to reconcile their conflicting accounts. M r. Callirgos-
Navetta, however, only elaborated on his prior account, contradicting himself on
occasion as he did so.
Suspicious that the couple was engaged in illegal activity, Trooper M iller
radioed for a K-9 drug-detection unit. He then issued M r. Callirgos-N avetta a
citation for speeding and a warning for driving without a license. After telling
him that he was free to go, however, M iller asked M r. Callirgos-Navetta whether
he would first answer a few questions. He agreed. M iller asked him whether he
had anything illegal in the car and whether he would consent to a search of the
vehicle. M r. Callirgos-N avetta replied that M iller would have to get permission
from M s. Triana, as it w as not his car. M s. Triana initially declined to give
permission, so M iller informed her that he had called for a drug dog to sniff
around the car because her story and M r. Callirgos-N avetta’s did not match up.
She then said that he could search the car, but he replied that it was too late for
that. He asked her to join M r. Callirgos-N avetta in his patrol car while they
awaited the dog. M iller left them alone in his car. The patrol car was equipped
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with a video camera and an audio recording system. The video camera was
mounted inside on the windshield and pointed forward; the audio recording
system had two microphones, one on M iller and one inside the patrol car.
Unaware that they were being recorded, M r. Callirgos-Navetta and
M s. Triana discussed their situation. Although M s. Triana’s counsel argues that
most of the recorded audio is unintelligible, our review reveals that a large part of
what M s. Triana and M r. Callirgos-N avetta say while in the patrol car can be
understood. Shortly after Trooper M iller left the patrol car, M s. Triana
reprimanded M r. Callirgos-Navetta for speeding, and he said he was sorry. She
asked, “You’re sorry what, that I’m going to go to jail?” R. Add. at 19:48:16.
They argued about why he had said that they had been to California rather than
saying that they had gone to Albuquerque. M s. Triana told him that she had “that
shit in my pants,” id. at 19:48:48, to which he replied, “Do you have it on you?”
Id. at 19:49:02. Their conversation turned to the upcoming dog search, and
M s. Triana said, “He’s going to smell that in the bag.” Id. at 19:51:48. She also
told him, “You didn’t help me pack the car . . . if they open the trunk.” Id. at
19:51:55-52:15.
Trooper Darren Koch and his partner, Trooper Ty Owens, who had arrived
with the drug dog shortly after M s. Triana entered the patrol car, took the dog to
the convertible. M s. Triana and M r. Callirgos-N avetta continued to converse
while they watched Koch and his dog circle their vehicle. W hen the dog
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approached the rear of the car, M s. Triana said, “If he gets near that corner, that’s
where it is.” Id. at 19:53:38. As the dog rounded the back right corner of the car,
where the drugs were eventually found, M s. Triana said, “Keep going doggy, keep
going.” Id. at 19:53:41. The dog alerted to the presence of drugs in the vehicle.
One of the troopers asked M s. Triana and M r. Callirgos-Navetta whether
they had a personal-use quantity of drugs in the car. They denied having drugs
but M s. Triana told the trooper that there was a gun under the driver’s seat. The
troopers then began a search of the vehicle. During the search M s. Triana said to
M r. Callirgos-Navetta, “If they find anything, they planted it.” Id. at 19:57:41.
The troopers found a gun and a silver briefcase in the passenger compartment.
W hen M r. Callirgos-Navetta asked M s. Triana what was in the briefcase, she
replied that it contained other guns. Unable to open the briefcase, a trooper asked
M r. Callirgos-N avetta for the combination. He replied that it wasn’t his; the
trooper then asked M s. Triana the same question. She gave him the combination,
stating, “It’s 006, or 007.” Id. at 20:03:06-10. The troopers opened the briefcase
and found two more guns inside.
Two troopers continued to examine the contents of the briefcase while the
third moved to the trunk and opened it. He began removing things from the
corner where the dog had alerted. As he did so, M s. Triana said, “W e’re dead.”
Id. at 20:03:56. W hen the trooper removed a black backpack, M s. Triana became
audibly upset and exclaimed, “Oh, please no, there it is Rick!” Id. at 20:04:08.
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She then cried, “W ho’s gonna help me, Rick?” Id. at 20:04:09. The backpack
contained 432.39 grams of methamphetamine. The trunk also contained drug
paraphernalia, including ziplock baggies, scales, and glass pipes, and an open bag
of coffee intended to mask the smell of the drugs.
Having found the drugs in the trunk, Trooper K och asked M s. Triana to
step out of the patrol car. As she exited, a glass pipe fell from her pocket to the
ground. She then removed a black pouch from her pants, saying, “W hat you want
is right here,” R. Vol. 3 at 48, and handed it to Koch. About three grams of
methamphetamine were found in a lip-gloss container inside the pouch that she
had removed from her pants.
Troopers M iller and Koch testified to the above events at trial. Also, the
video of the stop was shown to the jury. M s. Triana testified as follows: She
lived in Fayetteville, Arkansas, and she and M r. Callirgos-N avetta had been
together in a common-law marriage for 17 years. She had been planning to take
her 15-year-old son with her to Albuquerque, New M exico, where her daughter
(w ho lived in California) would meet them for a visit. M r. Callirgos-N avetta was
fired from his job and decided to join her at the last minute. (It is evident from
the video of the stop that her son did not join them on the trip.) Upon arrival in
Albuquerque, M s. Triana, her daughter, and her grandchildren went shopping
without M r. Callirgos-N avetta. W hen they returned that evening to their motel,
he was not there. He did not return that night, and she did not know where he
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w as. A fter he returned the next day, he did not disclose where he had been. He
and M s. Triana went to a store that sold drug paraphernalia, and purchased
baggies, glass pipes, and a scale. They then left Albuquerque. They stopped at a
motel in Amarillo, Texas, where M r. Callirgos-N avetta emptied on the nightstand
the contents of a black pouch in which he kept personal items and some
methamphetamine, which they both used. M r. Callirgos-N avetta had pressured
her into using drugs at times, but she never asked him about his drug-dealing
business. Although he could at times be very nice, he was controlling and on
occasion had physically abused her to the point that she feared for her life.
Regarding the traffic stop, she testified that when they were being pulled
over, M r. Callirgos-N avetta had shoved the black pouch into her shorts and told
her that in the trunk he had “shit,” which she understood to be methamphetamine.
R. Vol. 3 at 146. She said that this was the first she knew about there being any
drugs in the car other than those in the black pouch. As for the guns, she testified
that although she had purchased them, they belonged to M r. Callirgos-N avetta.
W hen asked on cross-examination about her statement to M r. Callirgos-N avetta
on the video that “[y]ou didn’t help me pack the car,” she said that she was
referring only to the car’s interior and was trying to transfer responsibility to
herself from M r. Callirgos-Navetta, a convicted felon, for possession of the guns
because she did not think that she faced any liability for possessing them. She
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also explained that the reason she had become agitated when the troopers began
searching the trunk was that there were items in it that she did not want seen.
M r. Callirgos-N avetta also testified at trial. W hen asked about the trip, he
gave a story different from M s. Triana’s. He said that M s. Triana had been
nagging him that she wanted to see her grandchildren. Because he was already
going in that direction, he decided to take her w ith him. The purpose of his trip
was to pick up methamphetamine in California for distribution. Once they arrived
in Albuquerque, he took the car and left M s. Triana with their daughter. W ithout
telling M s. Triana where he was going, he drove to California to obtain a package
that he put in a backpack. On his return to Albuquerque, he picked up
M s. Triana, who did not ask where he had been. M r. Callirgos-N avetta further
testified that on the trip he had been carrying a black pouch containing his
personal drugs. W hen they were being pulled over, he grabbed the pouch and
stuck it in her pants. He then told her that he had “some stuff” in the trunk,
R. Vol. 3 at 210; this was the first he had told her about the drugs in the trunk.
W ith respect to Count One (the drug-possession charge), the district court
instructed the jury that to convict M s. Triana it had to find that she had possessed
the controlled substance knowingly and intentionally with the intent to distribute
it. It defined distribute as “to deliver a controlled substance.” R. Vol. 1 Doc. 47
at 16. About 90 minutes after the jury retired to deliberate, it sent a note to the
court asking, “Could we please have a definition of delivering?” R. Vol. 4 at 302.
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The court advised counsel that it intended to comply with the request. Although
both the prosecutor and defense counsel objected, the court gave the jury a
supplemental instruction stating, “The term ‘deliver’ means to yield possession or
control of something to another.” R. Vol. 1 Doc. 47 at 17. It also told the jury
that it should “be guided by all of the instructions” already given as well as the
supplemental instruction. R. Vol. 4 at 309. The jury reached its verdict about
two and a half hours later.
II. ANALYSIS
A. Sufficiency of the Evidence
M s. Triana contends that the evidence was insufficient for the jury to find
her guilty of either the methamphetamine or the firearm offense. W e review the
sufficiency of the evidence de novo. See United States v. Platte, 401 F.3d 1176,
1180 (10th Cir. 2005). W e “ask only whether, taking the evidence— both direct
and circumstantial, together w ith 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.” Id. (internal quotation
marks omitted).
1. Possession of Drugs
To sustain M s. Triana’s conviction for possession with intent to distribute,
the evidence must prove that she (1) knowingly possessed the illegal drug, and (2)
did so with the intent to distribute it. See United States v. Reece, 86 F.3d 994,
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996 (10th Cir. 1996). “Possession may be either actual or constructive;
constructive possession may be found if a person knowingly has ownership,
dominion, or control over the narcotics and the premises where [they] are
found. . . . [W ]hen the contraband may be attributed to more than one individual,
constructive possession requires some nexus, link, or other connection between
the defendant and the contraband. The jury may draw reasonable inferences from
direct or circumstantial evidence, yet an inference must amount to more than
speculation.” Id. (citations and internal quotation marks omitted). “[A] jury may
infer intent to distribute from the possession of large quantities of drugs.” United
States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004).
M s. Triana argues that she could not be convicted of the drug offense
because (1) M r. Callirgos-Navetta, not she, exercised dominion and control over
the drugs found in the trunk and he was the one who was going to distribute them;
and (2) the drugs in the pouch found on her person belonged to him and were for
his personal use, not distribution. W e are not persuaded.
M s. Triana relies on Reece, in w hich w e reversed the defendant’s
conviction for possession with intent to distribute because the “evidence fail[ed]
to link [him] to the narcotics in any way other than presence and proximity, let
alone show his intent to sell.” 86 F.3d at 996. M r. Reece was driving the car in
which his codefendant was riding when they were stopped by a police officer.
Drugs were found on the codefendant, but not on M r. Reece, nor elsewhere in the
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car. See id. W e stated that the only evidence that could possibly link M r. Reece
to the drugs was a statement recorded while he and his codefendant waited in a
patrol car. See id. The statement indicated his knowledge of the drugs, but by
the time it w as made, the codefendant had told M r. Reece about the drugs. See id.
It was therefore insufficient to establish the required nexus between M r. Reece
and the drugs. See id.
W e find Reece readily distinguishable. Unlike the defendant in Reece, who
had no drugs on his person, M s. Triana was carrying the drugs in the black pouch
at the time of the stop. Her knowledge of their presence was demonstrated by her
statement “I have that shit in my pants,” R. Add. 19:48:48, and her later voluntary
surrender of the pouch to the trooper. The jury was not required to credit her
argument that the drugs in the pouch belonged to M r. Callirgos-Navetta and that
she did not have dominion or control over them.
M ore important is the evidence of her connection to the drugs in the trunk:
After M r. Callirgos-Navetta apologized to her while they sat in the patrol car, she
asked him, “Sorry what, that I’m going to go to jail?” Id. at 19:48:16. W hile
waiting for the dog, she feared that it was “going to smell that in the bag.” Id. at
19:51:48. W hen the dog approached the trunk, she said, “If he gets near that
corner, that’s where it is,” id. at 19:53:38, and “Keep going doggy, keep going,”
id. at 19:53:41. As the officer opened the trunk, she said, “W e’re dead,” id. at
20:03:56; and as he removed the backpack containing the drugs, she said, “Oh,
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please no, there it is Rick,” id. at 20:04:08, and “Who’s gonna help me Rick?”
Id. at 20:04:09. Although M r. Callirgos-N avetta testified that the drugs w ere his
and that she did not know about them, the jury was not required to believe him.
W e note that the jury could reasonably have determined from the tone and
substance of the audio recording that M s. Triana, not M r. Callirgos-Navetta, was
the dominant person in their relationship. W e “accept the jury’s resolution of the
evidence as long as it is within the bounds of reason.” See United States v. Cui
Qin Zhang, 458 F.3d 1126, 1128 (10th Cir. 2006) (emphasis and internal
quotation mark omitted). It was eminently reasonable to find that M s. Triana
knowingly possessed all the drugs found in the convertible.
Having determined that the evidence was sufficient to show that she
possessed the drugs, we have little difficulty in further determining that the
evidence was sufficient to show that M s. Triana intended to distribute them. Not
only was the quantity of drugs found in the backpack large enough for the jury to
infer intent to distribute, see Pulido-Jacobo, 377 F.3d at 1131, but the scales,
glass pipes, and ziplock baggies— so called “tools of the drug trade”— were
further evidence from which the jury could infer an intent to distribute. United
States v. M iller, 84 F.3d 1244, 1255 (10th Cir. 1996), overruled on other grounds
by United States v. Holland, 116 F.3d 1353 (10th Cir. 1997). W hoever possessed
the drugs had more in mind than just personal use.
2. Possession of Firearm s
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M s. Triana was convicted of violating 18 U.S.C. § 924(c)(1)(A), which
prohibits using or carrying a firearm “during and in relation to any . . . drug
trafficking crime” or possessing a firearm “in furtherance of any such crime.”
Her specific challenge to the conviction is that there was insufficient evidence
that she possessed the guns found in the PT Cruiser. W e disagree. She admitted
that she had purchased the guns (because it was unlawful for M r. Callirgos-
Navetta to do so), and that she had rented the car in which they were found. She
told the officers that there was a gun under the seat. When M r. Callirgos-N avetta
asked her w hat was in the briefcase, she told him that it contained other guns.
She, not M r. Callirgos-Navetta, gave the troopers the combination to open the
briefcase. The jury could rationally infer that M s. Triana possessed the guns
found in the car.
B. Jury Instruction
M s. Triana contends that the district court comm itted reversible error when
it gave the jury an instruction defining the term deliver as “to yield possession.”
She argues that the court either should not have given a definitional instruction or
should have used in the definition a word such as give, rather than yield, to
indicate “an affirmative act” of transferring possession. Aplt. Br. at 23. “W e
review a district court’s decision to give a particular jury instruction for an abuse
of discretion and consider the instructions as a whole de novo to determine
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whether they accurately informed the jury of the governing law.” United States v.
Gwathney, 465 F.3d 1133, 1142 (10th Cir. 2006).
The definitional instruction did not misstate the law, at least in the context
of this case. W e fail to see how omission of the instruction, or providing a
definition using give rather than yield, could have affected the jury’s ultimate
finding of M s. Triana’s guilt on the possession-with-intent-to-distribute count. A t
oral argument on appeal her counsel urged that because the definition given by
the court was passive (“yield”), it was easier for the jury to find that M s. Triana
was guilty of possession with intent to distribute than it would have been had the
definition included the more active word “give.” “Give,” in his view , would
have required the jury to find that M s. Triana had taken an active role in the drug-
distribution activity, rather than merely having been a passenger in the car where
the drugs were found.
But if the jury had found that M s. Triana was a mere passenger, with no
responsibility for the drugs, it would have acquitted her because she did not
possess the drugs. And if she is arguing that she would not be guilty of
possession with intent to distribute just because someone else (M r. Callirgos-
Navetta?) w ould be the one who personally distributed her drugs (i.e., she would
“yield” them to him for distribution), she is simply wrong. One who has joint
possession of drugs with the intent that someone else actually handle the
distribution is guilty of possession with intent to distribute. The law does not
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permit a willing participant in crime to escape liability by keeping her hands
clean. As the jury was instructed, one is guilty as an aider or abettor if she
“willfully associate[s] herself in some way with the criminal venture, and . . .
willfully participate[s] in it as in something she wishes to bring about, and . . .
willfully seeks by some action of hers to make it succeed.” R. Vol. 1 Doc. 47 at
23–24; see United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999). W e
can see no basis for acquitting M s. Triana that could have turned on the use of
give rather than yield in the district court’s instruction. Therefore, we need not
speculate whether in some other case the use of the word yield could mislead a
jury into reaching an improper verdict.
III. C ON CLU SIO N
M s. Triana’s conviction is AFFIRMED.
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