FILED
United States Court of Appeals
Tenth Circuit
October 16, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-2284
(D.C. No. 2:95-CR-00353-BB-5)
CARLOS ARMENDARIZ, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
Carlos Armendariz appeals his conviction following a jury trial of
possession with intent to distribute more than five kilograms of cocaine and
conspiracy to possess with intent to distribute more than five kilograms of
cocaine, his sentence of 324 months in prison, and the denial of his motion for
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
acquittal under Rule 29 of the Federal Rules of Criminal Procedure.
Mr. Armendariz argues that the evidence presented at trial was insufficient, as a
matter of law, to show his knowing participation in a conspiracy or demonstrate
that he exercised constructive possession of the narcotics in question. We have
jurisdiction over this direct appeal under 28 U.S.C. § 1291. Because the evidence
presented at trial, viewed in the light most favorable to the prosecution,
sufficiently supported the convictions, we affirm.
EVIDENCE
The evidence presented at trial showed that in late May of 1995, Richard
Orosco and Edwina Coddington were living together in a house in Las Cruces,
New Mexico, with Ms. Coddington’s two children. According to
Ms. Coddington’s testimony, Mr. Orosco was a drug trafficker, and two of his
associates in the drug trade were Carlos Armendariz (“Mr. Armendariz”) and
Alberto Armendariz (“Alberto”). Ms. Coddington traveled with Mr. Orosco to
Juarez, Mexico, so that he could meet with Mr. Armendariz and Alberto, and
make arrangements for Mr. Orosco to transport drugs. At one point, Alberto told
Ms. Coddington he never entered the United States because he was wanted by law
enforcement. Ms. Coddington testified that in the normal course of procedures,
the cocaine would be delivered to their house in Las Cruces, where it would be
put into fiberglass containers and delivered to other locations in the United States.
She testified that the loads were originally small enough to pack in a car, but then
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grew to the point where bigger trailers were used. She testified that Mr. Orosco
and Mr. Armendariz did most of the packing of the cocaine into the trailers for
the loads, but sometimes other people who she did not know were involved.
On May 29, 1995, law enforcement agents were conducting surveillance of
Mr. Orosco and Ms. Coddington’s house, acting on information from various
sources. At about six o’clock at night, they saw a white panel van driven by
Mr. Orosco arrive at the house and back into the garage. Two or three minutes
later they saw Mr. Armendariz arrive in his car. Ms. Coddington testified that
after Mr. Orosco and Mr. Armendariz arrived, she went into the garage and saw
that the van was loaded with kilograms of cocaine. In the garage at the time were
Mr. Orosco, Mr. Armendariz, and Mr. Danny Golay, who evidently served as a
babysitter for Ms. Coddington’s children, did other small jobs around the house,
and also helped load and unload cocaine. Ms. Coddington testified that the men
had laid out fiberglass containers and were packing the containers with cocaine
and wrapping the containers with plastic so they could load it. After a while, the
agents saw both the van and Mr. Armendariz leave.
About one o’clock in the afternoon on May 31, Mr. Golay and Mr. Orosco
maneuvered a pop-up camper trailer into the garage and closed the door. About
an hour and a half after that, Mr. Armendariz arrived at the house and went in the
front door. A little later, the garage door opened and Mr. Orosco and
Mr. Armendariz came out and stood in the driveway for a bit of time.
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Mr. Armendariz left the house at 5:40 p.m. At a little after 10:00 p.m.,
Mr. Orosco backed a black Chevrolet Blazer up to the garage and hooked the
trailer to it. He proceeded to drive around the block a number of times and also
drive one way down a street and then turn around and come back the other
direction. One of the law enforcement officers testified that he believed that
Mr. Orosco was making “heat runs” to see if law enforcement officers were
following him. R., Vol. 3, at 52. Mr. Orosco then returned to the house. A little
before midnight, he and Ms. Coddington, Mr. Golay, and Rhonda Siebenlist, who
was Ms. Coddington’s cousin, left the house in the Blazer, pulling the camper.
The Blazer eventually turned onto highway 70 and left Las Cruces headed
towards Alamogordo, New Mexico.
As they were driving out of Las Cruces, a Toyota pickup driven by Mr.
Gerardo Ochoa joined up with the Blazer and traveled along with it. Ms.
Coddington testified that one of Mr. Armendariz’s jobs was to check to make sure
that a checkpoint in Alamogordo was open before they left the house. She
testified that Mr. Ochoa was to drive “interference” for the Blazer, making sure
checkpoints were still open and that everything was proceeding as planned. In
Alamogordo, the agents observed Mr. Ochoa pull off the highway and make a call
from a gas station. The Blazer continued on for a little ways and then pulled over
into a truck stop and waited for Mr. Ochoa to catch up. The pair of vehicles
traveled on together until the law enforcement officers following the vehicle
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decided to have them stopped outside of Roswell, New Mexico. A K-9 officer
had his dog conduct a sniff test that indicated the presence of drugs in the camper
and a subsequent search conducted at the state police office revealed over 1,100
pounds of cocaine in the vehicle.
Ms. Coddington agreed to cooperate with the law enforcement officers after
her arrest. She testified that after her arrest the officers had her call
Mr. Armendariz and tell him that the men had been arrested and that she and
Ms. Siebenlist had been released. She testified that Mr. Armendariz “kind of
panicked and said he was going to get ahold [sic] of Alberto to see what to do.”
R., Vol. 3. at 99.
Law enforcement officers searched the house in Las Cruces after the
arrests. They found forty-one fiberglass forms at the residence as well as black
bags containing resin for the fiberglass. They also found pieces of the camper
that had been removed to make room for the cocaine. In addition, they found
other trailers that had false bottoms welded onto them to hold fiberglass forms.
Officers also conducted a search of Mr. Ochoa’s house after the arrest.
There they found a note with a number that corresponded to a pager number in
Ms. Coddington’s address book under the name “Carlos.” The officers also found
a rental agreement for a storage unit in Mr. Armendariz’ name. When officers
searched Mr. Armendariz’s residence they found more flatbed trailers with false
bottoms, one of which was registered to Mr. Orosco and showed that he had
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purchased it when he lived at the house in Las Cruces. Small pieces of fiberglass
were found both in the trailers and in the trunk of a car that was parked at
Mr. Armendariz’s house. The agents also seized phone records showing that
Mr. Armendariz had placed phone calls to Mr. Orosco and Ms. Coddington’s
house. They also seized an application for a vehicle registration in
Mr. Armendariz’ name for the vehicle he was seen driving when he arrived at
Mr. Orosco’s house on May 29.
After the search, subpoenaed records showed that an individual named
“Osvaldo Casada” was listed as the subscriber for eleven or twelve pagers.
Among these pagers were the pager that Ms. Coddington called to contact
Mr. Armendariz after her arrest, a pager belonging to Mr. Ochoa that was seized,
and a pager that Mr. Orosco had on him when he was arrested.
ANALYSIS
We review the sufficiency of the evidence to support a jury’s
verdict and the denial of Mr. [Armendariz’] motion for judgment of
acquittal de novo. We ask whether a reasonable jury could find a
defendant guilty beyond a reasonable doubt, viewing the evidence in
the light most favorable to the government and drawing reasonable
inferences therefrom.
United State v. Vigil, 523 F.3d 1258, 1262 (10th Cir.), cert. denied, 129 S. Ct. 281
(2008) (citation omitted). “This is a restrictive standard of review, and it
provides us with very little leeway.” United States v. Hernandez, 509 F.3d 1290,
1295 (10th Cir. 2007) (quotation marks omitted). As noted above,
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Mr. Armendariz seeks review of the sufficiency of the evidence supporting both
his possession and conspiracy convictions.
Conviction For Possession With Intent To Distribute.
As to his conviction for possession with intent to distribute,
Mr. Armendariz argues that the evidence did not show that he exercised
constructive possession of the cocaine. Aplt. Br. at 1. Mr. Armendariz argues
that the most a reasonable juror could conclude was that he was a minor player
tasked with one job, to determine whether the checkpoint was open.
“To sustain a conviction of possession with intent to distribute under 21
U.S.C. § 841(a)(1), the government must prove that a defendant: (1) possessed a
controlled substance, (2) knew he possessed a controlled substance, and
(3) intended to distribute the controlled substance.” United States v. Burkley,
513 F.3d 1183, 1189 (10th Cir.), cert. denied, 128 S. Ct. 2979 (2008) (quotation
marks omitted). Possession may be actual or constructive. United States v.
Winder, 557 F.3d 1129, 1137 (10th Cir.), cert. denied, 129 S. Ct. 2881 (2009).
“Constructive possession may be established by circumstantial evidence and may
be joint among several individuals.” United States v. McKissick, 204 F.3d 1282,
1291 (10th Cir. 2000) (quotation marks omitted). “Constructive possession exists
where a person knowingly has ownership, dominion, or control over the narcotics
and the premises where the narcotics are found.” United States v. McCullough,
457 F.3d 1150, 1168 (10th Cir. 2006) (quotation marks and brackets omitted).
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But “[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.” United States v. Triana, 477 F.3d 1189, 1194
(10th Cir. 2007) (quotation marks omitted). “We have alternatively defined
constructive possession of a controlled substance as an appreciable ability to
guide the destiny of the drug.” McCullough, 457 F.3d at 1168 (quotation marks
omitted).
A jury may–and often must–consider circumstantial evidence in
determining whether the Government has established the elements of
a 21 U.S.C. § 841(a)(1) offense. In considering whether the
Government’s evidence is sufficient to support the jury’s verdict, we
remain mindful that circumstantial evidence is entitled to the same
weight as direct evidence. To sustain a criminal conviction, the
Government’s evidence must be substantial or raise more than a mere
suspicion of guilt, but it need not disprove every other reasonable
theory of the case.
Winder, 557 F.3d at 1137-38 (quotation marks and citations omitted).
Here, we agree with the district court that, viewing the evidence in the light
most favorable to the government and drawing reasonable inferences therefrom, a
reasonable jury could have found beyond a reasonable doubt that Mr. Armendariz
had constructive possession over the cocaine. The jury could have reasonably
inferred from the testimony presented at trial, especially the testimony of
Ms. Coddington, that, as phrased by the district court, “Mr. Armendariz was the
organizer and supervisor of the load” of cocaine. R., Vol. 1, at 85. A jury could
have reasonably inferred from Ms. Coddington’s testimony that Mr. Orosco made
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cocaine deliveries into the United States for Mr. Armendariz and Alberto, and that
Mr. Armendariz handled the business in the United States because Alberto never
left Mexico. Ms. Coddington testified that Mr. Orosco and Mr. Armendariz
generally handled the packaging of the cocaine shipments, that they had both
loaded the cocaine for the shipment in question, and that Mr. Armendariz had
been in charge of making sure that the checkpoint was open before the shipment
left. Further, the law enforcement officers involved testified that in their
extensive experience, the person actually transporting the narcotics is very low on
the chain of command, with the leaders of the trafficking organization avoiding
actual possession of the narcotics. From the above, a reasonable juror could have
concluded beyond a reasonable doubt that a sufficient nexus existed between
Mr. Armendariz and the cocaine, Triana, 477 F.3d at 1194, and that he had an
appreciable ability to guide its destiny, McCullough, 457 F.3d at 1168.
Conspiracy Conviction.
As to his conspiracy conviction, Mr. Armendariz argues that the evidence
did not show his “knowing participation in a conspiracy,” Aplt. Br. at 1, and that
the most a reasonable jury could have concluded was that he was acquainted with
individuals who were transporting drugs, not that he had “entered into a
conspiratorial agreement regarding those drugs,” id. at 8.
In order to prove the conspiracy charge, the government had to show that
(1) Mr. Armindariz agreed with one or more persons to import and possess with
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intent to distribute 5 kilograms or more of a mixture or substance containing a
detectable amount of cocaine, (2) he knew the essential objectives of the
conspiracy; (3) he knowingly and voluntarily took part in the conspiracy, and
(4) the co-conspirators were interdependent. See R., Vol. 1, at 10; 21 U.S.C.
§ 841(a)(1) & (b)(1)(A); 21 U.S.C. § 846; Hernandez, 509 F.3d at 1295. As with
possession “[b]y necessity, the government may establish these elements by direct
or circumstantial evidence.” Id. (quotation omitted). “But as we have repeatedly
emphasized in our decisions in this area, we cannot sustain a conspiracy
conviction if the evidence does no more than create a suspicion of guilt or
amounts to a conviction resulting from piling inference on top of inference.” Id.
Here, a reasonable jury could have concluded beyond a reasonable doubt
that Mr. Armendariz was a knowing participant in the conspiracy. Here, the
pagers used by the various members of the trafficking ring were all tied to the
same subscriber. Mr. Armendariz helped package the cocaine in question in this
load and usually helped package the cocaine for transportation. He expressed no
surprise at being contacted by Ms. Coddington after the load of cocaine was
intercepted and the agents found more trailers with false bottoms at
Mr. Armendariz’ house and fiberglass fragments in both the trailers and the trunk
of a car parked at Mr. Armendariz’ house. Consequently, a reasonable jury could
have concluded that Mr. Armendariz “knowingly and voluntarily became a part of
the conspiracy.” Id.
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CONCLUSION
The judgment of the district court is AFFIRMED.
Entered for the Court
Robert H. Henry
Chief Circuit Judge
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