F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 2 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-8101 (D.C. No. 98-CR-84-2) TODD LADON JOHNSON, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , KELLY , and BRISCOE , Circuit Judges.
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) and 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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. Defendant Todd Ladon Johnson appeals his conviction of possession with
intent to distribute cocaine and aiding and abetting in violation of 21 U.S.C.
§ 841(a)(1), § 841(b)(1)(B) and 18 U.S.C. § 2. He argues that there was
insufficient evidence for a jury to find that he had actual or constructive
possession of the drugs at issue. We affirm.
FACTUAL BACKGROUND
At dusk on April 1, 1998, Johnson, in the front passenger seat of a Ford
Taurus with a California license plate, was traveling westbound on Interstate 80
west of Laramie, Wyoming. Officer David Chatfield of the Wyoming Highway
Patrol stopped the car after noting that it had illegally-tinted windows and an
unsecured front license plate. The driver, Arnold Butler, got out of the car. He
talked to Chatfield about the license plate and tinted windows and provided his
driver’s license (which had been canceled), registration (with a Sacramento,
California address), and proof of insurance. Butler also identified his only
passenger as Johnson.
Chatfield issued Butler a ticket for driving without a valid operator’s
license and warnings for the other observed infractions. He returned Butler’s
documents, then asked if he could search the car for drugs. In response, Butler
shrugged and opened the car trunk. After conducting a brief search of the trunk
and the two duffle bags in it, Chatfield received consent to look in the back seat.
-2- He found nothing of consequence under the seat behind the driver. He then
walked around the car to look in the other side, knelt down, and put his hand
under the seat, where he felt a package. Chatfield attempted to pull the package
out, but because it was caught on something he could only see about one and one-
half inches of it. He thought that he observed a brick-sized amount of
compressed powder, wrapped in red-tinted cellophane. He believed the powder
was a controlled substance. At that point, Butler jumped into the Taurus and
Chatfield spun away from the car. Butler sped off, with Johnson visible through
the open door.
Chatfield then ran back to his patrol car and began pursuit. He also radioed
the dispatcher and other law-enforcement officers to alert them to the developing
situation. A high-speed chase ensued, through a one-lane construction zone,
across a median, down an exit ramp, and onto Curtis Street in Laramie, where
Chatfield and the other officers who had joined the chase lost sight of the car.
Approximately two minutes later, another officer spotted the car sitting
stationary in the street behind a bakery located near Curtis Street and watched as
it began moving toward the store. The officer forced it to a stop and arrested
Butler, who was alone in the car. Arriving at the scene, Chatfield noted that the
back seat had been lifted up and that there was nothing underneath it.
-3- Shortly afterwards, an officer noticed Johnson on foot about six blocks
from the site of Butler’s arrest and four to five blocks from the bakery. After
calling in to obtain a description of the missing passenger, he stopped and
arrested Johnson. At the time of his arrest, Johnson was cold and clammy to the
touch and appeared to have been sweating. He had $746.37 in cash in a pocket
and a photograph of some children in front of a San Francisco 49ers’ poster in his
wallet.
That night, the law enforcement officers began a search for the missing
package that was suspected to contain drugs. They checked the car with a drug-
sniffing dog, which alerted to the car doors, jumped into the back seat, and
starting biting on the seats on the passenger side. No drugs were found, however.
The next morning the officers continued their search in the area around the
bakery. A delivery driver who noticed the police activity began looking around.
He found a 49ers’ stocking cap suspended in a grease drum sitting outside the
bakery. Inside the cap was a white package wrapped in clear plastic. The
package, which turned out to contain approximately a kilogram of cocaine, was
then seized by the police.
On appeal, Johnson argues that the government introduced insufficient
evidence at trial to support his conviction for possession of narcotics with the
intent to distribute. He asserts that no rational trier of fact could have found that
-4- he knowingly possessed the cocaine found in the stocking cap. We review
sufficiency of the evidence claims de novo, asking “‘only whether, taking the
evidence--both direct and circumstantial, together with the reasonable inferences
to be drawn therefrom--in the light most favorable to the government, a
reasonable jury could find [Defendant] guilty beyond a reasonable doubt.’”
United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir.), cert. denied, 120 S. Ct.
263 (1999) (quoting United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.
1996)). To determine whether the evidence is sufficient, we consider the
inferences that can be drawn from the evidence as a whole. Id. We do not
“question the jury’s credibility determinations or its conclusions about the weight
of the evidence.” United States v. Lazcano-Villalobos, 175 F.3d 838, 843
(10th Cir. 1999).
Johnson’s challenge is to the government’s showing that he had
constructive possession of the cocaine ultimately found in the grease barrel.
A person constructively possesses contraband “‘when he or she knowingly has
ownership, dominion or control over the object and premises where it is found.’”
United States v. Campos, 221 F.3d 1143, 1151 (10th Cir. 2000) (quoting United
States v. Taylor, 113 F.3d 1136, 1144-45 (10th Cir. 1997)). Where there is joint
or shared possession of an object, the government may prove constructive
possession by “present[ing] direct or circumstantial evidence to show some
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 2 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-8101 (D.C. No. 98-CR-84-2) TODD LADON JOHNSON, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , KELLY , and BRISCOE , Circuit Judges.
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) and 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. 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. Defendant Todd Ladon Johnson appeals his conviction of possession with
intent to distribute cocaine and aiding and abetting in violation of 21 U.S.C.
§ 841(a)(1), § 841(b)(1)(B) and 18 U.S.C. § 2. He argues that there was
insufficient evidence for a jury to find that he had actual or constructive
possession of the drugs at issue. We affirm.
FACTUAL BACKGROUND
At dusk on April 1, 1998, Johnson, in the front passenger seat of a Ford
Taurus with a California license plate, was traveling westbound on Interstate 80
west of Laramie, Wyoming. Officer David Chatfield of the Wyoming Highway
Patrol stopped the car after noting that it had illegally-tinted windows and an
unsecured front license plate. The driver, Arnold Butler, got out of the car. He
talked to Chatfield about the license plate and tinted windows and provided his
driver’s license (which had been canceled), registration (with a Sacramento,
California address), and proof of insurance. Butler also identified his only
passenger as Johnson.
Chatfield issued Butler a ticket for driving without a valid operator’s
license and warnings for the other observed infractions. He returned Butler’s
documents, then asked if he could search the car for drugs. In response, Butler
shrugged and opened the car trunk. After conducting a brief search of the trunk
and the two duffle bags in it, Chatfield received consent to look in the back seat.
-2- He found nothing of consequence under the seat behind the driver. He then
walked around the car to look in the other side, knelt down, and put his hand
under the seat, where he felt a package. Chatfield attempted to pull the package
out, but because it was caught on something he could only see about one and one-
half inches of it. He thought that he observed a brick-sized amount of
compressed powder, wrapped in red-tinted cellophane. He believed the powder
was a controlled substance. At that point, Butler jumped into the Taurus and
Chatfield spun away from the car. Butler sped off, with Johnson visible through
the open door.
Chatfield then ran back to his patrol car and began pursuit. He also radioed
the dispatcher and other law-enforcement officers to alert them to the developing
situation. A high-speed chase ensued, through a one-lane construction zone,
across a median, down an exit ramp, and onto Curtis Street in Laramie, where
Chatfield and the other officers who had joined the chase lost sight of the car.
Approximately two minutes later, another officer spotted the car sitting
stationary in the street behind a bakery located near Curtis Street and watched as
it began moving toward the store. The officer forced it to a stop and arrested
Butler, who was alone in the car. Arriving at the scene, Chatfield noted that the
back seat had been lifted up and that there was nothing underneath it.
-3- Shortly afterwards, an officer noticed Johnson on foot about six blocks
from the site of Butler’s arrest and four to five blocks from the bakery. After
calling in to obtain a description of the missing passenger, he stopped and
arrested Johnson. At the time of his arrest, Johnson was cold and clammy to the
touch and appeared to have been sweating. He had $746.37 in cash in a pocket
and a photograph of some children in front of a San Francisco 49ers’ poster in his
wallet.
That night, the law enforcement officers began a search for the missing
package that was suspected to contain drugs. They checked the car with a drug-
sniffing dog, which alerted to the car doors, jumped into the back seat, and
starting biting on the seats on the passenger side. No drugs were found, however.
The next morning the officers continued their search in the area around the
bakery. A delivery driver who noticed the police activity began looking around.
He found a 49ers’ stocking cap suspended in a grease drum sitting outside the
bakery. Inside the cap was a white package wrapped in clear plastic. The
package, which turned out to contain approximately a kilogram of cocaine, was
then seized by the police.
On appeal, Johnson argues that the government introduced insufficient
evidence at trial to support his conviction for possession of narcotics with the
intent to distribute. He asserts that no rational trier of fact could have found that
-4- he knowingly possessed the cocaine found in the stocking cap. We review
sufficiency of the evidence claims de novo, asking “‘only whether, taking the
evidence--both direct and circumstantial, together with the reasonable inferences
to be drawn therefrom--in the light most favorable to the government, a
reasonable jury could find [Defendant] guilty beyond a reasonable doubt.’”
United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir.), cert. denied, 120 S. Ct.
263 (1999) (quoting United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.
1996)). To determine whether the evidence is sufficient, we consider the
inferences that can be drawn from the evidence as a whole. Id. We do not
“question the jury’s credibility determinations or its conclusions about the weight
of the evidence.” United States v. Lazcano-Villalobos, 175 F.3d 838, 843
(10th Cir. 1999).
Johnson’s challenge is to the government’s showing that he had
constructive possession of the cocaine ultimately found in the grease barrel.
A person constructively possesses contraband “‘when he or she knowingly has
ownership, dominion or control over the object and premises where it is found.’”
United States v. Campos, 221 F.3d 1143, 1151 (10th Cir. 2000) (quoting United
States v. Taylor, 113 F.3d 1136, 1144-45 (10th Cir. 1997)). Where there is joint
or shared possession of an object, the government may prove constructive
possession by “present[ing] direct or circumstantial evidence to show some
-5- connection or nexus individually linking [defendant] to the contraband.”
Lazcano-Villalobos, 175 F.3d at 843. In other words, the government must offer
evidence that supports “at least a plausible inference [that defendant] knew of the
contraband.” Id. “[A]n inference of constructive possession is reasonable if the
conclusion flows from logical and probabilistic reasoning.” Id.
In this case, we find that the totality of the circumstantial evidence and the
reasonable inferences therefrom support a finding of Johnson’s knowing
possession of cocaine. First, Johnson jointly occupied the Taurus with Butler
and, along with Butler, fled from Chatfield’s search. Second, Chatfield’s brief
contact with the cellophane-wrapped package took place directly behind
Johnson’s seat. Third, after the high-speed chase ended and the Taurus stopped
close to the bakery, the package and Johnson were missing and the back seat was
lifted up. Fourth, when Johnson was arrested in the same general area, he was
wearing a short-sleeved shirt on a cold night but appeared to have been sweating.
A logical inference is that, while Butler was driving the Taurus, Johnson
removed the cocaine package from under the backseat. During the brief time that
the officers lost sight of the Taurus, Johnson left the car, placed the package in
the grease barrel, and attempted to get back to the Taurus. When he saw the
officers confronting Butler, he took off on foot. The fact that Johnson was from
Sacramento, California, and inferentially a 49ers’ fan marginally bolsters this
-6- inference. Thus, viewing the evidence in the light most favorable to the
government, there is sufficient evidence of possession of cocaine.
Concerning evidence of intent to distribute cocaine, “[t]he quantity of the
drug possessed is a circumstance which may permit the inference that the
possessor intended to sell, deliver, or otherwise distribute.” United States v. Gay ,
774 F.2d 368, 372 (10th Cir. 1985); see also United States v. Brandon , 847 F.2d
625, 630 (10th Cir. 1988), superseded on another issue by rule , United States v.
Underwood , 982 F.2d 426, 429 (10th Cir. 1992) (stating that “[i]ntent to
distribute may be inferred from the large quantity of cocaine possessed”--1000
grams). The resale value of the drug and its purity is also relevant to the issue.
See Gay , 774 F.2d at 372, n.4, 5.
Here, the brick of cocaine weighed 1,030.79 grams. Additionally, there
was testimony that value of the brick of cocaine was in excess of $100,000 before
being cut and processed. See R., vol. 6 at 277. Johnson’s conviction for
possession of narcotics with the intent to distribute finds support in the record.
There is also sufficient evidence for a theory of aiding and abetting. “To
be guilty of aiding and abetting, a defendant must willfully associate with the
criminal venture and aid such venture through affirmative action.” United States
v. Jones , 44 F.3d 860, 869 (10th Cir. 1995). After finding that Johnson
-7- constructively possessed the cocaine, the jury could then infer that he willfully
associated himself with the criminal venture and that he aided the venture.
The judgment of the district court is AFFIRMED.
Entered for the Court
Deanell Reece Tacha Circuit Judge
-8-