UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
_____________
No. 98-1382 _____________
UNITED STATES OF AMERICA, * * Plaintiff-Appellee * * Appeal from the United States v. * District Court for the Southern * District of Iowa LORENZO QUINTANAR * * Defendant-Appellant *
____________
Submitted: June 9, 1998 Filed: July 28, 1998 ____________
Before LOKEN, Circuit Judge, GODBOLD,* and HEANEY, Senior Circuit Judges. ____________
GODBOLD, Senior Circuit Judge
Lorenzo Quintanar was convicted of possession of methamphetamine with
intent to distribute, 21 U.S.C. § 841(a)(1). The sole issue on appeal is the sufficiency
of the evidence to show that he was in constructive possession of the
* The HONORABLE JOHN C. GODBOLD, United States Senior Circuit Judge for the Eleventh Circuit, sitting by designation. methamphetamine. Quintanar’s motion for judgment of acquittal was denied. We
hold that the evidence of constructive possession was insufficient and reverse his
conviction.
Quintanar and co-defendant Leonel Macias, a.k.a. Juan Guzman, were charged
in Count I with conspiracy to possess methamphetamine, 21 U.S.C. § 846(a), and in
Count II with possession with intent to distribute, 21 U.S.C. § 841(a)(1). For reasons
unrelated to this appeal trials of the two defendants were severed. Macias was tried
separately and acquitted on both counts. He was the only named person alleged to
be a co-conspirator. Therefore, at Quintanar’s trial the court instructed the jury that
to find Quintanar guilty of the conspiracy charge it must find that he conspired with
someone other than Macias. The jury acquitted Quintanar of the conspiracy charge
and returned a verdict of guilty on the possession charge of Count II.
The following evidence was presented at Quintanar’s trial which the jury was
entitled to accept, though many of the details that concerned Quintanar were disputed
by him. The methamphetamine involved was brought by UPS from an address in
California and delivered to the home of Diane Hoffman, in a package addressed to
Pablo Arredondo, Hoffman’s former boyfriend. Arredondo had recently parted from
Hoffman and, reputedly, had gone to Mexico. Hoffman had agreed that he could send
mail to her address.
2 About a week before the arrival of the package on March 21 Hoffman attended
a party at the home of the defendant. Defendant asked her address and wrote it on
the back of a business card. Later she saw another man put the card in his wallet.
Defendant asked again for her address, saying that he had lost the one previously
given. She asked why he wanted the address, and he referred to being in
correspondence with Pablo in Mexico. At the party Quintanar also introduced
Hoffman to his friend, Leonel Macias. Macias did not speak English and could not
communicate with Hoffman. She saw Macias again at a disco. She described Macias
as “like a follower, following [Quintanar] around” (Tr. 61); “[Macias] followed
[Quintanar] around like a puppy” (Tr. 65). Macias lived in Quintanar’s house. Id..
She never heard Quintanar and Macias talk about methamphetamine.
At some time – exactly when is not clear – Hoffman enlisted Quintanar’s help
in trying to locate Pablo in Mexico. A few days after the party defendant came to
Hoffman’s house several times and discussed with her the possibility of her working
for him once he established a proposed bail bond business. Also he asked her to
order for him a quantity of MSM, a medication for horses, and he asked to have it
sent C.O.D. to her home. She called a pharmaceutical company to find out what
MSM was. She did not comply with Quintanar’s request.
The day before the package was delivered Hoffman picked up Macias from the
3 home of a friend and brought him to meet Quintanar, who had come to her house
ostensibly to use her computer and look at some of her law books. When she and
Macias reached her home she found that Quintanar had borrowed her truck and
departed.
On March 21 Quintanar and Macias came to Hoffman’s home together.
Hoffman saw Macias going through her garbage can. At about the same time she saw
Quintanar, behind her house, cleaning out his car. He and Macias removed items
from the car and placed them in a box in her carport. Later she discarded the box.
Later the same day Quintanar asked Hoffman to go with him to guide him to
an automobile repair shop for a repair to his car. She complied. While they were at
the shop Hoffman received a pager telephone call from Michelle Connett, a friend of
Hoffman’s, who had come to her house after Hoffman and Quintanar had departed.
Connett told Hoffman that a package had arrived at the house addressed to the former
boyfriend, Pablo Arredondo. Diane had not expected a package. She instructed
Connett to bring the package to her at the repair shop. At Hoffman’s home Macias
had taken possession of the package and kept it under his supervision and control.
He loaded the box into the back seat of Hoffman’s car, where he sat and, with
Connett driving, the two went to the repair shop site. Hoffman was suspicious about
the package, and before the others arrived she told Quintanar that there was
4 something wrong with the package, and she questioned him about it, although at that
point narcotics were “the furthest thing from [her] mind.” Defendant told her it
contained papers for Pablo coming from California. She responded that Pablo had
not lived in California for seven years, and she told Quintanar that when the box
arrived at the repair shop she was going to open it, so he just might as well tell her the
truth. Quintanar then told her that there were drugs in the box, “[he] asked me just
to give – just to turn the box over to him, not to destroy him.” He then asked her
what she wanted, whether she wanted “a cut [of the drug] or if [she] wanted money.”
When the car arrived Connett was driving and Macias was in the rear seat with
the box, which was covered by a jacket. Hoffman opened the door, grasped Macias
by the shirt and pulled him from the car, jumped in the car and “told Michelle to get
out of there.” Neither Quintanar nor Macias made any verbal or physical attempt to
stop Hoffman from driving away with the package still in the car.
Hoffman and Michelle drove to the police station with Michelle at the wheel.
Hoffman asked to be directed to the narcotics unit, turned the box over to an
interviewing officer and reported to him that it had come to her house, that Connett
had brought it to her, that she was not sure what was in the box but that Quintanar
had told her it contained drugs. The officer opened it and found that it contained a
plastic sealed bag, which contained methamphetamine.
5 Neither Quintanar’s name nor his address was on the box. He never touched
it or handled it. He was never in the Hoffman home or in the car with the package.
It was brought from Hoffman’s house to the repair shop at the direction of Hoffman
and in her car. When the package arrived at the garage site, under the control of
Macias, Quintanar did not receive or touch it and it had remained in the car.
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UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
_____________
No. 98-1382 _____________
UNITED STATES OF AMERICA, * * Plaintiff-Appellee * * Appeal from the United States v. * District Court for the Southern * District of Iowa LORENZO QUINTANAR * * Defendant-Appellant *
____________
Submitted: June 9, 1998 Filed: July 28, 1998 ____________
Before LOKEN, Circuit Judge, GODBOLD,* and HEANEY, Senior Circuit Judges. ____________
GODBOLD, Senior Circuit Judge
Lorenzo Quintanar was convicted of possession of methamphetamine with
intent to distribute, 21 U.S.C. § 841(a)(1). The sole issue on appeal is the sufficiency
of the evidence to show that he was in constructive possession of the
* The HONORABLE JOHN C. GODBOLD, United States Senior Circuit Judge for the Eleventh Circuit, sitting by designation. methamphetamine. Quintanar’s motion for judgment of acquittal was denied. We
hold that the evidence of constructive possession was insufficient and reverse his
conviction.
Quintanar and co-defendant Leonel Macias, a.k.a. Juan Guzman, were charged
in Count I with conspiracy to possess methamphetamine, 21 U.S.C. § 846(a), and in
Count II with possession with intent to distribute, 21 U.S.C. § 841(a)(1). For reasons
unrelated to this appeal trials of the two defendants were severed. Macias was tried
separately and acquitted on both counts. He was the only named person alleged to
be a co-conspirator. Therefore, at Quintanar’s trial the court instructed the jury that
to find Quintanar guilty of the conspiracy charge it must find that he conspired with
someone other than Macias. The jury acquitted Quintanar of the conspiracy charge
and returned a verdict of guilty on the possession charge of Count II.
The following evidence was presented at Quintanar’s trial which the jury was
entitled to accept, though many of the details that concerned Quintanar were disputed
by him. The methamphetamine involved was brought by UPS from an address in
California and delivered to the home of Diane Hoffman, in a package addressed to
Pablo Arredondo, Hoffman’s former boyfriend. Arredondo had recently parted from
Hoffman and, reputedly, had gone to Mexico. Hoffman had agreed that he could send
mail to her address.
2 About a week before the arrival of the package on March 21 Hoffman attended
a party at the home of the defendant. Defendant asked her address and wrote it on
the back of a business card. Later she saw another man put the card in his wallet.
Defendant asked again for her address, saying that he had lost the one previously
given. She asked why he wanted the address, and he referred to being in
correspondence with Pablo in Mexico. At the party Quintanar also introduced
Hoffman to his friend, Leonel Macias. Macias did not speak English and could not
communicate with Hoffman. She saw Macias again at a disco. She described Macias
as “like a follower, following [Quintanar] around” (Tr. 61); “[Macias] followed
[Quintanar] around like a puppy” (Tr. 65). Macias lived in Quintanar’s house. Id..
She never heard Quintanar and Macias talk about methamphetamine.
At some time – exactly when is not clear – Hoffman enlisted Quintanar’s help
in trying to locate Pablo in Mexico. A few days after the party defendant came to
Hoffman’s house several times and discussed with her the possibility of her working
for him once he established a proposed bail bond business. Also he asked her to
order for him a quantity of MSM, a medication for horses, and he asked to have it
sent C.O.D. to her home. She called a pharmaceutical company to find out what
MSM was. She did not comply with Quintanar’s request.
The day before the package was delivered Hoffman picked up Macias from the
3 home of a friend and brought him to meet Quintanar, who had come to her house
ostensibly to use her computer and look at some of her law books. When she and
Macias reached her home she found that Quintanar had borrowed her truck and
departed.
On March 21 Quintanar and Macias came to Hoffman’s home together.
Hoffman saw Macias going through her garbage can. At about the same time she saw
Quintanar, behind her house, cleaning out his car. He and Macias removed items
from the car and placed them in a box in her carport. Later she discarded the box.
Later the same day Quintanar asked Hoffman to go with him to guide him to
an automobile repair shop for a repair to his car. She complied. While they were at
the shop Hoffman received a pager telephone call from Michelle Connett, a friend of
Hoffman’s, who had come to her house after Hoffman and Quintanar had departed.
Connett told Hoffman that a package had arrived at the house addressed to the former
boyfriend, Pablo Arredondo. Diane had not expected a package. She instructed
Connett to bring the package to her at the repair shop. At Hoffman’s home Macias
had taken possession of the package and kept it under his supervision and control.
He loaded the box into the back seat of Hoffman’s car, where he sat and, with
Connett driving, the two went to the repair shop site. Hoffman was suspicious about
the package, and before the others arrived she told Quintanar that there was
4 something wrong with the package, and she questioned him about it, although at that
point narcotics were “the furthest thing from [her] mind.” Defendant told her it
contained papers for Pablo coming from California. She responded that Pablo had
not lived in California for seven years, and she told Quintanar that when the box
arrived at the repair shop she was going to open it, so he just might as well tell her the
truth. Quintanar then told her that there were drugs in the box, “[he] asked me just
to give – just to turn the box over to him, not to destroy him.” He then asked her
what she wanted, whether she wanted “a cut [of the drug] or if [she] wanted money.”
When the car arrived Connett was driving and Macias was in the rear seat with
the box, which was covered by a jacket. Hoffman opened the door, grasped Macias
by the shirt and pulled him from the car, jumped in the car and “told Michelle to get
out of there.” Neither Quintanar nor Macias made any verbal or physical attempt to
stop Hoffman from driving away with the package still in the car.
Hoffman and Michelle drove to the police station with Michelle at the wheel.
Hoffman asked to be directed to the narcotics unit, turned the box over to an
interviewing officer and reported to him that it had come to her house, that Connett
had brought it to her, that she was not sure what was in the box but that Quintanar
had told her it contained drugs. The officer opened it and found that it contained a
plastic sealed bag, which contained methamphetamine.
5 Neither Quintanar’s name nor his address was on the box. He never touched
it or handled it. He was never in the Hoffman home or in the car with the package.
It was brought from Hoffman’s house to the repair shop at the direction of Hoffman
and in her car. When the package arrived at the garage site, under the control of
Macias, Quintanar did not receive or touch it and it had remained in the car.
MSM is a nutritional supplement for horses, commonly used as a cutting agent
to be mixed with methamphetamine in order to increase the amount of the product for
sale. Evidence showed that earlier Quintanar and Macias had gone together to a
horse tack shop and purchased MSM. Officers searched Quintanar’s home pursuant
to a warrant and found unopened containers of MSM, plus a spoon, a strainer, and
a mixing bowl.
The status of Macias is central to the case. In the first trial, of Macias only,
Macias was acquitted on both counts. In the second trial, of Quintanar only, the court
without objection instructed the jury three times that it could not find Quintanar guilty
of conspiracy unless it found beyond reasonable doubt that he had reached an
agreement or understanding with some person or persons other than Macias to
commit the offense of knowingly and intentionally distributing methamphetamine.
The government does not contend that Quintanar was in actual possession of
the methamphetamine. He was not charged with the substantive offense of attempt
6 to possess the amphetamine nor was he charged with aiding and abetting. The
government’s case straightforwardly rests upon constructive possession. Therefore,
for the jury to find Quintanar guilty, the government was required to prove that
Quintanar intended to exercise dominion over the methamphetamine, that he had the
power to exercise dominion, and that he knew he had the power to exercise dominion.
See U.S. v. Thomas, 53 F.3d 1318, 1322-23 (8th Cir. 1995); U.S. v. Johnson, 18 F.3d
641, 647 (8th Cir. 1994); U.S. v. Wesley, 990 F.2d 360, 364 (8th Cir. 1993). The
government’s evidence fell short of proving beyond reasonable doubt that Quintanar
had the power to exercise control or dominion over the drugs at any given time.
The evidence does not tend to show that Quintanar himself had the power to
exercise dominion. In a physical sense the material was never where he could
exercise dominion or control. There is no evidence that he owned the
methamphetamine. It was not brought to the site at his direction or in his vehicle.
Connett was not acting on his behalf but at the direction of Hoffman. Macias had, for
a short time, physical possession and control. But before Quintanar could assert
dominion or control of the package it was physically removed from the possession of
Macias and taken to the police station. The most a jury could find beyond reasonable
doubt was that Quintanar had intent and an unrealized hope to gain possession. With
Macias excluded from consideration, this case is a paradigm of lack of power to
7 exercise control and dominion.
The government suggests some other facts about Quintanar’s own actions as
the basis for an inference of power. It posits that a reasonable jury could find
constructive possession beyond reasonable doubt because he had bought MSM and
had asked Hoffman to order MSM for him. These purchases are evidence supporting
a conclusion of defendant’s intent, but they have no substantial relationship to
exertion of power and dominion over the package. The same problem exists with
respect to the government’s suggestion that constructive possession could be based
upon evidence of Quintanar’s association with known drug dealers and users. It also
proposes that Quintanar “probably” scheduled the delivery to Hoffman’s house. The
evidence tells us no more than that the package came from an address in California,
the identity of the shipper is unrevealed. The most a jury could find beyond
reasonable doubt was that Quintanar intended to exercise dominion and control once
the material reached Hoffman’s address and was surrendered by UPS, but before he
could carry out his plan the package was intercepted by the owner of the consignee
premises and turned over to the police.
At trial and before this court the government focuses upon evidence of power
to control exercisable by others who had physical possession and with whom
Quintanar was sufficiently associated that he can be said to have been in constructive
8 possession. “[T]he essence of constructive possession is not direct, physical control,
but the ability to reduce an object to actual possession; otherwise, constructive
possession would have no meaning at all . . . . It is enough if one person is
sufficiently associated with another having physical possession that he is able to
produce a controlled substance for a customer.” U.S. v. Holm, 836 F.2d 1119, 1123
(8th Cir. 1988). To meet the requirement of “sufficient association with a person
having control,” the government relied upon a theory that Quintanar was engaged in
a conspiracy with a person having physical possession. It was precluded, however,
from relying upon Macias as the co-conspirator having actual possession because
Macias had been acquitted on both the conspiracy and possession charges, and
accordingly the court instructed the jury that it might find a conspiracy, but only with
some person other than Macias. The government’s effort failed. Counsel argued to
the jury that some person who delivered the package to UPS in California and
directed it to Hoffman’s home address had actual possession and control and was in
such relation to Quintanar as to make his possession attributable to Quintanar. But
no such person was known, or identified, and the circumstances of his possible
possession and delivery and his relationship to Quintanar are a mystery. It is arguably
possible that, apart from his status (as a possible co-conspirator), Macias was in some
other relationship with Quintanar that made his actual possession attributable to
9 Quintanar as constructive possession. No such theory was advanced at trial, no jury
instruction given and no such argument was made to the jury, nor was that theory
presented on appeal.
Quintanar’s conviction and sentence must be, and are, REVERSED.
A TRUE COPY.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.