F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 10, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-2276 v. (D. New M exico) V ERNO R LEE N O RWO O D , (D.C. No. CR-04-1461 JH)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, SEYM O UR, and TYM KOVICH, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Vernor Lee Norwood was charged in a two-count indictment in the United
States D istrict Court for the District of New M exico with (1) conspiracy to
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. possess with intent to distribute 100 kilograms or more of marijuana, see 21
U.S.C. §§ 841(a)(1), (b)(1)(B) and 846; (2) possession with the intent to distribute
100 kilograms or more of marijuana, and aiding and abetting, see id. §§ 841(a)(1),
(b)(1)(B) and 18 U.S.C. § 2. A jury convicted him on both counts, and he was
sentenced to 63 months on each count, to be served concurrently. On appeal, he
contends that (1) there was insufficient evidence to convict him of the drug
crimes; (2) the district court plainly erred when it allowed the government to
introduce certain hearsay statements without first holding an evidentiary hearing;
and (3) his counsel provided ineffective assistance. For the following reasons, w e
affirm.
I. FA CTUAL BACKGROUND
In July 2004, M r. Norwood’s co-defendant, Sam Chehadeh, was working
for W ildcat Express, a trucking company in Detroit, M ichigan. On July 1, 2004,
according to M r. Chehadeh, another truck driver told M r. Chehadeh that he had
been offered $10,000 to drive a load of marijuana from Phoenix, Arizona to
Detroit. Although the driver said that he was not interested, he volunteered to put
M r. Chehadeh in contact with the offeror.
On July 2 or 3, 2004, the other truck driver introduced M r. Chehadeh to a
man that went by “M azen.” M azen told M r. Chehadeh that he would pay him
$10,000 upon delivery to pick up a load of marijuana in Phoenix and drive it back
-2- to Detroit. M azen also told M r. Chehadeh that someone else would ride in the
truck with him, handle the money, and exchange it for the marijuana in Phoenix.
Id. at 56. That person was, according to M r. Chehadeh, was M r. Norwood.
M r. Chehadeh testified that he met M r. Norwood on July 4, 2004, at a truck
stop in Detroit. He stated that M azen introduced M r. Norwood to him as “the
gentleman that is going to be riding with you.” Aple’s Supp. App. vol. I, at 59.
M r. Chehadeh did not identify M r. Norwood as a co-driver in his logbook, and he
testified that M r. Norwood did not ask him to teach him how to be a truck driver,
a theory M r. Norwood later raised in his defense.
According to M r. Chehadeh, before the pair embarked, M azen gave him
$1,000 and gave M r. Norwood a small box. Although M r. Chehadeh never saw
the contents of the box, he assumed that it contained the payment for the
marijuana. He further testified that M r. Norwood told him that he had been paid
$1,000 a day for similar transactions, and that M azen would send in a law yer if
there was trouble.
A. The trip to Phoenix
M r. Chehadeh testified that before heading to Phoenix the truck stopped in
Ohio, Georgia and Arkansas, picking up and delivering loads of ketchup and
soup. The truck then headed to Arizona. In a small town in Texas, M r. Chehadeh
realized he accidentally left M r. Norwood behind. M r. Norwood, who had left the
-3- truck to get some food, sought help from a police officer, who stopped M r.
Chehadeh about a mile down the road, and M r. N orw ood returned to the truck.
On July 9, 2004, the two arrived in Glendale, Arizona, where M r. Chehadeh
picked up a load of onions. M r. Norwood then directed M r. Chehadeh to a K-
M art parking lot in Phoenix, where three men met them with a van. M r.
Chehadeh, M r. Norwood, and the three men quickly loaded five or six large boxes
from the van into the trailer, on top of the onions.
Later, because M r. Chehadeh was worried that the boxes would look
suspicious positioned atop the onions, the two stopped at a truck stop on I-15 to
move the marijuana behind the onions. M r. Chehadeh testified that both he and
M r. Norwood took the bundles of marijuana out of the boxes and loaded them
behind the onions so that they were not visible when the back of the truck was
open.
B. The arrival at the N ew M exico port of entry
At about 2:00 p.m. on July 10, 2004, the truck pulled into the New M exico
port of entry near the A rizona border. M r. Chehadeh testified that he told M r.
Norwood to stay in the bunk in the back of the cab because he knew that the
inspectors would get suspicious if M r. Chehadeh had a passenger who was not
recorded into his logbook.
Oscar Destea, an inspector with the New M exico Department of Public
Safety, M otor Transportation Division, looked at M r. Chehadeh’s logbook and
-4- noticed some minor violations. Inspector Destea asked him to move into the
inspection yard so that he could conduct an inspection of the truck.
Inspector Destea asked M r. Chehadeh to step down from the truck and
accompany him and another inspector during the inspection. At some point, the
inspectors noticed that M r. Norwood was in the cab of the truck, and they asked
M r. Chehadeh to get him out of the cab. One of the inspectors asked whether M r.
Norwood w as a co-driver, and M r. Chehadeh told him that M r. Norwood w as just
a passenger. The inspector then asked M r. Chehadeh to open his trailer. M r.
Chehadeh believed that the inspector became suspicious when he saw that the
onions were not stacked in an orderly fashion on their pallets. Both inspectors
climbed on top of the onions and saw that there was something in the trailer other
than onions, which they believed was some sort of contraband. Inspector Destea
then called the state police, and the other inspector asked M r. Chehadeh to drive
the truck into the inspection bay.
C. M r. Chehadeh and M r. Norwood are arrested
Officer Cody Smid responded to Inspector Destea’s call and arrested M r.
Chehadeh and M r. Norwood. M r. Chehadeh waived his right to remain silent,
and, after receiving his M iranda warnings, M r. Norwood also agreed to waive his
rights and talk to Officer Smid. W hen asked by Officer Smid if he knew what
w as in the trailer, M r. N orw ood replied that there were onions and brown
packages. He also said that he was in the truck because he was learning to be a
-5- truck driver. H e denied, though, that M r. Chehadeh was teaching him to drive.
He also stated that he had only known M r. Chehadeh for a week. Then he said,
“W ell, I don’t want to incriminate myself,” and Officer Smid stopped questioning
him. See id. at 154. Later, when M r. Chehadeh and M r. Norwood were sitting
together in a state police car, M r. Norwood asked M r. Chehadeh, “Did you say
anything?” M r. Chehadeh, who had incriminated M r. Norwood is his discussion
with the police, lied and said, “No.” Id. at 97.
D. The FBI investigation
The New M exico police eventually turned over the case to the Federal
Bureau of Investigation (FBI). After receiving another M iranda warning, M r.
Norw ood said he had no idea why the FBI agent was interview ing him. He told
the agent that he was learning how to drive a truck, and that one day while in a
supermarket, he bumped into M r. Chehadeh and they struck up a friendship. M r.
Norwood said that he asked M r. Chehadeh if he would teach him how to drive a
truck, and that M r. Chehadeh agreed. A few days later, M r. Chehadeh called M r.
Norwood and told M r. Norwood to meet him on July 4, 2004.
M r. Norwood stated that he was unaware of the details of the trip to
Georgia. He did say, however, that he met his cousin, Reverend Byrd, som ew here
on the road in Georgia. M r. Norwood did not know where they went from
Georgia but understood that at some point they were in Texas. M r. Norwood
-6- told the agent he never got out of the truck except to go to the bathroom and to
eat. He said he did not know what happened in Phoenix, and that he never
got out of the truck in Phoenix. He said he did not know what was in the truck
and denied any involvement with any of the packages inside the truck.
W hen the FBI agent told M r. Norwood that he was going to fingerprint
every package, M r. Norwood said he remembered loading some of the packages,
but denied knowing anything more. The fingerprints found on the packages did
not match M r. Norwood’s.
M r. Norwood told the agent that he mostly stayed in the back of the truck
during the trip. He stated that he did not help fill out the logbook, and he did not
otherw ise help load or unload the truck. The FBI agent did not believe M r.
Norw ood’s version of events and terminated the interview.
About three days after M r. Norwood’s arrest, another FBI agent, Oscar
Ramirez, fingerprinted M r. Norwood. Agent Ramirez indicated that M r. Norwood
blurted out “that he was scared, [and] that he had been forced into doing it.” Id.
vol. II, at 60. Apparently, M r. Norwood remarked that someone in his family had
cancer, and that he “knew what those blocks were, . . . but [he] just had to do it.”
Id. at 60-61.
Toward the end of the encounter, M r. Norwood broke down and started
crying. He said that during the last three days, “he had talked to God and that
God had told him to do the right thing.” Id. at 61. M r. Norwood was very
-7- emotional and hugged the agent. Id. Agent Ramirez testified he became
concerned because he was wearing his duty weapon, so he pushed M r. Norwood
away and told the case agent, Agent Steve Chambers, what he had learned.
Agent Chambers then had M r. Norwood step into an interview room, and
began questioning him about the information Agent Ramirez had relayed to him.
Although M r. Norwood was still visibly upset, he told Agent Chambers that he
did not know what he was talking about.
E. M r. Norwood’s testimony
M r. Norwood testified that he met M r. Chehadeh on July 4, 2004, through
M r. Chehadeh’s cousin, who took M r. Norwood to a grocery store. There, he met
M r. Chehadeh and then left with him in the truck. M r. Norwood stated that he
wanted to learn to drive a truck to make some money. He stated that M r.
Chehadeh taught him how to shift gears on the semi-tractor trailer and showed
him the logbook and other items in the truck and trailer.
M r. Norwood testified that he told M r. Chehadeh that he had to be back in
Detroit by the next Friday because his cousin, Reverend Byrd from Georgia, was
going to be staying with him. M r. Norwood said that in Georgia, he had his
cousin Reverend Byrd meet him alongside the road so that he could give him the
keys to his home. He also described the time when M r. Chehadeh left him behind
in Texas, although he testified that M r. Chehadeh knew M r. Norwood was not in
the truck when he drove off.
-8- M r. Norwood testified that they picked up some onions somewhere in
Arizona, and that this load was the only one he saw being placed on or removed
from the truck during the entire trip. He also denied helping to load the boxes of
marijuana into the truck. He further denied receiving money to exchange for
marijuana in Phoenix.
On cross-examination, M r. Norwood testified that he went to sleep after the
onions were loaded, and he did not know whether M r. Chehadeh made any
subsequent stops other than a stop at a restaurant. M r. Norwood also testified that
he received a check each month from his former employer, General M otors, for
slightly over $600, and that he earned extra money by doing odd jobs and
“flipping” houses. He testified that he owned about five homes and seventeen
cars.
M r. Norwood also testified that he is a diabetic and indicated that if his
blood sugar got very low, he became easily confused, incoherent, and his vision
became blurred. M r. Norwood testified that when he was in the port of entry, he
did not get a chance to check his blood sugar, and he was ailing by the time the
law enforcement officers began to question him.
M r. Norwood admitted that he understood both the questions that the law
enforcement officers asked and the content of his answers. One of the agents who
questioned him testified that M r. Norwood seemed lucid, and that all his answers
were consistent with the questions asked. The agent testified that M r. Norwood
-9- did not appear ill, nor did he ever indicate that he was not feeling well during the
interview.
A few days later, when the agent was transporting him to Albuquerque,
New M exico, M r. Norwood said that he was feeling ill and mentioned his
medication, which he did not have with him. W hen they arrived in Albuquerque,
the agent called the detention center where M r. Norwood had been held and was
informed that the detention center did not have any medication for M r. N orw ood.
The agent also checked all of M r. Norwood’s belongings and the truck, but did
not find any medications.
II. DISCUSSION
M r. Norwood argues that there was insufficient evidence to support his
conviction; that the district court committed plain error by not holding an
evidentiary hearing regarding the admission of M r. Norwood’s statements to a
law enforcement officer into evidence; and that his trial counsel was ineffective
because she failed to object to certain testimony. For the reasons stated below,
we reject M r. Norwood’s contentions and affirm his conviction.
A. Sufficiency of evidence
M r. Norwood contends that the evidence was insufficient for the jury to
convict him on the charges of conspiracy and possession of marijuana. He argues
that the evidence presented by the government showed only proximity to the
illegal activity, but that the only testimony given was from an alleged co-
-10- conspirator that was not corroborated by any credible evidence. W e review this
claim de novo, “view ing the evidence and the reasonable inferences to be drawn
therefrom in the light most favorable to the government,” and reversing the
conviction “only if no rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Toles, 297
F.3d 959, 968 (10th Cir. 2002) (internal quotation marks omitted).
W e are not persuaded by M r. Norwood’s argument. To establish
conspiracy, the government was required to prove that (1) M r. Norwood and at
least one other person agreed to violate the law, (2) M r. Norwood knew at least
the essential objectives of the conspiracy, (3) he knowingly and voluntarily
became part of the conspiracy, and (4) the alleged coconspirators w ere
interdependent. See United States v. Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996)
(citation and quotation marks omitted). A jury is permitted to infer an agreement
“from the acts of the parties and other circumstantial evidence indicating concert
of action for the accomplishment of a common purpose.” United States v.
Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994). “A jury may presume a defendant
is a knowing participant in the conspiracy when he or she acts in furtherance of
the objective of the conspiracy.” United States v. Carter, 130 F.3d 1432, 1440
(10th Cir. 1997). Interdependence is established when “each coconspirator's
activities constitute essential and integral steps toward the realization of a
comm on, illicit goal.” Id.
-11- To prove M r. Norwood guilty of count 2 – possession of 100 kilograms or
more of marijuana with intent to distribute – the government was required to
prove (1) that M r. Norwood possessed more than 100 kilograms of marijuana, (2)
that he knew that it w as marijuana, and (3) that he intended to distribute it. See
United States v. Jenkins, 175 F.3d 1208, 1216 (10th Cir. 1999). “For purposes of
this test, possession may be either actual or constructive. Constructive possession
occurs when a person knowingly has ownership, dominion or control over the
narcotics and the premises where the narcotics are found. Although constructive
possession may be shown by circumstantial evidence, the government must show
a sufficient nexus between the defendant and the narcotics.” Id. (internal
citations and quotation marks omitted). In cases involving joint occupancy of a
vehicle in which narcotics are found, “[t]he government must present some
evidence supporting at least a plausible inference that the defendant had
knowledge of and access to the [narcotics].” United States v. M cKissick, 204
F.3d 1282, 1291 (10th Cir. 2000) (internal citation and quotation marks omitted).
Viewed in the light most favorable to upholding the verdict, we hold that
there is more than sufficient evidence to support M r. N orw ood’s convictions.
There is no dispute that M r. Norwood was riding as a passenger in a truck that
contained more than 300 kilograms of marijuana. M r. Chehadeh, the driver of the
truck, testified that M r. Norwood carried the money to pay for the marijuana,
arranged for the meeting place to pick up the marijuana, and helped load and
-12- rearrange the marijuana in the back of the truck. According to M r. Chehadeh, M r.
Norwood told him that he had done this before, that he had been paid $1,000 per
day for the earlier transaction.
Even without knowing that M r. Chehadeh and M r. Norwood intended to
deliver the marijuana to someone in Detroit (and thereby distribute it), we agree
with the government that the jury could reasonably infer from the quantity of the
marijuana that M r. Norwood intended to distribute it. The jury had ample
evidence from which it reasonably could conclude that M r. Norwood, with M r.
Chehadeh, had constructive possession of the marijuana, knew that it was in the
truck, and intended to distribute it.
M r. Norwood argues that his flagging down a police officer in Texas to
help him catch up to M r. Chehadeh, who accidentally had left him behind,
demonstrates that he did not know about the marijuana in the truck. However, the
incident in Texas took place before the two loaded the marijuana into the truck.
Thus, M r. Norwood knew there was no marijuana in the truck, and he had no
reason to worry about stopping the police officer.
B. Lack of Evidentiary Hearing Regarding Certain Hearsay
M r. Norwood contends that the district court should have held a hearing on
the admissibility of his statements to Officer Smid. M r. Norwood acknowledges
that he did not file a motion to suppress nor ask the district court to hold a
hearing on the admissibility of these statements, and that consequently we review
-13- the issue for plain error. To establish plain error, M r. Norwood “must show: (1)
an error, (2) that is plain, which means clear or obvious under current law, and (3)
that affect[s] substantial rights.” United States v. Whitney, 229 F.3d 1296, 1308
(10th Cir. 2000); United States v. Olano, 507 U.S. 725, 734 (1993).
If M r. Norwood is able to satisfy these three elements, then this Court
“may exercise discretion to correct the error if it seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Whitney, 229 F.3d at
1308 (internal quotation marks omitted). “Although the rigidity of the plain-error
rule is relaxed somewhat when a potential constitutional error is involved, the
defendant bears the burden of demonstrating that he was prejudiced by the error
before this court can grant him relief.” United States v. Toro-Pelaez, 107 F.3d
819, 827 (10th Cir. 1997) (internal citation omitted).
If a defendant speaks to a law enforcement officer after having been
advised of his or her right to remain silent, the government must prove by a
preponderance of the evidence that the defendant’s waiver of the right was
voluntary. Colorado v. Connelly, 479 U.S. 157, 168 (1986). The waiver may be
inferred from the defendant’s actions and words; an express waiver is not
required. North Carolina v. Butler, 441 U.S. 369, 373 (1979).
To show a voluntary waiver, the government must establish (1) that the
waiver was the result of free and deliberate choice instead of intimidation,
coercion, or deception, and (2) that the defendant waived the right while fully
-14- aware of the nature of the right being waived and the consequences of waiving.
M oran v. Burbine, 475 U.S. 412, 421 (1986). To determine whether a statement
was coerced, we consider the defendant’s characteristics, the circumstances
surrounding the statement, and the police tactics used to obtain the statement.
See United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993).
After M r. Norwood received his M iranda warnings, he initially agreed to
waive his rights and talk to Officer Smid. Officer Smid asked M r. Norwood if he
knew w hat w as in the trailer, and M r. Norwood replied “that there [were] brown
packages [and] onions in the trailer.” Aple’s Supp. App. vol. I, at 153.
According to Officer Smid, M r. Norwood told him “he was learning to be a
comm ercial truck driver.” Id. W hen asked how long he had known M r.
Chehadeh, M r. Norwood replied he had known him for a week. Then he said,
"Well, I don't want to incriminate myself," and Officer Smid stopped questioning
him. Id. at 154.
According to the testimony of Agent Chambers, approximately three days
later M r. Norwood again volunteered testimony, this time that "that he was
scared, [and] that he had been forced into doing it.” Aple’ Supp. App. vol. II, at
60. M r. Norwood also told him that he felt it was necessary to take part and drive
with M r. Chehadeh. He said that he “knew what those blocks were, . . . but [he]
just had to do it.” Id. at 60-61. Toward the end of the encounter, M r. Norwood
-15- broke down and started crying. He said that during the last three days, “he had
talked to God and that God had told him to do the right thing.” Id. at 61.
M r. Norwood contends that these alleged statements, which he denies were
made, could have only resulted from Agent Ramirez’s “intimidation, coercion or
deception.” A plt’s Br. at 23. Implicit in the jury’s guilty verdict is that M r.
Norwood’s denial of knowledge of the marijuana in the truck and his involvement
in the scheme lacked credibility. Furthermore, “there is no evidence suggesting
M r. [Norwood] was unusually susceptible to coercion because of age, lack of
education, or intelligence.” United States v. Roman-Zarate, 115 F.3d 778, 783
(10th C ir. 1997). When view ed in the context of the entire record at trial, we
cannot say that admitting these statements affected M r. Norwood’s “substantial
rights.” Olano, 507 U.S. at 734.
C. Ineffective assistance of counsel
Finally, M r. Norwood contends that his counsel provided ineffective
assistance of counsel when she failed to object to M r. Norwood’s testimony and
that of other government officials. In this circuit, except in rare circumstances,
ineffective assistance of counsel claims must be presented in collateral
proceedings. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995).
This rule allows a district court to develop the factual record necessary for
effective review. See Massaro v. United States, 538 U.S. 500, 505-06 (2003).
The present claim does not fall into the narrow category of cases that require no
-16- further development and are therefore suitable for review on direct appeal. Cf.
United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993) (finding the record
sufficient to review an ineffective assistance of counsel claim on direct appeal
where defense counsel averred to mistakenly omitting a jury instruction on a
lesser included offense). Accordingly, if M r. Norwood intends to pursue this
claim further, he must raise it in a collateral proceeding under 28 U.S.C. § 2255.
III. CONCLUSION
Accordingly, we AFFIRM M r. Norwood’s conviction.
Entered for the Court,
Robert H. Henry Circuit Judge
-17-