United States v. Salvador-Rodriguez

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 13, 1999
• Docket: 98-4153
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 13 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4153 (D.C. No. 96-CR-161-2) ELMER SALVADOR-RODRIGUEZ, (D. Utah)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.

Elmer Salvador-Rodriguez appeals his jury conviction of possession of

cocaine, methamphetamine, and heroin, with intent to distribute, in violation of

21 U.S.C. § 841 and 18 U.S.C. § 2. We affirm.

I.

In August 1996, local law enforcement officers in Salt Lake City, Utah,

obtained a warrant to search a residence implicated in unlawful drug trafficking.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. While executing the warrant, officers knocked on the door twice and announced

their presence in both English and Spanish. No one answered, but the officers

heard shuffling within the residence. The officers employed a battering ram to

force the door open and entered the house. Once inside, the officers heard

someone running down stairs in the rear of the residence. After tracking the

sounds, officers discovered Salvador-Rodriguez’s co-defendant, Rafael

Rubalcava-Hernandez, in a basement storage area. Among other things, a search

of the kitchen and the basement revealed approximately 29 kilograms of cocaine,

eight kilograms of methamphetamine, 240 grams of heroin, $41,399 in U.S.

currency, a firearm, drug paraphernalia (such as packaging materials, scales, and

drug spoons), and numerous “pay-owe” sheets. The search also revealed several

documents and photographs implicating Salvador-Rodriguez.

A federal grand jury indicted Salvador-Rodriguez on three counts of

possession of a controlled substance with intent to distribute, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At no time during the proceedings did

Salvador-Rodriguez move for judgment of acquittal based on insufficiency of the

evidence. A jury returned guilty verdicts on all three counts, and the district court

sentenced Salvador-Rodriguez to 188 months imprisonment.

II.

Salvador-Rodriguez’s appeal is straightforward. A conviction under 21

-2- U.S.C. § 841(a) and 18 U.S.C. § 2 “requires proof that the defendant ‘(1)

possessed a controlled substance; (2) knew he possessed a controlled substance;

and (3) intended to distribute the controlled substance.’” United States v. Dozal ,

173 F.3d 787, 797 (10th Cir. 1999) (quoting United States v. Wilson , 107 F.3d

774, 778 (10th Cir. 1997)). Salvador-Rodriguez’s sole claim is that the evidence

was insufficient to establish that he possessed the drugs discovered in the

residence. While Salvador-Rodriguez’s failure to raise this claim in a motion for

judgment of acquittal normally would limit our review to a search for plain error,

“review under the plain error standard . . . and a review of sufficiency of the

evidence usually amount to largely the same exercise.” United States v. Duran ,

133 F.3d 1324, 1335 n.9 (10th Cir. 1998); accord United States v. Leopard , 936

F.2d 1138, 1140 n.2 (10th Cir. 1991); United States v. Bowie , 892 F.2d 1494,

1496-97 (10th Cir. 1990).

We review the record for sufficiency of the evidence de novo. Dozal , 173

F.3d at 797; Wilson , 107 F.3d at 778. The relevant inquiry is whether, “after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime[s] beyond a

reasonable doubt.” Dozal , 173 F.3d at 797 (quoting Jackson v. Virginia , 443 U.S.

307, 319 (1979)); accord Leopard , 936 F.2d 1140; Bowie , 892 F.2d at 1497.

“Rather than examining the evidence in ‘bits and pieces,’ we evaluate the

-3- sufficiency of the evidence by ‘consider[ing] the collective inferences to be drawn

from the evidence as a whole.’” Wilson , 107 F.3d at 778 (quoting United States

v. Hooks , 780 F.2d 1526, 1532 (10th Cir. 1986)).

Possession of a controlled substance or other contraband can be actual or

constructive. “A person constructively possesses contraband when he or she

knowingly holds ownership, dominion or control over the object and premises

where it is found.” United States v. Lazcano-Villalobos , 175 F.3d 838, 843 (10th

Cir. 1999); accord Dozal , 173 F.3d at 797; Wilson , 107 F.3d at 778; see also

United States v. Ruiz-Castro , 92 F.3d 1519, 1531 (10th Cir. 1996) (defining

constructive possession of a narcotic as “an appreciable ability to guide the

destiny of the drug”) (citation omitted). Exclusive possession of the object or

premises supports an inference of constructive possession. United States v.

Valadez-Gallegos , 162 F.3d 1256, 1262 (10th Cir. 1998); accord Lazcano-

Villalobos , 175 F.3d at 843. In cases involving joint occupancy or nonexclusive

possession, when the object may be attributed to more than one individual, the

government must present “direct or circumstantial evidence to show some

connection or nexus individually linking the defendant to the contraband.”

Valadez-Gallegos , 162 F.3d at 1262; see also id. (stating that the government

must present “some evidence supporting at least a plausible inference that the

defendant had knowledge of and access to the . . . contraband”) (citation and

-4- internal quotation marks omitted).

While not overwhelming, the evidence in this case is sufficient to show

Salvador-Rodriguez had knowledge of and access to the drugs in the residence.

Two items of evidence are particularly damaging. First, Salvador-Rodriguez’s

fingerprints appeared on one of the drug packages seized by the police. Second,

one of the photographs found at the residence depicted Salvador-Rodriguez

standing with a gun in his waistband in front of the drugs and a large amount of

cash. In addition, a small spiral notebook appearing to be a drug ledger was

discovered in the living room of the house. Salvador-Rodriguez’s admitted

nickname (“MeMe”) was listed throughout the notebook. Finally, officers found

utility bills for Salvador-Rodriguez’s separate address and two cellular telephone

bills, one for Salvador-Rodriguez and one for Jorge Beza, in the bedroom of the

residence. Salvador-Rodriguez admitted applying for a driver’s license under the

name Jorge Beza. The cellular phone bill in Salvador-Rodriguez’s name showed

approximately 3,500 calls charged to the account during a monthly billing cycle.

Based on this evidence, a rational jury could conclude that Salvador-

Rodriguez was part of a group of individuals involved in drug trafficking. The

evidence does more than depict Salvador-Rodriguez’s mere presence at the house

or his proximity to the drugs. Viewed in the light most favorable to the

government, the facts developed at trial indicate that Salvador-Rodriguez was

-5- aware of the drugs, handled packages containing the drugs, and was involved in

the distribution of the drugs. Although the evidence against Salvador-Rodriguez

is largely circumstantial, and suggests that Salvador-Rodriguez did not act alone,

it is settled that “[c]onstructive possession may be established by circumstantial

evidence and may be joint among several individuals.” Ruiz-Castro , 92 F.3d at

1531.

Salvador-Rodriguez directs our attention to his testimony, which he claims

explains the evidence found in the residence. According to Salvador-Rodriguez,

he purchased the cellular phone and obtained service for a friend named

“Charlie.” Charlie kept and used the phone and each month Salvador-Rodriguez

brought Charlie the bill at the residence. As for the photograph and the

fingerprints on the drug package, Salvador-Rodriguez testified that he drank too

much at a party and permitted someone else to take the picture. He stated that he

“probably” or “may have” touched one of the packages while posing for the

photograph. Aplt. App., Vol. II, at 358-59. In an effort to explain his presence at

the residence and the appearance of his name in the notebook, Salvador-

Rodriguez admitted visiting the house on occasion to purchase small quantities of

drugs for himself and his friends, but denied having any dominion or control over

the drugs seized by law enforcement officials.

While Salvador-Rodriguez’s story is plausible, the jury’s determination that

-6- the government’s explanation was more credible cannot be second-guessed on

appeal. When reviewing the sufficiency of the evidence “we accept the jury’s

resolution of conflicting evidence and its assessment of the credibility of

witnesses.” United States v. Sapp , 53 F.3d 1100, 1103 (10th Cir. 1995) (quoting

United States v. Dirden , 38 F.3d 1131, 1142 (10th Cir. 1994)). Even if Salvador-

Rodriguez’s explanation is consistent with the facts developed at trial, “the

evidence required to support a verdict need not conclusively exclude every other

reasonable hypothesis and need not negate all possibilities except guilt.” United

States v. Clark , 57 F.3d 973, 976 (10th Cir. 1995) (citation omitted). Our review

is complete once we conclude that the evidence permitted the jury to find

constructive possession beyond a reasonable doubt. See , e.g. , Dozal , 173 F.3d at

797; Wilson , 107 F.3d at 778-79. Accordingly, we AFFIRM Salvador-

Rodriguez’s conviction.

Entered for the Court

Mary Beck Briscoe Circuit Judge

-7-