F I L E D United States Court of Appeals Tenth Circuit
DEC 17 1998 PUBLISH
UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-2017
DAVID VALADEZ-GALLEGOS,
Defendant-Appellant.
Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-97-84-2-JC)
David N. Williams (John J. Kelly, United States Attorney; Charles L. Barth, Assistant United States Attorney, on the brief), Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.
Todd B. Hotchkiss of Frechette & Associates, Albuquerque, New Mexico, (Peter J. Giovannini, Las Cruces, New Mexico, on the briefs), for Defendant-Appellant.
Before SEYMOUR, PORFILIO and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
Defendant-Appellant David Valadez-Gallegos appeals his jury conviction on one count of violating 21 U.S.C. § 841(d)(2), for knowingly and intentionally
possessing a listed chemical knowing or having reasonable cause to believe the
listed chemical would be used to manufacture methamphetamine. Mr. Valadez-
Gallegos argues (1) insufficient evidence supports the jury verdict and the trial
court’s denial of his motion for acquittal, and (2) the trial court improperly
admitted prejudicial evidence concerning a prior arrest. We exercise jurisdiction
under 28 U.S.C. § 1291 and, for the reasons set forth below, reverse on grounds
the evidence is insufficient to support Mr. Valadez-Gallegos’ conviction.
FACTUAL BACKGROUND
Around midnight on January 17, 1997, New Mexico State Police Officer
Urbie Johnston stopped a vehicle after radar showed it going substantially slower
than the speed limit, and weaving and straddling the white shoulder line. The
vehicle – a late 1980's model white Chevy pickup with a camper shell – contained
the driver, Horacio Marquez-Munoz, and a front cab passenger, Mr. Valadez-
Gallegos. On request, Mr. Marquez-Munoz produced his license and registration,
showing the vehicle registered to Jose Vasquez of Modesto, California. During
his conversation with Officer Johnston, Mr. Marquez-Munoz seemed very
preoccupied, and displayed a shaky voice and trembling hands. He advised
Officer Johnston he was going to Modesto, California.
-2- While conversing with Mr. Marquez-Munoz, Officer Johnston noticed Mr.
Valadez-Gallegos sitting stiffly and straight up, looking straight ahead, and
avoiding eye contact. Officer Johnston next questioned Mr. Valadez-Gallegos,
who spoke Spanish and some English. Mr. Valadez-Gallegos gritted his teeth and
appeared irritated and evasive. He told Officer Johnston he was heading back to
Modesto after spending two or three days in El Paso visiting the driver’s aunt. He
did not know the driver’s name. Similarly, the driver told Officer Johnston he did
not know Mr. Valadez-Gallegos’ name – only his nickname “Guero.”
New Mexico State Police Officer Landis Hartranft and United States
Border Patrol Agent Steve Rose arrived at the scene while Officer Johnston was
questioning Mr. Valadez-Gallegos. Agent Rose assisted in translating. Mr.
Valadez-Gallegos reiterated he was heading to Modesto from El Paso, and again
explained he: (a) did not know the driver’s name, but he had known him for three
or four months; (b) did not know who owned the vehicle, but said it belonged to a
friend of the driver; and (c) did not know the name of the driver’s aunt, but he
stayed at her house in El Paso.
Both Mr. Valadez-Gallegos and Mr. Marquez-Munoz granted permission
for a search of the truck. Inside the truck’s cab, officers found a roll of black,
-3- sticky tape, which Officer Johnston thought uncommon but had seen in some
“work trucks.” The officers also found a New Mexico state police speeding
citation issued two days before to Mr. Marquez-Munoz on Interstate 40,
eastbound, near Tucumcari, New Mexico. Officer Johnston noted that Tucumcari
is not on a direct route between Modesto, California and El Paso, Texas.
During the search, Officer Johnston lifted the camper door and immediately
detected an overwhelming odor of fabric softener. Examination of the camper
showed only a sleeping bag, pillow, large blanket, suitcase, and “odds and ends.”
Officer Johnston next deployed his narcotics dog, Nero, who “reacted” to the
camper shell and, when directed inside, stuck his nose to the ceiling and its light.
Officer Johnston removed the light and inserted a drill bit, producing a white
piece of cloth smelling of fabric softener. Because of the presence of fabric
softener, Officer Johnston decided to investigate further. However, because of
the severe cold and wind, the officers removed the vehicle and its occupants to a
nearby border patrol station for everyone’s safety.
On re-examination of the camper, it appeared a hidden compartment existed
in the ceiling, with black sticky tape, similar to that previously found in the cab,
stuck along the ceiling and seams where the roof and sides meet. The screws also
-4- appeared to be worn, and removed and replaced several times. On removing the
screws and ceiling cover, the officers discovered many one-gallon plastic freezer
bags lining the entire width and length of the camper top. The bags contained
either a white powdery substance, a rolled-up cookie dough-like substance, or
little white pills. They also recovered hundreds of fabric softener sheets over and
inside the plastic bags. Tests later revealed the substances in the bags contained
varying strengths or percentages of psuedoephenedrine hydrochloride – referred
to as “ephedrine.” Ephedrine is used to manufacture methamphetamine, perfume,
or over-the-counter drugs. Drug Enforcement Administration agents found no
latent fingerprints on the bags.
Further inspection of the cab revealed a road map of the United States
marked with annotations for time and distances between locations, and a lipstick
smudge. Although no annotation appeared near El Paso, some of the circled
locations on the map included Needles, California; Tucumcari, New Mexico; and
Amarillo, Texas – all high narcotic interdiction areas. The cab contained no guns,
knives, beepers, cell phones, or large amounts of cash – items commonly
associated with drug trafficking. The cab emitted no odor of fabric softener
sheets, and until removal of the camper ceiling, they emitted no odor outside the
shell.
-5- After completing their search and field testing the substances, the officers
arrested Mr. Marquez-Munoz and Mr. Valadez-Gallegos for possession of
controlled substances. Mr. Gonzalo Cordova, coordinator for the Southwestern
New Mexico Narcotics Task Force, interviewed Mr. Valadez-Gallegos in Spanish
while in custody. Mr. Valadez-Gallegos repeated he lived in Modesto, California,
and met the driver only four or five months before in a Modesto bar, knowing him
only by his nickname, “El Flaco.” Mr. Valadez-Gallegos told Officer Cordova
that Mr. Marquez-Munoz invited him to go along while Mr. Marquez-Munoz
transported his aunt to El Paso. They left Modesto on Tuesday, arriving in El
Paso on Thursday.
Mr. Valadez-Gallegos acknowledged he and Mr. Marquez-Munoz received
the traffic citation near Tucumcari but said they drove a northern route because of
bad weather to the south. However, the officers noted the weather to the south
had been no worse than that in the northern part of the state. When Agent
Cordova questioned Mr. Valadez-Gallegos about the $200 the officers seized
from him, Mr. Valadez-Gallegos explained he left California with $600, but in the
two days of travel, spent $400 on gas and food.
Mr. Valadez-Gallegos said they made no significant stops nor did any sight-
-6- seeing along the way, other than staying at Mr. Marquez-Munoz’s aunt’s house in
El Paso on Thursday and Friday, where he spent most of the time sleeping.
During this time, he had no knowledge of the vehicle leaving the residence, but
could not explain how the contraband got in the camper.
According to Mr. Valadez-Gallegos, the aunt traveled in the camper.
However, the camper contained no women’s clothing or articles. When advised
the speeding citation showed no other person accompanied them, Mr. Valadez-
Gallegos recanted, stating Mr. Marquez-Munoz told him to say the aunt traveled
with them to El Paso. Later, on being told of Mr. Valadez-Gallegos’ statement,
Mr. Marquez-Munoz appeared angry, denied he gave those instructions, and
wanted to confront Mr. Valadez-Gallegos.
The next interview occurred at the task force headquarters in Deming, New
Mexico. While Drug Enforcement Administration Agent Luis Medina took
biographical information from Mr. Valadez-Gallegos and Mr. Marquez-Munoz,
Agent Richard Sanders advised them that some of the substance field tested
positive for heroin. On hearing this, Mr. Marquez-Munoz immediately turned to
Mr. Valadez-Gallegos and, in Spanish, stated “I didn’t know this was heroin.”
Mr. Valadez-Gallegos did not reply.
-7- After receiving a Miranda warning in Spanish, Mr. Valadez-Gallegos
agreed to a third interview, conducted in Spanish by Agents Medina, Sanders and
Cordova. Mr. Valadez-Gallegos repeated he met Mr. Marquez-Munoz at a bar in
California only four or five months before. He accompanied Mr. Marquez-Munoz
because he had never visited the area and felt it a good time to go. This time,
instead of leaving Modesto on Tuesday, he said they left on Wednesday at 4:00
p.m., drove all night, and arrived in El Paso on Thursday. Instead of staying at
the aunt’s as he previously stated, he said they stayed in a mobile home in central
El Paso, but he received no introduction to its occupants. According to Mr.
Valadez-Gallegos, they did not bring Mr. Marquez-Munoz’s aunt to El Paso
because she changed her mind and decided not to make the trip. Mr. Valadez-
Gallegos said they left El Paso on Friday, heading west on I-10.
Agent Cordova also interviewed the driver, Mr. Marquez-Munoz, whose
story varied substantially from Mr. Valadez-Gallegos’. Mr. Marquez-Munoz
indicated they drove the northern route to El Paso because he did not know the
road – not due to bad weather. They traveled to El Paso, not to transport his aunt
but to look for her. Since they could not find her, they stayed overnight at a rest
stop in El Paso.
-8- On February 4, 1997, Agent Medina conducted a fourth interview with Mr.
Valadez-Gallegos, who wanted to provide information to assist in the
investigation. Mr. Valadez-Gallegos again changed his story, saying they made
four stops during the trip from Modesto to El Paso and stayed at a truck stop in El
Paso, not a trailer. He did not know the truck stop’s location. Because they could
not find the aunt’s residence in El Paso, they headed back towards Modesto.
When specifically asked, Mr. Valadez-Gallegos gave no indication that he knew
the ephedrine’s final destination. When asked whether there were other people
involved, Mr. Valadez-Gallegos indicated there were, but he stated he did not
know their names. He said the pickup never left his sight during the trip but he
failed to respond when asked how the ephedrine got in the camper.
At trial, Officer Johnston testified that during the entire stop and search,
Mr. Marquez-Munoz showed signs of extreme nervousness, including vomiting
several times, shaky legs, acting antsy and not sitting still, defecating, urinating at
least two times, and lighting up several cigarettes. Mr. Valadez-Gallegos,
however, showed no signs of nervous behavior. He also testified Mr. Valadez-
Gallegos sat the same way during the trial as he sat the night of the arrest – stiffly
and straight up, avoiding eye contact – which Officer Johnston admitted may be
normal for him. Although Mr. Valadez-Gallegos gritted his teeth and appeared
-9- irritated and evasive during his initial interview, Officer Johnston acknowledged
this behavior or appearance may have resulted from Officer Johnston’s limited
ability to speak Spanish. He testified it is not unusual for vacationers to carry a
road map in the vehicle with markings, including mileage and time scheduling.
Officers Johnston and Hartranft also testified that nothing in the vehicle, nor their
investigation, directly connected Mr. Valadez-Gallegos to the ephedrine found in
the truck.
PROCEDURAL BACKGROUND
Prior to trial, the government filed a notice of crimes, wrongs or acts,
pursuant to Fed. R. Evid. 404(b), indicating its intent to use evidence of Mr.
Valadez-Gallegos’ prior Oklahoma arrest, 1 five months earlier, for possession of
pseudoephedrine to show his knowledge and intent. When arrested in Oklahoma,
Mr. Valadez-Gallegos was a passenger in another vehicle containing ephedrine.
Mr. Valadez-Gallegos filed a motion in limine in opposition. The court ruled the
evidence could not “be offered in the case in chief unless the defense develops a
theory and paints a picture that Mr. Valadez knows nothing about
psuedoephedrine and has no idea what that is.”
1 Although arrested, Mr. Valadez-Gallegos was never prosecuted.
-10- At trial, the prosecutor attempted to introduce evidence of the prior arrest
by asking Agent Medina whether Mr. Valadez-Gallegos told him “about being
stopped previously for suspected cocaine.”
A. No, sir, he did not.
Q. Did he tell you what Mr. Villa Senor had stated about that stop?
A. Yes, sir.
Q. And was it cocaine?
Before the witness answered, the trial court interrupted and requested a bench
conference. The prosecutor asked the court to permit the testimony because of its
similarity to the present arrest, and offered the evidence as a “statement against
interest” because the defense, through cross-examination of witnesses, was
attempting to show nothing connected Mr. Valadez-Gallegos with the drugs found
in the vehicle. Defense counsel objected, claimed the testimony “tainted” the
jury, and requested a mistrial. The trial court denied the motion for a mistrial,
ruled the witness could not be asked any more questions concerning the prior
arrest, and allowed the prosecution to reserve such questioning for its last two
witnesses. The judge then instructed the jury to disregard the questions and
answers relating to Mr. Villa Senor.
Prior to calling its last two witnesses, the prosecution again requested
-11- permission to present Rule 404(b) testimony on Mr. Valadez-Gallegos’ prior
arrest, to show “knowledge, intent, and ... pattern.” Defense counsel objected to
the proposed evidence as extremely and unduly prejudicial. A lengthy colloquy
ensued, after which the trial court granted the prosecution’s request but limited
the evidence to discussion of a stop, not an “arrest”; where the stop occurred; the
origin and route of the trip; and the fact “a large quantity of psuedoephedrine was
found with Mr. Valadez-Gallegos being a passenger in the vehicle.” The trial
court gave the jury a cautioning instruction prior to any further testimony being
presented.
The prosecution then called Oklahoma Highway Patrolman Mark Nelson,
who testified that on August 15, 1996, he stopped a blue Dodge pickup truck,
traveling from Dallas, Texas, to Modesto, California, and containing the driver,
Samuel Villa Senor, and a passenger, Mr. Valadez-Gallegos. Officer Nelson
smelled an odor similar to fabric softener sheets, but called for assistance due to
his inability to speak Spanish.
Oklahoma Bureau of Narcotics Agent Frank Maldonado then testified he
spoke in Spanish with Mr. Valadez-Gallegos, who was traveling from Modesto to
Dallas and then to Houston, on vacation. Mr. Valadez-Gallegos told Agent
-12- Maldonado that he and Mr. Villa Senor slept in a motel in Dallas one night and a
motel in Houston the next night, where he swam in the pool. He said he and Mr.
Villa Senor borrowed the truck for the trip. When the officers removed certain
“objects” from the vehicle, Mr. Valadez-Gallegos asked if they “were going to
make sure of what that was.” Neither officer testified that the “objects” removed
from the vehicle contained ephedrine. The trial court instructed the jury about the
limited “knowledge or intent” purposes of Fed. R. Evid. 404(b) evidence.
At the close of the government’s case, Mr. Valadez-Gallegos moved for
judgment of acquittal under Fed. R. Crim. P. 29(a), arguing insufficient evidence
existed to show the knowledge or intent required to commit the crime charged.
The judge deferred a decision on the motion until after the jury rendered a
verdict.
The judge provided, in relevant part, the following jury instructions: (1)
the government must prove Mr. Valadez-Gallegos guilty beyond a reasonable
doubt; (2) the government must prove beyond a reasonable doubt that (a) Mr.
Valadez-Gallegos knowingly possessed a listed chemical, (b) the listed chemical
was pseudoephedrine, and (c) Mr. Valadez-Gallegos possessed the listed chemical
with intent to manufacture methamphetamine, or knowing, or having reasonable
-13- cause to believe, the pseudoephedrine would be used to manufacture
methamphetamine; and (3) the law recognizes two kinds of possession – (a) actual
possession in which the person knowingly has direct physical control over a thing
at a given time, and (b) constructive possession, in which the person, although not
in actual possession, knowingly has both the power and intention, at a given time,
to exercise dominion or control over a thing either directly or through another
person. He also instructed the jury mere presence at the scene of a crime, or
knowledge a crime is being committed, is not sufficient to establish the defendant
either directed or aided and abetted in the crime.
The jury found Mr. Valadez-Gallegos guilty of one count of violating 21
U.S.C. § 841(d)(2), for possessing a listed chemical knowing and having
reasonable cause to believe the listed chemical would be used to manufacture a
controlled substance.
The trial court subsequently denied Mr. Valadez-Gallegos’ Rule 29 motion
for judgment of acquittal. 2 The trial court ruled the government presented
2 Under Fed. R. Crim. P. 29(b), the trial court may reserve a decision on a motion for judgment on acquittal on one or more charges until after the jury returns its verdict. Here, Mr. Valadez-Gallegos sought acquittal of conviction under both 21 U.S.C. § 841(d)(1) and (d)(2), prior to the jury’s verdict, and the court reserved its decision. Because the jury convicted Mr. Valadez-Gallegos
-14- adequate evidence from which a reasonable jury could conclude Mr. Valadez-
Gallegos committed the crime charged. In addition to the massive quantities of
ephedrine found in the camper, the trial court concluded the following evidence
established Mr. Valadez-Gallegos’ knowledge of the presence of ephedrine: (1)
his inherently inconsistent, contradictory, and incredible stories told to various
police officers on many occasions and different settings; (2) the annotated road
map found in the cab where he was a passenger; (3) the overwhelming and
pervasive smell of perfumed dryer sheets within the truck; (4) Mr. Marquez-
Munoz’s statement to Mr. Valadez-Gallegos that he “didn’t know there was
heroin;” (5) Mr. Valadez-Gallegos’ failure to respond when asked how the
ephedrine could have been put in the ceiling of the camper “if he never left the
vehicle.” At sentencing, Mr. Valadez-Gallegos received seventy-eight months in
prison and three years supervised release.
ANALYSIS
Mr. Valadez-Gallegos argues his conviction should be set aside because (1)
insufficient evidence exists to support either the jury verdict or the trial court’s
only under 21 U.S.C. § 841(d)(2), the trial court considered the motion with respect to that statute only and entered a Judgment of Acquittal on the 21 U.S.C. § 841(d)(1) charge.
-15- denial of his Rule 29 motion for acquittal; and (2) the trial court improperly
admitted Rule 404(b) evidence concerning his prior arrest.
Sufficiency of the Evidence
Mr. Valadez-Gallegos claims insufficient evidence supports the verdict
because neither his joint occupancy in the vehicle nor his presence and proximity
to the contraband is sufficient to show actual or constructive possession of the
ephedrine. He asserts the government failed to meet its burden of proof since
even knowledge of the presence of ephedrine is insufficient to show the requisite
dominion and control necessary for possession. Finally, he contends his
inconsistent statements and contradictions, and failure to respond to questions on
how the ephedrine got into the camper ceiling, may create a general suspicion but
do not prove he knew of the ephedrine’s existence.
Our standard of review on a motion for acquittal is the same as the trial
court’s in ruling on the motion in the first instance. United States v. Miles, 772
F.2d 613, 615 (10th Cir. 1985). We review the evidence in the light most
favorable to the government and “‘then determine whether there is substantial
evidence from which a jury might properly find the accused guilty beyond a
reasonable doubt.’” Id. (quoting United States v. White, 673 F.2d 299, 301 (10th
-16- Cir. 1982)). The jury, as fact finder, has discretion to resolve all conflicting
testimony, weigh the evidence, and draw inferences from the basic facts to the
ultimate facts. See United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995),
cert. denied, 516 U.S. 1081 (1996). However, we may not uphold a conviction
obtained by piling inference upon inference. United States v. Jones, 44 F.3d 860,
865 (10th Cir. 1995). “An inference is reasonable only if the conclusion flows
from logical and probabilistic reasoning.” Id. The evidence supporting the
conviction must be substantial and do more than raise a suspicion of guilt. United
States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997).
In this case, the determinative issue is whether Mr. Valadez-Gallegos
constructively possessed the ephedrine. Generally, a person has constructive
possession when he or she knowingly holds ownership, dominion or control over
the object and premises where it is found. Id. at 1144-45. Exclusive possession
of the premises supports an inference of constructive possession. However, joint
occupancy of a premises cannot sustain such an inference. Id. (citing United
States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994)). To prove constructive
possession when there is joint occupancy of a vehicle, the government must
present direct or circumstantial evidence to show some connection or nexus
individually linking the defendant to the contraband. See United States v. Miller,
-17- 84 F.3d 1244, 1253 (10th Cir.) (relying on Mills, 29 F.3d at 549), cert. denied,
117 S. Ct. 443 (1996), 118 S. Ct. 419 (1997)). The government must present
“‘some evidence supporting at least a plausible inference that the defendant had
knowledge of and access to the ... contraband.’” Taylor, 113 F.3d at 1145
(quoting United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993), cert.
denied, 510 U.S. 1198 (1994)); see also Mills, 29 F.3d at 549-50.
On careful review of the record and the trial court’s order concerning the
motion for acquittal, we conclude the evidence fails to link Mr. Valadez-Gallegos
to the narcotics in any way, other than presence and proximity. Presence and
proximity are inadequate to support a conviction.
In so holding, we first address the evidence considered by the trial court.
As the trial court indicates, Mr. Valadez-Gallegos did make inconsistent and
contradictory statements concerning the dates and time of travel, night-time
accommodations, weather, and the presence of another passenger on the trip.
However, conflicting or inconsistent statements do not always provide evidence
sufficient to show knowledge or constructive possession of drugs. See, e.g.,
United States v. Leos-Quijada, 107 F.3d 786, 795 (10th Cir. 1997) (inconsistent
stories about travel plans, along with other factors, were not sufficient to connect
-18- defendant with drug venture for purpose of conviction for aiding and abetting in
possession of marijuana with intent to distribute); Jones, 44 F.3d at 868-69 (citing
conspiracy cases in which conflicting or implausible stories did not provide
sufficient link to firearms or contraband or show knowledge of an illegal
activity). While these cases involve charges of aiding and abetting or conspiracy
to possess and distribute drugs, in each, the jury, as in this case, was required to
draw inferences from the evidence as to the defendant’s knowledge or
constructive possession of an illegal drug. Applying the same analysis, we
conclude that in this case, Mr. Valadez-Gallegos’ conflicting or inconsistent
stories merely raise a suspicion or an inference he suspected illegal activity.
The fact “massive quantities” of ephedrine were hidden in the camper
ceiling does not directly link Mr. Valadez-Gallegos, a passenger in the cab of the
same vehicle, to the contraband. While a pervasive smell of perfumed dryer
sheets permeated the camper, the evidence clearly establishes the sheets emitted
no odor in the cab. Moreover, no evidence establishes Mr. Valadez-Gallegos ever
opened the door of the camper.
Even though authorities found the lipstick-smudged, annotated road map in
the cab where Mr. Valadez-Gallegos was the only passenger, nothing shows a
-19- direct link between the annotations and drug activity, when the annotations were
made, or even who made them. Moreover, Officer Johnston testified it was not
unusual for vacationers to carry a road map in a vehicle with markings, including
mileage and time scheduling.
Even though Mr. Valadez-Gallegos said the vehicle never left his sight, his
failure to respond when asked how the ephedrine got in the camper is not
dispositive. No evidence establishes whether Mr. Valadez-Gallegos slept in the
cab or camper, drove or had keys to the vehicle, or accessed or accompanied Mr.
Marquez-Munoz into the camper, or even looked in it. Likewise, no evidence
establishes when the ephedrine was hidden in the ceiling.
Mr. Valadez-Gallegos’ statement he knew others must be involved but did
not know who they were or the destination for the ephedrine, is not dispositive,
but merely an inference. Similarly, Mr. Marquez-Munoz’s statement to Mr.
Valadez-Gallegos he “didn’t know there was heroin,” creates only an attenuated
inference, insufficient to establish a direct link between Mr. Valadez-Gallegos
and the ephedrine.
The other evidence presented to the jury also does not establish Mr.
-20- Valadez-Gallegos’ constructive possession of the ephedrine. At trial, Officer
Johnston testified Mr. Valadez-Gallegos showed no signs of nervous behavior,
while Mr. Marquez-Munoz showed signs of extreme nervousness, including a
shaky voice, trembling hands, shaking legs, vomiting, defecating, excessive
urinating and smoking. He testified Mr. Valadez-Gallegos sat the same way
during the trial as he sat the night of the arrest – stiffly and straight-up, avoiding
eye contact – which could be his normal behavior. Officer Johnston
acknowledged Mr. Valadez-Gallegos’ irritated or evasive behavior during the
initial stop may have resulted from his own limited ability to speak Spanish. He
also acknowledged the roll of black, sticky tape found inside the truck’s cab,
though uncommon, is similar to that seen in “work trucks.” Nothing in the
evidence establishes Mr. Valadez-Gallegos knew, or should have known, the same
black tape helped seal a hidden ceiling compartment containing the ephedrine.
The fact Mr. Valadez-Gallegos spent $400 dollars in two days and did not know
the driver except by his nickname does not establish the required nexus. In fact,
Officers Johnston and Hartranft testified nothing in the vehicle nor their
investigation directly connected Mr. Valadez-Gallegos to the ephedrine found in
Finally, even assuming proper admission of the 404(b) evidence of Mr.
-21- Valadez-Gallegos’ prior Oklahoma stop, that evidence was admitted for the
limited purpose of showing knowledge, intent and pattern. The fact Mr. Valadez-
Gallegos was a passenger in another vehicle containing ephedrine created only an
inference of his involvement in an illegal activity. The 404(b) evidence admitted
did not establish the ephedrine’s location in the other vehicle or whether Mr.
Valadez-Gallegos knew of its existence, or had possession or control over it.
In instances where there is joint occupancy, as here, constructive
possession requires a link or nexus between Mr. Valadez-Gallegos and the
contraband. See Miller, 84 F.3d at 1253. Here, the government failed to present
evidence sufficiently linking Mr. Valadez-Gallegos with the contraband found in
the camper. Consequently, the evidence cannot sustain the conviction and
sentence.
Rule 404(b) Evidence
Having found the evidence, including the Rule 404(b) evidence at issue,
insufficient to find Mr. Valadez-Gallegos guilty beyond a reasonable doubt, we
need not reach the remaining issue presented by Mr. Valadez-Gallegos on appeal.
The evidence being insufficient, the judgment on conviction is REVERSED.
-22-