United States v. Octavio Delvillar , 255 F. App'x 93 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1412
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Octavio Delvillar, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 12, 2007
Filed: November 26, 2007
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Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Octavio Delvillar appeals from his conviction for possession with the intent to
distribute five kilograms or more of a mixture or substance containing a detectable
amount of cocaine. See 21 U.S.C. § 841(a)(1). Delvillar's post-briefing, pro-se
Motion to Amend Direct Appeal is also before this court. We deny Delvillar's motion
to amend, and we affirm his conviction.
I.
Early in the morning on April 6, 2005, Nebraska State Trooper David Frye
pulled over Delvillar's Ford Excursion for multiple traffic violations. Delvillar was
traveling with a passenger named Fernando Nunez. In the course of this traffic stop,
Delvillar gave Trooper Frye oral and written consent to search his vehicle. During
Frye's subsequent investigation, he discovered a hidden, after-market compartment
underneath the vehicle. Trooper Frye then handcuffed Delvillar and Nunez and placed
them in his patrol car. The vehicle was towed to the Nebraska State Patrol Office in
Lincoln, where the compartment was searched. During the search, Troopers
discovered 25 packages storing a mixture containing a detectable amount of cocaine.
The packages were substantially similar in weight, and the single package weighed by
the Nebraska State Patrol criminalistics laboratory totaled just under one kilogram.
In May 2005, Delvillar and Nunez were both indicted for knowingly and
intentionally possessing with the intent to distribute five kilograms or more of a
mixture or substance containing a detectable amount of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1), and 18 U.S.C. § 2. After a three-day trial, the jury found
both Delvillar and Nunez guilty. The district court1 sentenced Delvillar to 151 months
of imprisonment. This appeal follows.
II.
Delvillar's primary argument on appeal is that the evidence is insufficient to
support the jury's verdict. We review a challenge to the sufficiency of the evidence
de novo. United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007). We view
the evidence in the light most favorable to the verdict and will "reverse only if no
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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reasonable jury could find the defendant guilty beyond a reasonable doubt." United
States v. Spears, 454 F.3d 830, 832 (8th Cir. 2006). In reviewing the evidence, we do
not make credibility determinations or weigh conflicting evidence; these judgments
are squarely committed to the jury. Id.
To convict a defendant of possession with the intent to distribute a controlled
substance, the government is required to prove beyond a reasonable doubt that the
defendant: "(1) was in possession of [the controlled substance] ; (2) knew he was in
possession of [the controlled substance] ; and (3) intended to distribute some or all of
the [controlled substance]." United States v. Jenkins, No. 06-4136, 2007 WL
2963750, at *3 (8th Cir. Oct. 12, 2007). "Proof of constructive possession is sufficient
to satisfy the element of knowing possession." United States v. Gonzalez-Rodriguez,
239 F.3d 948, 951 (8th Cir. 2001). To establish constructive possession, the
government is required to prove that the defendant had "knowledge and ownership,
dominion, or control over the contraband itself, or dominion over the vehicle in which
the contraband is concealed." United States v. Johnson, 470 F.3d 1234, 1238 (8th Cir.
2006) (internal marks omitted), cert. denied, 2007 WL 2004796 (U.S. Oct. 1, 2007)
and 2007 WL 2818065 (U.S. Oct. 29, 2007).
Specifically, Delvillar contends that the evidence is insufficient to permit a
reasonable jury to conclude that Delvillar knew he was transporting a substance
containing cocaine. We respectfully disagree.
The government's evidence showed that Delvillar bought, owned, and was in
control of the Ford Excursion carrying 25 packages of cocaine. This substance was
hidden in a concealed compartment affixed to the underside of the vehicle. Delvillar's
ownership of and control over the vehicle standing alone supports the jury's
determination that Delvillar knowingly possessed the cocaine. See United States v.
Flores, 474 F.3d 1100, 1105 (8th Cir. 2007) ("Flores's dominion over the vehicle alone
could support a finding that he knowingly possessed the methamphetamine . . . .").
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But we need not rely on this evidence alone. The jury's verdict is also
supported by Trooper Frye's discovery of air fresheners inside the vehicle, an item
commonly used to mask the odor of illegal drugs. See id. (discussing circumstantial
evidence supporting the jury's verdict, including the discovery of multiple cell phones
and air fresheners). Furthermore, Trooper Frye testified that Delvillar appeared
extremely nervous during the traffic stop. See United States v. Timlick, 481 F.3d
1080, 1084 (8th Cir. 2007) (noting that the defendant's nervousness during a traffic
stop is a fact that a reasonable jury may "interpret as suggesting a consciousness of
guilt"). Additionally, Delvillar and Nunez gave inconsistent accounts of how he and
Nunez met, and Delvillar made several false statements to Trooper Frye regarding the
vehicle and the details of his trip. See id. (noting that the inconsistent accounts of the
defendant and the passenger supported the inference that the defendant had knowledge
that illegal drugs were hidden inside the vehicle). Just as damaging was the way that
Delvillar chastised Nunez for straying from their agreed-upon story after Trooper Frye
placed them in his patrol car, a conversation that was recorded unbeknownst to
Delvillar and Nunez. This circumstantial evidence supports the jury's determination
that Delvillar knew that there was cocaine hidden in the vehicle.
The government also offered evidence tending to show that at the time Delvillar
purchased the Ford Excursion, there was no hidden compartment affixed to the
vehicle. Delvillar purchased the Excursion from The Auto Yard on March 16, 2005,
paying cash. The Auto Yard purchased the vehicle from Quincy's Auto Auction on
January 10, 2005, and the owner of the Auto Yard testified that The Auto Yard would
not have performed any body work on the Excursion before it sold the vehicle to
Delvillar. Further, the general manager of Quincy Auto testified that Quincy Auto's
vehicle-condition report of December 9, 2004, indicated no frame damage or
alterations. Quincy Auto's records also indicated that no work was done on the
vehicle before it was sold to The Auto Yard. This evidence is sufficient to permit a
reasonable jury to infer that Delvillar facilitated the construction of the hidden, after-
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market compartment, which in turn supports the jury's determination that Delvillar
knew that cocaine was hidden in the concealed compartment.
Delvillar relies on United States v. Mendoza-Larios, 416 F.3d 872 (8th Cir.
2005), and United States v. Pace, 922 F.2d 451 (8th Cir. 1990), to support his
contention that the evidence is insufficient to support the jury's finding of knowing
possession. In Mendoza and Pace, we concluded that there was insufficient evidence
to support the defendants' convictions for possession with the intent to distribute
illegal drugs, even though the defendants were driving vehicles containing illegal
drugs hidden in concealed compartments. Mendoza, 416 F.3d at 876 (noting that
neither defendant was nervous, both gave generally consistent stories, and both were
cooperative); Pace, 922 F.2d at 453 (noting that the defendant had no reason to know
drugs were contained in the other traveler's luggage). But here, unlike the evidence
produced in Mendoza and Pace, the government's case is sufficient to prove that
Delvillar bought and owned the Excursion, and that Delvillar constructed the
compartment in which the substance containing cocaine was concealed. Cf. Mendoza,
416 F.3d at 873 (noting that neither defendant owned the vehicle); Pace, 922 F.2d at
452 (noting that the defendant did not own the vehicle or the luggage containing the
drugs). Delvillar and Nunez's incriminating conversation in Trooper Frye's patrol car
combined with the other circumstantial evidence cited above also makes the
government's evidence here stronger than that in Mendoza and Pace. While
superficially similar, Mendoza and Pace in no way foreclose our ultimate conclusion
that the evidence is sufficient to support Delvillar's conviction.
Based on the foregoing evidence and analysis, we conclude that the
government's case is sufficient to permit a reasonable jury to find beyond a reasonable
doubt that Delvillar knew he was in possession of five kilograms of cocaine.
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III.
After briefing, Delvillar filed a pro-se motion to amend his direct appeal, which
was referred to the panel considering the merits of the appeal. In Delvillar's
supplementary brief, he contends that his Fourth Amendment rights were violated in
the course of Trooper Frye's traffic stop and subsequent investigation. Because it is
not our practice to consider pro se briefs submitted by counseled parties, we deny
Delvillar's motion to amend. See United States v. Stanko, 491 F.3d 408, 411 n.2 (8th
Cir. 2007) (summarily dismissing defendant's pro se filings); United States v.
Dierling, 131 F.3d 722, 734 n.7 (8th Cir. 1997) ("It is not our practice to consider pro
se briefs filed by parties represented by counsel . . . .").
Delvillar's motion to amend is denied. The judgment of the district court is
affirmed.
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