United States v. Lopez

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 27, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-2192
(D.C. No. 2:13-CR-02152-RB-1)
ALEJANDRO LOPEZ, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
A jury found Alejandro Lopez guilty of possession with intent to distribute
500 grams or more of cocaine. He now contends there was insufficient evidence to
support his conviction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Factual Background
A confidential informant advised agents from the Las Cruces Metro Narcotics
Task Force (“Metro Narcotics”) and the Federal Bureau of Investigation (“FBI”) that
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
the defendant’s brother, Eddy Lopez,1 was willing to sell a kilogram of cocaine for
$27,000. The confidential informant negotiated the price down to $22,000 and
arranged a controlled buy, with Metro Narcotics Agent Ernesto DiMatteo posing as
the buyer. Based on previous experience, the agents believed Eddy would be assisted
by Alejandro and another individual named Angel Torres. The agents also believed
that Torres was the source of the cocaine.
On the day of the buy, Eddy agreed to meet the confidential informant at a
park near Eddy’s house in Anthony, New Mexico. The agents conducting
surveillance saw Torres drive to Eddy’s house. The two men spoke briefly, but the
agents did not see any delivery take place. Torres then left Eddy’s house and drove
slowly around the area, apparently checking for surveillance. A short time later, the
agents saw Eddy walk from his house almost to the park. He did not appear to be
carrying any packages, and his clothing would not have allowed him to conceal a
package large enough to contain the quantity of cocaine for sale.
Eddy returned to his house and waited outside until Alejandro picked him up
in a silver Dodge truck. The brothers proceeded to the park and met the confidential
informant. Eddy removed a package from the truck and put it in a gym bag on the
back seat of the confidential informant’s car. Then Alejandro dropped Eddy at
Eddy’s house and followed the confidential informant to Las Cruces, New Mexico,
where the buyer was supposedly waiting with payment.
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Because the defendant and his brother share the same last name, we refer to
the defendant as “Alejandro” or “Mr. Lopez” and to his brother as “Eddy.”
2
The police stopped and arrested Eddy, who had left his house and was driving
with his wife, and found several pounds of marijuana in the trunk of Eddy’s car
during a consensual search. The police also instigated a traffic stop and arrested
Alejandro. No drugs or cash were found in his truck or on him. Meanwhile, Agent
DiMatteo met the confidential informant and obtained the package that Eddy had
placed on the back seat. The package, which had a hole in the top through which
white powder was escaping, field-tested positive for cocaine and weighed 794 grams
without packaging.
The police took the brothers separately to the FBI’s office for processing and
interrogation. According to the agents, Alejandro waived his Miranda rights and
agreed to be interviewed. FBI Agent Bryan Acee conducted the interview, with some
questioning by Agent DiMatteo. Agent Acee has been in law enforcement for
fourteen years, has extensive training in drug trafficking, and has participated in
thousands of drug investigations. Agent DiMatteo is a twenty-year veteran who has
conducted several hundred investigations in narcotics cases.
The interview was not recorded, but both agents testified about its substance
and referred to their written reports as needed. At first, Alejandro denied any
knowledge of illegal activity, but he eventually admitted to delivering the package to
Eddy. Alejandro also admitted that (1) he picked up the drugs from a house that was
identified as Torres’s house; (2) he originally thought the package contained
marijuana but knew it contained cocaine when he saw white powder spilling out of
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the hole in the packaging; (3) he knew he was supposed to pick up $22,000 in
Las Cruces; and (4) Eddy was going to pay him $100 for his efforts.
The grand jury indicted Alejandro, the trial court denied a motion for a
judgment of acquittal under Fed. R. Crim. P. 29, and the jury convicted Alejandro of
possession with intent to distribute 500 grams or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The trial court sentenced him to 60 months in
prison.
II. Discussion
On appeal, Mr. Lopez contends the evidence was insufficient to support the
conviction because the government did not present evidence on where Eddy obtained
the package or evidence that Alejandro directly or constructively possessed the
cocaine.
We review sufficiency-of-the-evidence challenges de novo. United States v.
Camick, 796 F.3d 1206, 1213 (10th Cir. 2015). Our task is to “view[] the evidence in
the light most favorable to the Government to determine whether any rational trier of
fact could have found the defendant guilty of the crime beyond a reasonable doubt.”
Id. at 1213–14 (internal quotation marks omitted). In doing so, we consider “the
collective inferences to be drawn from the evidence as a whole.” United States v.
Bader, 678 F.3d 858, 873 (10th Cir. 2012) (internal quotation marks omitted). “[W]e
do not weigh conflicting evidence or consider witness credibility . . . .” Camick,
796 F.3d at 1214 (internal quotation marks omitted). And we do not “second-guess
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the fact-finding decisions of the jury.” United States v. Irving, 665 F.3d 1184, 1193
(10th Cir. 2011) (internal quotation marks omitted).
“[W]e must simply determine whether [the] evidence, if believed, would
establish each element of the crime.” United States v. Delgado-Uribe, 363 F.3d
1077, 1081 (10th Cir. 2004) (second alteration in original) (internal quotation marks
omitted). To obtain a conviction for possession with intent to distribute, the
government was required to prove beyond a reasonable doubt that Mr. Lopez
“(1) possessed the controlled substance; (2) knew he possessed the controlled
substance; and (3) intended to distribute or dispense the controlled substance.”
Id. at 1084. “Possession of a controlled substance may be actual or constructive,”
and “[c]onstructive possession may be established by circumstantial evidence and
may be joint among several individuals.” Id.Viewed in the light most favorable to the government, the following evidence
was sufficient to satisfy these elements:
 Alejandro admitted during questioning that, as a favor to Eddy, he picked
the drugs up from a house that matched the description of Torres’s house
and transported the drugs to the park. Alejandro also identified Torres’s
house on a map on the computer.
 Former Metro Narcotics Agent Brian Johnston testified that he did not see
Eddy carrying a package when he got into Alejandro’s truck and Eddy’s
clothing would not have allowed him to conceal a package large enough to
contain the quantity of cocaine for sale. He also testified that the brothers
drove directly to the park, where Eddy took the package of cocaine from
the truck and gave it to the confidential informant. Agent Acee provided
expert testimony that it would be highly unlikely for Eddy to risk carrying
the drugs in the neighborhood after he carefully planned the transaction.
And Agent DiMatteo testified that he did not witness any kind of exchange
when Eddy and Torres met before the controlled buy. A rational trier of
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fact could infer from this testimony that Alejandro already had the drugs in
his truck and thus in his possession when he picked up Eddy and went to
the park to meet the confidential informant.
 Alejandro admitted during questioning that he initially thought the package
contained marijuana but later realized it contained cocaine when he saw
white powder coming out of a hole in the packaging.
 Alejandro accompanied Eddy to the controlled buy.
 Alejandro admitted during questioning that he was driving to Las Cruces to
pick up the payment for the drugs and knew the amount due was $22,000.
 Alejandro admitted during questioning that Eddy was going to pay him
$100 for his efforts.
 Agent Acee provided expert testimony that it would be highly unlikely for
Eddy and Torres to allow Alejandro to be present at the actual exchange
with the confidential informant, to follow the informant to receive payment,
and to bring back the money if Alejandro was not familiar with the nature
of the transaction—particularly since Eddy and Torres appeared to be
cautious and careful. Agent Acee further testified that the facilitator of a
drug transaction usually has a very active role, and issues might arise as to
quality and payment in the first transaction between parties. For instance,
the buyer might want to inspect or evaluate the drugs, in which case
Alejandro would need to be knowledgeable.
 Alejandro changed his story during questioning. He initially stated he was
going to Las Cruces to “scout out a construction job” and to “meet a guy.”
Aplt. Corrected App. at 147. But when asked who he was meeting,
Alejandro said he “was following a guy.” Id. And after finding out his
brother was also under arrest, Alejandro admitted he agreed to help Eddy
with the deal, picked up the package from Torres’s house, and brought it to
the park. “False exculpatory statements made by a defendant are
admissible to prove consciousness of guilt and unlawful intent.” United
States v. Tager, 481 F.2d 97, 100 (10th Cir. 1973).
Mr. Lopez admits the government presented this evidence but makes a conclusory
statement that the evidence was not sufficient to prove possession. We are not
persuaded.
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III. Conclusion
This court will reverse only when “no rational trier of fact could have reached
the disputed verdict.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1129
(10th Cir. 2004) (internal quotation marks omitted). Taking the evidence presented
at Mr. Lopez’s trial, as well as all reasonable inferences therefrom, in the light most
favorable to the government, a rational trier of fact could conclude that Mr. Lopez
possessed the cocaine during the controlled buy, knew it was cocaine, and intended to
distribute it. We therefore affirm his conviction.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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