United States v. Arnulfo-Sanchez

F I L E D
United States Court of Appeals
Tenth Circuit
AUG 4 2003
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-4132 & 01-4186
(Utah)
JUAN ARNULFO-SANCHEZ, (D. Ct. No. 2:99-CR-641-J)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, McKAY and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
Juan Arnulfo-Sanchez, along with a codefendant, Robert Escamilla, was
convicted by a jury in a joint trial of one count of possession of a controlled
substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He
challenges his conviction on three grounds: 1) his Fourth Amendment rights were
*
This order and judgment is not binding precedent except under the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.
violated by an unlawful detention and an involuntary consent to search; 2) he was
prejudiced by prosecutorial misconduct; and 3) the evidence was insufficient to
prove he had constructive possession of the controlled substance. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
S TATEMENT OF F ACTS
On November 3, 1999, Mr. Sanchez was driving on I-70 with Mr. Escamilla
in the passenger seat. A highway patrol trooper stopped the vehicle for two traffic
offenses. (ROA, Vol. IV at 4). Upon request from the trooper, Mr. Sanchez
produced a valid driver’s license, and Mr. Escamilla provided a California vehicle
registration showing David Guarcia to be the owner. (ROA, Vol. IV at 5-6).
When asked about their travel plans, Mr. Sanchez told the trooper they were en
route to Indiana to attend a family reunion, but could not say exactly where the
reunion was being held. (ROA, Vol. IV at 7; 41). Mr. Escamilla added that they
were to call a family member to confirm where they were headed once they
neared Indiana. (ROA, Vol. IV at 7). During this initial encounter, the trooper
detected an odor he believed to be indicative of methamphetamine. (ROA, Vol. IV
at 5,27,43). The trooper obtained written consent to search the vehicle from both
passengers. (ROA, Vol. IV at 8, 54). Following his nose, the trooper traced the
scent to the passenger compartment, then to the trunk, and finally to the back seat.
The trooper removed the seat, which revealed a hidden compartment under the
-2-
floorboard where approximately twenty pounds of methamphetamine was
discovered wrapped in duct taped packages. 2 (ROA, Vol. IV at 8-10). After
arresting both Mr. Escamilla and Mr. Sanchez, the trooper conducted a thorough
search of the trunk and its contents. In the trunk, the trooper found a gas can, a
bag of dog food, and two bags of clothing. (ROA, Vol. V at 8). One of the
clothing bags carried a tag bearing Mr. Sanchez’s name, and inside that bag was a
day planner. (ROA, Vol. V at 8). A search of the passenger compartment
revealed another day planner with an airline ticket stub issued in Mr. Escamilla’s
name. (ROA, Vol. V at 9, 13). Both passengers’ wallets were seized. (ROA, Vol.
V at 10, 13). Mr. Escamilla was carrying $1,872 in cash along with a small
quantity of cocaine. (ROA, Vol IV at 11, 61). Mr. Sanchez was carrying $991 in
cash. (ROA, Vol. IV at 11).
I. F OURTH A MENDMENT
Mr. Sanchez challenges the district court’s denial of his motion to suppress
the methamphetamine found hidden in the compartment under the rear floorboard,
as well as the day planner and its contents, which were found in the trunk. His
appeal presents two issues: 1) whether the officer had objectively reasonable and
articulable suspicion to justify further detention beyond the scope of the traffic
2
To access the compartment, the trooper testified he removed the rear seat.
Under the seat was an elaborately controlled access panel that opened the hidden
compartment. (ROA, Vol. IV, 8-9).
-3-
stop; and 2) whether the consent to search the vehicle was voluntary.
We will uphold the district court’s denial of the motion to suppress unless
clearly erroneous. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th
Cir. 1994), cert. denied 511 U.S. 1095 (1944) (citations omitted). But, the
ultimate determination of reasonableness under the Fourth Amendment is a
question of law, which we review de novo. Id.During a routine traffic stop, an officer may request a driver's license and
vehicle registration, ask about travel plans and vehicle ownership, and may run a
computer check before issuing a citation. United States v. Williams, 271 F.3d
1262, 1267-68 (10th Cir. 2001), cert. denied 535 U.S. 1019 (2002); United States
v. Zubia-Melendez, 263 F.3d 1155, 1161 (10th Cir. 2001). Once the driver has
produced a valid license and proof that he is entitled to operate the car, further
detention and questioning beyond that related to the initial stop is permissible
“only if there exists an objectively reasonable and articulable suspicion that
criminal activity has occurred or is occurring.” Williams, 271 F.3d at 1268;
Zubia-Melendez, 263 F.3d at 1161 (internal quotations and citations omitted).
Mr. Sanchez does not contend the initial traffic stop was improper. Instead,
he claims his constitutional rights were violated because the trooper fabricated his
justification for the subsequent detention and further questioning. Mr. Sanchez
challenges the trooper’s testimony that an odor of raw methamphetamine was
-4-
detectable during the initial encounter. 3 As a result, we must determine whether
reasonable suspicion existed to support the detention of Mr. Sanchez beyond the
time required for the initial stop.
Considering all the evidence, the district court believed the trooper’s
testimony that he detected an odor, which his training and experience indicated
was the scent of raw methamphetamine. The trooper testified the odor was
“distinct,” and he recognized the scent when he first approached the vehicle.
(ROA, Vol. IV at 5). Even though the odor testimony alone, if credible, could
satisfy the threshold test and justify further detention and questioning, the district
court also credited the testimony about inconsistent travel plans given by the two
defendants, as well as the dubious registration of the vehicle to a person they
could not readily identify. 4 Nothing suggests the district court’s finding of
reasonable and articulable suspicion was erroneous, so we turn to the question of
3
He discredits the trooper’s testimony that the odor of methamphetamine
was readily detectible by pointing out that a trained canine, released at the scene
sometime after the arrest and search, but before the drugs were removed from the
compartment, did not alert immediately to the presence of drugs. (ROA, Vol. V,
179-83). Instead, the canine alerted only when led to the back seat of the vehicle.
(Id. at 183). Mr. Sanchez’s argument, while plausible, did not persuade the trial
judge or the jury; perhaps because by the time the canine approached the vehicle,
the doors were open and the back seat removed, allowing the inference that the
odor was no longer concentrated inside the vehicle. (Id. at 180, ln. 17).
4
After handing the registration to the trooper, the Defendants were only
able to identify the registered owner as “David.” Neither could recall his last
name. (Vol. IV at 39, ln. 22).
-5-
probable cause to search. 5
“An officer has probable cause to search a car if, under totality of
circumstances, there is a fair probability the car contains contraband or evidence.”
United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995) (internal quotations
omitted). The scent of raw methamphetamine emanating from vehicle (as was the
case here) will suffice to provide probable cause for a search of the entire vehicle,
including the trunk. United States v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000)
(emphasis added). 6
Additionally, the factors found to justify the detention and questioning also
support a probable cause determination. Still further, after discovering the secret
compartment and its contents (twenty pounds of methamphetamine), the trooper
had abundant reason to thoroughly search the trunk and its contents, which we
5
Mr. Sanchez contends that his motion to suppress should have been
granted because he did not voluntarily consent to a search of the vehicle. It might
be debatable whether continued detention became consensual when Mr. Sanchez
signed the consent form, but it is academic. Because we conclude that the
detention and the warrantless search were lawful, we do not reach the consent
issue.
6
The smell of raw or burnt drugs justifies a search of the passenger
compartment, but the smell of burnt marijuana does not justify the search of the
trunk. Wald, 216 F.3d at 1228; Parker, 72 F.3d at 1450. In Wald, we noted that
“the rule is premised on the common sense proposition that the smell of burnt
marijuana is indicative of drug usage rather than drug trafficking, and because it
is unreasonable to believe people smoke marijuana in the trunks of cars, the mere
smell of burnt marijuana does not create the fair probability that the trunk
contains marijuana.” Wald, 216 F.3d at 1226.
-6-
note was done post-arrest. There was no Fourth Amendment violation.
II. P ROSECUTORIAL M ISCONDUCT
At the close of the government’s evidence, Mr. Sanchez’s counsel moved in
open court for a dismissal of the charges as a matter of law, and in the alternative,
he renewed a previous objection to discovery violations and asked for a mistrial.
(Sanchez Appdx. Vol III., 457). The district court denied the motion to dismiss
and reserved ruling on the motion for a new trial. 7 (Id. at 467). Mr. Sanchez’s
trial motions attacked the chain of custody of evidence and accused the
government of intentionally delaying discovery of a handwriting analysis report.
(Sanchez. Appx. Vol. III, pp. 457-67). After trial, but before the district court
ruled on the motion for a new trial, Mr. Sanchez filed a Motion for Judgement of
Acquittal pursuant to Fed. R. Crim. P. 29, 8 requesting a mistrial and dismissal of
the indictment as a sanction for the government’s alleged violation of his
constitutional rights. (Vol.1, Doc. 158). In support of his motion, he filed a
supplemental memoranda containing a plethora of accusations of prosecutorial
misconduct. (Id.). At the post-trial hearing on his motion for acquittal, Mr.
Sanchez focused only on his claims that the prosecution falsely represented to the
7
While the record shows that Mr. Sanchez moved for a mistrial, the district
court interpreted the motion to be for a new trial. (Sanchez Appendx Vol. 467).
8
“Rule 29 provides a motion for judgment of acquittal as the substitute for
the former motions for a directed verdict and for dismissal.” United States v.
Parra, 2 F.3d 1058, 1069 n.8 (10th Cir. 1993), cert. denied 510 U.S. 1026 (1993).
-7-
defense the availability and substance of a report from the government’s
handwriting analyst, and that the government was under an obligation to, but did
not, disclose the findings of the report to the jury. 9 (Sanchez Vol. XXIII, 8-9).
The district court denied his motion for acquittal as well as his pending motion
for a new trial, concluding that the government did not misrepresent to the
defense or to the court either the availability of the report or its substance. (Id. at
26-28). The district court also discarded Mr. Sanchez’s claim that he was
9
At his post-trial motion hearing in April 2001, Mr. Sanchez accused the
government of misrepresenting the availability of the report during a pre-trial
hearing held on March 12, 2001. In arguing his motion in April, Mr. Sanchez
recalled that the government represented on March 12th that the report was
“unavailable” at that time, but the report itself indicates it was faxed to the
government from the expert on the 12th of March. (ROA, Vol. XXIII at 7). Our
review of the record proves more conclusive than defense counsel’s recollection.
On March 12, 2001, two days before trial began, the government represented to
the defense that the handwriting analysis report had been received in the
government’s office that day, but copies had not yet been made. (Sanchez, Vol
XIV, 9). The defense agreed to meet at the government’s office at five o’clock
that evening to get a copy of the report. (Sanchez Vol XIV, 11-13.) We agree
with the district court; the government did not misrepresent the availability of the
report.
Also at the post-trial motion hearing in April 2001, Mr. Sanchez accused
the government of misrepresenting the substance of the report at the pre-trial
hearing on March 12, 2001. On March 12th, the government described the report
as “inconclusive.” (ROA, Vol. XIV at 13). But, Mr. Sanchez argued in April
that “inconclusive” was a misrepresentation of the report. The report reads, “ . . .
I could find no scientific evidence to support the belief that they [Defendants]
wrote any of the questioned writing.” (ROA, Appendix Vol I at 78; Gov.’s
Brief at Attch. B). The district court concluded the government did not
mischaracterize the contents of the report by referring to this language as
“inconclusive.” We agree.
-8-
prejudiced by the government’s choice not to divulge the handwriting report to
the jury. (Id.).
On appeal, Mr. Sanchez narrows the issues and now argues: 1) by failing
to disclose the handwriting report to the jury, the government deliberately
misrepresented the truth; and 2) the government intentionally withheld
information from the defense that might have been used to impeach the arresting
trooper. Nowhere in Mr. Sanchez’s briefs on appeal do we find any express
reference that he is appealing either the denial of his motion for acquittal or the
denial of his motion for a new trial. He simply requests that “[t]he conviction
should be reversed, and the case remanded for judgment of acquittal.” (Sanchez
Second Corrected Opening Brief at 29). In any event, the district court did not
err.
Prosecutorial misconduct is not grounds for action under Rule 29. United
States v. Ellison, 684 F.2d 664, 665 (10th Cir. 1982) vacated on other grounds,
722 F.2d 595 (10th Cir. 1982). “The proper basis for a Rule 29(a) motion for
judgment of acquittal is a claim of insufficient evidence in light of the elements
of the offense charged.” United States v. Urena, 27 F.3d 1487, 1490 (10th Cir.
1994) cert. denied, 513 U.S. 977 (1994). Sufficient evidence was presented to
sustain Mr. Sanchez’s convictions. (See discussion infra).
We review the district court’s denial of the motion for a new trial for abuse
-9-
of discretion. Mr. Sanchez argues we should review de novo, ignoring what we
have said:
[W]hen the district court has denied a defendant’s motion for a new
trial or for a mistrial, the defendant may not ignore this determination
and seek de novo appellate review of the court’s ruling on defense
counsel’s prosecutorial misconduct objection. Rather, the proper course
is for this court to review the denial of defendant’s motion [for a
mistrial] under an abuse of discretion standard.
United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996).
Mr. Sanchez first argues the prosecution was obligated, but failed, to reveal
results of a handwriting report to the jury—results he believes exonerate him. In
support of his argument, he calls our attention to Miller v. Pate, 386 U.S. 1(1967), where the United States Supreme Court condemned the prosecutor’s
deliberate choice to refer to vital evidence as stained by blood when the
prosecutor knew the stains were actually caused by red paint. Id. at 6. Finding
such deception a miscarriage of justice, the Court invalidated the defendant’s
conviction. Id. Mr. Sanchez would have us construe the government’s choice not
to call its handwriting expert as analogous to the situation in Miller. We cannot
make that leap. Significantly, the government did not argue to the jury that the
report conclusively identified Mr. Sanchez as the author of the incriminating
documents. Instead, the government’s case relied on other circumstantial
evidence to allow the jury to infer that Mr. Sanchez was the author. While the
government cannot deliberately present false evidence, the ends of justice do not
-10-
obligate it to introduce that which is inconclusive or marginal. Mr. Sanchez even
concedes that the “[g]overnment’s handwriting analysis proved inconclusive. The
handwriting analyst could not say with any degree of certainty that the entries in
the diary were made by Arnulfo-Sanchez.” (Sanchez Reply Brief at 11).
Moreover, if the inconclusive report was so significant, as is now claimed, the
defense could have called the analyst to testify or offered the report into
evidence. 10 The record reveals no such attempt.
Last, we address Mr. Sanchez’s contention that the government improperly
failed to provide the defense with information that possibly could have been used
to impeach the arresting trooper. The suspect information involves 1) the
trooper’s demotion from sergeant to trooper under circumstances unrelated to this
case; 2) information that the trooper was a defendant in a 43 U.S.C. § 1983 illegal
detention case that might reflect poorly on his credibility; 11 and 3) a collection of
five cases from this Circuit where the trooper, during the course of his patrol
duties, detected the odor of illegal drugs emanating from a suspect’s vehicle. 12
10
The defense physically received the report on March 13, 2001, the day
before trial. But according to the government, the report was ready to be picked
up at its office at five o’clock the evening of the 12th of March, as was agreed.
(Sanchez, XXIII, 24, 17).
Mr. Sanchez directs our attention to Skultin v. Bushnell, 82 F.Supp.2d
111258 (D.Utah 2000).
12
Mr. Sanchez directs our attention to United States v. Parker, 72 F.3d
1444 (10th Cir. 1995); United States v. Nielsen, 9 F.3d 1487 (10th Cir. 1993);
-11-
The district court’s order denying Mr. Sanchez’s motion did not address the issue
regarding disclosure of impeachment materials, presumably because it was not
discussed at the motion hearing and conceivably abandoned by the defense.
(Appl.App.Vol. I, Doc. 52). Regardless, to the extent Mr. Sanchez argues the
non-disclosure of impeachment evidence justifies a new trial, nothing in the
record suggests the district court abused its discretion in denying the motion sub
silentio.
The government has an obligation to disclose both exculpatory evidence
and evidence that possibly could be used to impeach a government witness.
Brady v. Maryland, 373 U.S. 83 (1963); Giglo v. United States, 405 U.S.150
(1972). 13 There is ample evidence that the Defendant was informed prior to trial
United States v. Dennis, 113 F.3d 1247 (10th Cir. 1997) (unpublished table
decision); United States v. Castine, 156 F.3d 1244 (10th Cir. 1988) (unpublished
table decision); United States v. Anderson, 172 F.3d 63 (10th Cir. 1999)
(unpublished table decision).
13
In Giglio, the Supreme Court held that “suppression of material evidence
justifies a new trial irrespective of the good faith or bad faith of the prosecution. .
. . When the reliability of a given witness may well be determinative of guilt or
innocence, nondisclosure of evidence affecting credibility falls within this general
rule. Id. at 153-54 (internal quotations and citations omitted). We have held that
“the prosecutor is not obliged to ferret out and present every bit of potentially
exculpatory evidence. But when substantial exculpatory evidence is discovered in
the course of an investigation, it must be revealed to the grand jury.” United
States v. Page, 808 F.2d 723, 728 (10th Cir. 1987) cert. denied, 482 U.S. 918(1987) (emphasis in original). Recognizing its obligation to disclose exculpatory
evidence, as well as evidence that may be used to impeach a government witness,
the government advised the defense on March 13, 2001, of facts it believed to fall
-12-
of all the information he now asserts was concealed from him. During the motion
hearing on March 13, 2001, the day before trial, the government specifically
called attention to the arresting trooper’s demotion, stating that it was understood
to have been related to matters of insubordination. (Sanchez XV, 65). At that
same hearing, the government also disclosed a number cases involving the
arresting trooper, including a citation to Skultin v. Bushnell, 82 F.Supp.2d 1258(D.Utah 2000)—the civil case in which Trooper Bushnell was a defendant.
(Sanchez XV, 65-66; Vol. I, Doc. 162, Attachment A). At trial, Mr. Sanchez’s
attorney cross examined the arresting trooper about his recent demotion. That
attempt belies the present claim that the government failed to disclose the
information.
Finding no abuse of discretion, we affirm the district’s denial of Mr.
Sanchez’s motion for a new trial.
III. S UFFICIENCY OF THE E VIDENCE
When reviewing a sufficiency of the evidence claim in a criminal case, we
view the evidence de novo but in the light most favorable to the government, and
apply a single test. The evidence—both direct and circumstantial, together with
the reasonable inferences to be drawn therefrom—is sufficient if a reasonable jury
within this rule.
-13-
could find the defendant guilty beyond a reasonable doubt. United States v.
Jones, 49 F.3d 628, 631 (10th Cir. 1995) (citations omitted), reh’g denied (1995);
United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir. 1986) cert. denied, 475
U.S. 1128 (1986) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Mr.
Sanchez’s conviction may rest on a finding of constructive possession. Jones, 49
F.3d at 632. Constructive possession is established if a person “knowingly held
ownership dominion or control over the object and the premises where the
contraband was found.” United States v. Castorena-Jaime, 285 F.3d 916, 933
(10th Cir. 2002) (internal quotations and citations omitted). However, where
there is more than one possibility as to who is in possession of the contraband,
proof of dominion over the vehicle and proximity to contraband is insufficient;
the government must also show a nexus between the defendant and the
contraband. United States v. Hishaw, 235 F.3d 565, 572 (10th Cir. 2000) cert.
denied, 533 U.S. 908 (2001) (quoting United States v. Reece, 86 F.3d 994, 996
(10th Cir. 1996)). “There must be some evidence ‘supporting at least a plausible
inference that the defendant had knowledge of and access to’” the controlled
substance. Hishaw, 235 F.3d at 571 (quoting United States v. Mergerson, 4 F.3d
337, 349 (5th Cir. 1993) cert. denied, 510 U.S. 1198 (1994)).
Citing Reece, 86 F.3d 994 (10th Cir. 1996), Mr. Sanchez argues that the
government failed to sufficiently link him to the illegal cargo in any way other
-14-
than mere presence and proximity. As he does with his arguments regarding
reasonable suspicion and probable cause, he questions the credibility of the
arresting trooper, and suggests that the jury should not have relied on the
trooper’s testimony. Further, he questions whether the jury could reasonably infer
that he was the author of the incriminating documents found in the vehicle. Last,
he argues the government should have, but did not, investigate the culpability of
the person to whom the vehicle was registered.
Because the methamphetamine was confined in a hidden compartment
under the floorboard of the rear seat of a vehicle that Mr. Sanchez did not own,
his mere presence in the vehicle cannot by itself sustain the jury’s finding that he
knowingly possessed a controlled substance. Hooks, 780 F.2d at 1531. Likewise,
because the government did not establish that he was familiar with the smell of
methamphetamine, the mere presence of the odor in the vehicle does not, by itself,
establish that he knew methamphetamine was concealed in the car. Id. But other
circumstantial evidence was presented to the jury.
Testimony established that the arresting officer, utilizing his training and
experience, detected the “very distinct” odor of methamphetamine at the moment
he approached the vehicle. (ROA, Vol. IV at 5). Another officer also testified
that he could smell the odor from inside the vehicle. (V, 191). The jury heard
testimony that a trained canine alerted when it made its way to the back of the
-15-
vehicle. (V, 183). From these facts, a jury could reasonably infer that as the
driver of the vehicle, Mr. Sanchez would have had to endure this odor whether or
not he could have identified it. 14 That might be sufficient to alert a reasonable
person that something was amiss, but there is more evidence, discussed below, to
support the jury’s conclusion that Mr. Sanchez knew he was transporting
methamphetamine.
First, the jury was informed that the value of twenty pounds of
methamphetamine might reach a wholesale price of $150,000 or retail at
$900,000. The high value of controlled substances may be used to infer
constructive possession based on the logic that it is unlikely that the true owner of
the vehicle or the substance would leave such a valuable commodity unattended
or in possession of a stranger, “especially a substance whose odor clearly revealed
its location.” Hooks, 780 F.2d at 1532; United States v. Rodriguez, 192 F.3d 946,
949 (10th Cir. 1999). Additionally, there was testimony that Mr. Sanchez was
unable to name the owner of the vehicle he was driving.
Second, the jury heard testimony generally describing “pay-owe sheets,”
i.e., slips of paper where drug deals are documented with names, amounts of
14
Mr. Sanchez believes the jury relied on the trooper’s testimony even
though incredible. The law is clear that in reviewing the evidence, we do not
weigh conflicting evidence or consider witness credibility, as that duty is
delegated exclusively to the jury. United States v. Sanders, 240 F.3d 1279, 1281
(10th Cir. 2001).
-16-
money paid and owed, and the amount of drugs distributed. It also heard that
evidence retrieved from Mr. Sanchez’s day planner resembled pay-owe sheets. 15
For instance, Government’s Exhibit 3A, which is a piece of a paper identical to
those in Mr. Sanchez’s day planner, reflects handwritten notations of names and
numbers, e.g., “Boby 1000” and “John 4000.” Mr. Sanchez contends that even if
the documents obtained from his day planner are indicative of drug activity, the
government failed to present evidence sufficient to allow a jury to infer that he
was the author. We disagree. The trooper found one day planner in the trunk of
the car inside a bag that was tagged with Mr. Sanchez’s name and Tucson
address. (vol. V at 8, 13). Mr. Sanchez’s wallet contained a handwritten tag with
his name and California address. (vol.V,13). From the perspective most
favorable to the government, it is reasonable for the jury to have concluded the
sheets were authored by Mr. Sanchez and were pay-owe sheets.
Last, several tangential facts could support the jury’s conclusion that Mr.
Sanchez possessed methamphetamine with intent to deliver. Some are innocent
considered in isolation but part of a damning mosaic when considered in context.
15
An agent for the Drug Enforcement Agency testified as to what
professionals in his field refer to as pay-owe sheets. Contrary to Mr. Sanchez’s
argument, the agent was not asked to and did not give his opinion as to whether
the exhibits offered by the government were indeed pay-owe sheets. That
conclusion was appropriately left in the jury’s province. We find no merit to Mr.
Sanchez’s position that the jury inappropriately considered the agent’s testimony.
(Sanchez Vol. XIX, 105-108, App’t Br. at 21).
-17-
Mr. Sanchez claimed he was traveling to Indiana to attend a family reunion but
was unable to articulate a specific destination, which may suggest falsification of
travel plans. Neither he nor Mr. Escamilla could reasonably identify the owner of
the vehicle. Dog food hidden in the trunk of the car, without any evidence that
either passenger owned a dog, may indicate the hope of distracting a dog trained
to detect illicit drugs. A gas can also found in the trunk of the car could evidence
knowledge that the car’s gas tank had been altered to a diminished capacity in
order to hold and conceal drugs. Last, the jury watched a video tape, recorded as
a training video for the highway patrol, which documented the sophistication of
this particular hidden compartment. (Gov. Exhibit 4). To access the secret
compartment, it was necessary to turn on the ignition key and the lights so as to
enable a magnetic switch hidden in the console. (Vol. IV, 16). To open the
compartment, it was necessary to pass a magnet, which was found in the console,
over a certain point inside the console. (Id.). The magnetic “key” activated a
solenoid, which opened the door to the compartment. (Exhibit 4). The
compartment was created by altering the gas tank, which is located under the back
seat. (Exhibit 4). From the ready availability of an object as uncommon as a
magnet—in effect a key to the compartment—a reasonable jury could infer
-18-
knowledge of the secret compartment, as well as its contents. 16 The evidence
presented to the jury was sufficient to support Mr. Sanchez’s conviction.
Accordingly, the findings and holdings of the district court are
AFFIRMED.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
16
If Mr. Sanchez had been duped into transporting drugs, as his arguments
suggest, it is unlikely the owner of illegal drugs worth nearly a million dollars
would leave a magnetic “key” in the vehicle allowing access to the drugs by
virtual strangers.
-19-