United States v. Nunez-DeJesus

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4691
BIENVENIDO ANTONIO NUNEZ-DEJESUS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4692
RUEBEN DARIO JOSE SANCHEZ, a/k/a
Luis Enriquez Cruz,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-96-4)
Submitted: March 18, 1997
Decided: April 22, 1997
Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William E. Martin, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina;
David Erik Albright, SMITH, HELMS, MULLISS & MOORE,
L.L.P., Greensboro, North Carolina, for Appellants. Walter C. Holton,
Jr., United States Attorney, Douglas Cannon, Assistant United States
Attorney, Timika Shafeek, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants Bienvenido Antonio Nunez-DeJesus (Nunez) and Rue-
ben Dario Jose Sanchez were convicted by a jury of conspiracy to
possess with intent to distribute cocaine hydrochloride in violation of
21 U.S.C. § 846 (1994) and possession with intent to distribute 992
grams of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1).
Nunez and Sanchez each received a sentence of 120 months incarcer-
ation with eight years supervised release. In their consolidated
appeals, Nunez and Sanchez allege insufficiency of the evidence to
support their convictions. Finding sufficient evidence to sustain the
jury's verdicts, we affirm both Appellants' convictions and sentences.
I.
Viewed in the light most favorable to the Government, the evi-
dence at trial disclosed that on January 25, 1996, local law enforce-
ment officers were performing narcotics interdiction at the bus station
in Greensboro, North Carolina, focusing on a bus arriving from New
York City. Agent Wayne Kowalski questioned Nunez, the first pas-
senger to exit the bus, followed by Sanchez. Nunez stated that he
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came from Newark, New Jersey and produced a ticket under the name
of "Jones," as well as a passport bearing the name "Nunez." The ticket
was for a trip from Newark to Burlington, North Carolina, via
Greensboro. A consensual search of his person and his black and red
nylon carry-on bag did not uncover any contraband.
Meanwhile Agent Angela Tackett observed Sanchez walk down
the side of the bus, open the cargo area door, remove two bags from
beneath the bus, and place them on the ground. Upon Tackett's
inquiry, Sanchez stated that he came from New Jersey. Sanchez veri-
fied that the two bags belonged to him. When Kowalski asked for his
bus ticket, Sanchez handed him a New Jersey's driver's license
instead in the name of "Luis Cruz," claiming Nunez had his ticket.
Ticket receipts showed that Appellants' trip from New Jersey to
North Carolina cost $170 and was paid for in cash; the tickets were
for a one-way trip.
Sanchez consistently maintained that both bags, one a red, white,
and blue nylon bag and the other a dark green duffle bag, belonged
to him. Although a consensual search of the red, white, and blue bag
did not reveal contraband, Kowalski's search of the green duffle bag
uncovered electronic scales and two oblong duct tape-wrapped pack-
ages containing 992 grams of cocaine hydrochloride, estimated at
approximately $100,000 in street value. While agents were searching
the bags, Nunez, appearing nervous and fidgety, walked over to a
trash can, removed a bus envelope from his pocket, took out a small
piece of paper from the envelope, tore it up, and threw it in the trash
can. After discovering the drugs, Nunez and Sanchez were arrested.
Shortly thereafter, officers retrieved the torn pieces of paper from the
trash can and found they comprised the baggage claim ticket for the
green duffle bag. The officers who spoke with Nunez and Sanchez
testified that neither of them appeared to have difficulty understand-
ing or conversing in English.
II.
On direct appeal of a criminal conviction, a jury's verdict must be
sustained if there is substantial evidence, viewed in the light most
favorable to the government, to support it. Glasser v. United States,
315 U.S. 60, 80 (1942). Circumstantial as well as direct evidence is
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considered, and the government is given the benefit of all reasonable
inferences from the facts proven to the facts sought to be established.
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Constructive possession of a controlled substance exists when the
individual exercises or has power to exercise control over that sub-
stance. United States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993).
Constructive possession can be proven by circumstantial evidence,
and does not have to be exclusive of anyone else. United States v.
Laughman, 618 F.2d 1067, 1076-77 (4th Cir. 1980). Intent to distrib-
ute can be inferred if the amount of the controlled substance is larger
than an amount normally consumed for personal use. United States v.
Fisher, 912 F.2d 728, 730-31 (4th Cir. 1990).
In a conspiracy case, the government must prove: (1) the existence
of a conspiracy, (2) that the defendant knew of the conspiracy, and (3)
that the defendant voluntarily became a part of the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868). Knowledge and participation in the conspiracy may be
proved by circumstantial evidence. Id.; see also United States v.
Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987).
Here, Nunez and Sanchez were traveling together under false
names one-way from Newark to Greensboro and they paid for their
tickets in cash. Throughout the incident, Sanchez claimed ownership
of both bags. Officers later discovered that Nunez had torn up the
baggage claim ticket for the green duffle bag which contained 992
grams of cocaine hydrochloride, an amount sufficient to warrant an
inference of intent to distribute. See Fisher , 912 F.2d at 730.
Construing the evidence in the light most favorable to the prosecu-
tion, we find sufficient evidence for a jury to find beyond a reason-
able doubt that the drugs were in Nunez's and Sanchez's possession
and that they conspired to possess it with the intent to distribute it.
While Nunez and Sanchez provided different explanations at trial for
what transpired, it is well established that the credibility of witnesses
is within the sole province of the fact finder and generally is unre-
viewable on appeal. United States v. Saunders , 886 F.2d 56, 60 (4th
Cir. 1989).
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Accordingly, we affirm Nunez's and Sanchez's convictions and
sentences. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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