U.S. v. Valadez-Gallegos, VALADEZ-GALLEGO

• Decision Date: 17 December 1998
• Docket Number: D,VALADEZ-GALLEGO,No. 98-2017,98-2017
• Citation: 162 F.3d 1256
• Parties: 1999 CJ C.A.R. 22 UNITED STATES of America, Plaintiff-Appellee, v. Davidefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1256

162 F.3d 1256

1999 CJ C.A.R. 22

UNITED STATES of America, Plaintiff-Appellee, v. David VALADEZ-GALLEGOS, Defendant-Appellant.

No. 98-2017.

United States Court of Appeals, Tenth Circuit.

Dec. 17, 1998.

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.

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 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.

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."

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, 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 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.

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. 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. 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 said they made no significant stops nor did any sight-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.

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...