U.S. v. Flores

• Citation: 362 F.3d 1030
• Decision Date: 02 April 2004
• Docket Number: No. 03-2116.,No. 03-2118.,03-2116.,03-2118.
• Parties: UNITED STATES of America, Plaintiff — Appellee, v. Homero Bustos FLORES, Defendant — Appellant. United States of America, Plaintiff — Appellee, v. Juan Sereno Arreola, Defendant — Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

362 F.3d 1030

UNITED STATES of America, Plaintiff — Appellee, v. Homero Bustos FLORES, Defendant — Appellant.

United States of America, Plaintiff — Appellee, v. Juan Sereno Arreola, Defendant — Appellant.

No. 03-2116.

No. 03-2118.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2003.

Filed: April 2, 2004.

Rehearing and Rehearing En Banc Denied May 11, 2004.

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Alexander M. Esteves, argued, Sioux City, IA, for appellant Flores.

John P. Messina, argued, Asst. Federal Public Defender, Des Moines, IA, for appellant Arreola.

Charles J. Williams, argued, Assist. U.S. Attorney, Cedar Rapids, IA, for appellee.

Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Juan Sereno-Arreola and Homero Bustos-Flores were jointly indicted and tried for possession of methamphetamine with intent to distribute. The jury convicted both defendants. They now appeal, arguing several grounds for reversal. We affirm the district court's denial of Sereno-Arreola's motion for a judgment of acquittal and Bustos-Flores's motion to sever, but reverse and remand to the district court for reconsideration of the sentencing enhancement for obstruction of justice against Sereno-Arreola.

On the night of February 27, 2002, Iowa State Patrol Trooper Justin Simmons stopped a car for speeding on Interstate 35 near Clear Lake, Iowa. Trooper Chris Callaway soon arrived on the scene to assist Trooper Simmons.

There were two occupants in the car: the driver, defendant Sereno-Arreola, and a passenger, defendant Bustos-Flores. During the stop, the troopers made some observations about the car. As Trooper Simmons approached the car, he was "overwhelmed" by a strong detergent smell emanating from an open window. The officers also saw several tubes of silicone and a small plastic baggie inside the car.

In response to questioning by the officers, Sereno-Arreola told Trooper Simmons that they were returning to Minnesota from Des Moines. He explained that he had been in Des Moines for two to three days, looking for an apartment. Bustos-Flores said that he had been in Des Moines to meet girls, but later changed his story to say that he had been in Des Moines to look for work. According to Trooper Simmons, the two defendants were "kind of ... laughing, kind of giddy" and both seemed nervous. For example, as Bustos-Flores handed the officers some paperwork, his hands were shaking and he would not make eye contact with them.

The troopers issued Sereno-Arreola a warning for speeding and told him that he and Bustos-Flores were free to leave. At this point, Trooper Calloway asked Sereno-Arreola for permission to search the car, which was granted.

During the search, both defendants sat in Trooper Simmons's patrol car, where their conversation was recorded by police video equipment. The defendants spoke in a coded language in which Spanish words were combined with the English suffixtion. Once decoded, the translation revealed that at one point the defendants had discussed dividing and selling cocaine.

During the search, the troopers found a variety of items in the car, including containers of silicone, blankets, fragrance, caffeine pills, black electrical tape, cans of expanding foam, plastic containers, a fan, receipts and luggage. The troopers also found that the car had been altered to create several hidden compartments, which were either empty or filled with rags and trash bags. Because the night was cold, the troopers decided to continue their search at the nearby Iowa Department of Transportation. Once the search continued, the troopers discovered three packages of methamphetamine hidden in the spare tire.

The defendants were charged with possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Both defendants were found guilty following a joint jury trial. The district court sentenced Sereno-Arreola to 235 months and Bustos-Flores to 188 months. This appeal followed.

On appeal, Sereno-Arreola challenges the district court's denial of his motion for a judgment of acquittal and the imposition of an obstruction of justice enhancement in his sentence. Bustos-Flores challenges the district court's denial of his motion to sever. We affirm the district court's denial of Sereno-Arreola's motion for a judgment of acquittal and Bustos-Flores's motion to sever, but reverse and remand for reconsideration of the sentencing enhancement for obstruction of justice against Sereno-Arreola.

I.

Sereno-Arreola argues that the district court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support the guilty verdict. On appeal, we view the evidence and all reasonable inferences therefrom in the light most favorable to the jury's verdict. United States v. Butler, 238 F.3d 1001, 1003 (8th Cir.2001). We will reverse the denial of a motion for a judgment of acquittal only if "no construction of the evidence exists to support the jury's verdict." United States v. Cunningham, 83 F.3d 218, 222 (8th Cir.1996). In other words, this court will reverse a conviction, including one based solely on circumstantial evidence, only if a reasonable juror must have entertained a reasonable doubt about the government's proof on an element of the offense. United States v. Davidson, 122 F.3d 531, 535 (8th Cir.1997); United States v. Davis, 103 F.3d 660, 667 (8th Cir.1996).¹

Sereno-Arreola contends that his conviction must be reversed because the government did not prove that he knew methamphetamine was in the car. The government may show that Sereno-Arreola knowingly possessed the drugs with evidence of constructive possession. United States v. Shurn, 849 F.2d 1090, 1093 (8th Cir.1988). To show constructive possession, the government must offer evidence that defendants had knowledge and "ownership, dominion, or control over the contraband itself, or dominion over the [vehicle] in which the contraband is concealed." Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001) (quotation omitted).

There was sufficient evidence of Sereno-Arreola's control over the drugs because he was the driver of the car. See id. at 546 (sufficient evidence of control even though driver was not owner of vehicle). As we discuss below, there was also sufficient evidence of his knowledge that drugs were hidden in the car to sustain the conviction.

Sereno-Arreola and Bustos-Flores told the officers that they were returning to Minnesota from Des Moines. They offered different reasons for being in Iowa: Sereno-Arreola said he had been in town for two or three days looking for an apartment, and Bustos-Flores said he was trying to meet girls (then later changed his story to looking for a job). The government introduced evidence that directly contradicted these stories and supported a finding that the defendants were actually returning from California. For example, the government introduced a gas station receipt from Wood River, Nebraska (a six or seven hour drive from Clear Lake) that was dated the same day of the traffic stop. The government also introduced evidence of a Western Union transfer sent by Sereno-Arreola from California to his wife in Minnesota two days before the stop. When Sereno-Arreola testified, he admitted that he had lied to the police and that he was actually returning from California. The jury could properly consider his lies to the officers as evidence of Sereno-Arreola's knowledge of the drugs. See Butler, 238 F.3d at 1004 (lies to officer about purpose of trip may support inference of guilty knowledge of drugs in car). Similarly, Sereno-Arreola's extreme nervousness throughout the stop is evidence which the jury could properly use to buttress its conclusion that he knew drugs were hidden in the car. See id. at 1004.

The jury was permitted to consider the circumstances surrounding the discovery of the drugs. Troopers found three packages containing a large amount of methamphetamine in the spare tire of the car that Sereno-Arreola was driving. The drugs were packaged with black electrical tape and silicone. Both materials were found either in the passenger compartment of the car or in the trunk next to the defendants' luggage. The troopers noticed a strong detergent smell emanating from the car, which one officer testified is often used as a masking agent to cover the smell of drugs. Perhaps most importantly, in a recorded conversation during the traffic stop, the defendants discussed dividing up and selling drugs.

Throughout the trial, the government introduced rebuttal evidence illustrating weaknesses in Sereno-Arreola's story. For example, Sereno-Arreola testified that Bustos-Flores hired him to drive from Minnesota to California and back because Bustos-Flores did not have a valid license. However, on the first day of the trip, Bustos-Flores received a speeding ticket while driving the car. Similarly, despite Sereno-Arreola's claim that he barely knew Bustos-Flores, there was evidence that he actually knew his codefendant well.² The jury was entitled to consider and weigh all this evidence. "It is not the province of this Court to reweigh evidence or judge the credibility of witnesses when reviewing the sufficiency of the evidence on appeal." United States v. Aguilar-Portillo, 334 F.3d 744, 747 (8th Cir.2003) (quotations omitted).

Taking all these facts together, and viewing the evidence in the light most favorable to the jury's verdict, the government presented sufficient evidence of defendant Sereno-Arreola's guilt to convince a jury beyond a reasonable doubt. We affirm his conviction.

II.

Sereno-Arreola next argues that the district court erred when it enhanced his sentence two levels for obstruction of justice. We review a district court's factual findings in support of an obstruction of...