U.S. v. Delgado-Uribe

• Citation: 363 F.3d 1077
• Decision Date: 13 April 2004
• Docket Number: No. 03-8003.,03-8003.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador DELGADO-URIBE, also known as Chava, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1077

363 F.3d 1077

UNITED STATES of America, Plaintiff-Appellee, v. Salvador DELGADO-URIBE, also known as Chava, Defendant-Appellant.

No. 03-8003.

United States Court of Appeals, Tenth Circuit.

April 13, 2004.

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L. Robert Murray, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the briefs), Cheyenne, WY, for Plaintiff-Appellee.

James H. Barrett, Assistant Federal Public Defender, Cheyenne, WY, for Defendant-Appellant.

Before HENRY, BALDOCK, and MURPHY, Circuit Judges.

BALDOCK, Circuit Judge.

A jury convicted Defendant Salvador Delgado-Uribe (Delgado) and his co-defendant, Jennifer Myrick, of (1) conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and (2) possession with intent to distribute marijuana and aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.¹ At the close of the Government's case-in-chief, Delgado moved for judgment of acquittal under Fed.R.Crim.P. 29. The district court denied Delgado's motion, and later sentenced him to fifty-seven months imprisonment. On appeal, Delgado argues the district court erred in denying his motion for judgment of acquittal because the Government's evidence was insufficient to sustain his conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

I.

Delgado and his co-defendant, Jennifer Myrick, were driving a red Plymouth Caravan from California to Illinois. Wyoming state trooper Jason Green noticed the van had an Oregon license plate attached to the rear of the van, but not the front of the van. Trooper Green knew Oregon law required the display of both a front and back license plate so he "ran" the van's back license plate through dispatch. Dispatch reported the license plate belonged to a white Toyota coupe rather than a red Plymouth Caravan. Based upon this information, Trooper Green stopped the van and approached the driver's side window.

Myrick, the driver, lowered her window about three inches as Trooper Green approached. Delgado was in the passenger seat. Trooper Green asked Myrick for the van's registration and she slipped him an envelope through the small opening. He then asked for her driver's license and she handed him an Illinois "identification card." After returning to his patrol car, Trooper Green discovered the envelope contained a purchase agreement for the van. He "ran" the vehicle identification number through dispatch and discovered the van was not reported stolen. Trooper Green returned to the van and asked Myrick to accompany him to the patrol car.

In the patrol car, Myrick admitted she did not have a valid driver's license. Upon further questioning, Myrick briefly explained to Trooper Green she lived in Moline, Illinois and had been in California for about a week and a half on "break." Trooper Green testified that Myrick appeared nervous. Trooper Green arrested Myrick for driving without a valid driver's license and placed her in the back of the patrol car.

Trooper Green approached the passenger side of the van and spoke to Delgado. Trooper Green asked Delgado if he had a driver's license and Delgado replied he did not have a driver's license. Trooper Green then asked Delgado who owned the van and Delgado replied he did not know. Delgado informed Trooper Green he did not speak English. Trooper Green asked for identification. Delgado produced a voter registration card from Mexico. Trooper Green asked Delgado where he and Myrick were going and Delgado replied "Moline." After discovering Delgado's voter registration card did not have a date of birth, Trooper Green placed Delgado in another patrol car that had arrived on the scene.

Trooper Green made arrangements to have the van towed because neither Myrick nor Delgado had a valid driver's license. Trooper Green performed an inventory search of the van. As Trooper Green opened the passenger side door of the van, he smelled a very strong odor of raw marijuana. Trooper Green then opened the back door of the van and again smelled the "overwhelming aroma of raw marijuana." Trooper Green observed two suitcases sitting on top of four garbage bags in the back of the van. One suitcase belonged to Myrick and one belonged to Delgado. Trooper Green opened one of the garbage bags and discovered several bundles of marijuana. Law enforcement officers eventually discovered 166.5 pounds of marijuana in the back of the van and a can of air freshener in the passenger side door where Delgado had been sitting.

Myrick waived her Miranda rights. Upon questioning, Myrick denied any knowledge that marijuana was in the van. Myrick claimed she did not smell the marijuana because she had a cold and her nose was plugged. Myrick informed law enforcement officers that while she was in California, she was contacted by a "Felipe Rodriguez" from Chicago. Myrick stated Rodriguez was a friend whom she suspected of drug involvement. Myrick claimed Rodriguez offered to pay her if she would drive his brother to Chicago. Law enforcement officers later determined that Felipe Rodriguez, also known as Miguel Delgado-Uribe, is Defendant's brother.² Delgado was interviewed but did not make any statements or admissions. Delgado and Myrick were indicted on drug charges.

At trial, Delgado testified he lived in Chicago. After visiting his family in Mexico, Delgado re-entered the United States illegally. While traveling in California, Delgado met "Roberto," who offered to help Delgado get back to Chicago. Delgado testified he met Roberto at a mall. Roberto placed Delgado's suitcase in the back of a van. Delgado testified he never looked into the back of the van. Delgado got into the passenger seat of the van because Myrick was in the driver's seat. Delgado testified this was the first time he met Myrick. Delgado admitted he smelled something peculiar in the van, but did not realize it was marijuana until Utah. Delgado testified that upon realizing marijuana was in the van, he was too afraid to get out. Delgado testified he drove the van in Nevada. When asked whether he ever agreed to transport drugs with Myrick or anyone else, Delgado testified "[t]his is the first time." When questioned about Felipe Rodriguez, Delgado admitted Rodriguez was his brother.

Myrick also testified at trial. Myrick claimed that after she agreed to help Rodriguez's brother get back to Illinois, Delgado and another male picked her up in a white truck. Delgado took Myrick to a Taco Bell where he dropped her off and told her he would be right back. Delgado came back in the red Plymouth Caravan. When Myrick got into the van, she inquired about her luggage. Delgado indicated her luggage was in the back of the van. Myrick never looked into the back of the van.

According to Myrick, Delgado drove into the night while she slept. Myrick woke up in Utah and started to drive. Myrick testified they stopped for gas several times. One time, Myrick noticed Delgado rummaging through the back of the van. Myrick denied ever knowing the van was filled with marijuana. Myrick testified Delgado repeatedly sprayed a can of air freshener throughout their trip. When asked if she had met Delgado before the trip in question, Myrick responded yes and claimed Delgado and Rodriguez had visited her house in Moline on several prior occasions. At the close of all the evidence, the jury returned a guilty verdict against both Defendants.

II.

Delgado moved for judgment of acquittal at the close of the Government's case-in-chief. The district court denied the motion, finding the Government presented sufficient evidence to submit the case to the jury. See Fed.R.Crim.P. 29(a). At the close of all the evidence, Delgado renewed his motion for judgment of acquittal. The district court again denied the motion. Delgado argues the district court erred in denying his motion for judgment of acquittal because the Government failed to introduce sufficient evidence in its case-in-chief to support his conviction.

We review the record de novo when reviewing both the sufficiency of the evidence to support a conviction and the denial of a motion for judgment of acquittal. United States v. Vallo, 238 F.3d 1242, 1246-47 (10th Cir.2001). We must determine whether "viewing the evidence in the light most favorable to the Government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt." Id. (internal citation omitted). In conducting our inquiry, we do not weigh conflicting evidence nor consider the credibility of witnesses. United States v. McKissick, 204 F.3d 1282, 1289-90 (10th Cir.2000). Instead, we must simply determine "whether [the] evidence, if believed, would establish each element of the crime." Vallo, 238 F.3d at 1247.

Pursuant to Fed.R.Crim.P. 29(a), a defendant may move for judgment of acquittal at the end of the Government's case-in-chief.³ Generally, if the defendant's motion is denied, he has two options: (1) he may rest his case, or (2) he may proceed and present his case. See Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure § 24.6(b) (2d ed.1999). If a defendant chooses to rest his case, our review of the record is necessarily limited to evidence produced during the Government's case-in-chief alone. See Vallo, 238 F.3d at 1248. If a defendant chooses to present additional evidence, however, the "defendant waives the right to have the sufficiency of the evidence tested by the government's case alone" and we review the entire record on appeal. United States v. Bowie, 892 F.2d 1494, 1496 (10th Cir.1990) (emphasis added); United States v. Lazcano-Villalobos, 175 F.3d 838, 844 n. 3 (10th Cir.1999); Vallo, 238 F.3d at 1248.⁴

In Vallo, 238 F.3d at 1248, we expressed concern, but did not resolve, whether the 1994 amendments to Fed. R.Crim.P. 29 had any affect on our "waiver rule." In 1994, Rule 29(b) was amended to state "[i]f ...