Ortega v. U.S.

• Decision Date: 21 August 2001
• Docket Number: Nos. 01-1168,01-1170,01-2106,s. 01-1168
• Citation: 270 F.3d 540
• Parties: (8th Cir. 2001) PABLO ORTEGA, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. UNITED STATES OF AMERICA, APPELLEE, v. DANIEL CASTRO, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. SONYA POLMANTEER, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 540

270 F.3d 540 (8th Cir. 2001)

PABLO ORTEGA, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE.

UNITED STATES OF AMERICA, APPELLEE, v. DANIEL CASTRO, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. SONYA POLMANTEER, APPELLANT.

Nos. 01-1168, 01-1170, 01-2106

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: August 21, 2001

Filed: November 1, 2001

Appeals from the United States District Court for the Northern District of Iowa. [Copyrighted Material Omitted]

Before Riley, Ross, and Beam, Circuit Judges.

Ross, Circuit Judge.

Pablo Ortega, Daniel Castro, and Sonya Polmanteer appeal from judgments entered upon jury verdicts finding them guilty of possession of methamphetamine with the intent to deliver, in violation of 21 U.S.C. § 841. Appellants challenge the sufficiency of the evidence supporting their convictions. Polmanteer also challenges her sentence. We affirm the convictions, but vacate Polmanteer's sentence and remand for resentencing.

BACKGROUND

On June 11, 2000, Iowa State Trooper Matt Anderson stopped a Ford Crown Victoria automobile with California license plates in Cerro Gordo County, Iowa, for speeding. Polmanteer was the driver; Castro was the front seat passenger; Ortega and another man were in the back seat. Polmanteer could not produce a driver's license. Although the automobile was registered to Castro, he could not produce insurance papers. Castro told Anderson that the previous owner had continued insurance on the car. Polmanteer and Castro told Anderson that they were going to the Mall of America in Minneapolis, Minnesota, for shopping. Polmanteer identified the back seat passengers as Ortega and the other as Castro's uncle, but later told Anderson the fourth passenger was a hitchhiker. Although Castro first had claimed the fourth passenger was his friend, he later stated he did not know the passenger's name. The fourth passenger was later identified as Viaz Savala.

After Castro consented to a search of the automobile, Savala was placed in the patrol car of a trooper who arrived to assist Anderson. Appellants were placed in Anderson's patrol car, in which an audio-videotape recorder was operating. Because the video camera, which was located to the right of the rear view mirror, faced forward, it captured the events outside the car. However, a microphone on the door frame captured the conversation inside the car. Polmanteer's voice was identifiable as the only female voice, and the government was unable to attribute statements made by the two males specifically to Castro or Ortega. A portion of the conversation was as follows:

Polmanteer: Are there drugs in that f----- car right now?

Male: Why?

Polmanteer: Cause I'm going to f---- jail if there are. I'm going to jail.

And you're going to jail.

* * * * * *

Male: Don't get excited. He has to find drugs in the car first [unintelligible]

Polmanteer: He's taken all those f------ screws off over the

Male: From where?

Polmanteer: From the engine, and from the door... right there on the engine on the [unintelligible] I guess like from where the f------

Male: [unintelligible]

Polmanteer: I better not f------ go to jail, Pablo. If I go to jail you f----- gotta get me out...

Male: [unintelligible]

Polmanteer: I am nervous.

Male: [Unintelligible]

Polmanteer: 'Cause I thought there was nothing in there.

The troopers could not find any drugs during the search. However, because Anderson noticed signs of tampering around the windshield and other indications that drugs might have been hidden, he had the car towed and obtained a search warrant. While waiting for the tow truck, Castro changed his story about purchasing the car from an individual, claiming he had purchased it from a salvage yard. After the tow truck came, Anderson drove appellants and Savala to a restaurant. He gave them a telephone number to call about picking up the car if no contraband was found. Officers found no drugs during the second search. The next day, after viewing the videotape, Anderson applied for another warrant. During the third search, officers removed the windshield and found six and one-half pounds of methamphetamine hidden in a compartment beneath the windshield. Because no one had telephoned about picking up the car, officers looked for and found appellants in an unlit, unused portion of the bus station with tickets to Des Moines, Iowa. They had no credit or ATM cards, checkbooks, or anything else they could have used for shopping at the Mall of America. Savala was not found and became a fugitive.

Castro, Ortega, and Polmanteer were charged with conspiracy to distribute and possession with the intent to distribute more than 500 grams of methamphetamine. After a two-day trial, the jury returned a verdict acquitting them of the conspiracy charges, but finding them guilty of the possession charges. The district court denied their motions for judgment of acquittal, or in the alternative for a new trial. The court also denied Polmanteer's motion for reconsideration, which was based on a juror's comments made after the trial. Castro and Ortega were sentenced to 188 months.

In January 2001, Polmanteer appeared for sentencing. The district court denied a requested acceptance-of-responsibility reduction under U.S.S.G. § 3 E1.1, but stated it was considering her request for a role-in-the-offense reduction under U.S.S.G. § 3B1.2. However, the court stated it would not take her "word" and suggested if she were serious about the reduction, she "should take a polygraph test on it." Although the government stated it had little faith in polygraphs, it indicated that if Polmanteer took a polygraph and failed, it would ask for a two-point enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The court asked Polmanteer how she felt about taking a polygraph examination, noting it might not be without risk. After Polmanteer told the court she wanted to take the test because she knew it would help her, the court postponed sentencing.

On February 4, 2001, the district court entered an order that "Polmanteer undergo a polygraph examination and that polygraph evidence then be taken into account for sentencing purposes." The court noted that the government had filed a resistance, but rejected its argument that the polygraph would taint its assessment of Polmanteer's credibility. The court stated "only after hearing evidence regarding the examiner's qualification, training, the fairness, the questions and other related matters, will the court be in a position to determine the weight, if any, to be given defendant Polmanteer's polygraph evidence." The court also added that "out of an abundance of caution, the court will [] consider such evidence only after defendant Polmanteer testifies at her sentencing."

In April, Polmanteer appeared before the court for sentencing. The government informed the court that Polmanteer had taken a polygraph examination conducted by an examiner of her choice and had failed on the issue of her knowledge of drugs in the car. Although the government had not seen a copy of the examiner's report, it moved for an obstruction-of-justice enhancement. In response to the court's inquiry about the report, Polmanteer's counsel responded she did not "pass on the issue of her knowledge... of methamphetamine in the vehicle," but resisted the obstruction enhancement and renewed her request for a role-in-the-offense reduction.

After listening to argument by counsel, but without taking any evidence, testimonial or otherwise, the district court granted the government's motion for a two-point enhancement for obstruction of justice, reasoning that by trying to pass a polygraph examination Polmanteer indirectly had attempted to give false testimony at sentencing in hopes of a lighter sentence. Although the court had suggested the polygraph examination in connection with Polmanteer's request for a role reduction, it nonetheless found that she was entitled to the reduction based on the trial evidence. From the 151 to 181 month guideline range, the court sentenced Polmanteer to 151 months.

DISCUSSION

Sufficiency of the Evidence

Ortega, Castro, and Polmanteer argue that the district court erred in denying their motions for judgment of acquittal, asserting that the evidence was insufficient to support the verdicts. Appellants concede that in reviewing their claims we must view the evidence and all reasonable inferences therefrom in the light most favorable to the verdicts. United States v. Butler, 238 F.3d 1001, 1003 (8th Cir. 2001). However, quoting United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996), cert. denied, 520 U.S. 1258 (1997), they argue that if the "evidence is equally strong to infer innocence as to infer guilt," the court was required to direct an acquittal. Appellants' reliance on Davis is misplaced. (internal quotation omitted) As we have noted in Butler, 238 F.3d at 1004, Davis conflicts with United States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996), cert. denied, 520 U.S. 1179 (1997). In Baker, this court stated that "'[i]f the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.'" Id. (quoting United States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991)). "Although we are not free to overrule Davis, we are free to follow Baker, which is the standard this court has overwhelmingly favored." Butler, 238 F.3d at 1004.

Appellants concede that substantial evidence of constructive possession would be sufficient to support their convictions. To prove constructive possession, the government had to present evidence that appellants had knowledge and "'ownership, dominion or control over the contraband itself, or dominion over the [vehicle] in which the contraband is concealed.'" United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000) (quoting United States v. McCracken, 110 F.3d 535, 541 (8th Cir. 1997)), cert. denied, ___U.S.___, 121 S. Ct. 1739 (2001). In...