U.S. v. Cruz, 01-1735.

• Decision Date: 03 April 2002
• Docket Number: No. 01-1737.,No. 01-1735.,01-1735.,01-1737.
• Citation: 285 F.3d 692
• Parties: UNITED STATES of America, Appellee, v. Barela CRUZ, Appellant. United States of America, Appellee, v. Rufino Gonzales, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F.3d 692

UNITED STATES of America, Appellee, v. Barela CRUZ, Appellant.

United States of America, Appellee, v. Rufino Gonzales, Appellant.

No. 01-1735.

No. 01-1737.

United States Court of Appeals, Eighth Circuit.

Submitted: November 13, 2001.

Filed: April 3, 2002.

COPYRIGHT MATERIAL OMITTED

Dean Stowers, Des Moines, IA, argued, for Barela Cruz.

Steven L. Addington, Des Moines, IA, for Rufino Gonzales.

John S. Courter, Assistant U.S. Attorney, Des Moines, IA, argued, for appellee.

Before: LOKEN, HEANEY, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

A jury convicted Barela Cruz (Cruz) and Rufino Gonzales (Gonzales) of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) & (B) and 846 and of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). A jury also convicted Cruz of possessing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). The district court sentenced Cruz and Gonzales each to 151-month concurrent sentences on the drug charges and sentenced Cruz to an additional 60-month consecutive sentence on the firearms charge.

The defendants appeal their convictions and sentences, challenging the sufficiency of evidence, the admission of "drug notes" evidence, an allegedly improper jury instruction, and the drug quantity attributed to them at sentencing. Because the record does not contain sufficient evidence to support the defendants' convictions, we reverse.¹

I. BACKGROUND

On June 28, 2000, officers assigned to the Des Moines Strategic Anti-Felony Team (SAFT) arrested Jose Antonio Diaz-Cesena (Cesena) on drug charges. Following his arrest, Cesena agreed to cooperate with police. The next morning police established a surveillance operation at the La Cruz Mexican Market (Mexican market), and Officer Jeffrey Morton directed Cesena to call a specific telephone number. Once Cesena placed the call, Officer Morton notified the surveillance team that the call had been placed. Based on communications received from the surveillance team, Officer Morton directed Cesena to make a second and a third call to the same number.

After communicating with Officer Morton, SAFT officers surveilling the Mexican market observed a silver Volkswagen Jetta occupied by two men arrive at the market. Officers next observed the driver using a cell phone in front of the store. Minutes later the driver entered the vehicle and departed. SAFT officers followed the vehicle to 1475 Dewolf Street where the driver pulled behind a house and parked the vehicle inside a roofless, rectangular structure made of plywood. The men exited the vehicle and covered it with an inexpensive piece of plywood such that the vehicle was not observable from the street.

The two men entered the house. Approximately ten minutes later, the men exited the house, returned to the vehicle, and drove away. SAFT Officers followed the vehicle and stopped it a short distance from the house. Officers identified Rufino Gonzales as the driver and Barela Cruz as the passenger. Officers searched the defendants and the vehicle but found no contraband. A Uniden cellular phone was found inside the vehicle. When a SAFT officer dialed the telephone number Cesena had dialed earlier, the cellular phone rang.

SAFT officers arrested both men. Cruz was transported to the Polk County jail where he was booked under the name Cruz Barela at 1921 21 Street, Des Moines, Iowa. Police transported Gonzales to the residence at 1475 Dewolf Street. Upon arriving at the house, officers removed a key ring from Gonzales's pocket. A key on the ring unlocked the front door. Officers entered the house, secured the premises, and locked the house. Officer Morton testified Gonzales told him he stayed at the Dewolf residence but also told him he did not stay at the residence. A SAFT officer applied for a state search warrant.

Once officers obtained a search warrant, they searched the residence. In the basement, officers seized two one-pound bags of methamphetamine concealed in the ceiling, a digital scale, two blender motors and one blender pitcher, and an array of packaging materials. On the main level, officers seized packaging materials from the kitchen, a notepad with names, amounts, and phone numbers from the living room along with two cellular phones and a charger. In the northwest bedroom, officers seized $1,200 in U.S. currency from inside a suitcase.

Officers also searched a north middle bedroom. The closet contained both men's and women's apparel. Officers seized two ounces of methamphetamine in the pocket of man's shirt hanging inside the closet, two grams of methamphetamine in the pocket of another shirt, $1,300 in U.S. currency located underneath the carpet in the closet, and a nine millimeter pistol with two loaded magazines and a flash suppressor located underneath clothing on the floor of the closet.

In the same closet, SAFT officers found a shoe box containing a black and white photocopy of an expired California driver's license and an expired Mexican photo identification card. The shoe box contained numerous other documents, including a bail bond receipt for Cruz Cruz-Varela at 1931 Washington; a Polk County jail check payable to Cruz Cruz-Varela; a handwritten receipt for a motor vehicle transfer to a purchaser named Cruz Varela Juvenal; and a water works receipt addressed to Cruz Gubenal at 1475 Dewolf. Officer Namanny testified at trial that 1931 Washington was not a valid address in Des Moines.

The shoe box also contained documents bearing the name Reynaldo Ramirez (Ramirez), a named codefendant,² including a lease to the Dewolf Street residence with Ramirez as lessee, rental payment receipts, a title to the silver Jetta driven by Gonzales, a title to a blue truck parked in the rear of the residence, a Western Union receipt, a wireless service receipt and agreement, and correspondence from U.S. West. Inside the shoe box were documents addressed to unknown persons, including a medical billing statement addressed to Antonia Martinez at 1475 Dewolf Street.

The United States indicted Cruz and Gonzales on three of five counts charged in a second superceding indictment. Count I indicted Cruz, Gonzales and seven other individuals of conspiring to distribute more than 500 grams of a mixture containing methamphetamine and marijuana; Count II indicted Cruz, Gonzales and four other individuals on possession with intent to distribute more than 500 grams of a mixture containing methamphetamine; and Count IV indicted Cruz and Gonzales on possession of a firearm in furtherance of a drug trafficking crime. Against the government's objection, the district court granted the defendants' motion to sever, and Cruz and Gonzales were tried separately from their co-defendants.

The government's case in chief lasted less than a day and consisted exclusively of law enforcement testimony. At the close of the government's case, both defendants moved for judgment of acquittal. The district court acknowledged the government's case was "thin," and the court reserved ruling on the motions. A jury returned guilty verdicts against both defendants on the drug charges and found Cruz guilty of the firearm charge, but acquitted Gonzales of the same charge. Following trial, the district court denied Cruz's motion for judgment of acquittal, determining that the evidence was sufficient to support the jury's verdict. Cruz filed a timely appeal, and Gonzales joined his appeal.

II. DISCUSSION

A. Standard of Review

We review the sufficiency of the evidence to sustain a conviction de novo. United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir.2000). " `In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict.'" Id. (quoting United States v. Plenty Arrows, 946 F.2d 62, 64 (8th Cir.1991)).

We will uphold a jury verdict if substantial evidence supports it. United States v. Schubel, 912 F.2d 952, 955 (8th Cir.1990). Substantial evidence exists if a reasonable minded jury could have found the defendant guilty beyond a reasonable doubt. Id. This standard of review is a strict one; we will not lightly overturn the jury's verdict. United States v. Boyd, 180 F.3d 967, 978 (8th Cir.1999). "Reversal is appropriate only where a reasonable jury could not have found all the elements of the offense beyond a reasonable doubt." United States v. Armstrong, 253 F.3d 335, 336 (8th Cir.2001).

B. Sufficiency of Evidence

1. Constructive possession of contraband.

Cruz and Gonzales challenge the sufficiency of the evidence establishing that they knowingly possessed methamphetamine with intent to distribute. In order to establish a violation of 21 U.S.C. § 841(a)(1), the government had to prove beyond a reasonable doubt that Cruz and Gonzales knowingly possessed and intended to distribute the methamphetamine found inside the house. United States v. Sanchez, 252 F.3d 968, 972 (8th Cir.2001). "[T]he possession need not be exclusive, but may be joint." Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001) (citations omitted).

Possession of contraband can be either actual or constructive. United States v. Moore, 212 F.3d 441, 445 (8th Cir.2000). We have held that an individual has constructive possession of contraband if he has "ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed." United States v. McCracken, 110 F.3d 535, 541 (8th Cir.1997) (quoting Schubel, 912 F.2d at 955).

"[M]ere physical proximity to contraband is insufficient to convict a person of possession with intent to distribute." United States v. Lemon, 239 F.3d 968, 970 (8th Cir.2001). However, "knowledge of presence," combined with "control over the thing is constructive possession." Id. (quoting United...