U.S. v. Gaona-Lopez

• Citation: 408 F.3d 500
• Decision Date: 23 May 2005
• Docket Number: No. 04-3241.,04-3241.
• Parties: UNITED STATES of America, Appellee, v. Casimiro GAONA-LOPEZ, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

408 F.3d 500

UNITED STATES of America, Appellee, v. Casimiro GAONA-LOPEZ, Appellant.

No. 04-3241.

United States Court of Appeals, Eighth Circuit.

Submitted: February 16, 2005.

Filed: May 23, 2005.

Bryan E. Smith, argued, Bellevue, NE, for appellant.

Joe W. Stecher, Asst. U.S. Attorney, of Omaha, NE, for appellee.

Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.

RILEY, Circuit Judge.

After a jury convicted Casimiro Gaona-Lopez (Gaona-Lopez) of attempted possession with intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846, the district court¹ sentenced him to 188 months imprisonment. On appeal, Gaona-Lopez contends (1) insufficient evidence supports the conviction, and (2) the district court failed to give the jury a mere presence instruction. We affirm.

I. BACKGROUND

In September 2003, Columbus (Nebraska) Police Department (CPD) members arrested Julio Ramirez (Ramirez) for conspiring to distribute methamphetamine and Pedro Ranteria (Ranteria) for possessing methamphetamine and for possessing a firearm in connection with the methamphetamine. Ramirez informed police he rented a storage unit (unit) at a storage facility in Columbus. Ramirez also informed police Ranteria and Jose Reyes (Reyes) were involved in the unit with him. Ramirez did not mention Gaona-Lopez. Ramirez then consented to a search of the unit. When police officers searched the unit, they discovered a white Honda. The Honda was not registered to Ramirez, Ranteria or Gaona-Lopez. When the officers searched the Honda pursuant to a search warrant, they discovered two packages of methamphetamine in a tire well and eleven packages of methamphetamine inside a modified fuel tank. The thirteen packages contained a total of 7.7 pounds of methamphetamine, which had a street value of between $26,950 and $149,511.

To learn more about who was involved with the Honda that contained the methamphetamine, the police worked with the storage facility's owner to lock the unit so anyone wanting to access the unit had to first contact the owner, who would then contact the police. Nearly a month later, Jesus Rios Jr. (Rios) contacted the owner to gain access to the unit containing the Honda. When Rios and Gaona-Lopez arrived at the storage facility in Gaona-Lopez's vehicle with Rios driving, Rios went into the storage facility's office to inquire about the unit. After Rios made this contact, the police arrested both men. CPD Investigator Douglas Molczyk (Investigator Molczyk) arrested Gaona-Lopez, who had not left the vehicle while at the storage facility. During Gaona-Lopez's arrest, Investigator Molczyk seized an automobile key from Gaona-Lopez that fit the Honda. Specifically, the key opened the driver-side and passenger-side doors, and started the vehicle.

After Investigator Molczyk arrested Gaona-Lopez and advised him of his Miranda rights, Gaona-Lopez stated he did not know what was in the unit and simply was doing "Rios a favor by bringing him there." When Investigator Molczyk asked Gaona-Lopez about the key retrieved from him, Gaona-Lopez said the keybelonged "to a minivan that he owned." After Investigator Molczyk informed Gaona-Lopez the key opened the Honda's doors and started the engine, Gaona-Lopez countered by explaining Honda keys fit all other Hondas. When Investigator Molczyk pressed the issue and said the key actually fit the Honda containing 7.7 pounds of methamphetamine, Gaona-Lopez said the "key fit a Honda that he had sold his cousin in Mexico and that he had not mailed the key to him yet."

The government charged that Gaona-Lopez (1) knowingly and intentionally combined, conspired, confederated and agreed with other persons to possess with intent to distribute more than 500 grams of methamphetamine (Count I), 21 U.S.C. §§ 841(a)(1), (b)(1), 846; and (2) knowingly and intentionally attempted to possess with intent to distribute more than 500 grams of methamphetamine (Count II), 21 U.S.C. §§ 841(a)(1), (b)(1), 846. Before trial, the government dismissed Count I, and tried Gaona-Lopez only on Count II.

At trial, Rios testified for the government stating: (1) Rios speaks both Spanish and English; (2) Gaona-Lopez does not speak English; (3) Gaona-Lopez asked him to call the storage facility to ask why Gaona-Lopez's key did not work on the unit, and Rios twice called the storage facility on Gaona-Lopez's behalf; (4) Rios drove Gaona-Lopez to the storage facility at Gaona-Lopez's request; (5) Gaona-Lopez directed Rios where to park at the storage facility, gave Rios a key to the unit, and asked Rios to go inside the storage facility's office to see why the key did not fit the unit; (6) when inside the office, Rios spoke to a person he believed was the facility's manager, but later discovered was law enforcement; (7) when the officer asked ifRios was the owner of the unit, Rios told the officer he "just came down here to interpret for this other guy"; (8) Gaona-Lopez told Rios a white car was inside the unit; (9) Rios's trip to the storage facility on Gaona-Lopez's behalf was Rios's first time he had been to Columbus; (10) Gaona-Lopez never mentioned drugs; and (11) Rios had no knowledge methamphetamine was inside the Honda.

At the close of the government's case, Gaona-Lopez moved for a judgment of acquittal, arguing "the government has failed to make their prima facie burden in that it never established that [Gaona-Lopez] acknowledged there was anything in there." The district court denied the motion.

At trial, Gaona-Lopez testified: (1) Rios wanted to drive to Columbus to pick up a key from the storage facility, and Gaona-Lopez was just riding along so he could go to Grand Island; (2) over a two-year period, Gaona-Lopez was paid to deliver fifteen to twenty cars to Mexico; (3) Gaona-Lopez knew nothing about the storage facility or the unit; (4) the key Investigator Molczyk said he seized from Gaona-Lopez and admitted into evidence did not belong to Gaona-Lopez; (5) Gaona-Lopez knew nothing about a Honda or drugs inside the Honda; (6) Gaona-Lopez did not give Rios a key to the unit, and he did not ask Rios to go to Columbus; (7) Gaona-Lopez allowed Rios to drive Gaona-Lopez's vehicle so Rios could drive to Columbus; and (8) Gaona-Lopez denied Investigator Molczyk was the officer who arrested him. At the end of Gaona-Lopez's case, he again moved for a judgment of acquittal, which the district court denied.

For rebuttal, the government recalled Investigator Molczyk, who testified he arrested Gaona-Lopez at the storage facility, interviewed him, retrieved a key from Gaona-Lopez's right-hand coat pocket, and used the key on the Honda which had been inside the unit.

A jury convicted Gaona-Lopez of attempted possession with intent to distribute more than 500 grams of methamphetamine. The district court entered judgment and sentenced Gaona-Lopez to 188 months imprisonment.

II. DISCUSSION

A. Sufficiency of the Evidence

Gaona-Lopez argues insufficient evidence supports the guilty verdict because the government failed to prove Gaona-Lopez knew about the concealed methamphetamine or exercised dominion and control over the methamphetamine. Gaona-Lopez "confronts a high hurdle with this argument, as we must employ a very strict standard of review on this issue." United States v. Cook, 356 F.3d 913, 917 (8th Cir.2004). We "view the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." Id. (citation omitted). "We may reverse only if no reasonable jury could have found [Gaona-Lopez] guilty." Id.

The fighting issue in this case is whether the government proved Gaona-Lopez knowingly attempted to possess methamphetamine. 21 U.S.C. § 841(a)(1); United States v. Cole, 380 F.3d 422, 425 (8th Cir.2004). Possession can be either actual or constructive, and the government can prove constructive possession "by showing that a defendant `had ownership, dominion, or control over the contraband itself, or dominion over the premises in which the contraband is concealed.'" Id. (quoting United States v. Schubel, 912 F.2d 952, 955 (8th Cir.1990)).

Gaona-Lopez contends United States v. Pace, 922 F.2d 451 (8th Cir.1990), "is dispositive," and requires reversal. In Pace, two individuals, Philip Pace (Pace) and Thomas Mason (Mason), were arrested after the car in which they were traveling was found to contain nearly 200 pounds of cocaine. Id. at 451-52. When a police officer pulled their car over for speeding, Pace was driving and Mason was in the passenger seat. Pace did not own the car. Both men were charged with possession with intent to distribute cocaine and conspiracy to possess with intent to distribute cocaine, and the two men were tried together. Id. at 452. At trial, Pace claimed he did not know about the cocaine and was hired by Mason to drive the car. Mason testified he did not inform Pace what was inside Mason's luggage, in which cocaine was discovered. Mason also testified that, when Pace asked who was in the black van traveling alongside Pace and Mason, Mason told him "it was none of his business." Id. at 453. A jury convicted Mason on both counts, while it only convicted Pace of possession with intent to distribute. Id.

Pace appealed, contending insufficient evidence supported his conviction, because no evidence established he knew about the cocaine. A split panel of this circuit reversed Pace's conviction, concluding "the evidence is insufficient to justify a reasonable inference that Pace knew he was driving a car full of cocaine." Id. Describing how the jury was presented with plenty of evidence that Pace knew about the cocaine, the dissent maintained the court should have affirmed Pace's conviction. Id. at 454-58 (Magill, J., dissenting).

Noting another panel distinguished Pace when confronted with facts...