U.S. v. Heckard, PLAINTIFF-APPELLEE

Citation238 F.3d 1222
Decision Date08 January 2001
Docket NumberDEFENDANT-APPELLANT,No. 99-2186,PLAINTIFF-APPELLEE
Parties(10th Cir. 2001) UNITED STATES OF AMERICA,, v. TERRANCE DEWAYNE HECKARD,
CourtU.S. Court of Appeals — Tenth Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-98-513-MV)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Todd B. Hotchkiss of Frechette & Associates, P.C., Albuquerque, New Mexico, for Defendant-Appellant.

Sarah Y. Vogel, Assistant U.S. Attorney (Norman C. Bay, United States Attorney for the District of New Mexico, with her on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.

Before Kelly, McKAY, and Lucero, Circuit Judges.

McKAY, Circuit Judge.

Defendant Terrance Heckard appeals his conviction on three counts. Count I charged conspiracy to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846. Count II charged possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Count III charged felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 2. He was sentenced to 168 months of incarceration plus five years of supervised release. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

I. Background

Defendant was one of dozens of individuals targeted in a three-year investigation into cocaine trafficking in Hobbs, New Mexico. On August 6, 1997, he sold a small quantity of cocaine to an undercover agent. Authorities discovered that his cocaine was transported by Texan Richard Baeza to New Mexico residents Mark Sanders and Andrew Pompey, using one Anthony Flores as a courier. Once Sanders received shipments, he sold smaller quantities to Defendant for resale on the street. Flores came to know Defendant because he had seen Defendant with Sanders at Defendant's house on several occasions, and knew that he was one of Sanders' distributors. Sanders left a scale used for weighing drugs at Defendant's house, and he even lent him a Colt.357 revolver.

On September 29, 1997, Flores was transporting a large quantity of cocaine to Sanders, but was unable to locate him. Nervous at the thought of holding onto that much cocaine himself, Flores went to Defendant's house. He told Defendant that he had a kilogram of cocaine, and he asked if Defendant could keep it safe until Sanders could be located. Defendant took the cocaine and hid it in the back room of the house, then went with Flores to find Sanders. When Defendant found Sanders, he told him that he was holding the cocaine for him at his house. Later, Pompey was upset with Flores for letting Defendant keep the cocaine at his house, but all convened at Defendant's home and nothing more was said.

At 6:00 a.m. on October 23, 1997, law enforcement officers executed search and arrest warrants at Defendant's home. After knocking, they forcibly entered, finding Defendant awake and standing within a few feet of the Colt.357. Other individuals were in the home and asleep. Agents seized the gun, scale, and documents indicating Defendant's ownership of the home.

Sanders and Flores agreed to testify against Defendant. Aware of Flores' potentially damaging testimony in court, Defendant approached Flores in prison with a prepared affidavit for Flores to sign. The affidavit stated that Flores had no knowledge of any illegal activity conducted by Defendant. Fearing for himself and his family, Flores signed the affidavit. After some hesitation, Flores still testified against Defendant. Neither the threats nor the affidavit were introduced into evidence, except that Defendant's counsel on cross examination questioned Flores' initial hesitance to testify.

At trial, the government played nine recorded telephone conversations from wire intercepts it had used. Sanders and Flores identified the voices on tape and verified the accuracy of the conversations, and the court was satisfied that they qualified for admission under Federal Rule of Evidence 801(d)(2)(E). After a rule 403 objection was withdrawn, the tapes were admitted without objection. The conversations discussed the September 29th transport of cocaine in which Flores had left a large amount at Defendant's home.

Before instructing the jury, the court provided copies of the Proposed Instructions to each party and asked for objections. Neither Defendant nor the government objected. The Instructions included a comprehensive instruction on the elements of conspiracy, taken in its entirety from 1997 Fifth Circuit Pattern Instruction 2.89. Defendant requested that Count III, felony firearm possession, be severed from Counts I and II, but that request was denied. The jury convicted Defendant on all three counts.

At sentencing, Defendant received a two-level enhancement for obstructing justice pursuant to United States Sentencing Guidelines (U.S.S.G.) § 3C1.1 because of his jailhouse contact with Flores. He also received an enhancement for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). Finally, the court refused to reduce Defendant's sentence for minor or minimal role in the conspiracy under U.S.S.G. §3 B1.2. The court determined for Counts I and II that Defendant had possessed 1028.62 grams of cocaine. Defendant was sentenced to 168 months of incarceration, followed by five years of supervised release. This timely appeal followed.

II. Sufficiency of the Evidence

Defendant claims that the evidence was insufficient to support conviction on any of the three counts against him. A defendant's claim of insufficient evidence is reviewed de novo. See United States v. Jackson, 213 F.3d 1269, 1283 (10th Cir. 2000). In order to conclude that the evidence was insufficient as a matter of law, we must view the evidence and reasonable inferences therefrom in the light most favorable to the government and then determine that no rational jury could have found Defendant guilty beyond a reasonable doubt. See United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir.) cert. denied, 528 U.S. 913 (1999).

A. Felony Firearm Possession

Defendant first alleges that the evidence was insufficient to establish that he possessed the Colt revolver seized from his home on October 23, 1997. To sustain a conviction under 18 U.S.C. § 922(g)(1), the government must prove a defendant: (1) "was convicted of a crime punishable by imprisonment exceeding one year;" (2) "thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate or foreign commerce." United States v. Adkins, 196 F.3d 1112, 1117 (10th Cir. 1999). Defendant challenges only the second element: knowing possession. (Def.'s Br. at 59-60).

Constructive possession is sufficient for conviction under this statute. See United States v. Wilson, 107 F.3d 774, 779 (10th Cir. 1997). "In cases of joint occupancy, where the government seeks to prove constructive possession by circumstantial evidence, it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband." United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). Constructive possession requires a showing that a defendant knowingly holds the power to exercise dominion or control over the firearm. See Wilson, 107 F.3d at 779. Dominion or control are properly inferred from exclusive possession of the premises, but when there is evidence of joint occupancy, the government must offer "some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon." Mills, 29 F.3d at 550 (quoting United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994)).

The government demonstrated that Defendant was the owner of the residence where the revolver was found, that he was awake and near the gun at the house when the gun was discovered, and that he had received the gun no more than a few months prior to his arrest. It was certainly not irrational for the jury to conclude that Defendant knowingly held the power to exercise dominion and control over the revolver. Thus, Defendant's conviction for firearm possession does not fail for want of evidence.

B. Cocaine Possession

Defendant next asserts that the government introduced insufficient evidence to sustain his conviction for possession with intent to distribute cocaine under 21 U.S.C. § 841. Specifically, he claims that there was no proof that he knew the true nature of the contents of the bag he received from Flores on September 29, 1997. A conviction under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 requires proof that a defendant: "(1) possessed a controlled substance; (2) knew that he possessed a controlled substance; and (3) intended to distribute the controlled substance." United States v. Dozal, 173 F.3d 787, 797 (10th Cir. 1999) (quoting Wilson, 107 F.3d at 778). Again, Defendant challenges only the second element: knowing possession. (Def.'s Br. at 67). Defendant's claim that there was no evidence of his knowledge is directly belied by the trial testimony of Flores and Sanders, who both testified that Defendant knew the substance in the bag was cocaine.

Flores testified that he expressly informed Defendant that the bag contained Sanders' cocaine before giving it to Defendant. In addition, Defendant immediately hid the bag in the back of his house and then left to find Sanders, further indicating his knowledge of the illicit nature of the bag's contents. When Defendant did locate Sanders, he explicitly told Sanders that he was holding a kilogram of cocaine, and they went together to retrieve it. From this testimony, the jury could reasonably conclude that he knew there was cocaine in the bag, he possessed the cocaine, and he intended to redistribute it. See, e.g., United States v. Ivy, 83 F.3d 1266, 1287 (10th Cir.), cert. denied, 519 U.S. 901 (1996) (...

To continue reading

Request your trial
77 cases
  • U.S. v. Kimler, No. 02-3097.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 7, 2003
    ...1069, 122 S.Ct. 1943, 152 L.Ed.2d 847 (2002). However, since statutes trump guidelines when the two conflict, United States v. Heckard, 238 F.3d 1222, 1237 (10th Cir.2001), the statutory provisions set out above govern our resolution of Kimler's appeal on this issue.13 Citing the statute, t......
  • Holmes v. Kucynda
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 13, 2003
    ...707, 712 (7th Cir.2001) (requiring a "substantial connection" to the premises where the contraband was found); United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir.2001) (noting that in the context of jointly occupied premises "the government must offer evidence supporting at least a pla......
  • U.S. v. Castillo
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 3, 2005
    ...the Government must present some evidence that supports a nexus between the weapon and the defendant. See, e.g., United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir.2001). In this case, Mr. Castillo submits that there is "no evidence of exclusive ownership or possession of the apartment......
  • Whisler v. State
    • United States
    • Kansas Supreme Court
    • December 14, 2001
    ...procedural or substantive rule, the district court's analysis in Moss began from the premise, which was stated in United States v. Heckard, 238 F.3d 1222, 1234 (10th Cir. 2001), that "Apprendi clearly presents a `new' rule of constitutional criminal procedure." 137 F. Supp.2d at 1252. With ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT