U.S. v. Lazcano-Villalobos, LAZCANO-VILLALOBO

• Decision Date: 03 May 1999
• Docket Number: LAZCANO-VILLALOBO,No. 98-2162,D,98-2162
• Citation: 175 F.3d 838
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enriqueefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 838

175 F.3d 838

UNITED STATES of America, Plaintiff-Appellee, v. Enrique LAZCANO-VILLALOBOS, Defendant-Appellant.

No. 98-2162.

United States Court of Appeals Tenth Circuit.

May 3, 1999.

Fred J. Federici (John J. Kelly, United States Attorney, with him on the brief), Assistant United States Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee.

Robert Ramos (Robert J. Perez with him on the brief), El Paso, Texas, for Defendant-Appellant.

Before BRORBY, EBEL and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

Defendant-Appellant Enrique Lazcano-Villalobos ¹ appeals his jury conviction on one count of violating 21 U.S.C. § 841(a)(1) for "Possession With Intent to Distribute More Than 5 Kilograms and More of Cocaine." Mr. Lazcano-Villalobos argues the district court erred in (1) denying his motion for acquittal even though the evidence did not show he knew about the cocaine, and (2) allowing the jury to consider prejudicial evidence of his prior narcotics case in violation of Federal Rule of Evidence 404(b). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm Mr. Lazcano-Villalobos' conviction.

FACTUAL BACKGROUND

On February 1, 1997, Mr. Lazcano-Villalobos and his wife entered the United States Border Patrol checkpoint on Highway 70 near Alamogordo, New Mexico, driving a late-model Ford with Colorado plates. Border Patrol Agent Bradley Williams approached their vehicle and began questioning them about their citizenship. In response, Mr. Lazcano-Villalobos handed over his immigration card. As he held the card, Agent Williams noticed Mr. Lazcano-Villalobos' hand shaking. When questioned about their destination, Mr. Lazcano stated they were returning home to Colorado after spending a week visiting his wife's brother in El Paso, Texas. As Agent Williams visually examined the vehicle driven by Mr. Lazcano-Villalobos, he noticed the car was very clean on the exterior and interior. Mr. Lazcano-Villalobos consented to Agent Williams' request to examine the trunk, but the search revealed no luggage or toiletries to support Mr. Lazcano-Villalobos' claim of vacationing for a week.

Returning to the driver's side of the vehicle, Agent Williams detected a "strong odor of air freshener or something" coming from inside the car. He knew the odor could signify a covering scent for narcotics. Agent Williams then received Mr. Lazcano-Villalobos' permission to walk a narcotics-detecting dog around the car. The dog alerted to the car's dash or windshield and the rear of the front fender. On examination of the car's interior, border patrol agents discovered a hidden compartment which could not be seen without taking the dash apart. During disassembly, Agent Williams noticed the top and undersides of the glove compartment and dash contained no dust and looked immaculate. A search of the hidden compartment produced ten bundles of ninety-two percent pure cocaine, weighing 4,467 grams and ranging in value between $80,000 (wholesale) and $450,000 (street value). After discovering the drugs, border patrol agents arrested Mr. Lazcano-Villalobos and his wife, who carried approximately $2,300 in cash comprised of $20 bills and smaller denominations. An experienced Drug Enforcement Administration agent later testified $2,500 is a reasonable courier's fee for transporting cocaine from New Mexico to Denver, Colorado, and that couriers are usually paid in cash denominations of $20 or less.

Further inspection of the car's interior following the arrest revealed a number of receipts showing cash purchases made the On examining the car's interior, agents also discovered a cellular telephone under the front passenger seat. The telephone was registered to Omar Navarro, but telephone records showed calls to Mr. Lazcano-Villalobos' father-in-law and several telephone numbers matching numbers written in an address book and on miscellaneous pieces of paper and business cards found in Mr. Lazcano-Villalobos' possession. In addition, Mr. Lazcano-Villalobos' wallet contained a cellular card with a "lock code" matching the cellular telephone.

day of the arrest. One receipt showed a cash purchase at the Good Time Store at 9:33 a.m. Another receipt matched cash purchases made later that day at Starr Western Wear in El Paso, Texas. A cash receipt from the Flying J Travel Plaza at Anthony, New Mexico corresponded to the prices on two "tree" air fresheners and a bottle of spray deodorant found in the car. Finally, a Super 8 Motel receipt with Mr. Lazcano-Villalobos' name on it reflected a $120 cash payment two weeks earlier on January 13, 1997. An experienced United States Border Patrol Agent testified drug couriers commonly make cash purchases so their movements cannot be traced.

Using the United States Customs Service's data base, the cellular telephone records, the dates and locations on the cash receipts, and other papers found in the car and on Mr. Lazcano-Villalobos, agents tracked Mr. Lazcano-Villalobos' movements in the weeks prior to his arrest. While purely circumstantial, this evidence shows Mr. Lazcano-Villalobos repeatedly traveled in and out of Mexico, using the same car and cellular phone, during the period from December 30, 1996 to the date of his arrest on February 1, 1997. As to the day of his arrest, the receipts found in Mr. Lazcano-Villalobos' possession show he traveled north from the Mexican border through El Paso, Texas and Anthony, New Mexico until his arrest at the check point on Highway 70. A United States Border Patrol Agent testified Highway 70 is a less direct route from El Paso to Alamogordo than Highway 54, but used frequently by drug couriers because its checkpoint is closed more often.

Mr. Lazcano-Villalobos testified at trial, but his version of the facts differed substantially from his statements to the border patrol agent, the physical evidence showing the dates of his repeated border crossings from Denver to Chihuahua, Mexico, and even portions of his own testimony on cross-examination. Specifically, Mr. Lazcano-Villalobos testified he lived in Modesto, California, but told Agent Williams he and his wife were traveling home to Colorado. He offered a complicated, if not convoluted, series of events to explain his reasons for crossing back and forth into Mexico. He began by testifying that shortly before Christmas 1996, he, his wife and his nephew, Omar Navarro, left California in his truck and traveled to his father-in-law's house in El Paso where they dropped off gifts, and then traveled to visit his siblings in Parral, Mexico and his mother on a ranch an hour away. Mr. Lazcano-Villalobos testified that on learning of his mother-in-law's ill-health on January 8 or 9, 1997, the three of them immediately left Parral by bus for Denver, without going to the ranch to pick up their clothes, luggage, or truck.

According to Mr. Lazcano-Villalobos, he and his wife left Denver January 13 or 14 to return to Mexico, leaving their nephew behind. On arriving at his sister's house in Parral, they learned of his mother-in-law's imminent operation and immediately returned to Denver, again leaving their clothes and luggage at the ranch, but obtaining his truck from siblings in Parral. Mr. Lazcano-Villalobos testified that, en route to Denver, his truck broke down on the outskirts of Ciudad Juarez, Mexico, where they stayed for a day or two waiting for the truck to be repaired. Mr. Lazcano-Villalobos testified that on learning of a delay in repairs, he and his wife finally took a taxi to El Paso, where they made After this purchase, they "were at the point of going to the airport" to catch a flight to Denver, when they encountered an acquaintance, Cristino Gutierrez. On learning of their "emergency trip" to see his mother-in-law, Mr. Gutierrez offered them his car. Mr. Lazcano-Villalobos testified he and his wife spent that night, January 31, 1997, at his father-in-law's house in El Paso and left the following day for Denver in Mr. Gutierrez's Ford. As for the deodorant and air fresheners found in the car and purchased the day of his arrest, he explained he purchased them because his cigarette smoke bothered his wife.

the cash purchase at the Starr Western Wear store.

During this account, Mr. Lazcano-Villalobos failed to explain his whereabouts during the time he left Ciudad Juarez, Mexico, where his truck broke down, until his cash purchase sixteen days later at the Starr Western Wear Store on February 1, 1997. On cross-examination, he testified that after his truck broke down, he and his wife returned to Parral and stayed there from January 16 to February 1, 1997. However, Mr. Lazcano-Villalobos offered no testimony explaining how the cellular telephone he admitted using in Mexico on January 18 or 19, 1997, and later on January 31, 1997, was used in El Paso and Denver during the time he was allegedly stranded in Parral, Mexico. Moreover, Mr. Lazcano-Villalobos' testimony claiming he spent the last week in Parral and the night of January 31, 1997 at his father-in-law's house in El Paso differed from his statement to Agent Williams that he and his wife were in El Paso for approximately a week visiting his wife's brother.

Discrepancies as to Mr. Lazcano-Villalobos' whereabouts continued when he admitted he used the cellular telephone to make calls on the evening of January 31, 1997 from Chihuahua, Mexico, even though he testified earlier he spent that night in El Paso, Texas at his father-in-law's. In an apparent effort to show how he came into possession of the cellular telephone and that someone else could have made the calls, he recanted his earlier testimony that his nephew, who owned the telephone, did not return to Mexico.

Other discrepancies existed in Mr. Lazcano-Villalobos' testimony. While Mr. Lazcano-Villalobos claimed he only received the car from Mr. Gutierrez on January 31, 1997, the Super 8 Motel receipt found in the car dated January 13, 1997 and bearing Mr. Lazcano-Villalobos' name indicates ...