U.S. v. Levario, 88-1151

• Decision Date: 21 June 1989
• Docket Number: No. 88-1151,88-1151
• Citation: 877 F.2d 1483
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge LEVARIO, a/k/a George Levario, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1483

877 F.2d 1483

UNITED STATES of America, Plaintiff-Appellee, v. Jorge LEVARIO, a/k/a George Levario, Defendant-Appellant.

No. 88-1151.

United States Court of Appeals Tenth Circuit.

June 21, 1989.

William L. Lutz, U.S. Atty., (Larry Gomez, Asst. U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Larry Zinn of San Antonio, Tex., for defendant-appellant.

Before LOGAN, WRIGHT, ^* and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Defendant Jorge Levario asks this court to reverse his conviction of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Defendant contends there is insufficient evidence to support the jury's verdict. We agree as to the conspiracy conviction; thus, we reverse the trial court's denial of defendant's motion for acquittal of conspiracy, but we affirm his conviction for possession with intent to distribute. Defendant also claims the trial court lacked statutory authority to require him to serve a term of supervised release following his prison term. We agree and thus vacate defendant's term of supervised release.

On the evening of August 12, 1987, defendant pulled a U-Haul truck into an immigration checkpoint on Interstate 10 near Las Cruces, New Mexico, accompanied by his friend, Dorothy Bustamante. At the checkpoint a border patrol agent asked defendant what was in the back of the truck. According to the agent, defendant answered it was his furniture, and he was going to Los Angeles where he had taken a job. The agent then obtained defendant's written consent to conduct a search of the truck. The agent's search revealed forty boxes of cocaine--weighing approximately 2,000 pounds and having a wholesale value of $13,500,000--hidden within the furniture. Consequently, both defendant and Ms. Bustamante were placed under arrest.

Later that evening, defendant told a Las Cruces narcotics detective that the contents of the truck belonged to two men unknown to him. He claimed that an old friend of his had arranged for him to drive the U-Haul full of furniture to California for the two strangers. Defendant insisted he thought the truck contained only furniture and that he was paid $500 for driving the truck and $200 to cover expenses. At the time of his arrest, he possessed $700.

Defendant then agreed to cooperate with the authorities by driving the truck to the agricultural checkpoint in Blythe, California, where he alleged the unknown men had told him to leave it. After no one came for the truck in Blythe, defendant stated he was supposed to take the truck to the airport in Van Nuys, California. Defendant drove the truck there, but again no one arrived to claim it.

Defendant and Ms. Bustamante were subsequently indicted for conspiracy to distribute narcotics in violation of 21 U.S.C. Sec. 846 and possession with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). At the close of the government's case, both defendant and Ms. Bustamante moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). The trial court only granted Ms. Bustamante's motion. Defendant then testified he had no knowledge that the U-Haul contained controlled substances, and thus he lacked the intent to commit the crime. The jury, however, rejected defendant's version of the events and convicted him on both counts of the indictment. The trial court sentenced him to concurrent ten-year sentences on each count. In addition, the trial court, pursuant to 21 U.S.C. Sec. 841(b)(1)(A), imposed a five-year period of supervised release to begin after defendant completed his prison term. Defendant now asks us to reverse both convictions on insufficient evidence grounds and, alternatively, to vacate the trial court's imposition of supervised release.

I. Sufficiency of Evidence

In evaluating a claim of insufficient evidence a court must view all the evidence, ¹ direct and circumstantial, as well as all reasonable inferences drawn therefrom, in the light most favorable to the government. United States v. Hooks, 780 F.2d 1526, 1529 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). Then, we must determine whether a reasonable juror could find the defendant guilty beyond a reasonable doubt. If direct evidence is lacking, a "criminal conviction may be sustained on wholly circumstantial evidence." Id. at 1531. Further, it is necessary to view the evidence and inferences drawn therefrom in the aggregate rather than in isolation. Id. at 1532. Finally, our review here does not include assessing the credibility of witnesses; that task is reserved for the jury. United States v. Waldron, 568 F.2d 185, 187 (10th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978). With these principles in mind, we turn to the issues presented.

A. Possession With Intent to Distribute

Defendant argues that the evidence presented was insufficient to prove that he knowingly possessed a controlled substance with intent to distribute in violation of 21 U.S.C. Sec. 841(a). The record, however, belies this contention.

Testimony reveals that defendant gave conflicting statements concerning the ownership of the truck's contents. Initially, according to the border patrol agent, defendant contended that the furniture was his, and he was moving to Los Angeles. After the cocaine was discovered, however, defendant stated it was not his furniture, and he was only driving the truck to California for two unknown men. Although defendant denies making the former statement, the jury apparently chose to believe the border agent's testimony. It is not our place to disregard the jury's assessment of a witness's veracity. United States v. Pennon, 816 F.2d 527, 530 (10th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 506, 98 L.Ed.2d 504 (1987). Thus, the jury could reasonably infer defendant's guilty knowledge from these conflicting statements.

Furthermore, a narcotics detective testified that when he asked defendant if he knew what was in the back of the truck he responded: "Well, I didn't think it was that [cocaine], I thought it would be marijuana." This admission constitutes direct evidence that defendant knowingly possessed a controlled substance. That defendant mistakenly thought it was marijuana in the truck is inconsequential. See United States v. Lopez-Martinez, 725 F.2d 471, 475 (9th Cir.) (to constitute a violation of 21 U.S.C. Sec. 841(a) it is only necessary to prove defendant knew he possessed a controlled substance even though he may be mistaken as to the specific type of substance), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984). Moreover, it is permissible to infer that the driver of a vehicle has knowledge of the contraband within it. United States v. Laughman, 618 F.2d 1067, 1076 (4th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980).

Defendant gave conflicting stories about whether he went to the U-Haul rental store alone or with someone else. Ultimately, a U-Haul employee testified that defendant came alone. Testimony also indicates defendant changed his statement regarding whether the map found in the truck with a marked route pertained to his trip to California and where the unknown men were going to claim the truck. These conflicting statements provided the jury with additional grounds to suspect defendant's veracity and infer guilty knowledge.

Finally, defendant did not have the names of the people to whom he would deliver the truck. Nor did these unknown men ever arrive at either of the locations where defendant stated they were going to claim the truck. In light of all this evidence, the jury could reasonably infer that defendant's version of the arrangement was a fabrication and could find beyond a reasonable doubt he knowingly possessed a controlled substance with intent to distribute in violation of 21 U.S.C. Sec. 841(a). ²

B. Conspiracy

Defendant also claims the evidence was insufficient to support his conviction for conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. Sec. 846. Because Dorothy Bustamante, the only other coconspirator named in the indictment, was acquitted, the government was required to prove beyond a reasonable doubt that an unknown coconspirator existed. United States v. Carcaise, 763 F.2d 1328, 1331 (11th Cir.1985). It is not enough, however, to prove that a person associated with the defendant merely existed. The crucial element of a conspiracy under 21 U.S.C. Sec. 846 is that an agreement to violate the drug laws existed. ³ United States v. Morgan, 835 F.2d 79, 82 (5th Cir.1987).

Here, we cannot say a juror could find beyond a reasonable doubt that defendant and an unknown person agreed to possess and distribute a controlled substance in violation of 21 U.S.C. Sec. 841(a). ⁴ The government contends defendant's statement that he was delivering the truck and its contents to unknown people in California supports an inference that he conspired with these people to distribute cocaine. Yet, the government used a contrary inference from this evidence to support defendant's conviction for possession with intent to distribute. With creativity, the government asks us to draw mutually exclusive inferences from the same evidence. We believe no reasonable juror could do so.

To be sure, the government is entitled to have all reasonable inferences drawn in its favor. See Carcaise, 763 F.2d at 1331. This traditional deference to the jury's judgment, however, stops short of authorizing the jury to make irreconcilable inferences. Thus, we cannot draw such an inference to support the conspiracy conviction.

Although the massive quantity of cocaine involved here permits an inference of a conspiracy, standing alone, it is wholly insufficient to sustain a conviction. Morgan, 835 F.2d at 82. Similarly, defendant's...