U.S. v. Pulido-Jacobo, 03-8050.

• Decision Date: 05 August 2004
• Docket Number: No. 03-8053.,No. 03-8050.,03-8050.,03-8053.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel PULIDO-JACOBO; Esequiel Pulido-Pedrosa, also known as Joel Arrollo-Naranjo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

377 F.3d 1124

UNITED STATES of America, Plaintiff-Appellee, v. Samuel PULIDO-JACOBO; Esequiel Pulido-Pedrosa, also known as Joel Arrollo-Naranjo, Defendants-Appellants.

No. 03-8050.

No. 03-8053.

United States Court of Appeals, Tenth Circuit.

August 5, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Wyoming, Clarence A. Brimmer, J.

James H. Barrett, Assistant Federal Defender, Office of the Federal Public Defender, Cheyenne, WY, appearing for Appellant Pulido-Jacobo.

Mr. Thomas B. Jubin, Jubin & Zerga LLC, Cheyenne, WY, appearing for Appellant Pulido-Pedrosa.

L. Robert Murray, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief) Office of the United States Attorney, Cheyenne, WY, appearing for Appellee.

Before TACHA, Chief Circuit Judge, BRISCOE, Circuit Judge, and LUNGSTRUM,^* Chief District Judge.

TACHA, Chief Circuit Judge.

A jury found Defendant-Appellants Samuel Pulido-Jacobo and Esequiel Pulido-Pedrosa (collectively "the Pulidos") guilty of possessing with intent to distribute, and conspiracy to possess with intent to distribute, methamphetamine. On appeal, they claim four errors: (1) insufficient evidence of guilt, (2) improper admission of evidence, (3) improper denial of their mistrial motion, and (4) prosecutorial misconduct. We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

A Wyoming Highway Patrol officer stopped a car driven by Mr. Pulido-Pedrosa for traveling 108 miles per hour in a 75-mile-per-hour speed zone. Mr. Pulido-Jacobo rode in the front passenger seat of the car, while Mr. Sandoval-Alvarez rode in the back seat. Following the officer's request, Mr. Pulido-Pedrosa handed the officer a driver's license identifying himself as Joel A. Naranjo and a temporary insurance card for Joel Arrollo-Naranjo. Upon further investigation, the officer discovered that the vehicle was registered to Cesar Aaron Morales. After learning these facts, and detecting a number of air-fresheners in the car, the officer called for a second officer with a drug dog to assist on the scene.

The second officer arrived and questioned Mr. Pulido-Pedrosa, while the first officer wrote the traffic citation. When asked about his travel plans, Mr. Pulido-Pedrosa turned to Mr. Pulido-Jacobo and addressed him in Spanish. After hearing Mr. Pulido-Jacobo's response in Spanish, Mr. Pulido-Pedrosa told the second officer that they were traveling to Omaha, Nebraska to visit a friend.

When next asked who owned the car, Mr. Pulido-Pedrosa responded by saying "No English," but, after the officer rephrased the question, Mr. Pulido-Pedrosa answered, "My boss." When asked for consent to search the car, he responded, "I don't speak English." When the officer asked Mr. Pulido-Pedrosa again, however, Mr. Pulido-Jacobo said, "Oh yeah, you can search the car," to which Mr. Pulido-Pedrosa followed, "Yeah, yeah."

The officers then removed the three occupants from the car and began their search. After removing part of the back seat, the officers noticed that, despite the absence of screws from the metal lid separating the gas tank from the inside of the car, the lid was tightly attached from inside the gas tank. After prying the lid partially open, the officers observed a number of bags containing round objects wrapped in black tape. The drug dog did not react initially to this discovery; however, it did after the officers punctured one of the round objects, which later tested positive for methamphetamine.

During questioning at the highway patrol station, Mr. Pulido-Pedrosa contradicted two statements that he made earlier to the officers. First, in contrast to his earlier assertion that he was driving Mr. Sandoval-Alvarez to Omaha, Mr. Pulido-Pedrosa stated that he was "just along for the ride and not sure where he was going ... [but he] thought ... someplace in Wyoming." Second, again in contrast to his earlier claim that the car belonged to "a friend" or to "his boss," he stated that a man he knew only as "Coyote" owned the car.

In his interview, Mr. Pulido-Jacobo claimed that the only clothes in the car — a pair of shorts, a shirt, and a toothbrush — belonged to him. He stated that Mr. Pulido-Pedrosa picked him up at a soccer field to travel to Omaha for a "one-night party." A search of their belongings indicated that Mr. Pulido-Pedrosa had $1210 in his wallet. Mr. Pulido-Jacobo had $75 in his wallet and copies of two receipts, one for a speaker box containing two box speakers ("the speaker receipt") and the other for repair work on a truck engine ("the engine receipt").

A federal grand jury indicted the Pulidos for (1) possessing methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); and (2) conspiring to traffic in methamphetamine in violation of 21 U.S.C. § 846. The grand jury also indicted Mr. Pulido-Pedrosa individually for illegally re-entering the United States after previously being deported in violation of 8 U.S.C. §§ 1326(a)(1) and (b)(2). Mr. Pulido-Pedrosa pleaded guilty to this latter count; however, he and Mr. Pulido-Jacobo pleaded innocent to all other counts. A jury found them guilty of all charges. The Pulidos timely appealed, bringing four claims. We address each below.

II. SUFFICIENCY OF THE EVIDENCE

The Pulidos contend that insufficient evidence exists to support their convictions for conspiracy and possession with intent to distribute. Specifically, they argue that "mere control or dominion over the ... [car was] not enough to establish constructive possession" of the narcotics contained within it and that no evidence exists that they knew of the well-hidden and odorless drugs. In response, the government claims that the evidence is sufficient to support the essential elements of the claims against the Pulidos.

A. Standard of Review

"We review a challenge to the sufficiency of the evidence de novo, viewing all evidence and drawing all reasonable inferences in the light most favorable to the government." United States v. Oliver, 278 F.3d 1035, 1043 (10th Cir.2001). Under this standard, "[w]e will not reverse a conviction... unless no rational trier of fact could have reached the disputed verdict." United States v. Wilson, 182 F.3d 737, 742 (10th Cir.1999). "The evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Instead, the evidence only has to reasonably support the jury's finding of guilt beyond a reasonable doubt." Id.

B. Conspiracy

"To obtain a conviction for conspiracy, the government must prove that (1) there was an agreement to violate the law; (2) Defendant knew the essential objectives of the conspiracy; (3) Defendant knowingly and voluntarily took part in the conspiracy; and (4) the coconspirators were interdependent." United States v. Ailsworth, 138 F.3d 843, 850 (10th Cir.1998).

1. Agreement

"To prove an agreement, the government need not offer direct proof of an express agreement on the part of the defendant. Instead the agreement may be informal and may be inferred entirely from circumstantial evidence." United States v. Lang, 364 F.3d 1210, 1223 (10th Cir.2004) (quotations and alterations omitted). As to both Pulidos, the jury could reasonably infer the existence of an agreement from several facts introduced by the government. Particularly, the Pulidos told the officers multiple, conflicting stories regarding their travel plans and the ownership of the car; they shared driving responsibilities on the trip; and Mr. Pulido-Pedrosa consulted with Mr. Pulido-Jacobo before answering many of the officers' questions. See United States v. Jones, 44 F.3d 860, 868 (10th Cir.1995) (noting that a jury can infer agreement from "evidence of conflicting stories."). Moreover, Mr. Pulido-Jacobo lied about both Mr. Pulido-Pedrosa's name and their relationship. See United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.1986) (permitting an inference of guilt from false statements made by the defendant to police). In light of these and other facts, we find that a rational jury could infer the existence of an agreement.

2. Essential Objectives

Under this element, the government must prove that the alleged conspirator had a "general awareness of both the scope and the objective of the enterprise." United States v. Evans, 970 F.2d 663, 670 (10th Cir.1992). For several reasons, we find that the government satisfied this standard.

First, we find it important that Mr. Pulido-Jacobo shared driving responsibilities with his father. As we have noted previously, "it is permissible to infer that the driver of a vehicle has knowledge of the contraband within it." United States v. Levario, 877 F.2d 1483, 1485-86 (10th Cir.1989), overruled on other grounds by Gozlon-Peretz v. United States, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). Further, both Pulidos should have noticed and grown suspicious of the frequency of the stops for gas and the minimal amount of gas accepted by the car. The presence in the front console of the car of a copy of his September 2002 receipt for truck engine repair further illustrated his control over the car. We are also convinced of this control by the August 2002 speaker receipt found in Mr. Pulido-Jacobo's wallet and the presence of a matching speaker box in the trunk of the car.

In addition, Mr. Pulido-Pedrosa initially gave the police a false name.¹ See Hooks, 780 F.2d at 1532 ("[T]he jury could have inferred appellant's guilty knowledge from the undisputed testimony that appellant gave the police a false name."). A rational jury could also infer knowledge of the essential elements of the conspiracy from the fact that Mr. Pulido-Pedrosa brought no clothes or personal effects with him and that Mr. Pulido-Jacobo had only one change of clothes and a toothbrush for a trip from California...