U.S. v. Sanchez DeFundora

• Decision Date: 10 January 1990
• Docket Number: No. 88-2682,88-2682
• Citation: 113 A.L.R. Fed. 873,893 F.2d 1173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Yolanda SANCHEZ DeFUNDORA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1173

893 F.2d 1173

113 A.L.R.Fed. 873

UNITED STATES of America, Plaintiff-Appellee, v. Yolanda SANCHEZ DeFUNDORA, Defendant-Appellant.

No. 88-2682.

United States Court of Appeals Tenth Circuit.

Jan. 10, 1990.

William P. Early, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

D. Blair Watson, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before BALDOCK, McWILLIAMS, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Following a jury trial in the United States District Court for the Western District of Oklahoma, defendant Yolanda Sanchez DeFundora was convicted of eight counts of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); and one count of unlawful travel in aid of racketeering, in violation of the Travel Act, 18 U.S.C. Sec. 1952. On appeal, defendant argues that there was insufficient evidence to support the convictions for distribution of cocaine and the Travel Act conviction. We disagree, and therefore we affirm the judgment of the district court.

Facts

Defendant was arrested on March 19, 1988, at the Will Rogers Airport in Oklahoma City, Oklahoma, after law enforcement officers found approximately 64 grams of cocaine in defendant's purse. On July 19, 1988, a grand jury returned an indictment charging defendant with the ten counts described above.

One of the government's witnesses at defendant's trial was Sarah Phillip. Phillip testified that she was addicted to cocaine from September 1987 to February 1988. Tr. II at 10. Phillip stated that she purchased cocaine from defendant, for personal use and resale, on eight separate occasions. Those alleged transactions form the basis for the eight counts of distribution of cocaine.

Phillip testified as follows. In late 1987, "[r]ight after Thanksgiving," defendant sold one-half ounce of cocaine to Phillip for $700.00. Tr. II at 14. This was Phillip's first purchase of cocaine from defendant. Id. Phillip ingested some of the substance purchased from defendant, and it affected her in the same way that cocaine had affected her in the past. Tr. II at 15.

On or about December 1, 1987, defendant, accompanied by a man named Juan Martinez, sold one ounce of cocaine to Phillip for $1,300. Tr. II at 16. Phillip sampled the cocaine with Martinez and at least one other unnamed individual. Tr. II at 17-18. ¹ On or about December 7, 1987, defendant sold one ounce of cocaine to Phillip for $1,100. Tr. II at 20. Approximately one week later, defendant again sold Phillip one ounce of cocaine for $1,100, and Phillip sampled and weighed the substance. Tr. II at 21.

On or about December 21 and 28, 1987, defendant sold one ounce of cocaine to Phillip for $1,100, and on both of those occasions Phillip sampled the cocaine. Tr. II at 22-25. On January 4, 1988, Phillip purchased two ounces of cocaine from defendant for $2,200. Tr. II at 27. Phillip, the defendant, and two other individuals "tested" the substance. Tr. II at 27-28. Approximately one week later, Phillip purchased four ounces of cocaine from defendant for $4,400. Tr. II at 28. The substance was sampled. Tr. II at 29.

Defendant told Phillip that she travelled to Miami, Florida, on a weekly basis to purchase cocaine, and she asked Phillip to go to Miami to purchase cocaine for her. Tr. II at 36-37. Defendant also told Phillip that a man wanted to take over defendant's "cocaine business." Tr. II at 34.

After Phillip completed her testimony, the government called Darrell Bryson as a witness. Bryson, a ticket salesman for American Airlines, testified that defendant purchased an airplane ticket dated March 10, 1988, for a round trip from Oklahoma City to Miami and then back to Oklahoma City. Tr. II at 56. According to Bryson, defendant paid cash for the ticket and used the name Maria Diaz. Tr. II at 56. Bryson notified law enforcement officers of that transaction. Tr. II at 56-57. Bryson testified that one week later, defendant purchased a similar one-day, round-trip ticket under the name Edilia Rios. Tr. II at 58.

On March 19, 1988, Special Agents of the Drug Enforcement Administration executed a search warrant to search the person and baggage of a particularly described person, using the name Edilia Rios, Maria Diaz, or Kayla Kairadad, who was expected to arrive in Oklahoma City on a flight from Florida via Dallas, Texas. Tr. II at 68. Defendant was the only person arriving on that flight who fit the description in the warrant. Law enforcement officers stopped defendant after she had deplaned and proceeded directly to get into a taxicab. Tr. II at 70. One of those officers, DEA Agent Lawrence Beck, asked defendant for her airplane ticket, and defendant presented Beck with an American Airlines ticket issued in the name of Edilia Rios. Tr. II at 72. Defendant's purse was searched pursuant to the warrant, and approximately 64 grams of cocaine was found. The parties stipulated that if a chemist from the DEA were to testify, he would state that he performed "the normal scientific analysis" on the substance removed from defendant's purse, and that based on his training, experience, and the number of tests that he ran on the substance, he concluded that the substance was 92-percent pure cocaine. Tr. II at 93.

Discussion

I. Distribution of Cocaine

Defendant argues that there was insufficient evidence to convict her of the eight counts of distribution of cocaine because the substances allegedly distributed by defendant were not subjected to scientific analysis and no evidence was adduced to establish the chemical makeup of those substances. Principal Br. of Defendant-Appellant at 17-18. "Evidence is considered sufficient to support a criminal conviction if, when viewed in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Culpepper, 834 F.2d 879, 881 (10th Cir.1987) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)).

The government need not introduce scientific evidence to prove the identity of a substance. See United States v. Baggett, 890 F.2d 1095 (10th Cir.1989). As long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable doubt, the lack of scientific evidence does not warrant reversal. See United States v. Scott, 725 F.2d 43, 45-46 (4th Cir.1984); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976); see also United States v. Meeks, 857 F.2d 1201, 1204 (8th Cir.1988); United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984), cert. denied, 469 U.S. 1164, 105 S.Ct. 923, 83 L.Ed.2d 935, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985). The lay testimony and circumstantial evidence relevant to determining the identity of a substance includes:

" 'evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in [her] presence....' "

Baggett, 890 F.2d at 1096 (quoting Dolan, 544 F.2d at 1221); see also United States v. Osgood, 794 F.2d 1087, 1095 (5th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986); Harrell, 737 F.2d at 978-79; Scott, 725 F.2d at 45-46.

Here, there is direct evidence in the record that the substances allegedly sold by defendant were cocaine. Phillip testified that she, and on some occasions, others, sampled the alleged cocaine and that when she ingested it, it affected her in the same way as cocaine had affected her in the past. Phillip further testified that the first quantity purchased from defendant was chemically tested.

The record also contains indirect evidence tending to corroborate the direct evidence that the substances sold were cocaine. For example, Phillip testified that she was able to resell the substances as cocaine. Phillip also testified that defendant had attempted to have Phillip travel to Miami to purchase some cocaine and that defendant had stated that another individual wanted to take over her cocaine business. In addition, DEA agents seized approximately 64 grams of 92-percent pure cocaine from defendant on March 19, 1988. Although that seizure was not the basis for any of the eight distribution counts, it does lend credence to the conclusion that defendant was dealing in cocaine.

In light of this evidence in the record, we believe that a reasonable jury could conclude beyond a reasonable doubt that the substances allegedly sold by defendant were cocaine. We therefore affirm defendant's convictions for distribution of cocaine.

II. Travel Act

Defendant also challenges the sufficiency of the evidence supporting her Travel Act conviction. The Travel Act provides, in part:

Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to--

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

18 U.S.C. Sec. 1952(a) (emphasis added).

The...