U.S. v. Serrano-Lopez
| Decision Date | 03 May 2004 |
| Docket Number | No. 03-1540.,No. 03-1526.,No. 03-1525.,03-1525.,03-1526.,03-1540. |
| Citation | 366 F.3d 628 |
| Parties | UNITED STATES of America, Appellee, v. Isidro SERRANO-LOPEZ, Appellant. United States of America, Appellee, v. Eleodoro Lopez-Urias, also known as Lole, Appellant. United States of America, Appellee, v. Elvia Rios, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Carlos A. Monzon, argued, Lincoln, NE, for appellant Serrano-Lopez.
Mark W. Bubak, argued, Omaha, NE, for Lopez-Urias.
Bryan E. Smith, Jr., argued, Bellevue, NE, for appellant Rios.
Joe Stecher, argued, Asst. U.S. Attorney, Omaha, NE, for appellee.
Before RILEY, BEAM, and SMITH, Circuit Judges.
Defendants were jointly tried and convicted by a jury of possessing more than five kilograms of a mixture or substance containing a detectable amount of cocaine with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). Each defendant appeals, asserting the district court1 erred in denying their motions for acquittal and new trial based on insufficient evidence, in refusing to give a "mere presence" instruction to the jury, and in improperly calculating the drug quantity involved in the offense. Defendant Rios also appeals the district court's2 denial of her motion to suppress the drugs seized. We affirm.
Elvia Rios, Isidro Serrano-Lopez, and Eleodoro Lopez-Urias were traveling from California to Omaha, Nebraska, on Interstate 80 in a Nissan Maxima. Trooper Kenneth Ayers of the Nebraska State Patrol stopped the car for speeding near Kearney, Nebraska. Rios was driving. Serrano-Lopez was in the front-passenger seat. Lopez-Urias was in the backseat.
Trooper Ayers asked Rios to sit in his patrol car so he could ask her some questions and proceed with the citation process. Rios stated that she was coming from Compton, California, and traveling to Omaha, Nebraska, to visit a cousin, Maria. She identified the front-seat passenger as Serrano-Lopez, and she stated that they had stopped in Arizona during the trip to get fuel.
Trooper Ayers then approached the car and asked Serrano-Lopez some questions. Serrano-Lopez did not speak English, so Trooper Ayers used the limited Spanish he knew. Serrano-Lopez said he was coming from Los Angeles, California, and traveling to Omaha, Nebraska, to visit a family member, Pablo. He said they had not stopped in Arizona along the way.
Trooper Ayers then returned to his patrol car and resumed questioning Rios. Among other things, Rios said she had left California the day before and she was going to stay in Omaha for about a week. She also said she knew Serrano-Lopez but didn't know the backseat passenger.
Trooper Ayers issued a warning to Rios for speeding. He then asked her for consent to search the vehicle. She consented and the occupants were ordered out of the car. At the officer's insistence, they stood about twenty-five feet in front of the car during the search. In the meantime, Trooper Dan Covert of the Nebraska State Patrol arrived to help search the car. When the trunk was searched, Trooper Ayers could smell what he recognized as the distinct odor of methamphetamine. When the passenger compartment was searched, the officers noticed fresh tool marks on the screws securing the dashboard and glove box.
The officers continued their search but found no controlled substances. Unpersuaded that drugs were not in the vehicle, Trooper Ayers retrieved a cordless drill equipped with a screwdriver bit and removed the screws that secured the molding above the car's left rear rocker panel — the body panel just below the left rear passenger door. After removing the screws, Trooper Ayers could see cellophane packages hidden in the rocker panel. Believing these packages contained controlled substances, the officers arrested the occupants. Trooper Ayers drew his sidearm, ordered the individuals to the ground, and handcuffed them. According to Trooper Ayers, the defendants did not appear surprised by the arrest, and no one asked why they were being arrested. The car was impounded.
Once impounded, the interior of the car was dismantled, and packages were retrieved from the rocker panel, behind the dashboard, and behind the kickplate just to the left of the brake pedal of the car. The packages were not visible from anywhere in the car until the car was dismantled. Eighteen packages were retrieved and a field test of one of the packages revealed the presence of cocaine. The officers weighed the packages on a certified scale. The combined weight of all packages was 5.94 kilograms. Four packages were also individually weighed. Theses packages weighed .59 kilograms, .54 kilograms,.59 kilograms, and .50 kilograms. Core samples were then taken from those four packages and sent to the Nebraska State Patrol's crime lab for testing. Testing revealed that the core samples contained a detectable amount of cocaine. The remaining packages were never individually weighed or sampled.
Lieutenant Dennis Leonard of the Nebraska State Patrol interviewed Rios after her arrest. According to Lieutenant Leonard, Rios said that, although she had told Trooper Ayers the car belonged to her cousin, she now thought it belonged to someone else. She said a man by the name of Pica had paid her four-hundred dollars to drive the occupants to Omaha and that, two weeks ago, she had done the same thing in another car with different occupants. She said she was driving the backseat passenger because he had no driver's license. She admitted she had no cousin named Maria, but said Pica's sister was named Maria and that was where she was going.
Lieutenant Leonard also interviewed Lopez-Urias after his arrest. He did not speak English, so Lieutenant Leonard enlisted an interpreter — Agent Randall Holm of the United States Border Patrol. Agent Holm testified at trial to what Lopez-Urias said. Lopez-Urias said he knew Serrano-Lopez because the two had grown up together. He said he was going to Omaha to visit a man named El Pollo, but could provide no address for him. He said at first that he did not know a man named Pica, and later said he knew of a man named Pica, but did not know him personally.
Defendants were all indicted for possessing with the intent to distribute more than five kilograms of a mixture or substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). Defendants moved to suppress the evidence found in the search of the automobile, claiming the consent was involuntary and the search was otherwise unsupported by probable cause. The district court denied the motion.
At trial, Lieutenant Leonard testified that, based on his law enforcement experience, an amount of cocaine equal to the amount of the substance seized from the car is not indicative of personal use, but rather is associated with distribution. And he testified that the street value of such an amount of cocaine would be approximately $130,000. Celeste Laird of the Nebraska State Patrol Criminalistics Laboratory also testified to the results of the testing done on the core samples Trooper Ayers submitted. Ms. Laird testified that all four core samples tested positive for cocaine. She could not testify, though, to the weight of any of the packages because only the core samples were submitted, and she could not testify as to the contents of the fourteen unsampled packages. She did testify that, in the past, she had encountered packages resembling the fourteen unsampled packages, and that in each instance, she found they contained controlled substances.
Defendants moved for acquittals after the government rested. The motions were denied. Defendants offered no further evidence and again moved for acquittals. Those motions were also denied.
Jury instructions were then addressed. Defendants requested that the court include a jury instruction setting forth the theory of defense — "mere presence." The district court refused, sustaining the government's objection that the existing instructions adequately conveyed the substance of the defendants' defense.3
The case was submitted to the jury. Defendants Rios, Lopez-Urias, and Serrano-Lopez were found guilty of the crime charged. After the verdict was entered, all defendants renewed their motions for acquittal and, alternatively, moved for new trials. Those motions were denied. Serrano-Lopez was sentenced to 121 months of imprisonment, followed by five years of supervised release. Rios was sentenced to 120 months of imprisonment, followed by five years of supervised release. And Lopez-Urias was sentenced to 135 months of imprisonment, followed by five years of supervised release.
Rios, Lopez-Urias, and Serrano-Lopez appeal.
We review the denial of a motion for judgment of acquittal de novo. We evaluate the evidence in the light most favorable to the government and draw all reasonable inferences in its favor. "We reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Frank, 354 F.3d 910, 916 (8th Cir.2004) (quotation omitted). This standard is quite strict; "we will not lightly overturn the jury's verdict." United States v. Cruz, 285 F.3d 692, 697 (8th Cir.2002). "`If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.'" Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001) (). "[T]he government's `evidence need not exclude every reasonable hypothesis of innocence.'" United States v. Butler, 238 F.3d 1001, 1004 (8th Cir.2001) ().
Evidentiary sufficiency challenges taking the...
To continue reading
Request your trial
-
Garrison v. Burt
...court should not disrupt a conviction “[i]f the evidence rationally supports two conflicting hypotheses,” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.2004), and a court merely “draw[s] a different conclusion from Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, Univ.......
-
U.S. v. Pirani
..."element of the crime" that the government is required to prove to a jury, and was not one in Diaz. See, e.g., United States v. Serrano-Lopez, 366 F.3d 628, 638 (8th Cir.2004) ("It is the statute, not the indictment, that sets the elements of the offense that must be proven beyond a reasona......
-
Sturdivant v. United States
...the mandatory minimum sentence for a crime. See Harris v. United States, 536 U.S. 545, 568-69 (2002); accord United States v. Serrano-Lopez, 366 F.3d 628, 638 (8th Cir. 2004). "On June 13, 2013, the Supreme Court overruled Harris in Alleyne, holding that any fact that increases themandatory......
-
U.S.A v. Robertson
...“We reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.2004) United States v. Frank, 354 F.3d 910, 916 (8th Cir.2004)). “An attempt requires ‘(1) an intent to engage in criminal cond......