U.S. v. Triana

• Decision Date: 26 February 2007
• Docket Number: No. 06-7054.,06-7054.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Yolanda TRIANA, also known as Yolanda Jean Rodriguez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

477 F.3d 1189

UNITED STATES of America, Plaintiff-Appellee, v. Yolanda TRIANA, also known as Yolanda Jean Rodriguez, Defendant-Appellant.

No. 06-7054.

United States Court of Appeals, Tenth Circuit.

February 26, 2007.

J. Lance Hopkins, Tahlequah, OK, for Defendant-Appellant.

Gregory Dean Burris, Assistant United States Attorney, (Sheldon J. Sperling, United States Attorney, with him on the brief), Muskogee, OK, for Plaintiff-Appellee.

Before BRISCOE, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

A jury found Yolanda Triana guilty on one count of possession with intent to distribute more than 50 grams of methamphetamine, see 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and one count of possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(I) and (c)(2). She was sentenced in the United States District Court for the Eastern District of Oklahoma to consecutive terms of 121 months' imprisonment on the drug count and 60 months on the firearm count. She appeals her conviction, contending that there was insufficient evidence that she possessed the drugs or a firearm, and that the district court erred in defining deliver in a jury instruction. We have jurisdiction under 28 U.S.C. § 1291; we reject her contentions and affirm her conviction.

I. BACKGROUND

On July 25, 2005, Oklahoma Highway Patrol Trooper Scott Miller noticed a PT Cruiser convertible going 92 miles per hour on Interstate 40. He stopped the vehicle and asked the driver for his license and proof of insurance. The driver (later identified as Ricardo Callirgos-Navetta) was unable to produce the requested documents. Because it was difficult to converse over the highway noise and dangerous to stand on the side of the road, Miller asked Mr. Callirgos-Navetta to accompany him to his patrol car.

Once Mr. Callirgos-Navetta entered the patrol car, Trooper Miller told him to sit tight and he returned to the PT Cruiser. He asked the passenger, Ms. Triana, for her license. She told him that Mr. Callirgos-Navetta had never had a license, and gave him hers. Miller went back to his patrol car and asked Mr. Callirgos-Navetta who owned the car that he was driving, where they were going, and where they had been. He responded that they had been in California to visit his daughter, and that the car was a rental. Miller went to the PT Cruiser to get the rental agreement from Ms. Triana, but she was unable to find it. When Miller asked her where they were coming from, she responded that they were returning from Albuquerque, New Mexico, where they had been to visit her daughter. He again went to the patrol car and questioned Mr. Callirgos-Navetta further in an attempt to reconcile their conflicting accounts. Mr. Callirgos-Navetta, however, only elaborated on his prior account, contradicting himself on occasion as he did so.

Suspicious that the couple was engaged in illegal activity, Trooper Miller radioed for a K-9 drug-detection unit. He then issued Mr. Callirgos-Navetta a citation for speeding and a warning for driving without a license. After telling him that he was free to go, however, Miller asked Mr. Callirgos-Navetta whether he would first answer a few questions. He agreed. Miller asked him whether he had anything illegal in the car and whether he would consent to a search of the vehicle. Mr. Callirgos-Navetta replied that Miller would have to get permission from Ms. Triana, as it was not his car. Ms. Triana initially declined to give permission, so Miller informed her that he had called for a drug dog to sniff around the car because her story and Mr. Callirgos-Navetta's did not match up. She then said that he could search the car, but he replied that it was too late for that. He asked her to join Mr. Callirgos-Navetta in his patrol car while they awaited the dog. Miller left them alone in his car. The patrol car was equipped with a video camera and an audio recording system. The video camera was mounted inside on the windshield and pointed forward; the audio recording system had two microphones, one on Miller and one inside the patrol car.

Unaware that they were being recorded, Mr. Callirgos-Navetta and Ms. Triana discussed their situation. Although Ms. Triana's counsel argues that most of the recorded audio is unintelligible, our review reveals that a large part of what Ms. Triana and Mr. Callirgos-Navetta say while in the patrol car can be understood. Shortly after Trooper Miller left the patrol car, Ms. Triana reprimanded Mr. Callirgos-Navetta for speeding, and he said he was sorry. She asked, "You're sorry what, that I'm going to go to jail?" R. Add. at 19:48:16. They argued about why he had said that they had been to California rather than saying that they had gone to Albuquerque. Ms. Triana told him that she had "that shit in my pants," id. at 19:48:48, to which he replied, "Do you have it on you?" Id. at 19:49:02. Their conversation turned to the upcoming dog search, and Ms. Triana said, "He's going to smell that in the bag." Id. at 19:51:48. She also told him, "You didn't help me pack the car . . . if they open the trunk." Id. at 19:51:55-52:15.

Trooper Darren Koch and his partner, Trooper Ty Owens, who had arrived with the drug dog shortly after Ms. Triana entered the patrol car, took the dog to the convertible. Ms. Triana and Mr. Callirgos-Navetta continued to converse while they watched Koch and his dog circle their vehicle. When the dog approached the rear of the car, Ms. Triana said, "If he gets near that corner, that's where it is." Id. at 19:53:38. As the dog rounded the back right corner of the car, where the drugs were eventually found, Ms. Triana said, "Keep going doggy, keep going." Id. at 19:53:41. The dog alerted to the presence of drugs in the vehicle.

One of the troopers asked Ms. Triana and Mr. Callirgos-Navetta whether they had a personal-use quantity of drugs in the car. They denied having drugs but Ms. Triana told the trooper that there was a gun under the driver's seat. The troopers then began a search of the vehicle. During the search Ms. Triana said to Mr. Callirgos-Navetta, "If they find anything, they planted it." Id. at 19:57:41. The troopers found a gun and a silver briefcase in the passenger compartment. When Mr. Callirgos-Navetta asked Ms. Triana what was in the briefcase, she replied that it contained other guns. Unable to open the briefcase, a trooper asked Mr. Callirgos-Navetta for the combination. He replied that it wasn't his; the trooper then asked Ms. Triana the same question. She gave him the combination, stating, "It's 006, or 007." Id. at 20:03:06-10. The troopers opened the briefcase and found two more guns inside.

Two troopers continued to examine the contents of the briefcase while the third moved to the trunk and opened it. He began removing things from the corner where the dog had alerted. As he did so, Ms. Triana said, "We're dead." Id. at 20:03:56. When the trooper removed a black backpack, Ms. Triana became audibly upset and exclaimed, "Oh, please no, there it is Rick!" Id. at 20:04:08. She then cried, "Who's gonna help me, Rick?" Id. at 20:04:09. The backpack contained 432.39 grams of methamphetamine. The trunk also contained drug paraphernalia, including ziplock baggies, scales, and glass pipes, and an open bag of coffee intended to mask the smell of the drugs.

Having found the drugs in the trunk, Trooper Koch asked Ms. Triana to step out of the patrol car. As she exited, a glass pipe fell from her pocket to the ground. She then removed a black pouch from her pants, saying, "What you want is right here," R. Vol. 3 at 48, and handed it to Koch. About three grams of methamphetamine were found in a lip-gloss container inside the pouch that she had removed from her pants.

Troopers Miller and Koch testified to the above events at trial. Also, the video of the stop was shown to the jury. Ms. Triana testified as follows: She lived in Fayetteville, Arkansas, and she and Mr. Callirgos-Navetta had been together in a common-law marriage for 17 years. She had been planning to take her 15-year-old son with her to Albuquerque, New Mexico, where her daughter (who lived in California) would meet them for a visit. Mr. Callirgos-Navetta was fired from his job and decided to join her at the last minute. (It is evident from the video of the stop that her son did not join them on the trip.) Upon arrival in Albuquerque, Ms. Triana, her daughter, and her grandchildren went shopping without Mr. Callirgos-Navetta. When they returned that evening to their motel, he was not there. He did not return that night, and she did not know where he was. After he returned the next day, he did not disclose where he had been. He and Ms. Triana went to a store that sold drug paraphernalia, and purchased baggies, glass pipes, and a scale. They then left Albuquerque. They stopped at a motel in Amarillo, Texas, where Mr. Callirgos-Navetta emptied on the nightstand the contents of a black pouch in which he kept personal items and some methamphetamine, which they both used. Mr. Callirgos-Navetta had pressured her into using drugs at times, but she never asked him about his drug-dealing business. Although he could at times be very nice, he was controlling and on occasion had physically abused her to the point that she feared for her life.

Regarding the traffic stop, she testified that when they were being pulled over, Mr. Callirgos-Navetta had shoved the black pouch into her shorts and told her that in the trunk he had "shit," which she understood to be methamphetamine. R. Vol. 3 at 146. She said that this was the first she knew about there being any drugs in the car other than those in the black pouch. As for the guns, she testified that although she had purchased them, they belonged to Mr. Callirgos-Navetta. When asked on cross-examination about her statement to Mr. Callirgos-Navetta on the video that "[y]ou didn't help me pack the car," she said that she was referring only to the...