United States of America, Plaintiff-appellee, v. Salvador Gonzalez-villanueva, Defendant-appellant, 41 F.3d 1514 (9th Cir. 1994)

MEMORANDUM^** 

Salvador Gonzalez-Villanueva ("Gonzalez") appeals from his jury conviction on two counts of narcotics trafficking, arguing that the evidence was insufficient to support the verdict and that the trial court failed to give a proper jury instruction. We reject both contentions and affirm.

With respect to Gonzalez's first argument, we note that the government presented evidence that Gonzalez (1) provided a drug-carrying truck for co-defendant Benigno Sanchez-Cruz to drive; (2) was present in the truck--and, therefore, capable of exercising dominion and control over it and its contents--at the time of his arrest; (3) was the only occupant of the truck who carried a pager; (4) gave contradictory, and unbelievable, explanations for his presence; and (5) offered Sanchez a bribe to take the blame. Viewed in the light most favorable to the prosecution, we cannot conclude that the jury acted unreasonably in finding Gonzalez guilty. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Gonzalez's second argument is that the district court failed to give a proper instruction on the defense theory of the case, viz., that Gonzalez's mere proximity to the contraband would not support a finding of possession. The government's case was based on more than mere presence, see above, and the district court properly instructed the jury on what constitutes "dominion and control" as well as the necessary elements of 21 U.S.C. § 841(a) (1). See United States v. Medrano, 5 F.3d 1214, 1218 (9th Cir. 1993); United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992). Accordingly, we reject this contention as well.

AFFIRMED.