United States vs. Triana, No. 06-7054 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit PUBLISH February 26, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT U N ITED STA TES O F A M ER ICA, Plaintiff - Appellee, v. No. 06-7054 YOLANDA TRIANA, also known as Yolanda Jean Rodriguez, Defendant - Appellant. A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FO R TH E EASTERN DISTRICT O F O K LAH O M A (D.C. NO . 05-CR-74-S) J. Lance Hopkins, Tahlequah, Oklahoma, for D efendant - Appellant. Gregory Dean Burris, Assistant United States Attorney, (Sheldon J. Sperling, United States Attorney, with him on the brief), M uskogee, Oklahoma, for Plaintiff - Appellee. Before BR ISC OE, B AL DOC K , and HA RTZ, Circuit Judges. HA RTZ, 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. W e have jurisdiction under 28 U.S.C. § 1291; we reject her contentions and affirm her conviction. I. B ACKGR OU N D On July 25, 2005, Oklahoma H ighway Patrol Trooper Scott M iller 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, M iller asked M r. CallirgosNavetta to accompany him to his patrol car. Once M r. Callirgos-N avetta entered the patrol car, Trooper M iller told him to sit tight and he returned to the PT Cruiser. He asked the passenger, M s. Triana, for her license. She told him that M r. Callirgos-N avetta had never had a license, and gave him hers. M iller went back to his patrol car and asked M r. Callirgos-N avetta who owned the car that he w as driving, where they were going, and where they had been. He responded that they had been in California to -2- visit his daughter, and that the car was a rental. M iller went to the PT Cruiser to get the rental agreement from M s. Triana, but she was unable to find it. W hen M iller asked her w here they were coming from, she responded that they were returning from Albuquerque, New M exico, where they had been to visit her daughter. He again went to the patrol car and questioned M r. Callirgos-N avetta further in an attempt to reconcile their conflicting accounts. M r. CallirgosNavetta, 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 M iller radioed for a K-9 drug-detection unit. He then issued M r. Callirgos-N avetta a citation for speeding and a warning for driving without a license. After telling him that he was free to go, however, M iller asked M r. Callirgos-Navetta whether he would first answer a few questions. He agreed. M iller asked him whether he had anything illegal in the car and whether he would consent to a search of the vehicle. M r. Callirgos-N avetta replied that M iller would have to get permission from M s. Triana, as it w as not his car. M s. Triana initially declined to give permission, so M iller informed her that he had called for a drug dog to sniff around the car because her story and M r. Callirgos-N avetta 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 M r. Callirgos-N avetta in his patrol car while they awaited the dog. M iller left them alone in his car. The patrol car was equipped -3- 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 M iller and one inside the patrol car. Unaware that they were being recorded, M r. Callirgos-Navetta and M s. Triana discussed their situation. Although M s. Triana s counsel argues that most of the recorded audio is unintelligible, our review reveals that a large part of what M s. Triana and M r. Callirgos-N avetta say while in the patrol car can be understood. Shortly after Trooper M iller left the patrol car, M s. Triana reprimanded M r. 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. M s. 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 M s. 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 M s. Triana entered the patrol car, took the dog to the convertible. M s. Triana and M r. Callirgos-N avetta continued to converse while they watched Koch and his dog circle their vehicle. W hen the dog -4- approached the rear of the car, M s. 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, M s. 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 M s. Triana and M r. Callirgos-Navetta whether they had a personal-use quantity of drugs in the car. They denied having drugs but M s. 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 M s. Triana said to M r. 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. W hen M r. Callirgos-Navetta asked M s. Triana what was in the briefcase, she replied that it contained other guns. Unable to open the briefcase, a trooper asked M r. Callirgos-N avetta for the combination. He replied that it wasn t his; the trooper then asked M s. 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, M s. Triana said, W e re dead. Id. at 20:03:56. W hen the trooper removed a black backpack, M s. Triana became audibly upset and exclaimed, Oh, please no, there it is Rick! Id. at 20:04:08. -5- She then cried, W ho 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 K och asked M s. 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, W hat 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 M iller and Koch testified to the above events at trial. Also, the video of the stop was shown to the jury. M s. Triana testified as follows: She lived in Fayetteville, Arkansas, and she and M r. Callirgos-N avetta 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 M exico, where her daughter (w ho lived in California) would meet them for a visit. M r. Callirgos-N avetta 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, M s. Triana, her daughter, and her grandchildren went shopping without M r. Callirgos-N avetta. W hen they returned that evening to their motel, he was not there. He did not return that night, and she did not know where he -6- w as. A fter he returned the next day, he did not disclose where he had been. He and M s. 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 M r. Callirgos-N avetta emptied on the nightstand the contents of a black pouch in which he kept personal items and some methamphetamine, which they both used. M r. Callirgos-N avetta 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, M r. Callirgos-N avetta 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 M r. Callirgos-N avetta. W hen asked on cross-examination about her statement to M r. Callirgos-N avetta on the video that [y]ou didn t help me pack the car, she said that she was referring only to the car s interior and was trying to transfer responsibility to herself from M r. Callirgos-Navetta, a convicted felon, for possession of the guns because she did not think that she faced any liability for possessing them. She -7- also explained that the reason she had become agitated when the troopers began searching the trunk was that there were items in it that she did not want seen. M r. Callirgos-N avetta also testified at trial. W hen asked about the trip, he gave a story different from M s. Triana s. He said that M s. Triana had been nagging him that she wanted to see her grandchildren. Because he was already going in that direction, he decided to take her w ith him. The purpose of his trip was to pick up methamphetamine in California for distribution. Once they arrived in Albuquerque, he took the car and left M s. Triana with their daughter. W ithout telling M s. Triana where he was going, he drove to California to obtain a package that he put in a backpack. On his return to Albuquerque, he picked up M s. Triana, who did not ask where he had been. M r. Callirgos-N avetta further testified that on the trip he had been carrying a black pouch containing his personal drugs. W hen they were being pulled over, he grabbed the pouch and stuck it in her pants. He then told her that he had some stuff in the trunk, R. Vol. 3 at 210; this was the first he had told her about the drugs in the trunk. W ith respect to Count One (the drug-possession charge), the district court instructed the jury that to convict M s. Triana it had to find that she had possessed the controlled substance knowingly and intentionally with the intent to distribute it. It defined distribute as to deliver a controlled substance. R. Vol. 1 Doc. 47 at 16. About 90 minutes after the jury retired to deliberate, it sent a note to the court asking, Could we please have a definition of delivering? R. Vol. 4 at 302. -8- The court advised counsel that it intended to comply with the request. Although both the prosecutor and defense counsel objected, the court gave the jury a supplemental instruction stating, The term deliver means to yield possession or control of something to another. R. Vol. 1 Doc. 47 at 17. It also told the jury that it should be guided by all of the instructions already given as well as the supplemental instruction. R. Vol. 4 at 309. The jury reached its verdict about two and a half hours later. II. ANALYSIS A. Sufficiency of the Evidence M s. Triana contends that the evidence was insufficient for the jury to find her guilty of either the methamphetamine or the firearm offense. W e review the sufficiency of the evidence de novo. See United States v. Platte, 401 F.3d 1176, 1180 (10th Cir. 2005). W e ask only whether, taking the evidence both direct and circumstantial, together w ith the reasonable inferences to be drawn therefrom in the light most favorable to the government, a reasonable jury could find the defendant[] guilty beyond a reasonable doubt. Id. (internal quotation marks omitted). 1. Possession of Drugs To sustain M s. Triana s conviction for possession with intent to distribute, the evidence must prove that she (1) knowingly possessed the illegal drug, and (2) did so with the intent to distribute it. See United States v. Reece, 86 F.3d 994, -9- 996 (10th Cir. 1996). Possession may be either actual or constructive; constructive possession may be found if a person knowingly has ownership, dominion, or control over the narcotics and the premises where [they] are found. . . . [W ]hen the contraband may be attributed to more than one individual, constructive possession requires some nexus, link, or other connection between the defendant and the contraband. The jury may draw reasonable inferences from direct or circumstantial evidence, yet an inference must amount to more than speculation. Id. (citations and internal quotation marks omitted). [A] jury may infer intent to distribute from the possession of large quantities of drugs. United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004). M s. Triana argues that she could not be convicted of the drug offense because (1) M r. Callirgos-Navetta, not she, exercised dominion and control over the drugs found in the trunk and he was the one who was going to distribute them; and (2) the drugs in the pouch found on her person belonged to him and were for his personal use, not distribution. W e are not persuaded. M s. Triana relies on Reece, in w hich w e reversed the defendant s conviction for possession with intent to distribute because the evidence fail[ed] to link [him] to the narcotics in any way other than presence and proximity, let alone show his intent to sell. 86 F.3d at 996. M r. Reece was driving the car in which his codefendant was riding when they were stopped by a police officer. Drugs were found on the codefendant, but not on M r. Reece, nor elsewhere in the -10- car. See id. W e stated that the only evidence that could possibly link M r. Reece to the drugs was a statement recorded while he and his codefendant waited in a patrol car. See id. The statement indicated his knowledge of the drugs, but by the time it w as made, the codefendant had told M r. Reece about the drugs. See id. It was therefore insufficient to establish the required nexus between M r. Reece and the drugs. See id. W e find Reece readily distinguishable. Unlike the defendant in Reece, who had no drugs on his person, M s. Triana was carrying the drugs in the black pouch at the time of the stop. Her knowledge of their presence was demonstrated by her statement I have that shit in my pants, R. Add. 19:48:48, and her later voluntary surrender of the pouch to the trooper. The jury was not required to credit her argument that the drugs in the pouch belonged to M r. Callirgos-Navetta and that she did not have dominion or control over them. M ore important is the evidence of her connection to the drugs in the trunk: After M r. Callirgos-Navetta apologized to her while they sat in the patrol car, she asked him, Sorry what, that I m going to go to jail? Id. at 19:48:16. W hile waiting for the dog, she feared that it was going to smell that in the bag. Id. at 19:51:48. W hen the dog approached the trunk, she said, If he gets near that corner, that s where it is, id. at 19:53:38, and Keep going doggy, keep going, id. at 19:53:41. As the officer opened the trunk, she said, W e re dead, id. at 20:03:56; and as he removed the backpack containing the drugs, she said, Oh, -11- please no, there it is Rick, id. at 20:04:08, and Who s gonna help me Rick? Id. at 20:04:09. Although M r. Callirgos-N avetta testified that the drugs w ere his and that she did not know about them, the jury was not required to believe him. W e note that the jury could reasonably have determined from the tone and substance of the audio recording that M s. Triana, not M r. Callirgos-Navetta, was the dominant person in their relationship. W e accept the jury s resolution of the evidence as long as it is within the bounds of reason. See United States v. Cui Qin Zhang, 458 F.3d 1126, 1128 (10th Cir. 2006) (emphasis and internal quotation mark omitted). It was eminently reasonable to find that M s. Triana knowingly possessed all the drugs found in the convertible. Having determined that the evidence was sufficient to show that she possessed the drugs, we have little difficulty in further determining that the evidence was sufficient to show that M s. Triana intended to distribute them. Not only was the quantity of drugs found in the backpack large enough for the jury to infer intent to distribute, see Pulido-Jacobo, 377 F.3d at 1131, but the scales, glass pipes, and ziplock baggies so called tools of the drug trade were further evidence from which the jury could infer an intent to distribute. United States v. M iller, 84 F.3d 1244, 1255 (10th Cir. 1996), overruled on other grounds by United States v. Holland, 116 F.3d 1353 (10th Cir. 1997). W hoever possessed the drugs had more in mind than just personal use. 2. Possession of Firearm s -12- M s. Triana was convicted of violating 18 U.S.C. § 924(c)(1)(A), which prohibits using or carrying a firearm during and in relation to any . . . drug trafficking crime or possessing a firearm in furtherance of any such crime. Her specific challenge to the conviction is that there was insufficient evidence that she possessed the guns found in the PT Cruiser. W e disagree. She admitted that she had purchased the guns (because it was unlawful for M r. CallirgosNavetta to do so), and that she had rented the car in which they were found. She told the officers that there was a gun under the seat. When M r. Callirgos-N avetta asked her w hat was in the briefcase, she told him that it contained other guns. She, not M r. Callirgos-Navetta, gave the troopers the combination to open the briefcase. The jury could rationally infer that M s. Triana possessed the guns found in the car. B. Jury Instruction M s. Triana contends that the district court comm itted reversible error when it gave the jury an instruction defining the term deliver as to yield possession. She argues that the court either should not have given a definitional instruction or should have used in the definition a word such as give, rather than yield, to indicate an affirmative act of transferring possession. Aplt. Br. at 23. W e review a district court s decision to give a particular jury instruction for an abuse of discretion and consider the instructions as a whole de novo to determine -13- whether they accurately informed the jury of the governing law. United States v. Gwathney, 465 F.3d 1133, 1142 (10th Cir. 2006). The definitional instruction did not misstate the law, at least in the context of this case. W e fail to see how omission of the instruction, or providing a definition using give rather than yield, could have affected the jury s ultimate finding of M s. Triana s guilt on the possession-with-intent-to-distribute count. A t oral argument on appeal her counsel urged that because the definition given by the court was passive ( yield ), it was easier for the jury to find that M s. Triana was guilty of possession with intent to distribute than it would have been had the definition included the more active word give. Give, in his view , would have required the jury to find that M s. Triana had taken an active role in the drugdistribution activity, rather than merely having been a passenger in the car where the drugs were found. But if the jury had found that M s. Triana was a mere passenger, with no responsibility for the drugs, it would have acquitted her because she did not possess the drugs. And if she is arguing that she would not be guilty of possession with intent to distribute just because someone else (M r. CallirgosNavetta?) w ould be the one who personally distributed her drugs (i.e., she would yield them to him for distribution), she is simply wrong. One who has joint possession of drugs with the intent that someone else actually handle the distribution is guilty of possession with intent to distribute. The law does not -14- permit a willing participant in crime to escape liability by keeping her hands clean. As the jury was instructed, one is guilty as an aider or abettor if she willfully associate[s] herself in some way with the criminal venture, and . . . willfully participate[s] in it as in something she wishes to bring about, and . . . willfully seeks by some action of hers to make it succeed. R. Vol. 1 Doc. 47 at 23 24; see United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999). W e can see no basis for acquitting M s. Triana that could have turned on the use of give rather than yield in the district court s instruction. Therefore, we need not speculate whether in some other case the use of the word yield could mislead a jury into reaching an improper verdict. III. C ON CLU SIO N M s. Triana s conviction is AFFIRMED. -15-

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