United States v. Gonzalez-Gonzalez ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS AUG 27 1997
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-2163
v. (D.C. No. CR-94-262-03-MV)
(NM)
JOSE GONZALEZ-GONZALEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
Jose Gonzalez-Gonzalez was convicted by a jury of one count of conspiracy
to possess more than 1000 kilograms of marijuana with intent to distribute, and
one count of possession with intent to distribute more than 1000 kilograms of
marijuana. He was sentenced to twenty years imprisonment. He appeals, 1
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
1
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
asserting that the evidence was insufficient to support his conviction. 2
The government asserts that Mr. Gonzalez waived his challenge to the
sufficiency of the evidence by failing to move for a judgment of acquittal at the
close of evidence at trial. We have stated that absent a motion for acquittal
following the presentation of the government’s evidence and the renewal of that
motion at the conclusion of the trial, federal courts will not pass on the
2
Mr. Gonzalez’ opening brief was filed by retained counsel and raised the
sufficiency of the evidence. Mr. Gonzalez filed a motion with this court asking
that the brief be stricken and that he be allowed to obtain substitute counsel.
Retained counsel then filed a request to withdraw as counsel, and advised us that
it gave Mr. Gonzalez instructions on his options with respect to requesting
appointed counsel or substitute counsel, and of the steps necessary to pursue his
appeal. Material submitted by retained counsel indicates that Mr. Gonzalez was
properly advised of his options. In addition, this court advised Mr. Gonzalez to
file a motion for appointment of counsel in district court. Mr. Gonzalez did so.
However, that motion is still pending because Mr. Gonzalez has not returned the
financial affidavit. Because Mr. Gonzalez has not completed the steps for
obtaining either appointed counsel or substitute retained counsel and has not
submitted a pro se brief, we address the issue raised in the brief filed by retained
counsel. Mr. Gonzalez’ motion to strike is denied and retained counsel’s motion
to withdraw is dismissed as moot.
In his motion, Mr. Gonzalez asserts that retained counsel was ineffective.
Ineffective assistance claims should be brought in collateral proceedings, not on
direct appeal. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en
banc). Such claims are presumed dismissible when brought on direct appeal and
virtually all of them will be dismissed. Id. Although we have considered such a
claim on direct appeal in those rare circumstances where it needs no further
development prior to our review, see, e.g., United States v. Gallegos, 108 F.3d
1272, 1279-80 (10th Cir. 1997), this case does not present those circumstances.
Accordingly, to the extent that Mr. Gonzalez’ motion can be construed as a pro se
assertion that his counsel was incompetent at trial or on appeal, it is dismissed as
premature.
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sufficiency of the evidence. See United States v. Guerrero, 517 F.2d 528, 530
(10th Cir. 1975). Although Mr. Gonzalez did not move for a judgment of
acquittal, he did argue unsuccessfully at the conclusion of trial that insufficient
evidence had been presented to establish the existence of a conspiracy for
purposes of the admission of coconspirator statements. In any event, as we
discuss below, the evidence was more than sufficient to support the verdict on
both counts.
In assessing the sufficiency of the evidence, we look at all the evidence in
the light most favorable to the government and draw all reasonable inferences in
favor of the verdict to determine if the evidence is substantial enough to establish
guilt beyond a reasonable doubt. United States v. Johnson, 42 F.3d 1312, 1319
(10th Cir. 1994). The evidence must do more than raise a mere suspicion, but it
need not conclusively exclude all other reasonable possibilities. Id. The offense
of conspiracy under 21 U.S.C. § 846 requires proof that the defendant knew at
least the essential objectives of the conspiracy and knowingly and voluntarily
became part of it. Johnson, 42 F.3d at 1319. An agreement may be inferred from
the acts of the parties and other circumstantial evidence indicating concerted
action for a common purpose. Id. Knowing participation may be inferred from
acts done in furtherance of the conspiracy. Id. To prove possession, the
government must show that the defendant had either actual or constructive
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possession. United States v. Hanif, 1 F.3d 998, 1003 (10th Cir. 1993).
Constructive possession is shown by evidence that the defendant had some
appreciable ability to guide the destiny of the drug, that he knowingly held the
power to exercise dominion and control over the drugs. Id.Viewed in this light, the evidence shows that Mr. Gonzalez was part of a
drug conspiracy involving approximately 5000 pounds of marijuana. His role in
the conspiracy was to arrange for the transportation of this marijuana from El
Paso, Texas to California. Mr. Gonzalez recruited Jose Ramirez, the owner-
operator of a tractor trailer truck, to meet him with the truck in El Paso, load the
drug in the truck, and drive the load to California. Mr. Gonzalez gave Mr.
Ramirez a beeper number to call when he arrived in El Paso. When Mr. Ramirez
called the number, Mr. Gonzalez and another coconspirator came to meet him in a
rented gray Ford Taurus and led him to the warehouse at which the marijuana was
stored. While the marijuana was being loaded on the truck, Mr. Gonzalez and Mr.
Ramirez drove the Taurus to obtain a bill of lading for the load.
Mr. Ramirez was concerned about a border checkpoint that the truck would
have to pass west of Las Cruces, New Mexico. Mr. Gonzalez agreed to “scout”
the checkpoint by driving through it in a gold Lincoln Towncar rented by another
coconspirator and dialing Mr. Ramirez on a beeper if the checkpoint were open.
Mr. Ramirez’ instructions were to avoid the checkpoint if he was beeped.
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When the gold Lincoln passed through the open checkpoint, the border
patrol agents figured it was a scout car, and referred it to a secondary inspection
area. They found no reason to detain the car, however, and allowed it to leave.
The agents subsequently observed that the car had turned around and was
traveling back the way it had come. Two agents followed it after it again passed
by the checkpoint going in the opposite direction. Shortly thereafter, Mr. Ramirez
arrived at the checkpoint because he had apparently been out of range to receive
the beep from Mr. Gonzalez. Mr. Ramirez was referred to the secondary
inspection area where the truck was subjected to a dog sniff, searched, and the
marijuana was discovered. Mr. Ramirez was arrested and placed in a holding cell
at the checkpoint. While he was in the cell, Mr. Ramirez heard over the station
intercom that the gold Lincoln was back at the checkpoint again. He informed the
agents that the Lincoln was involved in the conspiracy, and then provided other
information, including information concerning the gray Taurus, that enabled the
agents to immediately arrest Mr. Gonzalez and the other coconspirators.
Much of the above evidence implicating Mr. Gonzalez was provided
through the testimony of Mr. Ramirez, who was cooperating as part of a plea
bargain. A criminal conviction may be upheld solely on the uncorroborated
testimony of a coconspirator, if the testimony is not incredible or insubstantial.
United States v. McIntyre, 997 F.2d 687, 708 (10th Cir. 1993). The credibility of
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Mr. Ramirez was strenuously challenged during trial and his motive to testify
favorably to the government was vigorously presented to the jury, which
nonetheless determined he was credible. That assessment is committed
exclusively to the finder of fact, and we may not reweigh the credibility of
witnesses. United States v. Youngpeter, 986 F.2d 349, 352-53 (10th Cir. 1993).
When the evidence as a whole is considered most favorably to the
government, it supports the jury verdict overwhelmingly. Mr. Gonzalez was
clearly an integral part of the conspiracy and committed many acts to further its
goals. His constructive possession is established by his activity in scouting the
checkpoint and his authority to direct the truck containing the marijuana away
from the checkpoint upon discovering that it was open. Accordingly, Mr.
Gonzalez’ conviction is AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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