United States v. Bonner ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 24 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-8090
(D.C. No. 97-CR-0016-J)
RICHARD JAMES BONNER, (District of Wyoming)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and LUCERO, Circuit Judges.
On January 17, 1997, Defendant-Appellant Richard James Bonner was
charged with one count of conspiracy to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 846, and one count of possession
with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
A jury found Bonner not guilty on the conspiracy charge and guilty on the
possession with intent to distribute charge. Bonner challenges his conviction on
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This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
two grounds: (1) there was insufficient evidence for his possession with intent to
distribute conviction, and (2) the trial court should have granted Bonner’s
acquittal motion. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.
To convict Bonner of possession of methamphetamine with intent to
distribute under 21 U.S.C. § 841(a)(1), the government had to prove that Bonner
possessed a controlled substance, knew that he possessed a control substance, and
intended to distribute the controlled substance. See United States v. Wilson, 107
F.3d 774, 778 (10th Cir. 1997). Bonner contends that the government failed to
meet its burden on the third element because there was insufficient evidence to
establish his intent to distribute.
We review sufficiency of the evidence questions de novo. See United
States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998). Evidence is sufficient to
support a conviction if the evidence and reasonable inferences drawn therefrom,
viewed in the light most favorable to the government, would allow a reasonable
jury to find the defendant guilty beyond a reasonable doubt. Id. In examining the
evidence, we evaluate the sufficiency of the evidence by considering the
collective inferences to be drawn from the evidence as a whole. See United States
v. Johnson, 130 F.3d 1420, 1428 (10th Cir. 1997), cert. denied, 119 S.Ct. 78(1998). We will not overturn a jury’s finding unless no reasonable juror could
have reached the disputed verdict. Id.-2-
Reviewing the evidence in the light most favorable to the government, we
find that the combination of the various pieces of evidence provides sufficient
grounds for a reasonable jury to conclude that Bonner intended to distribute the
methamphetamine. The evidence is as follows. In December 1996, Bonner and
an acquaintance, Memory Pachowicz, lived in Rapid City, South Dakota. The
following month, Bonner and Pachowicz drove to Spokane, Washington with the
remainder of 18 ounces of methamphetamine that Pachowicz had stolen from her
boyfriend. (App. Vol. 3, at 45.) Prior to leaving for Spokane, Pachowicz
repackaged the drugs into small bundles and distributed it for resale. (Id.)
Pachowicz sold portions of this methamphetamine to Bonner on two different
occasions, once selling him a gram, (id. at 46), and another time selling him a
quarter of an ounce (7.1 grams). (Id. at 54.) Pachowicz also “fronted” Bonner an
additional ounce and a half of methamphetamine (42.5 grams) — meaning, she
advanced methamphetamine to Bonner for no money up front in exchange for a
promise to payback the money earned on resale of the substance. (Id. at 45-46,
49-50.) Pachowicz added that Bonner “was supposed to be my partner,” (id. at
51), that Bonner was present the majority of the time when Pachowicz made sales
of methamphetamine, (id. at 52), and that they had an understanding that as soon
as they arrived in Spokane, they would use, distribute, and sell the rest of the
methamphetamine “to have money to live on.” (Id. at 78, 80.) Pachowicz had
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assumed that Bonner would make enough money from the profit of the
methamphetamine sales that he could buy himself a car and return to Rapid City
from Spokane. (Id. at 115.)
During their drive to Spokane, Bonner and Pachowicz stopped at the Flying
J Truck Stop in Gillette, Wyoming and became involved in a heated argument
over accusations that Bonner was stealing methamphetamine. (Id. at 112.) The
argument turned violent and Pachowicz shot at Bonner with her pistol, but
missed. (Id. at 63.) The police were summoned to investigate this disturbance and
after subsequent arrests discovered: (1) Bonner concealing 3.5 grams of
methamphetamine, inside his sock, that had been divided and packaged into five
or six separate bindles, (id. at 134-37, 174, 176, 183, 212, 217); (2) Six empty
plastic bags found on Bonner, (id. at 139-49); (3) Three hundred dollars in cash
hidden underneath the insole liner of Bonner’s right shoe, (id. at 138-39, 149);
and (4) Nine individually wrapped bags of methamphetamine, (id. at 210-11),
weighing 70 grams, (id. at 215), that were hidden in a tissue box that Bonner had
concealed in a birdcage that was in Pachowicz’s car, (id. at 191-92).
When considered collectively and in the light most favorable to the
government, the evidence clearly provides grounds for a reasonable jury to
conclude that Bonner intended to distribute methamphetamine. There was
testimony that Bonner had previously sold methamphetamine to three different
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customers, (id. at 55, 81-83), that the $300 hidden in Bonner’s shoe were drug
sale profits, (id. at 104), and that Bonner intended to sell more methamphetamine
in the future, (id. at 78-80). Indeed, an officer testified that the 3.5 grams of
methamphetamine and the empty baggies found on Bonner were indicative of a
drug distribution scheme. (Id. at 140.)
Bonner’s attempts to portray the evidence as proof of only possession and
not an intent to distribute are unpersuasive given the standard of review for
sufficiency claims. For example, Bonner argues that the $300 hidden in his shoe
were a gift from his mother and were not profits from drug sales. (Aplt. Br. at
10.) However, this argument was already apparently rejected by the jury, and
given the plethora of evidence described above, there was sufficient evidence for
a reasonable jury to conclude that Bonner intended to distribute
methamphetamine.
Since the standard of review for sufficiency of the evidence and motions
for judgment of acquittal are the same, compare Bell, 154 F.3d at 1208(sufficiency of the evidence) with United States v. Janusz, 135 F.3d 1319, 1323
(10th Cir. 1998) (motion of acquittal), Bonner’s acquittal motion is likewise
denied.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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