United States v. Joyce Lynn Govea , 270 F. App'x 884 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 25, 2008
THOMAS K. KAHN
No. 07-10275
CLERK
________________________
D. C. Docket No. 05-10026-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOYCE LYNN GOVEA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 25, 2008)
Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Joyce Lynn Govea appeals her convictions for possession of
methamphetamine with intent to distribute it, 21 U.S.C. § 841(a)(1), and
conspiracy to do so, 21 U.S.C. § 846. Govea makes four arguments on appeal: (1)
the use by the government of her refusal to consent to a search as substantive
evidence of her guilt violated her due process rights; (2) the evidence was
insufficient to support her convictions; (3) the district court improperly instructed
the jury; and (4) the district court erred when it denied her motion for a new trial.
In the light of the confession of error by the government regarding the first issue,
we vacate Govea’s convictions. Because we conclude that sufficient evidence
supports Govea’s convictions, we remand for a new trial. Our resolution of these
issues renders the remaining issues moot.
Govea was a passenger in a vehicle that was stopped by police officers after
they intercepted a telephone call between the driver, Govea’s live-in girlfriend, and
a third person. The call suggested that a drug transaction was about to occur.
Officers arrested the driver for driving with a suspended license. Officers observed
a large amount of currency in the open glove box and several bags in the back of
the vehicle. Govea said that the bags belonged to her. An officer asked Govea if
he could search her bags, and Govea said that she did not want them searched. The
officer examined the currency in the glove box, and Govea volunteered that it was
counterfeit money intended for a friend.
The vehicle was towed to an impound lot where dogs alerted officers that the
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bags might contain controlled substances. The officers discovered that one bag
contained 11 small bags of methamphetamine. In the console of the vehicle,
officers found a wallet that contained Govea’s identification and another small bag
of the same kind of methamphetamine.
At trial, the government relied on Govea’s refusal to consent to a search of
the bags. During his opening statement, the prosecutor argued that Govea refused
to consent “because she knew that there was methamphetamine in that green bag.”
An officer testified that Govea refused to consent, and the prosecutor returned to
the issue during his closing argument.
Govea argues that the use of her refusal to consent as substantive evidence
against her was erroneous, and the government agrees that the error requires
reversal. In the light of the confession of error by the government, we must vacate
Govea’s convictions.
The government asks us to remand for a new trial, but we must first address
Govea’s argument about the sufficiency of the evidence. See United States v.
Palzer, 745 F.2d 1350, 1352 n.4 (11th Cir. 1984). “[I]f the properly admitted
evidence presented by the government was insufficient to carry its burden of proof,
then [Govea’s] retrial would be prohibited by the double jeopardy bar.” United
States v. Khoury, 901 F.2d 948, 961 (11th Cir. 1990). Govea’s argument that the
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evidence is insufficient fails.
Govea argues that the government proved no more than her association with
a distributor of controlled substances and her presence at the scene of a crime, see
United States v. Hernandez, 896 F.2d 513, 519 (11th Cir. 1990), but the evidence
establishes more. Govea was the passenger in a vehicle that contained a several
bags, one of which contained small bags of methamphetamine. The vehicle was
driven by Govea’s live-in girlfriend who pleaded guilty to possession of
methamphetamine with intent to distribute it, and Govea told an officer that the
bags were hers. Govea also identified as counterfeit the large amount of currency
found in the car. Officers found a small amount of methamphetamine in Govea’s
wallet, which an officer testified could represent a sample for a prospective buyer.
A reasonable jury could find from this evidence that Govea possessed
methamphetamine with intent to distribute it and conspired to do so.
We VACATE Govea’s convictions and REMAND for a new trial.
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