                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               AUG 17 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                No. 97-2296
                                                    (D. Ct. No. CR-96-704-HB)
 BERNARDO HERNANDEZ-                                        (D. N. Mex.)
 CASTILLO,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and KELLY, Circuit Judges.


      The defendant was found guilty of possession with intent to distribute more

than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C), and for aiding and abetting in violation of 18 U.S.C. § 2. He appeals

his conviction on two different grounds. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.




      *
        This order and judgment is not binding precedent, except under the doctrines of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.
      On November 11, 1996, United States Border Patrol Agent James Scott

stopped at several motels in Las Cruces, New Mexico to look for suspicious

vehicles that he believed could be harboring contraband or undocumented aliens.

At the Western Inn motel, Agent Scott observed a male driver and a female

passenger exit a brown 1977 Chevrolet pickup truck and walk toward the motel.

Agent Scott conducted a canine inspection on the truck. The dog immediately

alerted to the area between the cab and the bed. Several agents inspected the

vehicle and discovered evidence they considered to be consistent with false

compartments in the bed of the truck.

      The agents observed a man later identified as Francisco Castaneda-Lopez

standing barefoot in the breezeway of the motel. The agents thought he appeared

surprised and fearful. After questioning Mr. Castaneda-Lopez, the agents

determined he was an illegal alien and detained him. The agents escorted Mr.

Castaneda-Lopez to his motel room to retrieve his shoes and discovered Bernardo

Hernandez-Castillo and Priscilla Delgado fully clothed in bed. Agent Scott

noticed a set of keys on the motel room dresser he believed were the keys to the

brown pickup truck. Agent Scott unequivocally asked all the occupants of the

room whom the keys belonged to. Mr. Hernandez-Castillo did not respond until

Ms. Delgado indicated that he had been the driver of the truck. He reluctantly

provided an additional ignition key to the truck that he stored in his wallet


                                         -2-
wrapped in layers of tissue paper. Mr. Hernandez-Castillo was taken into custody

and the truck was seized. At that time, Mr. Hernandez-Castillo admitted that he

was the owner of the truck, and he indicated that he had purchased it two weeks

earlier from Mr. Castaneda-Lopez.

      Pursuant to a vehicle search, agents subsequently uncovered approximately

122 pounds of marijuana concealed in false compartments inside the wheel wells

and front bed of the truck. Mr. Hernandez-Castillo and Mr. Castaneda-Lopez,

were indicted on November 11, 1996. They were tried together before a jury. At

trial, Mr. Hernandez-Castillo admitted ownership of the truck, but denied

knowledge that marijuana was concealed therein. At the conclusion of the

government’s case, both defendants moved for judgments of acquittal pursuant to

Fed. R. Crim. P. 29(a). The trial court granted Mr. Castaneda-Lopez’s motion,

but denied Mr. Hernandez-Castillo’s motion. After all evidence was presented,

the jury found Mr. Hernandez-Castillo guilty.

      Mr. Hernandez-Castillo appeals on two grounds. He contends the evidence

at trial was insufficient to support the jury’s finding that he possessed marijuana

with intent to distribute. He also argues that the district court erred by not

declaring a mistrial after it dismissed the case against Mr. Castaneda-Lopez,

while allowing the same jury to decide the case against Mr. Hernandez-Castillo.

With regard to each challenge, we affirm the district court.


                                         -3-
I.    Sufficiency of the Evidence

      In determining whether there is sufficient evidence to support the jury’s

verdict, this court reviews the record de novo. See, e.g., United States v. Wilson,

107 F.3d 774, 778 (10th Cir. 1997). Evidence sufficiently supports a verdict if,

when considered in the light most favorable to the government, it would allow a

reasonable juror to find the defendant guilty beyond a reasonable doubt. See id.

In evaluating the evidence under this standard, the court will not question a jury’s

credibility determinations or its conclusions about the weight of the evidence.

See United States v. Johnson, 57 F.3d 968, 971 (10th Cir. 1995).

      To obtain a conviction for possession of marijuana with intent to distribute

under 21 U.S.C. § 841, the government must prove that Mr. Hernandez-Castillo

(1) possessed a controlled substance, (2) knew he possessed a controlled

substance, and (3) intended to distribute the controlled substance. See United

States v. Mains, 33 F.3d 1222, 1228 (10th Cir. 1994). With regard to the first

element, the statute does not require a defendant to have had actual possession of

the marijuana; constructive possession is sufficient. See id. An individual has

constructive possession over an object when he or she knowingly has exclusive

ownership, dominion, or control over the object or the premises where the object

is found. See United States v. Taylor, 113 F.3d 1136, 1144-45 (10th Cir. 1997).

Here, there is no question that Mr. Hernandez-Castillo exclusively owned the


                                        -4-
truck in which the narcotics were found. He admitted such at trial. Thus, the first

element is satisfied.

      The second element—whether the defendant knew he possessed a

controlled substance—is disputed by the parties. Mr. Hernandez-Castillo urges us

to adopt the Fifth Circuit’s approach of looking for additional factors indicating

knowledge in cases in which contraband is discovered in hidden compartments

within a vehicle. See United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.

1995). It is unnecessary, however, for us to decide whether to follow the Fifth

Circuit approach. In reviewing the evidence in the light most favorable to the

government, we find sufficient evidence from which a reasonable jury could have

found the defendant guilty beyond a reasonable doubt even if we were to require

additional evidence indicating knowledge of possession.

      First, we look at Mr. Hernandez-Castillo’s connection to the truck. He

testified that he drove the truck every day he had work. Two cans of plumbing

sealant, used to line the false compartments, were found in the truck. Finally,

Agent Scott testified that Ms. Delgado identified Mr. Hernandez-Castillo as the

driver of the truck.

      Next, we look at the evidence of Mr. Hernandez-Castillo’s hesitant

behavior as described by Agent Scott. Mr. Hernandez-Castillo was reluctant to

claim ownership of the truck and to produce its keys. This allows a reasonable


                                        -5-
juror to infer guilty knowledge that defendant possessed contraband. A jury’s

reasonable inference of Mr. Hernandez-Castillo’s knowledge is further supported

by the evidence presented by the government showing that the marijuana was

reasonably fresh and that the addition of the false compartments were recent. This

evidence would allow a reasonable juror to discount the defense’s theory that both

the false compartments and the contraband concealed therein were in place prior

to the defendant’s taking possession of the truck. The circumstantial evidence

similarly permitted the jury to draw a reasonable inference that Mr. Hernandez-

Castillo was at the motel, in an area with high levels of drug and alien smuggling

activity, in order to wait for an opportunity to cross the border checkpoints when

they were closed.

      Furthermore, the defendant admitted on cross-examination lying to border

patrol agents on two occasions, the first when he initially denied ownership of the

truck, and the second when he gave them a false address for his claimed residence

in the United States. In light of the totality of evidence, we conclude there is

sufficient evidence to support a finding that defendant knew he possessed a

controlled substance.

      On the third element of a section 841 case—intent to distribute the

controlled substance—Mr. Hernandez-Castillo does not assert that the evidence

was insufficient to demonstrate intent. Thus, in evaluating the evidence under the


                                         -6-
three-part standard, we conclude there is sufficient evidence to support a

conviction against defendant for possession of marijuana with intent to distribute.

II.   Right to a Fair Trial

      Mr. Hernandez-Castillo argues that the district court prejudiced the case

against him and violated his constitutional rights to due process and a fair and

impartial trial by failing to declare a mistrial after dismissing the case against Mr.

Castaneda-Lopez. Mr. Hernandez-Castillo did not move for a mistrial below nor

object at any time to the continuation of the trial, thus we simply review for plain

error. See United States v. Young, 470 U.S. 1, 15-16 (1985). Accordingly, our

review is limited to determining whether the district court’s decision not to sua

sponte declare a mistrial so prejudiced the case against the defendant and

impinged on the fundamental fairness of the trial process, see id. at 16, that, in

view of all the circumstances, the defendant must be deemed to have been

deprived of his Fifth Amendment due process or Sixth Amendment impartial jury

guarantees. Under this standard, there was clearly no plain error here. The

district court properly instructed the jury not to draw any conclusions from the

dismissal of the case against Mr. Hernandez-Castillo’s co-defendant. Such

curative instructions were sufficient here to protect the defendant from prejudice

amounting to plain error.

      Based upon the foregoing conclusions, we find that the evidence was


                                         -7-
sufficient to sustain the conviction, and we also find that the district court did not

plainly err in not declaring a mistrial. Therefore, we affirm the decision of the

district court.

                                        ENTERED FOR THE COURT,


                                        Deanell Reece Tacha
                                        Circuit Judge




                                          -8-
