                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JAN 28 2002
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 01-2167
 DARYL WAYNE WILKERSON, also                           (D.C. No. CR-00-557-LH)
 known as Daryl Wayne Haynes,                                 (D. N.M.)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before BRISCOE, ALARCON,** and ANDERSON, Circuit Judges.



       Defendant Daryl Wilkerson appeals his conviction of aiding and abetting

possession with intent to distribute more than five grams of cocaine base, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. He contends his conviction was not

supported by sufficient evidence. We affirm.



       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and 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.
       **
           The Honorable Arthur L. Alarcon, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
                                               I.

       While on patrol on January 8, 1999, Officers Rodney Porter and Orin Tubbs of the

Hobbs, New Mexico, Police Department made a u-turn and began following a brown

Buick automobile. The automobile immediately turned right and began moving at a high

rate of speed. As the officers followed, the automobile veered into the oncoming lane of

traffic and then drove down the center of the street. Officer Porter activated the

emergency lights on the patrol car. Officer Tubbs estimated that the Buick continued

traveling for seven or eight blocks before it stopped.

       Officer Porter approached the Buick and talked to Wilkerson, the driver. Officer

Porter knew Wilkerson because he had arrested him the year before after discovering

crack cocaine in Wilkerson's vehicle as the result of a tip. Officer Porter testified that he

smelled alcohol on Wilkerson's breath. Wilkerson admitted he recently drank a beer.

After he performed some field sobriety tests, Officer Porter arrested him for reckless

driving and driving while intoxicated. According to Officer Porter, Wilkerson seemed

nervous and gave several reasons for speeding (including that he was in a hurry to visit

his girlfriend in the hospital, but he was driving in the opposite direction of the hospital).

He also stated that he was tired and that he was scared.

       While Officer Porter was talking to Wilkerson, Officer Tubbs talked to the

passenger, Ronnie Meridyth. When Meridyth got out of the Buick, Officer Tubbs noticed

his pants pocket was turned inside out. After arresting Wilkerson, the officers


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backtracked along the route they had followed the Buick and discovered a ball of

electrical tape in the roadway. Inside the ball of tape were eight baggies containing 44.57

grams of a substance later determined to be crack cocaine. Fingerprints found on four of

the baggies matched those of Wilkerson and on one of the baggies matched those of

Meridyth.

                                             II.

       Wilkerson's sole contention is there was insufficient evidence to convict him of

aiding and abetting possession with intent to distribute cocaine. He argues that in order to

convict him, the jury would have had to pile inference upon inference.

       The question of whether the evidence at trial was sufficient is reviewed de novo.

United States v. Bindley, 157 F.3d 1235, 1237 (10th Cir. 1998). We view the evidence

and the reasonable inferences therefrom in the light most favorable to the government and

ask whether a reasonable jury could find defendant guilty beyond a reasonable doubt. We

reverse only if we conclude no reasonable jury could have reached the disputed verdict.

Id.

       The jury, as fact finder, has discretion to resolve all conflicting testimony,
       weigh the evidence, and draw inferences from the basic facts to the ultimate
       facts. However, we may not uphold a conviction obtained by piling
       inference upon inference. The evidence supporting the conviction must be
       substantial and do more than raise a suspicion of guilt.

United States v. Anderson, 189 F.3d 1201, 1205 (10th Cir. 1999) (internal quotations

omitted).


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       The crime of possession of cocaine with intent to distribute requires that the

government establish beyond a reasonable doubt that (1) defendant knowingly possessed

the illegal drug; and (2) defendant possessed the drug with the specific intent to distribute

it. United States v. Garcia, 182 F.3d 1165, 1174 (10th Cir. 1999). To prove the crime of

aiding and abetting, the government must prove that defendant willfully associated

himself with the criminal venture and sought to make the venture succeed through some

action of his own. Anderson, 189 F.3d at 1207.

       Contrary to Wilkerson's argument, it is not necessary to pile inference upon

inference to sustain his conviction. Substantial circumstantial evidence exists from which

a reasonable juror could conclude that Wilkerson knowingly aided and abetted the

possession of cocaine with intent to distribute. When it appeared that the officers might

stop the automobile he was driving, Wilkerson attempted to evade the officers by

speeding. The pants pocket of the passenger in the Buick was inside out, suggesting he

had discarded something from his pocket. This led the officers to retrace the path of the

Buick and resulted in discovery of the drugs. Tests revealed the drugs to be crack cocaine

in an amount so large and packaged in such a way that a reasonable juror could infer the

drugs were intended to be distributed. At trial the government presented the testimony of

Drug Enforcement Agent Mark Payne that, judging from the amount of cocaine and the

manner in which it was packaged, it was his opinion the drugs were for distribution rather

than personal use. Tests also revealed that Wilkerson's fingerprints were on four of the


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baggies in which the drugs were packaged, from which a reasonable juror could infer that

Wilkerson had knowledge of the contents of the baggies. There was sufficient evidence

to convict Wilkerson of aiding and abetting the possession of cocaine with intent to

distribute.

       AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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