                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PU BL ISH
                                                                      August 14, 2006
                    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT



 UNITED STATES OF AM ERICA,
       Plaintiff-Appellee,
 v.                                                     No. 05-3341
 C UI Q IN ZH A N G ,
       Defendant-Appellant.




         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                     FOR T HE DISTRICT OF KANSAS
                       (D .C . No. 04-CR-40084-JAR)


Ronald E. W urtz, Assistant Federal Public Defender for the District of Kansas
(David J. Phillips, Federal Public Defender, and Kirk C. Redmond, Assistant
Federal Public D efender, with him on the brief), Topeka, Kansas, for D efendant-
Appellant.

Anthony W . M attivi, Assistant United States Attorney (Eric F. M elgren, United
States Attorney, with him on the brief), District of Kansas, Topeka, Kansas, for
Appellee.


Before M U RPH Y, HOL LOW AY, and M cK AY, Circuit Judges.


M cK A Y, Circuit Judge.
      As a black Lexus w hizzed eastbound along I-70, swerving in and out of its

lane, Sergeant Schneider of the Russell County Sheriff’s office pulled over the

speeding car. Upon approaching the Lexus, Sergeant Schneider found the driver,

M s. Zhang, and a male passenger later identified as M r. Chen who was sitting in

the rear passenger seat.

      Sergeant Schneider asked for M s. Zhang’s driver’s license and proof of the

vehicle’s insurance, which she promptly handed over to him. He asked M s.

Zhang where she was headed, and she responded that she was en route to

Columbus, Ohio, to visit her family and that she owned the Lexus. Sergeant

Schneider did not observe any luggage in the backseat, and he also noted that M s.

Zhang seemed very nervous and was fidgeting in her seat.

      Upon confirming that M s. Zhang owned the Lexus and issuing her a written

warning, he asked M s. Zhang if he could ask her a question. She agreed, and

Sergeant Schneider inquired about the presence of contraband in her vehicle.

Sergeant Schneider testified that M s. Zhang responded, “No. Never. Never.” H e

then asked for her permission to search the vehicle, to which she consented.

After M s. Zhang pressed a button to release the trunk lid, she walked back with

Sergeant Schneider and stood behind the vehicle. Inside the trunk was one small

yellow bag containing female clothing and a cardboard box.

      Sergeant Schneider asked M s. Zhang if he could open the box. W hen she

agreed, he asked to her to step to the front of the vehicle. As M s. Zhang walked

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down the driver’s side and Sergeant Schneider busied himself with opening the

box, M s. Zhang leapt into the car, slammed the door, and sped away. Sergeant

Schneider jumped into his vehicle and gave chase to the Lexus, which was driving

approximately 130 miles per hour. Nearly eight miles later, the Lexus exited the

interstate and attempted a right turn at the top of the ramp. The vehicle lost

control, flipped, and rolled down the other side of the off-ramp. The passenger,

M r. Chen, was transported by ambulance and M s. Zhang was transported by

Lifewatch helicopter to the hospital.

      Strewn about the field were a number of packages shaped like bricks.

These w ere found to contain cocaine. Officers also discovered a pillow case

w hich contained several packages of pills. The pills proved to contain M DM A,

comm only known as Ecstasy. In all, there were fifteen packages of cocaine and

seven packages of pills found among the wreckage, totaling approximately fifteen

kilogram s of cocaine and fifteen kilograms of M DM A.

      M s. Zhang was detained pretrial at a correctional facility in Leavenworth.

A number of her calls from that facility were recorded. Because the language in

the calls was a Chinese dialect, the Government asked Detective Sun, of the Los

Angeles Police Department, to translate them. Prior to Detective Sun’s testimony

regarding the content of those calls, the parties stipulated that M s. Zhang, during

a phone call from Leavenworth, made a statement that should be translated as

“[r]eally, didn’t I used to tell you, after I came in, it’s like . . . I knew the car had

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drugs.” The parties also stipulated that the phrase “it’s like” is a transitional

phrase similar to “you know” or other similar English transitional phrases. The

court interpreter also read into the record the remainder of the call from which the

phrase was extracted. During the remainder of the call, M s. Zhang stated that “I

know for a fact that I didn’t do it.”

      After a jury trial, M s. Zhang was convicted of possession with intent to

distribute fifteen grams of cocaine and possession with intent to distribute fifteen

grams of Ecstasy, each count a violation of 21 U.S.C. § 841(a)(1). She was

sentenced to 180 months of imprisonment. M s. Zhang appeals her conviction and

sentence, arguing that (1) the evidence presented at trial was legally insufficient

to sustain her conviction, and (2) the district court erred by failing to perform its

gatekeeping function before admitting expert testimony that M s. Zhang had

confessed to the crime.

      W e review de novo an appellant’s claim of insufficiency of the evidence to

support her conviction. United States v. Serrata, 425 F.3d 886, 895 (10th Cir.

2005). Additionally, the evidence presented at trial is viewed in a light most

favorable to the government “to determine whether any rational juror could have

found the elements of the crime beyond a reasonable doubt.” United States v.

Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005). The sufficiency challenge focuses

entirely on M s. Zhang’s knowledge of the presence of drugs in the car.

      M s. Zhang’s dangerous and precipitous decision to jump back into her car

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and speed away at 130 miles per hour, disobeying Sergeant Schneider’s direction

to stay put, strongly conveys guilt. The Supreme Court has recognized that a

defendant’s flight is suggestive of wrongdoing. Illinois v. Wardlow, 528 U.S.

119, 124 (2000) (finding that “[h]eadlong flight–wherever it occurs–is the

consummate act of evasion: It is not necessarily indicative of wrongdoing, but it

is certainly suggestive of such.”). Likewise, we have stated that “[i]t is well

recognized that a defendant’s intentional flight from police officers may be used

as circumstantial evidence of guilt.” United States v. Fernandez, 18 F.3d 874,

879 n.4 (10th Cir. 1994) (citing United States v. Slater, 971 F.2d 626, 636 n.4

(10th Cir. 1992)).

      Testimony about M s. Zhang’s generally nervous behavior is another factor

that the jury may have evaluated in considering the evidence presented. W e have

held, in a similar case, that nervous behavior, only when considered with all other

evidence presented against the defendant, was sufficient for a rational jury to find

the defendant guilty of possession with intent to distribute cocaine. See United

States v. Johnson, 57 F.3d 968, 973 (10th Cir. 1995) (“Viewing the record in the

light most favorable to the government and giving due deference to the jury’s

assessment of the evidence and witness credibility, we conclude that a rational

jury could have found beyond a reasonable doubt that [defendant] possessed the

mens rea required for both offenses.”).

      Last, the testimony of M r. Chen implicating M s. Zhang and revealing her

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knowledge that the vehicle contained drugs was additional evidence that the jury

could weigh to determine guilt. Although M r. Chen’s testimony has been

characterized by M s. Zhang as “blatantly inconsistent” and “inherently

improbable,” the record establishes that the jury was in the best position to try the

evidence presented. For example, the jury heard from M r. Chen that he

experienced difficulty and confusion in seeking to understand the interpreter

during his second pre-trial interview. W e stand by our pronouncement that we

“may not weigh conflicting evidence or consider the credibility of witnesses, but

must accept the jury’s resolution of the evidence as long as it is within the bounds

of reason.” Valdez v. Bravo, 373 F.3d 1093, 1097 (10th Cir. 2004) (emphasis

added).

      For the reasons listed above–M s. Zhang’s flight, nervous behavior, and her

co-passenger’s incriminating testimony–we hold that the evidence presented at

trial was legally sufficient to sustain her conviction.

      As to M s. Zhang’s second claim, that the district court did not perform its

gatekeeping function in admitting the expert testimony of Detective Sun, we

review for abuse of discretion. United States v. M cDonald, 933 F.2d 1519, 1522

(10th Cir. 1991).

      Specifically at issue is the testimony of Detective Sun regarding a tape

recording of M s. Zhang’s pre-trial telephone call from a correctional facility.

During this phone call, it is uncontroverted that M s. Zhang said, “Really, didn’t I

                                          -6-
used to tell you, after I came in, it’s like . . . I knew the car had drugs.” The trial

record indicates that the court and counsel had long colloquies concerning how

the statement from the telephone conversation should be admitted. Ultimately, it

was both read by a court interpreter and played by recording to the jury. Later,

Detective Sun testified that “I knew the car had drugs” is an independent phrase

standing on its own and that M s. Zhang could have used alternative language to

state “after I came to jail, I learned that the car had drugs.”

      “W hile the district court has discretion in the manner in which it conducts

its Daubert analysis, there is no discretion regarding the actual performance of

the gatekeeper function.” Goebel v. Rio Grande Western R.R. Co., 215 F.3d

1083, 1087 (10th Cir. 2000). W e went on to say in Goebel:

      Our holding recognizes that the district court need not recite the
      Daubert standard as though it were some magical incantation or
      apply all of the reliability factors suggested in Daubert and
      Kumho . . . . But we specifically hold that a district court, when
      faced with a party’s objection, must adequately demonstrate by
      specific findings on the record that it has performed its duty as
      gatekeeper.

Id. at 1088 (citations and quotations omitted). Here, a review of the trial record

reveals the following two responses to M s. Zhang’s counsel’s repeated objections

to Detective Sun’s qualification to interpret as a linguist: (1) “W ell, I’ll overrule.

This is a native M andarin Chinese Speaker who has been speaking English since

he was 10 years old. And I take it . . . he’s probably over 30 since he’s been a

police officer for 14 years;” and (2) “All right, I will overrule, w ith that going to

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the weight of the evidence rather than admissibility.” These statements, while

certainly not the most expansive imaginable, nevertheless indicate the district

court’s performance of its gatekeeping function. The district court noted

Detective Sun’s age and the fact that he had grown up speaking M andarin when it

admitted him as an expert to testify about the meaning of a statement. W e

conclude that it was not error for Detective Sun to be qualified as an expert.

      Consequently, we A FFIR M the judgment of the district court.




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