                                                                                F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  OCT 2 1997
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 97-2018
                                                       (D.C. No. CR-95-625-HB)
 EUGENIO GUTIERREZ-MORAN,                               (District of New Mexico)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Submitted on the Briefs.
                           _________________________________

Before SEYMOUR, Chief Judge, PORFILIO, Circuit Judge, and BRORBY, Circuit
Judge.



       The parties have requested this case be submitted on the briefs. We have honored

that request, and this matter has been submitted without oral argument.

       Defendant Eugenio Gutierrez-Moran argues that: (1) the district court erred in

denying his motion for severance; and (2) the government failed to present sufficient

evidence to sustain his conviction. Believing the evidence is insufficient, we reverse.


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
       Eugenio Gutierrez-Moran is the brother of Jose Gutierrez-Moran, a codefendant

whose conviction is before us in another matter. For the purpose of this disposition, we

merely need point out this case involves 293 pounds of marijuana that was found behind

the panels of a van which Jose was driving and in which Eugenio was riding. Eugenio

and Jose were arrested together, indicted for possession with intent to distribute more than

100 kilograms of marijuana together, tried together, and convicted together.

       Defendant argues the government failed to present sufficient evidence upon which

a jury could find beyond a reasonable doubt that he knew Jose’s van was transporting

marijuana. He points out the government’s only evidence of his knowledge of the

marijuana consisted of the facts his hands were shaking when he was stopped at the

border checkpoint and a border patrol agent could smell marijuana near the back of the

van. Defendant argues this evidence is clearly insufficient because: (1) the van did not

belong to him and crossed the Mexican border at times when he could not have been

present; (2) no evidence of drug-trafficking was found at his home; and (3) his ignorance

of the marijuana was confirmed by Jose’s testimony at trial.

       We review a district court’s determination that sufficient evidence exists to support

a conviction de novo. United States v. McDermott, 64 F.3d 1448, 1457 (10th Cir. 1995).

Evidence is sufficient to support a conviction if, considering both direct and

circumstantial evidence in a light most favorable to the government, a reasonable jury

could find the defendant guilty of the crime charged beyond a reasonable doubt. United


                                            -2-
States v. Clark, 57 F.3d 973, 976 (10th Cir. 1995). To support a guilty verdict, the

evidence presented “need not conclusively exclude every other reasonable hypothesis and

need not negate all possibilities except guilt.” United States v. Parrish, 925 F.2d 1293,

1297 (10th Cir. 1991), abrogated on other grounds by United States v. Wacker, 72 F.3d

1453 (10th Cir. 1996). Accord Clark, 57 F.3d at 976; United States v. Hooks, 780 F.2d

1526, 1531 (10th Cir. 1986). Moreover, a criminal conviction may be sustained on

circumstantial evidence alone. Hooks, 780 F.2d at 1529.

       Applying those principles, and viewing the evidence of Eugenio’s knowledge of

the marijuana in a light most favorable to the government, we nonetheless must conclude

it is insufficient to convict him of knowing possession of marijuana beyond a reasonable

doubt. Missing from the evidentiary matrix is any evidence of his actual or constructive

possession.

       To support a conviction of possession with intent to distribute, “the evidence must

prove beyond a reasonable doubt the following elements: ‘(1) the defendant knowingly

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

intent to distribute it.’” United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996),

quoting United States v. Gonzales, 65 F.3d 814, 818 (10th Cir. 1995) (emphasis added).

Although possession may be inferred when a defendant has exclusive possession of the

area where drugs are found, when




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       possession is not clear, such as when the contraband may be attributed to
       more then one individual, constructive possession requires some nexus,
       link, or other connection between the defendant and the contraband. The
       jury may draw reasonable inferences from direct or circumstantial evidence,
       yet an inference must amount to more than speculation or conjecture.

Reece, 86 F.3d at 996 (citations omitted).

       Although the government relied upon constructive possession here, its evidentiary

support for that reliance is only spacial proximity and the defendant’s angst. Conjecture

cannot substitute for nexus, however. Id. “Constructive possession means that

Defendant has ‘some appreciable ability to guide the destiny of the drug.’” United States

v. Hanif, 1 F.3d 998, 1003 (10th Cir. 1993) (citation omitted). The case made by the

government does not meet that measure.1

       Having concluded the evidence does not support the conviction, we need not

address the issue of severance. The judgment of the district court is REVERSED, and

the mandate shall issue forthwith.



                                             ENTERED FOR THE COURT


                                             John C. Porfilio
                                             Circuit Judge




       Defendant was also charged under 18 U.S.C. § 2. The government does not
       1

address this factor; however, we can see no evidentiary support for the offense in any
event.

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