                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________
                                        *
      No. 01-1735                       *
      ___________                       *
                                        *
United States of America,               *
                                        *
               Appellee,                *
      v.                                *
                                        *
Barela Cruz,                            *
                                        *
               Appellant,               *

      ___________
                                            Appeals from the United States
      No. 01-1737                           District Court for the
      ___________                           Southern District of Iowa.

United States of America,               *
                                        *
               Appellee,                *
                                        *
      v.                                *
                                        *
Rufino Gonzales,                        *
                                        *
               Appellant.               *

                                 ___________

                             Submitted: November 13, 2001

                                 Filed: April 3, 2002
                                 ___________
Before LOKEN, HEANEY, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.


       A jury convicted Barela Cruz (Cruz) and Rufino Gonzales (Gonzales) of
conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A)
& (B) and 846 and of possession with intent to distribute methamphetamine in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). A jury also convicted Cruz of
possessing a firearm in furtherance of a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1). The district court sentenced Cruz and Gonzales each to 151-
month concurrent sentences on the drug charges and sentenced Cruz to an additional
60-month consecutive sentence on the firearms charge.

       The defendants appeal their convictions and sentences, challenging the
sufficiency of evidence, the admission of "drug notes" evidence, an allegedly
improper jury instruction, and the drug quantity attributed to them at sentencing.
Because the record does not contain sufficient evidence to support the defendants'
convictions, we reverse.1

I.     BACKGROUND
       On June 28, 2000, officers assigned to the Des Moines Strategic Anti-Felony
Team (SAFT) arrested Jose Antonio Diaz-Cesena (Cesena) on drug charges.
Following his arrest, Cesena agreed to cooperate with police. The next morning
police established a surveillance operation at the La Cruz Mexican Market (Mexican
market), and Officer Jeffrey Morton directed Cesena to call a specific telephone
number. Once Cesena placed the call, Officer Morton notified the surveillance team


      1
      In light of our ruling that there is insufficient evidence to support the
defendants' convictions, we need not reach the other issues raised in this appeal.

                                        -2-
that the call had been placed. Based on communications received from the
surveillance team, Officer Morton directed Cesena to make a second and a third call
to the same number.

      After communicating with Officer Morton, SAFT officers surveilling the
Mexican market observed a silver Volkswagen Jetta occupied by two men arrive at
the market. Officers next observed the driver using a cell phone in front of the store.
Minutes later the driver entered the vehicle and departed. SAFT officers followed
the vehicle to 1475 Dewolf Street where the driver pulled behind a house and parked
the vehicle inside a roofless, rectangular structure made of plywood. The men exited
the vehicle and covered it with an inexpensive piece of plywood such that the
vehicle was not observable from the street.

       The two men entered the house. Approximately ten minutes later, the men
exited the house, returned to the vehicle, and drove away. SAFT Officers followed
the vehicle and stopped it a short distance from the house. Officers identified Rufino
Gonzales as the driver and Barela Cruz as the passenger. Officers searched the
defendants and the vehicle but found no contraband. A Uniden cellular phone was
found inside the vehicle. When a SAFT officer dialed the telephone number Cesena
had dialed earlier, the cellular phone rang.

      SAFT officers arrested both men. Cruz was transported to the Polk County
jail where he was booked under the name Cruz Barela at 1921 21 Street, Des
Moines, Iowa. Police transported Gonzales to the residence at 1475 Dewolf Street.
Upon arriving at the house, officers removed a key ring from Gonzales's pocket. A
key on the ring unlocked the front door. Officers entered the house, secured the
premises, and locked the house. Officer Morton testified Gonzales told him he
stayed at the Dewolf residence but also told him he did not stay at the residence. A
SAFT officer applied for a state search warrant.



                                          -3-
       Once officers obtained a search warrant, they searched the residence. In the
basement, officers seized two one-pound bags of methamphetamine concealed in the
ceiling, a digital scale, two blender motors and one blender pitcher, and an array of
packaging materials. On the main level, officers seized packaging materials from the
kitchen, a notepad with names, amounts, and phone numbers from the living room
along with two cellular phones and a charger. In the northwest bedroom, officers
seized $1,200 in U.S. currency from inside a suitcase.

      Officers also searched a north middle bedroom. The closet contained both
men's and women's apparel. Officers seized two ounces of methamphetamine in the
pocket of man's shirt hanging inside the closet, two grams of methamphetamine in
the pocket of another shirt, $1,300 in U.S. currency located underneath the carpet in
the closet, and a nine millimeter pistol with two loaded magazines and a flash
suppressor located underneath clothing on the floor of the closet.

       In the same closet, SAFT officers found a shoe box containing a black and
white photocopy of an expired California driver's license and an expired Mexican
photo identification card. The shoe box contained numerous other documents,
including a bail bond receipt for Cruz Cruz-Varela at 1931 Washington; a Polk
County jail check payable to Cruz Cruz-Varela; a handwritten receipt for a motor
vehicle transfer to a purchaser named Cruz Varela Juvenal; and a water works receipt
addressed to Cruz Gubenal at 1475 Dewolf. Officer Namanny testified at trial that
1931 Washington was not a valid address in Des Moines.

      The shoe box also contained documents bearing the name Reynaldo Ramirez
(Ramirez), a named codefendant,2 including a lease to the Dewolf Street residence
with Ramirez as lessee, rental payment receipts, a title to the silver Jetta driven by


      2
      The government identifies the co-defendant as both "Reynaldo Ramirez" and
"Reynaldo Ramirez-Molina" in court documents.

                                         -4-
Gonzales, a title to a blue truck parked in the rear of the residence, a Western Union
receipt, a wireless service receipt and agreement, and correspondence from U.S.
West. Inside the shoe box were documents addressed to unknown persons, including
a medical billing statement addressed to Antonia Martinez at 1475 Dewolf Street.

       The United States indicted Cruz and Gonzales on three of five counts charged
in a second superceding indictment. Count I indicted Cruz, Gonzales and seven
other individuals of conspiring to distribute more than 500 grams of a mixture
containing methamphetamine and marijuana; Count II indicted Cruz, Gonzales and
four other individuals on possession with intent to distribute more than 500 grams
of a mixture containing methamphetamine; and Count IV indicted Cruz and
Gonzales on possession of a firearm in furtherance of a drug trafficking crime.
Against the government's objection, the district court granted the defendants' motion
to sever, and Cruz and Gonzales were tried separately from their co-defendants.

        The government's case in chief lasted less than a day and consisted exclusively
of law enforcement testimony. At the close of the government's case, both
defendants moved for judgment of acquittal. The district court acknowledged the
government's case was "thin," and the court reserved ruling on the motions. A jury
returned guilty verdicts against both defendants on the drug charges and found Cruz
guilty of the firearm charge, but acquitted Gonzales of the same charge. Following
trial, the district court denied Cruz's motion for judgment of acquittal, determining
that the evidence was sufficient to support the jury's verdict. Cruz filed a timely
appeal, and Gonzales joined his appeal.

II.    DISCUSSION
       A.    Standard of Review
       We review the sufficiency of the evidence to sustain a conviction de novo.
United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000). "'In reviewing
the sufficiency of the evidence to support a guilty verdict, we look at the evidence

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in the light most favorable to the verdict and accept as established all reasonable
inferences supporting the verdict.'" Id. (quoting United States v. Plenty Arrows, 946
F.2d 62, 64 (8th Cir. 1991)).

        We will uphold a jury verdict if substantial evidence supports it. United
States v. Schubel, 912 F.2d 952, 955 (8th Cir. 1990). Substantial evidence exists if
a reasonable minded jury could have found the defendant guilty beyond a reasonable
doubt. Id. This standard of review is a strict one; we will not lightly overturn the
jury's verdict. United States v. Boyd, 180 F.3d 967, 978 (8th Cir. 1999). "Reversal
is appropriate only where a reasonable jury could not have found all the elements of
the offense beyond a reasonable doubt." United States v. Armstrong, 253 F.3d 335,
336 (8th Cir. 2001).

      B.      Sufficiency of Evidence
              1. Constructive possession of contraband.
       Cruz and Gonzales challenge the sufficiency of the evidence establishing that
they knowingly possessed methamphetamine with intent to distribute. In order to
establish a violation of 21 U.S.C. § 841(a)(1), the government had to prove beyond
a reasonable doubt that Cruz and Gonzales knowingly possessed and intended to
distribute the methamphetamine found inside the house. United States v. Sanchez,
252 F.3d 968, 972 (8th Cir. 2001). "[T]he possession need not be exclusive, but may
be joint." Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001) (citations
omitted).

      Possession of contraband can be either actual or constructive. United States
v. Moore, 212 F.3d 441, 445 (8th Cir. 2000). We have held that an individual has
constructive possession of contraband if he has "ownership, dominion or control
over the contraband itself, or dominion over the premises in which the contraband
is concealed." United States v. McCracken, 110 F.3d 535, 541 (8th Cir. 1997)
(quoting Schubel, 912 F.2d at 955).

                                         -6-
       "[M]ere physical proximity to contraband is insufficient to convict a person
of possession with intent to distribute." United States v. Lemon, 239 F.3d 968, 970
(8th Cir. 2001). However, "knowledge of presence," combined with "control over
the thing is constructive possession." Id. (quoting United States v. Johnson, 18 F.3d
641, 647 (8th Cir. 1994) (emphasis in original)). "If there is knowledge, control is
established by proof the person has 'dominion over the premises in which the
contraband is concealed.'" Id. (quoting United States v. Brett, 872 F.2d 1365, 1369
(8th Cir. 1989)). We have also noted "it takes more evidence of knowledge and
control to prove that a defendant constructively possessed contraband found in
someone else's apartment, as opposed to his own residence." Id.

        To resolve the sufficiency challenge, we must examine the government's
evidence that Gonzales and Cruz had constructive possession over the residence
located at 1475 Dewolf Street. Trial testimony established the SAFT team had no
knowledge of prior drug-related activity by the defendants before their arrest, and
officers discovered no contraband in plain view. The evidence further established
that Reynaldo Ramirez,3 an indicted co-defendant, possessed title to the vehicle
driven by Gonzales and leased the house at 1475 Dewolf Street, not Gonzales or
Cruz.

       The government sought to prove that Gonzales exercised dominion over the
residence by establishing he had access to the house, he had entered the house, and
he had admitted to police that he stayed at the house. This proof, however, was
subject to several factual qualifications. After police stopped the Jetta and
transported Gonzales back to the house, officers found Gonzales in possession of a
key ring containing three keys. Police identified one key as an ignition key to the
Jetta owned by Ramirez, a second key was identified as a front door key to the house


      3
       After the defendants' trial, the government tried Ramirez under the name of
Reynaldo Ramirez-Molina, and a jury acquitted him of all counts.

                                         -7-
leased by Ramirez, and a third key was never identified. Surveillance officers had
not observed Gonzales use the key to enter the house. Officers had only observed
Gonzales and Cruz approach the house and exit approximately ten minutes later. No
evidence established Gonzales's or Cruz's motive for entering the house or their
activity inside the house.

       The admission evidence was adduced on cross examination, when Officer
Morton was asked whether Gonzales had said "he lived" at the house. Officer
Morton responded that Gonzales had said "he stayed there." When asked why
officers had applied for a search warrant, Officer Morton responded that a warrant
was obtained to ensure the search would be legal, adding that Gonzales had said "he
stayed there, and then he said he didn't stay there." The government did not develop
the admission against interest on redirect examination. Officer Morton had spoken
Spanish with Gonzales and was translating that conversation at trial. Thus, a jury
could only speculate as to when and under what circumstances Gonzales may have
"stayed" at the house, and when and why he recanted his statement.

      The four SAFT officers who searched the house found no forensic or physical
evidence suggesting that Gonzales lived at the house or that he intended to return.

      Reviewing the evidence in the light most favorable to the verdict, and
accepting all reasonable inferences supporting the verdict, we must conclude a
reasonable jury could not find, beyond a reasonable doubt, Gonzales had dominion
and control over the premises in which the contraband was concealed or Gonzales
had knowledge of the concealed contraband. In reaching this conclusion, we have
reviewed prior drug cases in this circuit challenging the sufficiency of the evidence
for constructive possession. In each case where we have affirmed a jury verdict, the
government has presented more evidence, consisting of eyewitness testimony
coupled with forensic or physical evidence, establishing the defendant's control and
dominion over the contraband or the premises. See, e.g., Boyd, 180 F.3d at 979-80

                                         -8-
(testimony of girlfriend who leased the house that the bedroom was the defendant's
and evidence of defendant's clothes and identification in the bedroom where drugs
were found); McCracken, 110 F.3d at 541 (testimony of defendant and his daughter
that defendant lived at the residence and evidence of personal items with defendant's
nickname on them were recovered from rooms where drugs were discovered); United
States v. Perkins, 94 F.3d 429, 436-37 (8th Cir. 1996) (testimony of ex-girlfriend
was corroborated by incriminating physical evidence found inside apartment which
was listed as defendant's address in the local telephone book); and United States v.
Holm, 836 F.2d 1119, 1121-25 (8th Cir. 1988) (testimony of drug dealer and
defendant's own admissions at trial of ownership of personal effects, including
Holm's passport, which were discovered in a bedroom of the house where drugs were
seized).

        Comparing the evidence of constructive possession presented in these cases
to evidence presented in this case, we conclude the government's case against
Gonzales for possession with intent to distribute is exceptionally thin. The
government presented no evidence that Gonzales actually knew of or exercised
control over the concealed contraband discovered inside the house. No forensic
evidence established his dominion and control over the contraband or the house.
The search produced no personal effects or venue items belonging to Gonzales. No
co-defendant, informant, or other fact witness, such as the landlord or a neighbor,
testified that Gonzales had knowledge and control over the concealed contraband or
that he resided at the house.

       The government's evidence showed the house was leased to a co-defendant
named Reynaldo Ramirez. As such, we will not lightly impute constructive
possession of drugs or other contraband to one found in another's house. United
States v. Dunlap, 28 F.3d 823, 826 (8th Cir. 1994). Certainly, Gonzales's access to
and presence inside the house were circumstantial evidence from which the jury
could infer he had constructive possession of contraband. Id. However, evidence

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of mere access and presence, without more, could not allow a reasonable jury to find
beyond a reasonable doubt that Gonzales had constructive possession of the
methamphetamine. Id. Furthermore, no evidence was offered to show Gonzales had
any knowledge of the hidden contraband and no evidence exists from which such
knowledge can be reasonably inferred. As in Dunlap, "the jury could only speculate
that [Gonzales] was guilty of the charges against him: the evidence showed at most
that he was probably guilty; it could not have established that he was guilty beyond
a reasonable doubt." Id. at 827.

       With respect to Cruz, the government advanced a theory that Cruz used
multiple aliases and that documents found inside a shoe box in a bedroom identified
Cruz and established his residency at 1475 Dewolf Street. In support of this theory,
Officer Namanny testified individuals involved in the drug trade frequently use
aliases, nicknames, and other peoples' identities to avoid detection by law
enforcement. Officer Namanny identified multiple documents bearing the names
"Juvenal Cruz Varela," "Cruz Cruz-Varela," "Cruz Varela Juvenal," and "Cruz
Gubenal." Namanny also testified that a street address of 1931 Washington recorded
on the bond receipt for "Cruz Cruz-Varela" did not exist in Des Moines.

       To bolster the alias theory, the government contended that a black and white
photocopy of an expired photo identification card issued in Mexico to a "Juvenal
Cruz Varela" depicted Cruz. At trial, government counsel asked Officer Namanny
if the photograph on the Mexican ID card "appeared to be one of the defendants in
this case, Barela Cruz." Officer Namanny responded, "Yes, it does." Cruz's attorney
did not object to the identification.4

      4
         An identification witness's testimony must be "rationally based on the
perception of the witness," Fed. R. Evid. 701(a); United States v. Wright, 904 F.2d
403, 405 (8th Cir. 1990), and is admissible "if there is some basis for concluding that
the witness is more likely to correctly identify the defendant from the photograph than
is the jury." United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984). Rule

                                         -10-
      We conclude the government failed to prove its alias theory beyond a
reasonable doubt. No evidence was adduced to support an inference Cruz had
attempted to conceal his true identity. See, e.g., United States v. Wint, 974 F.2d 961,
967 (8th Cir. 1992). The government presented no evidence establishing that Cruz
had ever used any of the names Officer Namanny identified from seized documents.
Police recovered no false identification on Cruz. The government failed to establish
with sufficient evidence for a guilty verdict that Cruz did, in fact, reside at 1475
Dewolf Street.

      Cruz also challenges the sufficiency of evidence presented to prove his firearm
charge in Count IV. 18 U.S.C. § 924 (c) prohibits, inter alia, the possession of a
firearm in furtherance of a drug trafficking crime. Because we conclude the
government presented insufficient evidence of constructive possession to sustain

701 is satisfied if "the witness is familiar with the defendant's appearance around the
time the . . . photograph was taken and the defendant's appearance has changed prior
to trial." Id. Due to the constraints placed on cross-examination, we have
discouraged the use of lay opinion identification by police officers to identify
defendants. Id. at 1161.

       The government did not establish that Officer Namanny was sufficiently
familiar with Cruz to offer opinion testimony. The testimony at trial reflects that
Officer Namanny had no knowledge of or prior dealings with Cruz before his arrest.
Therefore, he could not have been familiar with Cruz when the photograph on the
Mexican identification card was taken. Officer Namanny was not more likely to
identify Cruz correctly from the photograph than was the jury.

       Even assuming Officer Namanny made a reliable identification of Cruz from
the old black and white photocopy, such evidence standing alone would be
insufficient to raise an inference that Cruz exercised control over the residence. The
photocopy was discovered near a bond receipt for an individual bearing the name
Cruz-Varela. Viewed in this context, the inference raised is that the documents
belonged to Ramirez who leased the residence and who posted bond for a Cruz-
Varela.

                                         -11-
Cruz's conviction under Count II, his conviction under Count IV must also be
reversed.

              2. Conspiracy to distribute.
       To convict a defendant of conspiracy to distribute methamphetamine, the
government must prove beyond a reasonable doubt (1) the existence of an agreement
to achieve some illegal purpose; (2) the defendant's knowledge of the agreement; and
(3) the defendant's knowing participation in the conspiracy. United States v. Mora-
Higuera, 269 F.3d 905, 910 (8th Cir. 2001) (citation omitted). "A conspiracy may
be inferred from circumstantial evidence." United States v. Grimaldo, 214 F.3d 967,
975 (8th Cir. 2000).

      The government argued that Gonzales and Cruz, together with Cesena and
Ramirez, conspired to distribute methamphetamine.5 The government contends the
circumstantial evidence, when viewed cumulatively, supports the jury's finding a
conspiracy existed.

       Cesena ceased cooperating with police and did not testify at trial. The district
court granted a motion in limine excluding testimony about the contents of telephone
calls initiated by Cesena on June 28-29, 2000. The evidence adduced at trial was
that officers observed Gonzales talking on a cellular phone at the Mexican market
shortly after being notified that Cesena had initiated a phone call. The evidence also
established that when an officer dialed the telephone number Cesena had dialed
earlier, the cellular phone found in the Ramirez vehicle being used by Cruz and
Gonzales rang.

      5
       Count I (conspiracy to distribute methamphetamine) and the second
superceding indictment charged nine persons, two of whom were Gonzales and Cruz.
The government offered some testimony at trial that seven persons, other than
Gonzales and Cruz, were arrested as part of the investigation. In closing arguments,
the government only mentioned Gonzales, Cruz, Cesena and Ramirez.

                                         -12-
       A jury could reasonably infer from the timing that Gonzales spoke to Cesena.
However, without evidence of the contents of their telephone conversation, a jury
could only speculate as to what was discussed. Similarly, a jury could infer from
their use of Ramirez's vehicle and entry into the house Ramirez leased that Gonzales
and Cruz knew Ramirez. However, without evidence establishing why Gonzales and
Cruz used the car and why the defendants drove to the house, and what transpired
once they were inside the house, a jury could only speculate as to what occurred that
day.

      None of the inferences reasonably drawn from the evidence establish the
defendants knew of or participated in a conspiracy to distribute methamphetamine.
Evidence of association or acquaintance with a known drug dealer and mere
presence at the location of the crime alone, even when coupled with knowledge of
crime, are not sufficient to establish guilt on a conspiracy charge. United States v.
Jensen, 141 F.3d 830, 834 (8th Cir. 1998). Therefore, we conclude the record does
not reflect sufficient evidence to support a jury verdict that Gonzales and Cruz
conspired to distribute methamphetamine.

III.  CONCLUSION
      For the reasons stated above, we reverse the convictions of Cruz and of
Gonzales. We remand the cases to the district court for entry of judgments in
accordance with this opinion.

       A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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