                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                April 5, 2006
                                    TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                                Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 05-3040
 WILLIAM R. SLAUGHTER,                             (D.C. No. 04-CR-10143-01-MLB)
                                                               (D.Kan.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, BALDOCK, and LUCERO, Circuit Judges.**



       A jury convicted Defendant William R. Slaughter of possession with intent to

distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a), (b)(1)(B), and 18

U.S.C. § 2.1 At the close of the Government’s case-in-chief, Defendant filed a motion for

       *
          This order and judgment is not binding precedent, except under the doctrines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.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
       1
        The jury also found Defendant guilty of possession with intent to distribute
approximately 107.2 grams of marijuana in violation of 21 U.S.C. § 841(a) and (b)(1)(D)
and 18 U.S.C. § 2, as well as travel in interstate commerce to promote an unlawful
judgment of acquittal. See Fed. R. Crim. P. 29(a). The district court denied Defendant’s

motion finding sufficient evidence to submit the case to a jury. After the jury returned a

guilty verdict, the court sentenced Defendant to eighty-four months imprisonment. On

appeal, Defendant argues the district court erred in denying his Rule 29(a) motion because

the Government’s proffered evidence was insufficient to support his conviction. We exercise

jurisdiction under 28 U.S.C. § 1291, and affirm.

                                              I.

       The trial record reveals that on the afternoon of April 27, 2004, Defendant and his

passenger, Eugene Williams, were traveling from Sacramento, California to St. Louis,

Missouri along Interstate 70. Kansas Highway Patrol Trooper Shawn Phillips was patrolling

Interstate 70, near Colby, Kansas, when he stopped Defendant’s vehicle for speeding.

Trooper Phillips approached Defendant’s vehicle and asked Defendant for his driver’s

license and vehicle registration. Trooper Phillips testified he noticed a strong odor of burnt

marijuana coming from inside the vehicle. Defendant stated he did not have his driver’s

license on him, but he thought it might be in the trunk. Defendant, instead, handed Trooper

Phillips a rental agreement for the vehicle. The agreement provided Patricia Slaughter,

Defendant’s mother, had rented the vehicle on April 22, 2004. The vehicle was due back in

St. Louis on April 27, 2004. Patricia Slaughter was the only authorized driver listed on the




activity in violation of 18 U.S.C. § 1952(a)(i)(3) and 18 U.S.C. § 2. Defendant raises no
issue related to his conviction for these offenses.

                                              2
agreement. Trooper Phillips asked Defendant to retrieve his driver’s license from the trunk.

When Defendant opened the trunk, Trooper Phillips noticed a strong odor of raw marijuana.

Defendant rustled through a black duffle bag but claimed he could not find his driver’s

license. Based on the possible presence of marijuana, Trooper Phillips decided to search the

vehicle.

       To ensure his safety, Trooper Phillips placed Defendant in handcuffs and ordered him

and Williams to stand in front of the vehicle. Trooper Phillips searched the vehicle’s trunk.

Inside he uncovered three individually wrapped packages of heroin hidden underneath the

carpet in the trunk’s quarter panel. The three packages of heroin were wrapped in clear

cellophane. Inside the packages were twenty “balls” of heroin each individually wrapped

in clear plastic and electrical tape and weighing approximately one ounce. Trooper Phillips

also found in the trunk a brown paper bag containing a roll of clear cellophane along with

duct tape and clear plastic tape. The cellophane and tape inside the bag appeared to match

the cellophane and tape used to package the heroin. During a search the vehicle’s interior,

Trooper Phillips found a piece of aluminum foil that appeared to contain marijuana residue.

Trooper Phillips placed Defendant and Williams under arrest for possession of heroin.

       The vehicle was transported to headquarters where Trooper Phillips performed a more

thorough search. Inside the black duffel bag located in the trunk, Trooper Phillips found

approximately a quarter-pound of marijuana rolled up in a pair of jeans. The marijuana was

similarly wrapped in clear cellophane. Trooper Phillips found Defendant’s Missouri ID card


                                             3
in the back pocket of the jeans. Subsequent testing revealed Defendant’s fingerprints on the

roll of cellophane found in the trunk of the vehicle. No fingerprints, however, were found

on the plastic wrap surrounding the drugs. The cellophane roll on which Defendant’s

fingerprints were found was of the same width and plastic consistency as the cellophane used

to wrap the heroin and the marijuana.

       The following day, Defendant waived his Miranda rights and provided DEA Agent

Freddie Strawder a statement. According to Defendant, he met Williams approximately a

month prior to his arrest while Defendant was in California visiting friends and family.

Williams later traveled to St. Louis to visit Defendant. Williams stayed with Defendant for

approximately ten days. On April 22, 2004, Defendant’s mother rented a vehicle so

Defendant and Williams could drive back to Sacramento. They arrived two days later.

According to Defendant, he traveled to Sacramento to build a room in his friend “A.J.’s”

mechanic’s shop. Defendant admitted purchasing the quarter-pound of marijuana while in

Sacramento. He also acknowledged frequently smoking marijuana and also selling small

quantities. Defendant told Agent Strawder that “by purchasing the marijuana in California

for $1,300, he could–he felt that he could go back to St. Louis and sell it and make $3,000[.]”

Defendant denied any knowledge of the heroin.

       On direct examination at trial, Defendant testified he spent five days in California.

During cross-examination, however, Defendant changed his testimony, and admitted he was

in California less than forty-eight hours. When asked about A.J., Defendant could not recall


                                              4
his phone number, last name, or the address to his shop. Defendant further testified he

bought the marijuana to smoke but did not intend on selling it, despite admitting to selling

marijuana in the past. He also testified he wrapped the marijuana and concealed it in the

trunk. According to Defendant, he asked Williams to get something to wrap the marijuana

to mask the strong smell. Defendant stated Williams gave him a brown paper bag containing,

among other things, the cellophane he used to wrapped the marijuana. Defendant again

denied any knowledge of the heroin. At the close of all the evidence, the jury returned a

general verdict of guilty.

                                             II.

       Defendant argues the Government did not introduce sufficient evidence for the jury

to conclude he possessed the heroin with intent to distribute; or aided and abetted Williams

in this criminal venture. Specifically, Defendant argues the Government did not introduce

any evidence showing he had contact with the heroin or was aware the heroin was in the

trunk; nor according to Defendant did the Government introduce any evidence showing he

assisted Williams in possessing the heroin with intent to distribute.

       We review the record de novo to determine whether viewing the evidence–both direct

and circumstantial, together with the reasonable inferences to be drawn therefrom–in the

light most favorable to the Government, any rational trier of fact could have found Defendant

guilty of the charged crime beyond a reasonable doubt. See United States v. Avery, 295 F.3d

1158, 1177 (10th Cir. 2002). “In conducting our inquiry, we do not weigh conflicting


                                              5
evidence nor consider the credibility of witnesses.” United States v. Delgado-Uribe, 363

F.3d 1077, 1081 (10th Cir. 2004). Instead, we only determine “‘whether [the] evidence, if

believed, would establish each element of the crime.’” Id. (quoting United States v. Vallo,

238 F.3d 1242, 1247 (10th Cir. 2001)). “The evidence necessary to support a verdict need

not conclusively exclude every other reasonable hypothesis and need not negate all

possibilities except guilt. Instead, the evidence only has to reasonably support the jury’s

finding of guilt beyond a reasonable doubt.” United States v. Pulido-Jacobo, 377 F.3d 1124,

1129 (10th Cir. 2004).

                                             A.

       To sustain Defendant’s conviction of possession with intent to distribute under §

841(a), the Government’s evidence must be sufficient to persuade the jury beyond any

reasonable doubt that Defendant (1) possessed the controlled substance; (2) knew he

possessed the controlled substance; and (3) intended to distribute the controlled substance.

See United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000). Possession may be

either actual or constructive. Id. Constructive possession exists where “a person knowingly

has ownership, dominion, or control over the narcotics and the premises where the narcotics

are found.” United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996); see also United States

v. Ruiz-Castro, 92 F.3d 1519, 1531 (10th Cir. 1996) (defining constructive possession of a

narcotic as “an appreciable ability to guide the destiny of the drug”).

       Constructive possession may be joint among two or more individuals. United States


                                              6
v. Carter, 130 F.3d 1432, 141 (10th Cir. 1997). “In cases involving joint occupancy of a

place where contraband is found, mere control or dominion over the place in which the

contraband is found is not enough to establish constructive possession.” McKissick, 204

F.3d at 1291; see also Reece, 86 F.3d at 996 (holding evidence insufficient to support a

conviction for possession where the Government only showed defendant drove the car in

which the narcotics were found and was acquainted with the individual on whose person the

narcotics were found). The Government must, therefore, present “direct or circumstantial

evidence to show some connection or nexus individually linking the defendant to the

contraband.” McKissick, 204 F.3d at 1291 (quoting United States v. Valadez-Gallegos, 162

F.3d 1256, 1262 (10th Cir. 1998). In other words, the Government must introduce evidence

supporting at a minimum a plausible inference the defendant had knowledge of and access

to the contraband. Id.

       In the alternative, we may sustain Defendant’s conviction as a principal if the

evidence is sufficient to establish he aided and abetted Williams in possessing the heroin with

intent to distribute. See 18 U.S.C. § 2.2 To sustain a conviction of aiding and abetting under

§ 2, the Government must persuade the jury beyond any reasonable doubt Defendant: (1)

willfully associated himself with the charged criminal venture, and (2) aided the venture



       2
        Co-defendant Williams pleaded guilty to travel in interstate commerce to promote
an unlawful activity in violation of 18 U.S.C. § 1952(a)(i)(3) and 18 U.S.C. § 2, namely,
possession with intent to distribute a mixture or substance containing a detectable amount
of heroin and marijuana.

                                              7
through an affirmative action. See Delgado-Urbine, 363 F.3d at 1084. Defendant’s presence

at the crime scene, standing alone, is insufficient to prove aiding and abetting. Id. Some

showing of intent to further the criminal venture must be proven at trial. Id. “Participation

in the criminal venture may be established by circumstantial evidence and the level of

participation may be of ‘relatively slight moment.’” United States v. Leos-Quijada, 107 F.3d

786, 794 (10th Cir. 1997) (quoting United States v. McKneely, 69 F.3d 1067, 1072 (10th Cir.

1995)).



                                             B.

       After reviewing the record in the light most favorable to the Government, we conclude

the district court properly denied Defendant’s Rule 29(a) motion for judgment of acquittal.

The Government introduced sufficient evidence for a reasonable jury to find Defendant

guilty of possession with intent to distribute heroin, or alternatively, aiding and abetting

Williams in possessing the heroin with intent to distribute. The circumstantial evidence the

Government introduced at trial was undoubtedly sufficient to individually link Defendant to

the heroin and establish his possession. Defendant was driving and in possession of the

vehicle in which the heroin had been hidden. His mother had rented the vehicle so

Defendant could make a quick round trip between St. Louis and Sacramento. Defendant’s

fingerprints were on the roll of cellophane that was recovered from the trunk of the

vehicle–the same cellophane used to wrap both the marijuana and the heroin. While


                                             8
Defendant admitted to wrapping the marijuana with the cellophane roll found in the trunk,

the evidence was sufficient for a reasonable jury to conclude Defendant also wrapped the

heroin. We reject Defendant’s argument the evidence was insufficient to show Defendant

possessed the heroin because Defendant’s fingerprints were not actually on the heroin

package itself and because no one saw Defendant with the heroin. Such direct evidence is

not required. Circumstantial evidence along with reasonable inferences drawn from the

evidence can suffice in supporting a conviction for possession with intent to distribute. See

United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). These are reasonable

inferences which the jury properly drew from the evidence.

       The Government also introduced sufficient evidence showing Defendant intended to

distribute the heroin. First, based on the sheer quantity of the heroin and the manner in which

it was packaged–twenty “balls” individually wrapped and weighing approximately one ounce

each–the jury could have properly inferred Defendant intended to distribute the heroin. See

United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004) (noting “a jury may

infer intent to distribute from the possession of large quantities of drugs”). Second, the jury

could have inferred that because Defendant admitted to Agent Strawder he intended to sell

the marijuana when he returned to St. Louis, Defendant intended to sell the heroin as well.

       Alternatively, the Government introduced sufficient evidence from which a reasonable

jury could have inferred Defendant aided and abetted Williams in possessing the heroin with

intent to distribute. The jury could have inferred, based on the short turnaround nature of the


                                              9
trip, that Defendant and Williams traveled to Sacramento for the sole purpose of purchasing

narcotics. Defendant’s inconsistent testimony regarding the length of the trip and his

inability to provide any particular information regarding A.J., strengthened such inference.

Trooper Phillips testified he observed certain “things” during the traffic stop that based on

his training and experience he believed were consistent with someone trafficking narcotics.

For example, the vehicle was a rental, but the authorized driver was not in the vehicle; there

was air freshener in the vehicle, which Trooper Phillips testified was suspicious since

generally people who rent a vehicle for a short time don’t go out of their way to buy air

freshener, and air freshener is commonly used to mask the smell of narcotics; and the vehicle

had a lived-in appearance. The jury could have found Defendant willfully furthered this

criminal venture by asking his mother to rent a vehicle, and then driving the vehicle despite

having a revoked license. Finally, the jury could have found Defendant wrapped the heroin

and concealed it in the trunk of the vehicle.

       AFFIRMED.

                                                     Entered for the Court


                                                     Bobby R. Baldock
                                                     Circuit Judge




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