                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        May 3, 2007
                           FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,

    v.                                                   No. 06-6244
                                                   (D.C. No. 05-CR-168-L)
    TU Y EN V U N GO ,                                   (W .D. Okla.)

             Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




         In M arch 2006, defendant Tuyen Vu “Allen” Ngo 1 was convicted of one

count of possession with intent to distribute M DM A or ecstasy, 2 a controlled

substance, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
         Defendant was known as Allen or Alan Ngo. Tr. at 157, 178, 286.
2
       M ethylenedioxymethamphetamine is also known as M DM A or ecstasy.
Tr. at 340.
18 U.S.C. § 2, and one count of conspiracy to possess with intent to distribute

M DM A or ecstasy, in violation of 21 U.S.C. § 846. He was sentenced to 240

months on each count, with the sentences to run concurrently. He appeals from

his convictions, arguing that the evidence was insufficient to support the verdict.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


                    Summary of the Evidence Presented at Trial

      Defendant and the other three men arrested with him for drug trafficking,

Eric Hsiung, Eric Chen, and Richard K im, lived in the vicinity of Los Angeles,

California. See Tr. at 181, 256, 273-74, 277-78. Hsiung testified that he was

twenty-one years old at the time of defendant’s trial. Id. at 277. He had been

friends with Chen since high school or college and also had known Kim that long,

although they were not close friends. Id. at 277, 308. Hsiung moved into an

apartment with Chen and Kim in August 2005. Id. at 278. He noticed that they

seemed to have a lot of money to buy extravagant things, even though neither of

them w as working. Id. at 280. Chen and Kim bragged to Hsiung about the

amount of money they were making in the drug-delivery business. Id.

      On August 22, 2005, Kim approached Hsiung and asked him if he wanted

to make some “serious money,” as his organization was short one person. See id.

at 281-82, 312. K im told H siung that they used a “team of four” and took two

cars–one to carry the controlled substance and the other following behind to



                                         -2-
distract the police–hitting the police car if necessary. Id. Kim said that the

organization needed four drivers so that they could drive to their destination and

back non-stop. Id. at 282-83. Hsiung agreed to make the trip for $3000. Id.

at 285.

      Hsiung testified that the next night, Kim received a call on his cell phone,

and he, Kim, and Chen began packing for their drug run. Id. at 284. They drove

to a Los Angeles suburb called M onterey Park and parked behind a large Ford

pickup truck with a bed cover. Id. at 284-85, 318. Hsiung was told to get in the

front passenger seat of the truck. Id. at 285. The drugs were in the back of the

truck. Id. at 293-94. A few minutes later, a Honda Accord drove by, and Hsiung,

Chen, and Kim drove to a gas station across the street. Id. at 285-86. Defendant

was there, in the Accord. Id. at 287. Defendant later told Hsiung that he was

getting paid between $1700 and $2000 to make the trip. Id. at 304-05.

      Chen and Hsiung took turns driving the truck and defendant and Kim took

turns driving the Honda. Id. at 288. Chen had a piece of paper marked with the

route and the exits they were supposed to take. Id. at 291. Chen also had a cell

phone to call the other car, using programmed numbers. Id. at 289-90. Hsiung

was told not to socialize with defendant, however, because “[t]his is his

business,” and Chen and Kim did not want Hsiung to give any personal

information about himself to defendant. Id. at 289; see also id. at 324. The four




                                         -3-
men kept in contact so they would know how low each vehicle’s fuel was. Id.

at 302.

      After about six or seven hours of driving through the night, id. at 298, they

reached Flagstaff, Arizona, and Hsiung realized that there was a mechanical

problem w ith the truck–the left front axle was broken, id. at 292. Both vehicles

stopped, and “the first thing that [Chen and Kim] wanted to do was unload the

controlled substance that was in the back of the truck and put it in the Accord,

which they did.” Id. at 293-94. Kim and Chen unloaded a large duffle bag from

the truck and put it in the Honda. Id. at 294.

      Chen stayed with the truck, and Kim, Hsiung, and defendant rode in the

Accord to a motel. Id. at 295. Kim rented a room and left the duffle bag there

with defendant for five to seven hours. See id. at 295-96, 298. Kim never left

Chen or Hsiung alone with that bag. Id. at 295. At some point, someone made a

phone call, id. at 321, and Kim and Hsiung returned to the truck. Five to seven

hours later, a Lincoln Navigator arrived. Id. at 298. It was driven by a man

called “Tim,” id. at 299, but the car was later determined to be registered to and

insured by defendant’s brother, Tuyen Quan Ngo, id. at 268-70. W hen Kim and

Chen attempted to get the spare tire out of the back of the truck, they found a

second, smaller bag they had not located in the dark the night before. Id.

at 299-300. Kim and Chen loaded the second bag in the Lincoln, and Kim, Chen,

Hsiung, and Tim went back to the motel room. Id. at 299-300. Eventually, Kim

                                         -4-
and Chen loaded the first duffle bag in the Lincoln, too. Id. at 300, 323-24. Kim,

Chen, Hsiung, and defendant left “Tim” and the truck behind and continued their

drug run with Kim and defendant in the Honda, and Chen and Hsiung in the

Lincoln. See id. at 301. They continued to take turns driving, as before. Id.

      As the group drove through the mountains, they had trouble communicating

between the cars over their cell phones. Id. at 302. As a result, they bought

hand-held radios (w alkie-talkies) at a gas station. Id. at 302. Defendant, as well

as the other men, took turns communicating between the vehicles, using the

walkie-talkies. Id. at 302.

      On August 25, 2005, defendant and the other three men were driving

through Oklahoma on Interstate 40 (I-40). See id. at 145, 302. Four agents of the

Oklahoma Bureau of Narcotics (O BN) w ere patrolling I-40 in Canadian County.

Id. at 150. OBN Special Agent Troy W all testified that he had received special

training in recognizing the factors that distinguish narcotics traffickers from

lawful drivers. Id. at 140-44. As he traveled eastbound, he saw the Honda

follow ing the Lincoln too closely, which was not only a traffic violation, but also

an indication that the drivers might be employing a “tandem driving” technique

used by drug couriers. Id. at 143–45, 146. In “tandem driving,” an escort or

decoy vehicle is used to distract law enforcement from the “load” vehicle–the

vehicle with the illegal drugs or other contraband in it–by committing obvious

traffic violations. Id. at 143-44.

                                         -5-
      Agent W all testified that he pulled his OBN marked unit alongside the

Honda and the Lincoln to observe them. Id. at 145-46. He noticed that both cars

had California license plates, a state known to be a source of narcotics coming

into Oklahoma. Id. at 141, 145-46. He also saw that the Lincoln had a frame

around the license plate, w hich is a violation of Oklahoma law. Id. at 146. He

thought that the occupants of both cars acted peculiarly, as they all stared straight

ahead instead of acknowledging the police car, and the Honda made no attempt to

back off from the Lincoln to correct its obvious violation. Id. at 146-47.

Agent W all concluded that the two cars w ere traveling together and thought it

unusual that they would take two cars w hen the Lincoln–a large sport utility

vehicle–w as big enough for four people. Id. at 147. Having an extra car was also

consistent with “tandem driving,” and he decided to pull over the Lincoln for the

tag violation. Id. at 147-48, 152.

      Agent W all attempted to pull his car between the Honda and the Lincoln,

turning on his rear emergency lights as a signal, but the Honda did not slow

down. Id. at 148-49. Agent W all forced his way in between the two cars, turning

on his front emergency lights to pull over the Lincoln. Id. at 149. At that time,

the Honda swerved and accelerated around Agent W all’s car, missing his rear

bumper by a few feet. Id. at 149. The H onda traveled alongside the Lincoln for a

short while, and it appeared to Agent W all that the occupants w ere attempting to

comm unicate. Id. The Honda then sped away. Id. As Agent W all pulled the

                                          -6-
Lincoln over, he made an open call to the other OBN agents to stop the Honda if

they saw it. Id. at 150-51.

       W hen the window of the Lincoln was rolled down, Agent W all smelled

burnt marijuana. Id. at 151. Hsiung was driving the Lincoln at that time. Id.

Agent W all asked for his driver’s license, and Hsiung told him it was in the

Honda. Id. Agent W all then spoke with Hsiung and Chen separately. Hsiung

said that he, Chen, and the occupants of the H onda, whom he named as Richard

Kim and Allen Ngo, were friends of his who were traveling together to Oklahoma

City to drop off the Honda with Kim’s uncle and then returning to Los Angeles.

Id. at 152-53, 157. He later said that the group was traveling on to Illinois from

Oklahoma. Id. at 157. He said that Chen owned the Lincoln. Id. at 154. Chen,

in contrast, first told Agent W all that the group was traveling to Oklahoma City to

visit a friend of a friend, and then he said Kim’s uncle, but he did not say

anything about dropping off a vehicle before returning to Los A ngeles or going to

Illinois. Id. at 153. He denied owning the Lincoln. Id. at 154, 157.

      M eanwhile, the Honda had turned around at the next exit and headed back

westbound, and then turned around again to resume going eastbound. OBN Agent

Ronnie Jackson stopped it. Id. at 156, 202-03. Kim had been driving the Honda.

Id. at 205. The insurance verification on the car showed a first name of

“Timothy” and a last name that Agent Jackson did not know how to pronounce.

Id. at 210. Kim said that the H onda belonged to a friend he had known for a

                                          -7-
couple of years, but he did not know Timothy’s last name. Id. at 211-12.

Defendant was a passenger in the Honda at that time. Id. at 207-08.

Agent Jackson subsequently searched the Honda and found no ecstasy. Id.

at 212-13. He spoke with each of the occupants separately. Kim told

Agent Jackson that he and defendant were traveling to Dallas for a wedding–but

not with any other persons or vehicles. Id. at 206-07. Defendant told

Agent Jackson, “I think we’re going to Dallas to a wedding,” but Agent Jackson

believed that his demeanor appeared deceptive, as if he w as unsure of w hat story

he w as supposed to tell. Id. at 208-09, 238. Defendant said that he and Kim were

not traveling with anybody else or any other vehicles. Id. at 209. Agent W all

said that the “wedding story” is so commonly used by drug couriers, it is almost a

joke in highway interdiction. Id. at 156.

      Defendant and Kim were taken by OBN agents to the scene of the stopped

Lincoln. Id. at 220-21. A search of the Lincoln turned up a black nylon suitcase

and a large green duffle bag containing over 200,000 ecstasy pills with a street

value of approximately $4,000,000. Id. at 158, 174, 183-85, 272, 344.

Special Agent Robert Ryan of the Drug Enforcement Administration testified that

this seizure was the largest seizure of ecstasy in Oklahoma history and the

seventh largest on U.S. soil, leading him to believe that the overall operation

could be compared to a legitimate business like M cDonald’s–the people involved

had different jobs and did not all need to know each other, but they all would

                                            -8-
know that the common goal was to sell a product to an end user. Id. at 333,

347-49. He believed that such an organization would not release a load this size

unless the organization had faith that the person managing transportation of the

drugs w as going to hire good workers. Id. at 351-52. The search of the Lincoln

also revealed a hand-written list of detailed directions from California to

Louisiana, id. at 223, a letter addressed to defendant dated January 7, 2004, id.

at 266-67, and documents showing that the Lincoln was registered to and insured

by Tuyen Quan Ngo, who is defendant’s brother and who had the same address as

shown on defendant’s driver’s license, id. at 154-55, 171-72, 181, 268-70, 272.

In addition, agents found activated walkie-talkies in each car that were set to

comm unicate with each other. Id. at 222-23, 237. Agents also found another

walkie-talkie and cell phones in the Lincoln. Id. at 225-26. They found five cell

phones in the Honda. Id. at 226. They found another hand-written list of

directions from California to Louisiana in Kim’s wallet, id. at 224-25, and found

Kim’s passport in the Lincoln, id. at 262. All four men were taken to jail and

charged with the same two drug trafficking counts.

      To sum up: the government presented evidence showing that defendant

presented himself to go on a non-stop cross-country trip with three other men who

all knew they were transporting drugs; he provided one of the cars and had a

personal connection to one of the load vehicles–the Lincoln–even though he told

OBN agents that he had no relationship with the car or its occupants; he was to be

                                         -9-
paid for the trip; he took his turn driving and keeping in contact with the other

vehicle; he was left alone for several hours in a motel room with a large duffle

bag containing the bulk of approximately $4,000,000 worth of ecstasy, and he lied

to OBN agents about the purpose of the trip and the number of people involved in

it.


                                  Issues on Appeal

      Defendant argues that the evidence was insufficient to show that he

participated in any way in a conspiracy with the other defendants or possessed the

drugs. He asserts that Hsiung’s testimony shows that Hsiung, Chen, and Kim

intentionally avoided defendant and left him out of the plans at Kim’s insistence.

Aplt. Opening Br. at 3-4. Defendant also argues that there was insufficient

evidence to show that he ever exercised or had the ability to exercise dominion or

control over the drugs.


                                     Discussion

      “W e review the record for sufficiency of the evidence de novo.” United

States v. W ilson, 107 F.3d 774, 778 (10th Cir. 1997). “[T]he relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). If

so, we must affirm. United States v. Young, 862 F.2d 815, 818 (10th Cir. 1988).

                                         -10-
“[W]e evaluate the sufficiency of the evidence by considering the collective

inferences to be drawn from the evidence as a whole.” United States v. Johnson,

130 F.3d 1420, 1428 (10th Cir. 1997) (quotations and alteration omitted).

“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. Valadez-Gallegos,

162 F.3d 1256, 1262 (10th Cir. 1998).

      In light of these general propositions of relevant law, we review each of

defendant’s convictions in turn.


                                     Conspiracy

             To find a defendant guilty of conspiracy in violation of
      21 U.S.C. §§ 841(a)(1) and 846, the jury must find, beyond a
      reasonable doubt, (1) an agreement with another person to violate the
      law, (2) knowledge of the essential objectives of the conspiracy,
      (3) knowing and voluntary involvement, and (4) interdependence
      among the alleged conspirators.

United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). “It is permissible

for the jury to infer an agreement constituting a conspiracy from the acts of the

parties and other circumstantial evidence indicating concert of action for the

accomplishment of a common purpose.” Id. (quotation omitted). “[A] defendant

need not have knowledge of all the details or all the members of the conspiracy

and may play only a minor role in the conspiracy.” U nited States v. Small,

423 F.3d 1164, 1182 (10th Cir. 2005) (quotation omitted), cert. denied, 126 S. Ct.

                                        -11-
1377 (2006). “A defendant’s activities are interdependent if they facilitated the

endeavors of other alleged conspirators or facilitated the venture as a whole.”

United States v. Ivy, 83 F.3d 1266, 1286 (10th Cir. 1996) (quotation omitted).

             Factors the jury, or a court reviewing a jury’s verdict may
      consider in drawing the inference of a conspiracy include, but are not
      limited to: (1) a defendant’s presence at the crime scene; (2) a
      defendant’s association with co-conspirators; (3) evidence of
      conflicting stories; (4) active attempts to divert officers’ attention
      from a stopped vehicle; (5) participation in drug transactions; or
      (6) knowledge of and control over drugs. . . . Any single factor,
      standing alone, may be insufficient to support an inference of
      conspiracy. . . . A direct correlation exists, however, between the
      number of circumstantial facts and the existence of a conspiracy.

United States v. Delgado-U ribe, 363 F.3d 1077, 1083 (10th Cir. 2004).

      Defendant argues that the evidence was insufficient to support the

conspiracy conviction because Hsiung never implicated defendant in any

discussions about the plan or the planning of the trip. W e disagree that such

direct evidence of a conspiracy was required. The case against defendant was

circumstantial. However, based on the uncontroverted circumstantial evidence,

the jury could reasonably have inferred that defendant knowingly and voluntarily

participated in a conspiracy to possess M DM A or ecstasy with intent to distribute.

Cf. Carter, 130 F.3d at 1439-40 (explaining why uncontroverted circumstantial

evidence was sufficient to support conviction for conspiracy). Defendant made

the trip with three other men against whom there was direct evidence of

conspiracy, and the evidence showed that two vehicles and four drivers were



                                        -12-
required so that one car could provide a distraction from the load vehicle in case

police tried to stop the load vehicle. Rather than keeping the participants in the

dark as to the real purpose of the trip, Kim and Chen bragged to Hsiung about the

money they were making delivering drugs and asked him if he wanted in, as they

already had a third driver and needed a fourth. Defendant participated in the

non-stop, cross-country trip by taking his turn driving and communicating with

the load vehicle. He was to be paid a substantial amount of money for making the

trip. He provided one car, the Honda, and was personally connected to the

substitute load vehicle, the Lincoln. He also lied about his connection to the

Lincoln and its occupants when questioned by an OBN agent. His explanation for

the trip was a common excuse used by drug traffickers, and it conflicted with the

explanations offered by the other men. There is no evidence that any of the other

conspirators told defendant to give that excuse to police to keep him in the dark

as to the real purpose of the trip. Finally, he was left alone for several hours w ith

the bulk of the drugs.

      Defendant has not made any argument showing that inference must be piled

on top of inference to conclude that he knowingly and voluntarily participated in

a drug trafficking conspiracy. In light of all of the circumstantial evidence and

the reasonable inferences to be drawn from it, defendant’s conviction for

conspiracy is affirmed.




                                          -13-
                                     Possession

      “In order to sustain a conviction for possession with intent to distribute

under 21 U.S.C. § 841(a)(1), the government must prove that the defendant:

(1) possessed a controlled substance, (2) knew he possessed the controlled

substance, and (3) intended to distribute the controlled substance.” United States

v. M ains, 33 F.3d 1222, 1228 (10th Cir. 1994). “Possession may be either actual

or constructive.” United States v. Triana, 477 F.3d 1189, 1194 (10th Cir. 2007).

“‘Actual Possession’ is direct physical control, as by holding an object, or

keeping it on or around one’s person.” United States v. Bowen, 437 F.3d 1009,

1017 (10th Cir. 2006). “‘Constructive Possession’ is indirect control, as by

knowingly having the power to exercise dominion or control over an object

although someone or something else may actually be holding it.” Id. “In most

cases, dominion, control, and knowledge may be inferred where a defendant has

exclusive possession of the premises.” United States v. Taylor, 113 F.3d 1136,

1145 (10th Cir. 1997). The jury may infer a defendant’s knowledge of the

controlled substances from the “collective inferences to be drawn from the

evidence as a whole.” U nited States v. Johnson, 57 F.3d 968, 971 (10th Cir.

1995) (quotation omitted). In addition, “a jury may infer intent to distribute from

the possession of large quantities of drugs.” United States v. Pulido-Jacobo,

377 F.3d 1124, 1131 (10th Cir. 2004).




                                        -14-
      The government argues that the evidence presented at trial was sufficient to

support defendant’s conviction for possession with intent to distribute M DM A

under any one of three theories: (1) actual or constructive possession, (2) aiding

and abetting, or (3) vicarious liability. Defendant argues that the evidence was

insufficient to support the conviction because the drugs were in the other car

when he was arrested.

      W e cannot say that no rational trier of fact could reasonably have inferred

from all of the evidence that defendant knew that the load vehicle was

transporting contraband, and that the large duffle bag removed from the load

vehicle and left alone with him in a motel room for several hours contained that

contraband. The evidence is sufficient to show that he knowingly possessed the

M DM A, and the large quantity is sufficient to show his intent to distribute. H is

conviction for possession with intent to distribute is affirmed.




                                         -15-
                                   Conclusion

      The evidence was sufficient to support defendant’s convictions for both

conspiracy and possession. The judgment of the district court is AFFIRMED.



                                                  Entered for the Court



                                                  M onroe G. M cKay
                                                  Circuit Judge




                                       -16-
