                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      November 18, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                          No. 12-3340
                                                 (D.C. No. 2:11-CR-20023-KHV-1)
VICTOR CASTILLO-NAJER,                                       (D. Kan.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.


      Victor Castillo-Najer appeals his conviction for aiding in the distribution of

more than 100 kilograms of marijuana. He says the district court should’ve granted

his motion for a new trial because there wasn’t enough evidence to establish his guilt.

This court has explained that a “district court should grant such a motion only in

exceptional cases in which the evidence preponderates heavily against the verdict.”

*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
United States v. Cesareo-Ayala, 576 F.3d 1120, 1126 (10th Cir. 2009) (internal

quotation marks omitted). We review the district court’s denial of a motion for new

trial for an abuse of discretion. Id. Here we see none.

      At the heart of this case lies a credibility contest. At trial the government

presented evidence linking Mr. Castillo-Najer to the drug deal; Mr. Castillo-Najer

offered an innocent explanation of the facts. In the end, the jury chose to credit the

government’s account. As the district court observed, the jury’s choice was a

reasonable if not unassailable one, and it certainly can’t be said to labor upstream

against the predominant tide of evidence presented at trial.

      The government’s case went like this. A confidential informant was tasked by

Mexican drug smugglers to transport a large shipment of marijuana to Kansas City.

The informant tipped off authorities to the shipment and proceeded to work with

them to apprehend the intended recipient. The informant told officers that the drugs

were to be delivered to “Kiko” in Kansas City. Two undercover detectives, John

Hernandez and Octavio Pasillas, then took possession of the marijuana and told the

informant to give Kiko their phone number. The informant later notified the

detectives that their phone number had been provided to Kiko, and gave the

detectives Kiko’s phone number (228-215-6217). Soon, the detectives received two

calls from 918-530-6172, but they did not answer those calls. Instead,

Detective Pasillas called the 228-215-6217 number to arrange a meeting to deliver

the drugs. He testified that the person on the phone identified himself as Kiko.


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      The next day the detectives drove their truck loaded with the drugs to a

parking lot by a Lowe’s store. When they arrived, Detective Pasillas called Kiko to

let him know where they were parked. During the conversation, Kiko asked

Detective Pasillas to meet him somewhere else, but Detective Pasillas refused.

Several minutes later, a blue Toyota Tundra approached the detectives’ truck and

Detective Pasillas spoke with the driver. Detective Pasillas testified that the driver

(again) asked to move the transfer to a different location, but the detective told the

driver “this is the way it’s going to have to go, we have to stay here. My orders were

to deliver it to you. If you’re Kiko, then I’m going to deliver it to you right here,

right now.” R., Vol. 2 at 304. Detective Pasillas testified that the driver said he was

Kiko but drove away.

      Soon enough, though, he and Detective Pasillas exchanged a few more phone

calls about how the transfer should be made. Ultimately, Kiko advised Detective

Pasillas that he would be sending someone else in a grey vehicle to pick up the drugs.

And, in fact, within a few minutes a grey minivan arrived and parked next to the

detectives’ truck. Two men loaded the minivan with garbage bags from the

detectives’ truck. The bags smelled of marijuana and, at one point, one of the bags

opened revealing bricks of marijuana wrapped in cellophane. After the bags were

loaded into the minivan, the undercover detectives gave a signal to other detectives in

the area — detectives who proceeded to arrest the two men by the minivan and

Mr. Castillo-Najer who was found in the blue Toyota Tundra truck in a different


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parking lot nearby. At trial, Detective Pasillas identified Mr. Castillo-Najer as the

driver of the truck who had said he was Kiko.

      In the truck, the detectives found four cell phones and a hand gun.

Mr. Castillo-Najer told the detectives that two of the phones were his: numbers

913-752-7552 and 918-530-6172 (the number from which the detectives had received

two unanswered calls the day before the transfer). Mr. Castillo-Najer said that the

other two phones belonged to his cousin “Primo”; they had numbers 319-462-1046

and 228-215-6217 (the number the informant had provided to the detectives as

Kiko’s phone number and had been used to coordinate the transfer of the drugs). The

government introduced phone records at trial showing calls from 228-215-6217 to the

confidential informant’s phone and the undercover detectives’ phone on the day

before and the day of the transfer; and calls from 913-752-7552 and 319-462-1046 to

the phone of one of the men who arrived in the minivan to help transfer the drugs,

calls made in the minutes leading up to the transfer.

      For his part, Mr. Castillo-Najer offered a very different version of events at

trial. He testified that Kiko was someone from whom he bought cheap construction

supplies to use in his home renovation business. He asserted that three of the

four phones belonged to Kiko or Primo and that the only phone belonging to him

bore the number 913-752-7552. He said the other phones were given to him by Kiko

to help arrange a pick-up of construction materials. He said that he spoke to the

detectives on the phones given to him by Kiko but thought the transaction being


                                          -4-
arranged was for construction materials, not drugs. On cross-examination, however,

Mr. Castillo-Najer was unable to provide information about Kiko’s real name,

employment information, or whereabouts.

      When denying Mr. Castillo-Najer’s request for a new trial, the district court

observed that on this record “the jury could reasonably have chosen not to believe

that the phantom Kiko was responsible for orchestrating the shipment, and rather to

conclude that defendant and Kiko were the same individual.” R., Vol. 1 at 310-11.

We see no basis to disagree with this assessment. Without any, we cannot fault the

district court for denying the motion for a new trial. The judgment is affirmed.


                                               Entered for the Court



                                               Neil M. Gorsuch
                                               Circuit Judge




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