                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                              SEP 23 2003
                    UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT                      PATRICK FISHER
                                                                                 Clerk


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 02-2210
          v.                                           (D. New Mexico)
 ROBERT CASTANEDA,                                (D.C. No. CR-01-1582-JP)

               Defendant-Appellant.


                            ORDER AND JUDGMENT            *




          Before LUCERO , O’BRIEN , and TYMKOVICH , Circuit Judges.


      This case involves Robert Castaneda’s appeal of his conviction on two

criminal charges related to the distribution of cocaine. Two issues are presented

for review: (1) whether the trial court properly denied Castaneda’s motions for

acquittal and a new trial, and (2) whether the trial court abused its discretion in

allowing the prosecution to reopen its case in order to explicitly identify

Castaneda. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



      *
       This order and judgment is not binding precedent, except under the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.
                                          I.

      On August 20, 2001, defendant Robert Castaneda drove into a United

States Border Patrol checkpoint on Interstate 25 near Las Cruces, New Mexico,

where he was stopped by Border Patrol Agent Fernando Contreras. When

Castaneda appeared nervous and gave inconsistent answers during routine

questioning, Agent Contreras asked if he could search the trunk and Castaneda

consented. Castaneda then hit the trunk release button, which not only opened the

trunk but apparently cut off the engine. This caused Castaneda to appear

increasingly nervous. Upon request, Castaneda gave Agent Contreras consent to

inspect the car with a police dog. The dog detected drugs in the front of the car.

       After the dog’s inspection, additional agents opened the front hood so they

could try to jump start the engine and move the car to a secondary inspection area

out of the flow of traffic. Upon opening the hood, they discovered that the

battery was full of dirt and rocks, and a motorcycle battery had been rigged to

power the car. After further inspection of the shell of the car battery, Agent

Contreras found bundles of white powder, which was later identified as cocaine.

Border Patrol agents arrested Castaneda, and later that evening turned him over to

Agent Henry Shaw of the U.S. Customs Service.

      Castaneda was indicted and tried before a jury on charges of conspiracy to

possess with intent to distribute over 500 grams of cocaine in violation of 21


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U.S.C. §§ 846 and 841(b)(1)(B), and possession with intent to distribute more

than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)

and 18 U.S.C. § 2.

      After both the prosecution and the defense had rested, Castaneda’s attorney

moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29,

arguing that the evidence was insufficient to support a conviction because no

agent had identified Castaneda as the person who had committed the crimes. The

district court took the motion under advisement. The government then moved to

reopen its case to recall Agent Shaw for the sole purpose of identifying

Castaneda. Over Castaneda’s objection, the district court granted the

government’s motion, and Agent Shaw answered two questions, identifying the

defendant as the person whom he had taken into custody. The defense did not

cross examine Agent Shaw or move to offer any other evidence, and the case was

given to the jury.

      The jury found Castaneda guilty on both counts. Castaneda then filed a

motion for a new trial on the grounds that the trial court abused its discretion in

allowing the government to reopen its case. The trial court denied this motion

and the earlier Rule 29 motion, and ordered Castaneda into custody.




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                                           II.

       We review de novo a district court’s denial of a motion challenging the

sufficiency of the evidence to support a conviction. United States v. Almaraz,

306 F.3d 1031, 1040 (10th Cir. 2002). In doing so we view the evidence in the

light most favorable to the government to determine whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. (quotation omitted). Among the elements required for a criminal

conviction, and the only one relevant to this appeal, is the identification of the

defendant as the perpetrator. See United States v. Skipworth, 697 F.2d 281, 284

(10th Cir. 1983).

      Our review of the trial record reveals ample evidence on which a rational

trier of fact could have relied to find that Robert Castaneda was in fact the person

found possessing the cocaine on August 20, 2001. At trial, the agents called to

testify repeatedly referred to the person they had arrested as “Mr. Castaneda” or

“the defendant.” Defense counsel never objected to this clear correlation between

Castaneda and the person the agents had arrested, and never presented any

evidence that contradicted it. In fact, during cross-examination defense counsel

asked one of the arresting agents how the agent was able to observe “my client’s

demeanor” at the checkpoint stop. The agent responded, “I could see him as

plainly as I can see him sitting there, actually probably a little bit closer.”


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      This evidence was sufficient to support a conclusion beyond a reasonable

doubt that the person who had committed the crimes in question was indeed

Robert Castaneda.

                                        III.

      Because we conclude that the evidence presented prior to the initial close of

the prosecution’s case was sufficiently strong to identify Castaneda, we need not

reach Castaneda’s second contention. The explicit identification presented after the

reopening did not affect the outcome of the case, and therefore even if we were to

assume that the court erred in allowing the prosecution to reopen its case, any such

error was harmless. See United States v. Toles, 297 F.3d 959, 968 (10th Cir. 2002)

(holding that appellate court should review error in trial procedure to determine if

it was harmless beyond a reasonable doubt).

      The judgment below is AFFIRMED.



                                               Entered for the Court

                                               Timothy M. Tymkovich
                                               Circuit Judge




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