                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 18 2000
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 00-2028
 FEDERICO MEDINA,                                 (D.C. No. CR-94-541-JC)
                                                         (D.N.M.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and BRORBY, Circuit Judges.


      Defendant Federico Medina appeals the district court’s admission of a

co-conspirator’s out-of-court statement that Defendant was one of the owners of a

kilogram of cocaine which a co-conspirator sold to undercover officers.

Defendant argues that the government presented insufficient evidence that he was

a participant in the conspiracy. Defendant also appeals the district court’s denial

of his motion for a judgment of acquittal based on the insufficiency of the




      *
        This order and judgment is not binding precedent, except under the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.
evidence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.



                                         I.

      Defendant’s apparent involvement in a conspiracy to distribute cocaine led

to his arrest and trial. The investigation began on May 12, 1994, when

Albuquerque Police Department Detective Ernie Salcido called Alberto Duran, a

suspected drug dealer. Through several conversations between May 12 and May

21, Salcido arranged with Duran to purchase one kilogram of cocaine. Salcido

recorded many of these conversations.

      On May 13, Salcido set up a meeting with Duran at a McDonald’s

restaurant. Duran was driving a white pickup truck with a primer-gray door.

Later, they agreed to a price of $23,000 for one kilogram of cocaine. At a

meeting at another McDonald’s restaurant, Duran showed Salcido a sample of the

cocaine. Salcido’s partner, James Torres, played the role of Salcido’s money

man, and brought cash to show Duran. Duran explained that his suppliers brought

a load of cocaine every Thursday. Sometimes Duran referred to his suppliers in

the plural, and sometimes in the singular. At one point Duran offered to let

Salcido meet the owners of the cocaine, but Salcido declined in order to build up

Duran’s trust.




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       Around noon on May 20, Salcido met Duran in the American Furniture

parking lot. Duran got into Salcido’s pickup truck and directed him to the deal’s

location, the parking lot at Piedra Lisa Canyon Park, at the foot of the Sandia

Mountains. Salcido agreed to meet Duran at the park at 5 p.m. to complete the

transaction. Duran arrived by himself in his white pickup and explained that the

owners of the cocaine were nervous and wanted to push the deal back to the next

day.

       Duran paged Salcido the next morning, and they agreed to meet at 1 p.m.

on May 21 at Piedra Lisa Canyon. They also agreed that they could each bring

one additional person to the meeting. Salcido arranged for surveillance by

Detectives Patricio Ruiloba and John Bauer, who parked at the north end of the

parking lot. Duran parked his white truck in the southeast corner of the parking

lot. He brought a passenger, Sergio Gonzales. Both were standing outside

Duran’s truck. Next to the truck, backed into the space, was a blue Jeep

Cherokee. The hatch was open, and Victor Chavez and Defendant were sitting on

the back of the jeep. All four men looked up when Salcido arrived. The officer’s

partner, Torres, drove a yellow Monte Carlo and parked at the north end.

       Duran approached Salcido, who asked about the two additional men. Duran

leaned over and whispered so the other men would not hear, explaining that they

were the owners of the cocaine and they came to make sure they did not get


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“ripped off.” Salcido asked to see the cocaine. Duran walked to the back of the

jeep. Either Chavez or Defendant reached into the jeep and pulled out a one-kilo

brick of cocaine and handed it to Duran, who stuffed it under his shirt. Duran

brought the brick to Salcido, who summoned the surveillance officers to begin the

arrests.

       The surveillance officers searched the jeep and found three additional

bricks. The cocaine was tightly wrapped in tape labeled “Gucci” and stored in a

black plastic garbage bag inside a box from a small kitchen appliance. None of

the bricks of cocaine had fingerprints from Duran, Gonzales, Chavez, or

Defendant. The jeep contained documents identifying the owner as the girlfriend

of Chavez. Chavez is Defendant’s cousin. Duran, Gonzales, and Chavez carried

items such as cellphones, beepers, large amounts of cash, and small amounts of

drugs, while Defendant did not.

       A grand jury handed down a three-count indictment for: (1) conspiracy in

violation of 21 U.S.C. § 846, (2) possession with intent to distribute more than

500 grams of cocaine in violation of 21 U.S.C. § 841(b)(1)(B), and (3)

distribution of 500 grams or more of cocaine in violation of 21 U.S.C.

§ 841(b)(1)(B). Defendant’s case was tried separately before a jury.

       Before trial, Defendant filed a motion in limine to exclude Duran’s

statement that Defendant was one of the owners of the cocaine. On the morning


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of the first day of trial, the district court heard the Government describe what the

evidence would be. Defense counsel argued that the Government could not show

that Defendant was a participant in the conspiracy. The district court indicated

that the Government’s description of the evidence was sufficient to support the

admission of the co-conspirator’s statement, but deferred making findings until

after the Government presented evidence of the conspiracy.       See United States v.

Gonzalez-Montoya , 161 F.3d 643, 649 (10th Cir. 1998),       cert. denied , 526 U.S.

1033 (1999) (although the preferred procedure is for the district court to hold a

James hearing, see generally United States v. James , 590 F.2d 575 (5th Cir.

1979), the district court may also provisionally admit the statement with the

caveat that the offering party must prove the existence of the predicate conspiracy

through trial testimony or other evidence). At the beginning of the second day of

trial, the district court made the following findings: (1) a conspiracy existed, (2)

the declarant and the Defendant were members of the conspiracy, and (3) the

statements were made in the course of and in furtherance of the conspiracy.

(Tr. at 156.)

      Defendant also moved for a judgment of acquittal under Fed. R. Crim. P.

29, arguing that the evidence was insufficient to support a conviction on any of

the three counts. Defendant made the motion first at the close of the

Government’s case, then renewed it after the district court read the instructions to


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the jury. (Tr. at 211, 257.) The district court denied the motion, finding: “[T]he

evidence [is] sufficient to convict the defendant beyond a reasonable doubt.

There would be circumstantial evidence. There was also direct evidence of his

presence there and what was in the car, and I find that to be sufficient that he

could be convicted.” (Tr. at 213.)

       Defendant elected not to testify. The jury convicted Defendant of all three

counts. The district court sentenced Defendant to 51 months imprisonment on

each count, to run concurrently. Defendant filed a motion for new trial under

Fed. R. Crim. P. 33, which the district court summarily denied.

                                                II.

       Admitting Duran’s out-of-court statements, Defendant argues, was error

because the testimony of the Government’s witnesses did not establish that

Defendant was a member of the conspiracy. We review the district court’s

decision to admit co-conspirator’s statements for an abuse of discretion.           United

States v. Eads , 191 F.3d 1206, 1210 (10th Cir. 1999),         cert. denied , No. 99-6907,

2000 WL 743827 (U.S. June 12, 2000). We review the district court’s

preliminary factual findings for clear error.         United States v. Lopez-Gutierrez   , 83

F.3d 1235, 1242 (10th Cir. 1996).

       Under Fed. R. Evid. 801(d)(2)(E), co-conspirator statements are not

considered hearsay and may properly be admitted if the Government shows by a


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preponderance of the evidence that (1) a conspiracy existed, (2) both the declarant

and the defendant were members of the conspiracy, and (3) the declarant made the

statement in the course of and in furtherance of the conspiracy.   Eads , 191 F.3d at

1210 ; see also Bourjaily v. United States , 483 U.S. 171, 176 (1987) (noting that

preliminary facts require proof by a preponderance of the evidence). The district

court may consider the contents of the out-of-court statement in making these

preliminary factual determinations.     Bourjaily , 483 U.S. at 178. Linking the

defendant to the conspiracy, however, requires some independent evidence

besides the co-conspirator’s statements, although the independent evidence need

not be substantial.   Lopez-Gutierrez , 83 F.3d at 1242.

       The record supports the district court’s preliminary factual finding that

Defendant was a member of the conspiracy to distribute cocaine. The district

court properly considered Duran’s out-of-court statement itself, as well as

independent evidence.     See id. (noting that courts may rely on the hearsay

statement sought to be admitted, “along with independent evidence tending to

establish the conspiracy”). In setting up the sale, Salcido and Duran agreed that

each could bring one other person. When Salcido arrived, however, four men,

including Defendant, turned to face him. Naturally, Salcido asked Duran who the

additional men were. Duran indicated that they were the owners of the cocaine

who came along to make sure they did not get ripped off. The references to more


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than one owner in the transcripts of Duran’s conversations with Salcido, as well

as Duran’s offer to set up a meeting between Salcido and the owners, also support

the inference that Defendant was one of the owners. Under these circumstances,

the district court did not abuse its discretion in admitting the co-conspirator’s

statement.

                                            III.

       Defendant also appeals the district court’s denial of his motion for

judgment of acquittal, arguing that the Government presented insufficient

evidence to find him guilty beyond a reasonable doubt of all three counts in the

indictment: conspiracy, possession of cocaine with intent to distribute, and

distribution of cocaine. We review de novo the denial of a motion for judgment

of acquittal and the sufficiency of the evidence.   United States v. McKissick , 204

F.3d 1282, 1289-90 (10th Cir. 2000). The standard is whether any rational

factfinder, viewing the evidence and reasonable inferences therefrom in the light

most favorable to the prosecution, could find the essential elements of the crime

beyond a reasonable doubt.     United States v. McDermott , 64 F.3d 1448, 1457

(10th Cir. 1995) (citing   Jackson v. Virginia , 443 U.S. 307, 319 (1979)).

                                             A.

       To support Defendant’s conspiracy conviction, the record must show: (1)

the existence of an agreement to violate the law, (2) Defendant’s knowledge of


                                             -8-
the essential objectives of the conspiracy, (3) Defendant’s knowing and voluntary

participation in the conspiracy, and (4) the conspirators’ interdependence.     United

States v. Anderson , 189 F.3d 1201, 1207 (10th Cir. 1999). Participation requires

more than either mere knowledge that drugs are present in the vehicle, presence

as a passenger in a vehicle carrying drugs, or association with conspirators known

to be involved in a crime.   United States v. Jones , 44 F.3d 860, 865-66 (10th Cir.

1995).

         Based on the record before us, a reasonable jury could conclude that

Defendant was guilty of conspiracy as charged. As discussed above, Duran’s out-

of-court statement that Defendant was one of the owners of the cocaine

establishes Defendant’s participation in the conspiracy. In addition to that

evidence, we may also consider Defendant’s presence in the jeep with four

kilograms of cocaine. Also relevant is Defendant’s association with Duran,

whose efforts to sell cocaine to Salcido are extensively documented in the taped

recordings.

                                            B.

         To establish the counts of possession and distribution in violation of 21

U.S.C. § 841(b)(1)(B), the Government must prove that Defendant: (1) possessed

the controlled substance, (2) knew he possessed the controlled substance, and (3)

intended to distribute or dispense the controlled substance.      McKissick , 204 F.3d


                                            -9-
at 1291 (interpreting 21 U.S.C. § 841(a)(1)). Possession may be actual or

constructive. Id. Constructive possession may be joint among several individuals

and may be established by circumstantial evidence.         Id. Constructive possession

occurs when the defendant knowingly has ownership, dominion, or control over

the narcotics and the premises where the narcotics are found.       Id. In cases

involving joint occupancy of a place where narcotics are found, dominion or

control over the place is not sufficient; the Government must also present direct

or circumstantial evidence to show some connection or nexus individually linking

the defendant to the contraband.      Id. In addition, a defendant is guilty of aiding

and abetting if he (1) wilfully associated himself with the criminal venture and (2)

sought to make the venture succeed through some action of his own.         Anderson ,

189 F.3d at 1207. Circumstantial evidence may establish participation, and the

level of participation may be relatively little.     Id.

       Defendant argues that the record does not establish the element of

possession. To the contrary, the detectives’ testimony shows that both Defendant

and Chavez had constructive possession of the jeep containing the drugs. While

sitting on the back of the jeep, Defendant had access to the box containing the

cocaine bricks. One man, either Defendant or Chavez, handed a brick of cocaine

to Duran to deliver to Salcido. The evidence individually linking Defendant to




                                              -10-
the drugs is Duran’s statement that Defendant was one of the owners of the

cocaine.

      In addition, the record supports a theory of aiding and abetting. If the jury

accepted Duran’s statement that Defendant was one of the owners of the cocaine,

then they could infer that he wilfully associated himself with the criminal venture.

Likewise, they could infer from Duran’s statement that Defendant came to the

scene of the transaction to make sure the venture succeeded. Accordingly, the

record contains sufficient evidence to allow a reasonable jury to conclude that

Defendant aided and abetted the offenses of possession with intent to distribute

and distribution.

      AFFIRM ED.

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       Circuit Judge




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