                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 17 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 99-3135
 v.
                                               (D.C. No. 98-CR-40040-02-SAC)
                                                          (D. Kan.)
 PERCY LOUIS MORROW,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Defendant-Appellant Percy L. Morrow (“Morrow”) appeals his conviction

and sentence on two counts of federal drug offenses in the United States District

Court for the District of Kansas pursuant to 21 U.S.C. §841(a)(1), (b)(1)(C), 18

U.S.C. § 2, and 21 U.S.C. § 846. Morrow argues that (1) the evidence produced

at trial was insufficient to support his convictions and (2) that the trial court erred



      *
       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) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
in admitting evidence of a prior arrest pursuant to 404(b). Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.

                                  BACKGROUND

      On March 30, 1996, Kansas Highway Patrolman Brian K. Smith observed a

Buick Park Avenue vehicle with Illinois license plates exceeding the posted speed

limit on Interstate 35. After pulling the vehicle over, Smith identified the driver

of the vehicle as William H. Jones and the two passengers as Jeffrey W. Jones and

Ronald L. Gardner. Upon questioning William Jones about the vehicle, Smith

discovered that the car was rented and that it had been rented by Morrow, who

was not present in the vehicle. Additionally, Morrow was the only individual

authorized to drive the vehicle. Smith also discovered from the rental agreement

that the car was restricted to the states of Missouri and Illinois. 1 Based on this

information, Smith contacted the car rental company to inform them of the

situation. The rental car company requested that the officer impound the rental

car. The car was thereafter towed to Lebo Garage at Beto Junction, Kansas.




      1
        During this conversation, William Jones revealed that the group had been
driving from St. Louis to Los Angeles. Because Smith had noticed on the car
rental agreement that the car had been rented in St. Louis on March 22, 1996 only
eight days earlier, and noticed that William Jones appeared to be extremely
nervous, Smith requested consent to search the vehicle. The car was searched and
no contraband was discovered at that time.

                                         -2-
      Later that same day, at approximately 11:00 a.m., two of the occupants of

the vehicle approached Lebo Garage employee Norman Schroeder about regaining

possession of the car. Schroeder responded that they would have to get it cleared

with the highway patrol. The pair then left.

      At approximately 5:30 p.m. that night, the owner of the garage, Doyle

Harsch, observed a taxi cab type car pull up to the garage. The cab contained

approximately five individuals--two women and three men, two of whom

appeared to be the same men who had visited the garage earlier that day. Two of

the men requested permission to get their personal belongings out of the rental

car. Harsch allowed the group to drive down to the vehicle and remove their

personal items. A short while later one of the men in the group came to the

garage asking for “sockets.” Harsch provided the socket. The man returned two

more times, each time requesting a different size socket. After the third time,

Harsch became suspicious and went down to the car, where he found the rental

car sitting with the trunk open and all four doors open. He also noticed that the

hood had been released and was opened to the safety catch. At that point, Harsch

informed the group that they would have to leave, and then proceeded to lock up

the rental car. The group headed to the garage, where a woman, later identified as

Morrow’s wife, approached Schroeder and, after informing him that it was her

husband who had rented the car, told Schroeder that she did not need any trouble


                                        -3-
with the police and offered him $100 for ten minutes alone with the car.

Schroeder declined the offer, and after the group left, he telephoned the police.

      Once the police arrived, they took a drug dog to the rental car to attempt to

locate any controlled substances. The dog failed to give a positive response. The

officers then continued their search on the basis of the information provided by

Schroeder and Harsch. After noticing tool marks on the screws that held the fan

blower motor to the firewall of the car, the officers removed the cover to the

blower motor and found a package containing approximately 76 grams of black

tar heroin. Testimony was offered at trial that the street value of 76 grams of

heroin when cut and sold in St. Louis was approximately $120,000.00.

      On April 5, 1996, a female called the Lebo Garage to inform them that she

would be coming to pick up the car that evening. Surveillance was set up on the

garage and police officers waited for someone to pick up the rental car. Two

males arrived at the garage around 10:00 p.m. that night and retrieved the car

from the garage. They were subsequently stopped by the police. One of the

occupants was identified as Jeffrey Jones and the other occupant was identified by

his driver’s license as Morrow. The two men were placed under arrest and

transported to the Osage County Jail.

      Once at the jail, Sergeant Bailiff interviewed the person identified as

Morrow. This man stated that he was in fact Jesse Leroy Robinson. Upon further


                                        -4-
investigation, it was determined that the man was in fact Jesse Robinson.

Robinson testified at trial that on April 5, 1996, he was approached by Morrow

and asked whether he wanted to make some money. Morrow asked Robinson to

pick up a car for him, and, in return, Morrow would pay him $200. Robinson

testified that he went to Morrow’s residence and picked up the vehicle’s rental

papers and Morrow’s driver’s license. Robinson was then driven to Lebo Garage

by Mrs. Morrow and Jeffrey Jones. He was thereafter arrested.

      At trial, telephone records were introduced showing telephone calls

between the telephone number associated with Morrow’s residence in St. Louis

and the telephone numbers associated with Lebo Garage, the Kansas Highway

Patrol, and the Osage County Jail. The telephone records also identified

telephone calls from St. Louis to California that corresponded to the locations of

William and Jeffrey Jones and Robert Gardner during their travels in the rental

car. In addition, Western Union records were introduced at trial showing that on

March 26, 1996, Morrow sent $1000.00 via Western Union wire transfer from St.

Louis, Missouri to Jeffrey Jones in Palo Alto, California. The telephone records

also showed telephone calls between Morrow’s telephone number in St. Louis and

telephone numbers in Palo Alto, California during the time period surrounding the

wire transfer. Finally, a company representative from the rental car company

testified that Morrow was the man who had rented the car in St. Louis. He further


                                        -5-
testified that a total of five payments were recorded for the rental car; one through

a Mastercard, one through a Visa, and three in cash. The Mastercard belonged to

Morrow and Jeanne Morrow, and the Visa belonged to Morrow and Jeanne

Allmon.

      Morrow was found guilty on one count of possession with intent to

distribute approximately 73.52 grams of heroin in violation of 21 U.S.C.

§841(a)(1), and one count of conspiracy to possess with intent to distribute in

violation of 21 U.S.C. § 846. He was sentenced to a term of imprisonment of 70

months, followed by a term of supervised release of six years.

                                   DISCUSSION

A. Sufficiency of the Evidence

      Morrow first contends that there was insufficient evidence to convict him

on both the intent to distribute and conspiracy charges. Morrow argues that the

government failed to present evidence as to actual or constructive possession of

the drugs, and thus the government failed to prove that Morrow knew about the

drugs hidden in the vehicle. “We review the record de novo to determine

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[s] beyond a reasonable doubt.’” United States v. Dozal, 173 F.3d 787,

797 (10th Cir. 1999) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).


                                         -6-
      A conviction for possession of heroin with intent to distribute under 21

U.S.C. §841(a)(1) and 18 U.S.C. §2 requires proof that the defendant “(1)

possessed a controlled substance; (2) knew he possessed a controlled substance;

and (3) intended to distribute the controlled substance.” Id. (internal quotations

omitted). Possession can be either actual or constructive. Constructive

possession exists when 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) (internal quotations omitted).

Constructive possession has been further defined by this court as “an appreciable

ability to guide the destiny of the drug[s].” United States v. Carter, 130 F.3d

1432, 1441 (10th Cir. 1997) (internal quotations omitted) (cert. denied, 523 U.S.

1144 (1998). “In order to establish constructive possession, the government must

establish that there was a sufficient nexus between the accused and the drug[s].”

Id. (internal quotations omitted).

      To prove a conspiracy in violation of 21 U.S.C. § 846, the government must

prove 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.” Carter, 130 F.3d at 1439. A jury may infer an agreement

constituting a conspiracy “from the acts of the parties and other circumstantial


                                         -7-
evidence indicating concert of action for the accomplishment of a common

purpose.” Id. (internal quotations omitted). Additionally, a “jury may presume a

defendant is a knowing participant in the conspiracy when he . . . acts in

furtherance of the objective of the conspiracy.” Id. at 1440.

      Morrow argues that the government failed to show that he had actual or

constructive possession of the drugs and thus failed to prove (1) “knowing

possession” for the § 841(a)(1) offense and (2) knowledge of the objective or

knowing and voluntary involvement for the § 846 conspiracy charge. The

evidence was more than sufficient for a jury to have found Morrow guilty of both

charges. There is abundant evidence from which a juror could reasonably infer

that Morrow had control over the drugs, had the ability to guide their destiny, and

knew the drugs were present in the car. Furthermore there is sufficient evidence

based on the acts of the various individuals who were occupants of the car or who

attempted to retrieve the car to infer an agreement to conspire and knowledge of

the conspiracy. Although Morrow did not make the trip to California, he rented

and paid for the car, and was the authorized driver on the car. The wire transfer

from St. Louis to California is additional evidence that Morrow financed the trip.

Telephone records confirm that the occupants of the car on March 30, 1996, the

day the car was stopped in Kansas, telephoned Morrow in St. Louis. Moreover,

Morrow’s wife drove to Kansas that same day in an attempt to retrieve the car and


                                         -8-
even offered money to an employee at the Lebo Garage for ten minutes alone with

the vehicle. There is also evidence that on April 5, 1996, Morrow sent a “look

alike”, Robinson, to Kansas with his driver’s license in a further attempt to

retrieve the car. Telephone records indicate that Robinson telephoned Morrow

from the jail after he was arrested. As the district court found “there is no logical

or reasonable explanation for why the defendant himself was so determined to

recover the rental car and to incur . . . significant additional costs other than to

complete the delivery of the heroin hidden in it.” We hold that the evidence

amply supported Morrow’s conviction on the possession with intent to distribute

and the conviction for conspiracy.

B. Prior Arrest

      During the trial, evidence of a prior arrest was admitted through the

testimony of St. Louis Detective Robert Froelich. Detective Froelich testified that

he and three other officers conducted surveillance of Morrow’s home for a one

hour period on June 3, 1994. During this time period, Detective Froelich

observed Morrow make seven short transactions from his front porch in which

Morrow received currency in exchange for small objects believed to be heroin.

The officer then drove up to the house and observed Morrow remove a plastic bag

from his shirt and then empty small capsules of powder. After Morrow was




                                          -9-
placed under arrest, the officers found $800 in Morrow’s socks. Testing of the

substance found in the capsules confirmed that it was heroin.

      We review the admission of 404(b) evidence for an abuse of discretion.

United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997). Rule 404(b) allows

for the admission of evidence “concerning particular acts and circumstances that

would tend to indicate intent, knowledge, motive, or similar permissible

purposes.” United States v. Robinson, 978 F.2d 1554, 1559 (10th Cir. 1992). To

determine whether 404(b) evidence was properly admitted we look to the four-

part test set out in United States v. Huddleston, 485 U.S. 681 (1988). This test

requires that:

             (1) the evidence was offered for a proper purposes under Fed. R.
             Evid. 404(b); (2) the evidence was relevant under Fed. R. Evid. 401;
             (3) the probative value of the evidence was not substantially
             outweighed by its potential for unfair prejudice under Fed. R. Evid.
             403; and (4) the district court, upon request, instructed the jury to
             consider the evidence only for the purpose for which it was admitted.

Wilson, 107 F.3d at 782.

      The government states that the evidence was properly admitted to show

intent to enter into a conspiracy with the intent to distribute. While the

government has stated a proper purpose under 404(b), and thus fulfilled the first

prong of the Huddleston test, it has failed to satisfy the second prong, namely that

the evidence is relevant. This court has stated that “prior narcotics involvement

is relevant when that conduct is close in time, highly probative, and similar to the

                                         - 10 -
activity with which the defendant is charged.” Wilson, 107 F.3d at 785 (internal

quotations omitted). The prior arrest in this case does not meet these

requirements for relevance. First, the offenses are nearly two years apart.

Second, the activity in 1994 is not factually similar to the activity for which

Morrow is currently charged. Although both incidents involved heroin, this is

where the similarity ends. In this case, large amounts of heroin were purchased

out of state and driven across country. By contrast, the prior arrest dealt with

small transactions off Morrow’s front porch. We find that the prior conduct is not

relevant to show the purposes for which it was admitted. It strains credibility to

contend that such factually distinct, temporally distant behavior could have any

meaningful bearing on appellant’s state of mind with regard to the present

offense. The government’s assertions to the contrary are both unavailing and

improper. The government’s primary responsibility is to seek justice–not to

stretch the law to obtain convictions.

      Although we find the admittance of the prior arrest to be an abuse of

discretion, this non-constitutional error only requires reversal if “it had a

substantial influence on the outcome or leaves [us] in grave doubt as to whether it

had such effect.” United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir. 1995)

(internal quotations omitted). We review the record de novo to determine whether

the error substantially influenced the jury’s verdict. Id. After reviewing the


                                         - 11 -
record as a whole, we find substantial evidence of guilt. In addition, the trial

court gave a proper limiting instruction in this case. See id. (finding improperly

admitted 404(b) evidence harmless based on overwhelming evidence of guilty and

a proper limiting instruction by the court). Thus, we conclude that the error in

admitting the testimony concerning Morrow’s prior arrest had no substantial

influence on the jury’s verdict and therefore was harmless.

      For the foregoing reasons, we AFFIRM Morrow’s conviction and sentence.

      The mandate shall issue forthwith.



                                       ENTERED FOR THE COURT

                                       David M. Ebel
                                       Circuit Judge




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