                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 25, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff–Appellee,

    v.                                                    No. 10-2154
                                                   (D.C. No. 1:08-CR-01539)
    MANUEL ORTIZ,                                          (D. N.M.)

                Defendant–Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



         Manuel Ortiz was found guilty of possession with intent to distribute five

kilograms or more of cocaine, and aiding and abetting, 21 U.S.C. § 841(a)(1),

(b)(1)(A), and 18 U.S.C. § 2, possession with intent to distribute ecstasy, and

aiding and abetting, 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2, and

conspiracy to possess with intent to distribute the same controlled substances,



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
21 U.S.C. § 846. Following trial, the district court granted co-defendant Felipe

Canela’s motion for acquittal on all counts, granted Ortiz’s motion for acquittal

only as to the conspiracy count, and denied Ortiz’s motion for new trial. Ortiz

now appeals, arguing that the evidence was insufficient to support his conviction

on the two possession-with-intent counts, and that his motion for new trial should

have been granted to remedy the government’s violation of Brady v. Maryland,

373 U.S. 83 (1963), and its prosecutorial misconduct. Exercising jurisdiction

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

                                           I

      We review the sufficiency of the evidence de novo, viewing “the facts in

evidence in the light most favorable to the government.” United States v. Sells,

477 F.3d 1226, 1235 (10th Cir. 2007) (quotation omitted). But “our role is

limited to determining whether a reasonable jury could find guilt beyond a

reasonable doubt, based on the direct and circumstantial evidence, together with

the reasonable inferences to be drawn therefrom. ” Id. (quotation omitted).

Consistent with our standard of review, we summarize the facts in the light most

favorable to the Government.

      Ortiz owned and operated a refrigerated tractor trailer. In June 2008, he

obtained a job transporting produce from a shipping facility in Guadalupe,

California, run by Apio, Inc. The load was designated for the East Coast. Given

the distance and perishable cargo, the job required a two-man team, to allow for

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extended travel each day and compliance with regulations of truck drivers’ hours.

Ortiz recruited Canela to share the driving duties. On June 16, 2008, while

Canela slept in the cab, Ortiz oversaw the loading of the trailer and then drove out

of the Apio facility early in the morning of June 17.

      Canela arrived in Phoenix, Arizona, around 1:00 p.m., at which point,

regulations required he spend ten hours off-duty before driving again. Although

Ortiz was free to begin an eleven-hour shift, he did not. Instead, the pair stayed

in Phoenix for some nineteen hours. Canela testified that they spent the time

watching movies in the cab through the afternoon, watching a basketball game on

television in the truck stop lounge during the evening, and sleeping overnight in

the cab.

      They fueled up and drove out of Phoenix on Interstate 40 the next morning.

With Canela driving, they approached the port of entry for Gallup, New Mexico,

where they were pulled over for an inspection. Problems with their logbooks and

the suspension of Canela’s commercial vehicle license led to further inquiries and

a visual inspection of the truck. Inspectors opened the trailer, which had been

sealed and padlocked by Ortiz sometime after leaving the Apio facility. Behind

pallets that had shifted during the drive, an inspector saw a paper gift bag

containing kilo-sized packages of cocaine. Below that, he found a larger duffle

bag stuffed with more cocaine and a package of ecstacy pills.




                                         -3-
      The crux of Ortiz’s defense at trial was that he did not know the drugs were

inside the trailer. The government’s case rested on several lines of circumstantial

evidence converging on the reasonable inference that Ortiz put the drugs in the

trailer sometime after leaving the Apio facility, most likely during the lengthy

stopover in Phoenix, including: (1) evidence that the loading area where Ortiz

loaded the truck was very secure; (2) testimony that the drugs were not present

when the truck was initially loaded; (3) Ortiz’s exclusive physical control of the

padlocked trailer and his control of the route; (4) the lengthy stop in Phoenix;

(5) temperature recordings taken from the trailer showing a spike in the

temperature on the morning Ortiz drove out of the Phoenix truck stop; and

(6) Ortiz’s nervous demeanor and suspicious behavior during the inspection at the

port of entry.

      This type of circumstantial evidence lends support to the jury’s inference

that Ortiz had knowledge of the drugs. See United States v. Gwathney, 465 F.3d

1133, 1143 (10th Cir. 2006). And the sheer quantity of drugs, with an estimated

wholesale value of nearly $400,000, “might also, and legitimately, lead a jury to

consider it less likely that the drugs would be transported without the driver’s

knowledge.” Id. The evidence was more than sufficient to permit a rational jury

to find that Ortiz knowingly transported the drugs found in his trailer.




                                         -4-
                                          II

      At the trial, Doug Larose, general manager of the Apio loading facility,

revealed that he had a list of employees who worked at the pre-staging area of the

loading dock while Ortiz’s truck was loaded. Neither party knew of the list

before Larose’s testimony.

      “The Due Process Clause of the Fifth Amendment requires the prosecution

to disclose all evidence that favors the defendant and is material either to guilt or

to punishment.” United States v. Ford, 550 F.3d 975, 981 (10th Cir. 2008)

(quotation omitted); see also Brady, 373 U.S. at 87.

      A defendant who seeks a new trial based on an alleged Brady
      violation must show by a preponderance of the evidence that (1) the
      prosecution suppressed evidence, (2) the evidence was favorable to
      the defendant, and (3) the evidence was material. For the evidence to
      be material, there must be a reasonable probability that the result of
      the trial would have been different if [it] had been disclosed to the
      defense.

Ford, 550 F.3d 981 (quotations and citations omitted). We review de novo the

denial of a motion for new trial on this ground. Id. at 992.

      The Brady claim fails on the first element. The evidence in question was

not suppressed, as the prosecution—including any agents working on the

prosecutor’s behalf—did not know the list existed. See United States v. Erickson,

561 F.3d 1150, 1163 (10th Cir. 2009) (explaining that a Brady violation is not

established unless the prosecution knew of, and had some measure of possession

or control over, evidence allegedly suppressed).

                                         -5-
      “The prosecutor herself need not have, or even know of, the evidence if one

of her agents has it.” Id. The duty to disclose “extends to prosecutors, police,

and other government investigators.” United States v. Velarde, 485 F.3d 553, 559

(10th Cir. 2007). But Larose was clearly none of these. He was simply a lay

witness asked to explain operations at the private commercial facility where he

worked. Because Larose was not a member of the prosecution, there was no

Brady violation.

                                         III

      During Ortiz’s trial, the prosecutor committed misconduct. On

cross-examination of a transportation expert presented by the defense, who had

explained industry practices relevant to various events in the case, the prosecutor

attempted to elicit testimony that the expert had testified for the defense in

another case in which a defendant was acquitted, then promptly arrested again.

The implication was that the expert helped exonerate guilty people.

      When prosecutorial misconduct is the basis of a motion for mistrial or new

trial, we review the denial of relief for abuse of discretion. United States v.

Maynard, 236 F.3d 601, 605 (10th Cir. 2000). We reverse only upon a showing

of prejudice from the misconduct. Id. at 606. In assessing the impact of the

misconduct, “we consider the trial as a whole, including the curative acts of the

district court, the extent of the misconduct, and the role of the misconduct within

the case.” Id. (quotation omitted).

                                         -6-
      The district court recognized the improper thrust of the prosecutor’s

questioning, but held that a new trial was not warranted because: (1) this was a

singular, isolated incident of the sort that ordinarily would not warrant a mistrial;

and (2) the court acted promptly and effectively to mitigate any prejudice by

sustaining defense counsel’s objection, striking the offending questions and

responses, and issuing a curative instruction to the jury. We do not find any

abuse of discretion.

                                          IV

      AFFIRMED.



                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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