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

                                                                         DEC 17 1998
                                    PUBLISH

                   UNITED STATES COURT OF APPEALS                     PATRICK FISHER
                                                                              Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                     No. 98-2017

 DAVID VALADEZ-GALLEGOS,

       Defendant-Appellant.


                 Appeal from the United States District Court
                       for the District of New Mexico
                          (D.C. No. CR-97-84-2-JC)


David N. Williams (John J. Kelly, United States Attorney; Charles L. Barth,
Assistant United States Attorney, on the brief), Assistant United States Attorney,
Albuquerque, New Mexico, for Plaintiff-Appellee.

Todd B. Hotchkiss of Frechette & Associates, Albuquerque, New Mexico, (Peter
J. Giovannini, Las Cruces, New Mexico, on the briefs), for Defendant-Appellant.


Before SEYMOUR, PORFILIO and BRORBY, Circuit Judges.


BRORBY, Circuit Judge.



      Defendant-Appellant David Valadez-Gallegos appeals his jury conviction
on one count of violating 21 U.S.C. § 841(d)(2), for knowingly and intentionally

possessing a listed chemical knowing or having reasonable cause to believe the

listed chemical would be used to manufacture methamphetamine. Mr. Valadez-

Gallegos argues (1) insufficient evidence supports the jury verdict and the trial

court’s denial of his motion for acquittal, and (2) the trial court improperly

admitted prejudicial evidence concerning a prior arrest. We exercise jurisdiction

under 28 U.S.C. § 1291 and, for the reasons set forth below, reverse on grounds

the evidence is insufficient to support Mr. Valadez-Gallegos’ conviction.



                            FACTUAL BACKGROUND

      Around midnight on January 17, 1997, New Mexico State Police Officer

Urbie Johnston stopped a vehicle after radar showed it going substantially slower

than the speed limit, and weaving and straddling the white shoulder line. The

vehicle – a late 1980's model white Chevy pickup with a camper shell – contained

the driver, Horacio Marquez-Munoz, and a front cab passenger, Mr. Valadez-

Gallegos. On request, Mr. Marquez-Munoz produced his license and registration,

showing the vehicle registered to Jose Vasquez of Modesto, California. During

his conversation with Officer Johnston, Mr. Marquez-Munoz seemed very

preoccupied, and displayed a shaky voice and trembling hands. He advised

Officer Johnston he was going to Modesto, California.


                                          -2-
      While conversing with Mr. Marquez-Munoz, Officer Johnston noticed Mr.

Valadez-Gallegos sitting stiffly and straight up, looking straight ahead, and

avoiding eye contact. Officer Johnston next questioned Mr. Valadez-Gallegos,

who spoke Spanish and some English. Mr. Valadez-Gallegos gritted his teeth and

appeared irritated and evasive. He told Officer Johnston he was heading back to

Modesto after spending two or three days in El Paso visiting the driver’s aunt. He

did not know the driver’s name. Similarly, the driver told Officer Johnston he did

not know Mr. Valadez-Gallegos’ name – only his nickname “Guero.”



      New Mexico State Police Officer Landis Hartranft and United States

Border Patrol Agent Steve Rose arrived at the scene while Officer Johnston was

questioning Mr. Valadez-Gallegos. Agent Rose assisted in translating. Mr.

Valadez-Gallegos reiterated he was heading to Modesto from El Paso, and again

explained he: (a) did not know the driver’s name, but he had known him for three

or four months; (b) did not know who owned the vehicle, but said it belonged to a

friend of the driver; and (c) did not know the name of the driver’s aunt, but he

stayed at her house in El Paso.



      Both Mr. Valadez-Gallegos and Mr. Marquez-Munoz granted permission

for a search of the truck. Inside the truck’s cab, officers found a roll of black,


                                          -3-
sticky tape, which Officer Johnston thought uncommon but had seen in some

“work trucks.” The officers also found a New Mexico state police speeding

citation issued two days before to Mr. Marquez-Munoz on Interstate 40,

eastbound, near Tucumcari, New Mexico. Officer Johnston noted that Tucumcari

is not on a direct route between Modesto, California and El Paso, Texas.



      During the search, Officer Johnston lifted the camper door and immediately

detected an overwhelming odor of fabric softener. Examination of the camper

showed only a sleeping bag, pillow, large blanket, suitcase, and “odds and ends.”

Officer Johnston next deployed his narcotics dog, Nero, who “reacted” to the

camper shell and, when directed inside, stuck his nose to the ceiling and its light.

Officer Johnston removed the light and inserted a drill bit, producing a white

piece of cloth smelling of fabric softener. Because of the presence of fabric

softener, Officer Johnston decided to investigate further. However, because of

the severe cold and wind, the officers removed the vehicle and its occupants to a

nearby border patrol station for everyone’s safety.



      On re-examination of the camper, it appeared a hidden compartment existed

in the ceiling, with black sticky tape, similar to that previously found in the cab,

stuck along the ceiling and seams where the roof and sides meet. The screws also


                                          -4-
appeared to be worn, and removed and replaced several times. On removing the

screws and ceiling cover, the officers discovered many one-gallon plastic freezer

bags lining the entire width and length of the camper top. The bags contained

either a white powdery substance, a rolled-up cookie dough-like substance, or

little white pills. They also recovered hundreds of fabric softener sheets over and

inside the plastic bags. Tests later revealed the substances in the bags contained

varying strengths or percentages of psuedoephenedrine hydrochloride – referred

to as “ephedrine.” Ephedrine is used to manufacture methamphetamine, perfume,

or over-the-counter drugs. Drug Enforcement Administration agents found no

latent fingerprints on the bags.



         Further inspection of the cab revealed a road map of the United States

marked with annotations for time and distances between locations, and a lipstick

smudge. Although no annotation appeared near El Paso, some of the circled

locations on the map included Needles, California; Tucumcari, New Mexico; and

Amarillo, Texas – all high narcotic interdiction areas. The cab contained no guns,

knives, beepers, cell phones, or large amounts of cash – items commonly

associated with drug trafficking. The cab emitted no odor of fabric softener

sheets, and until removal of the camper ceiling, they emitted no odor outside the

shell.


                                           -5-
      After completing their search and field testing the substances, the officers

arrested Mr. Marquez-Munoz and Mr. Valadez-Gallegos for possession of

controlled substances. Mr. Gonzalo Cordova, coordinator for the Southwestern

New Mexico Narcotics Task Force, interviewed Mr. Valadez-Gallegos in Spanish

while in custody. Mr. Valadez-Gallegos repeated he lived in Modesto, California,

and met the driver only four or five months before in a Modesto bar, knowing him

only by his nickname, “El Flaco.” Mr. Valadez-Gallegos told Officer Cordova

that Mr. Marquez-Munoz invited him to go along while Mr. Marquez-Munoz

transported his aunt to El Paso. They left Modesto on Tuesday, arriving in El

Paso on Thursday.



      Mr. Valadez-Gallegos acknowledged he and Mr. Marquez-Munoz received

the traffic citation near Tucumcari but said they drove a northern route because of

bad weather to the south. However, the officers noted the weather to the south

had been no worse than that in the northern part of the state. When Agent

Cordova questioned Mr. Valadez-Gallegos about the $200 the officers seized

from him, Mr. Valadez-Gallegos explained he left California with $600, but in the

two days of travel, spent $400 on gas and food.



      Mr. Valadez-Gallegos said they made no significant stops nor did any sight-


                                         -6-
seeing along the way, other than staying at Mr. Marquez-Munoz’s aunt’s house in

El Paso on Thursday and Friday, where he spent most of the time sleeping.

During this time, he had no knowledge of the vehicle leaving the residence, but

could not explain how the contraband got in the camper.



      According to Mr. Valadez-Gallegos, the aunt traveled in the camper.

However, the camper contained no women’s clothing or articles. When advised

the speeding citation showed no other person accompanied them, Mr. Valadez-

Gallegos recanted, stating Mr. Marquez-Munoz told him to say the aunt traveled

with them to El Paso. Later, on being told of Mr. Valadez-Gallegos’ statement,

Mr. Marquez-Munoz appeared angry, denied he gave those instructions, and

wanted to confront Mr. Valadez-Gallegos.



      The next interview occurred at the task force headquarters in Deming, New

Mexico. While Drug Enforcement Administration Agent Luis Medina took

biographical information from Mr. Valadez-Gallegos and Mr. Marquez-Munoz,

Agent Richard Sanders advised them that some of the substance field tested

positive for heroin. On hearing this, Mr. Marquez-Munoz immediately turned to

Mr. Valadez-Gallegos and, in Spanish, stated “I didn’t know this was heroin.”

Mr. Valadez-Gallegos did not reply.


                                        -7-
      After receiving a Miranda warning in Spanish, Mr. Valadez-Gallegos

agreed to a third interview, conducted in Spanish by Agents Medina, Sanders and

Cordova. Mr. Valadez-Gallegos repeated he met Mr. Marquez-Munoz at a bar in

California only four or five months before. He accompanied Mr. Marquez-Munoz

because he had never visited the area and felt it a good time to go. This time,

instead of leaving Modesto on Tuesday, he said they left on Wednesday at 4:00

p.m., drove all night, and arrived in El Paso on Thursday. Instead of staying at

the aunt’s as he previously stated, he said they stayed in a mobile home in central

El Paso, but he received no introduction to its occupants. According to Mr.

Valadez-Gallegos, they did not bring Mr. Marquez-Munoz’s aunt to El Paso

because she changed her mind and decided not to make the trip. Mr. Valadez-

Gallegos said they left El Paso on Friday, heading west on I-10.



      Agent Cordova also interviewed the driver, Mr. Marquez-Munoz, whose

story varied substantially from Mr. Valadez-Gallegos’. Mr. Marquez-Munoz

indicated they drove the northern route to El Paso because he did not know the

road – not due to bad weather. They traveled to El Paso, not to transport his aunt

but to look for her. Since they could not find her, they stayed overnight at a rest

stop in El Paso.




                                          -8-
      On February 4, 1997, Agent Medina conducted a fourth interview with Mr.

Valadez-Gallegos, who wanted to provide information to assist in the

investigation. Mr. Valadez-Gallegos again changed his story, saying they made

four stops during the trip from Modesto to El Paso and stayed at a truck stop in El

Paso, not a trailer. He did not know the truck stop’s location. Because they could

not find the aunt’s residence in El Paso, they headed back towards Modesto.

When specifically asked, Mr. Valadez-Gallegos gave no indication that he knew

the ephedrine’s final destination. When asked whether there were other people

involved, Mr. Valadez-Gallegos indicated there were, but he stated he did not

know their names. He said the pickup never left his sight during the trip but he

failed to respond when asked how the ephedrine got in the camper.



      At trial, Officer Johnston testified that during the entire stop and search,

Mr. Marquez-Munoz showed signs of extreme nervousness, including vomiting

several times, shaky legs, acting antsy and not sitting still, defecating, urinating at

least two times, and lighting up several cigarettes. Mr. Valadez-Gallegos,

however, showed no signs of nervous behavior. He also testified Mr. Valadez-

Gallegos sat the same way during the trial as he sat the night of the arrest – stiffly

and straight up, avoiding eye contact – which Officer Johnston admitted may be

normal for him. Although Mr. Valadez-Gallegos gritted his teeth and appeared


                                          -9-
irritated and evasive during his initial interview, Officer Johnston acknowledged

this behavior or appearance may have resulted from Officer Johnston’s limited

ability to speak Spanish. He testified it is not unusual for vacationers to carry a

road map in the vehicle with markings, including mileage and time scheduling.

Officers Johnston and Hartranft also testified that nothing in the vehicle, nor their

investigation, directly connected Mr. Valadez-Gallegos to the ephedrine found in

the truck.



                         PROCEDURAL BACKGROUND

      Prior to trial, the government filed a notice of crimes, wrongs or acts,

pursuant to Fed. R. Evid. 404(b), indicating its intent to use evidence of Mr.

Valadez-Gallegos’ prior Oklahoma arrest, 1 five months earlier, for possession of

pseudoephedrine to show his knowledge and intent. When arrested in Oklahoma,

Mr. Valadez-Gallegos was a passenger in another vehicle containing ephedrine.

Mr. Valadez-Gallegos filed a motion in limine in opposition. The court ruled the

evidence could not “be offered in the case in chief unless the defense develops a

theory and paints a picture that Mr. Valadez knows nothing about

psuedoephedrine and has no idea what that is.”



      1
          Although arrested, Mr. Valadez-Gallegos was never prosecuted.


                                         -10-
      At trial, the prosecutor attempted to introduce evidence of the prior arrest

by asking Agent Medina whether Mr. Valadez-Gallegos told him “about being

stopped previously for suspected cocaine.”

      A. No, sir, he did not.

      Q. Did he tell you what Mr. Villa Senor had stated about that stop?

      A. Yes, sir.

      Q. And was it cocaine?

Before the witness answered, the trial court interrupted and requested a bench

conference. The prosecutor asked the court to permit the testimony because of its

similarity to the present arrest, and offered the evidence as a “statement against

interest” because the defense, through cross-examination of witnesses, was

attempting to show nothing connected Mr. Valadez-Gallegos with the drugs found

in the vehicle. Defense counsel objected, claimed the testimony “tainted” the

jury, and requested a mistrial. The trial court denied the motion for a mistrial,

ruled the witness could not be asked any more questions concerning the prior

arrest, and allowed the prosecution to reserve such questioning for its last two

witnesses. The judge then instructed the jury to disregard the questions and

answers relating to Mr. Villa Senor.



      Prior to calling its last two witnesses, the prosecution again requested


                                         -11-
permission to present Rule 404(b) testimony on Mr. Valadez-Gallegos’ prior

arrest, to show “knowledge, intent, and ... pattern.” Defense counsel objected to

the proposed evidence as extremely and unduly prejudicial. A lengthy colloquy

ensued, after which the trial court granted the prosecution’s request but limited

the evidence to discussion of a stop, not an “arrest”; where the stop occurred; the

origin and route of the trip; and the fact “a large quantity of psuedoephedrine was

found with Mr. Valadez-Gallegos being a passenger in the vehicle.” The trial

court gave the jury a cautioning instruction prior to any further testimony being

presented.



      The prosecution then called Oklahoma Highway Patrolman Mark Nelson,

who testified that on August 15, 1996, he stopped a blue Dodge pickup truck,

traveling from Dallas, Texas, to Modesto, California, and containing the driver,

Samuel Villa Senor, and a passenger, Mr. Valadez-Gallegos. Officer Nelson

smelled an odor similar to fabric softener sheets, but called for assistance due to

his inability to speak Spanish.



      Oklahoma Bureau of Narcotics Agent Frank Maldonado then testified he

spoke in Spanish with Mr. Valadez-Gallegos, who was traveling from Modesto to

Dallas and then to Houston, on vacation. Mr. Valadez-Gallegos told Agent


                                         -12-
Maldonado that he and Mr. Villa Senor slept in a motel in Dallas one night and a

motel in Houston the next night, where he swam in the pool. He said he and Mr.

Villa Senor borrowed the truck for the trip. When the officers removed certain

“objects” from the vehicle, Mr. Valadez-Gallegos asked if they “were going to

make sure of what that was.” Neither officer testified that the “objects” removed

from the vehicle contained ephedrine. The trial court instructed the jury about the

limited “knowledge or intent” purposes of Fed. R. Evid. 404(b) evidence.



      At the close of the government’s case, Mr. Valadez-Gallegos moved for

judgment of acquittal under Fed. R. Crim. P. 29(a), arguing insufficient evidence

existed to show the knowledge or intent required to commit the crime charged.

The judge deferred a decision on the motion until after the jury rendered a

verdict.



      The judge provided, in relevant part, the following jury instructions: (1)

the government must prove Mr. Valadez-Gallegos guilty beyond a reasonable

doubt; (2) the government must prove beyond a reasonable doubt that (a) Mr.

Valadez-Gallegos knowingly possessed a listed chemical, (b) the listed chemical

was pseudoephedrine, and (c) Mr. Valadez-Gallegos possessed the listed chemical

with intent to manufacture methamphetamine, or knowing, or having reasonable


                                        -13-
cause to believe, the pseudoephedrine would be used to manufacture

methamphetamine; and (3) the law recognizes two kinds of possession – (a) actual

possession in which the person knowingly has direct physical control over a thing

at a given time, and (b) constructive possession, in which the person, although not

in actual possession, knowingly has both the power and intention, at a given time,

to exercise dominion or control over a thing either directly or through another

person. He also instructed the jury mere presence at the scene of a crime, or

knowledge a crime is being committed, is not sufficient to establish the defendant

either directed or aided and abetted in the crime.



      The jury found Mr. Valadez-Gallegos guilty of one count of violating 21

U.S.C. § 841(d)(2), for possessing a listed chemical knowing and having

reasonable cause to believe the listed chemical would be used to manufacture a

controlled substance.



      The trial court subsequently denied Mr. Valadez-Gallegos’ Rule 29 motion

for judgment of acquittal. 2 The trial court ruled the government presented


      2
         Under Fed. R. Crim. P. 29(b), the trial court may reserve a decision on a
motion for judgment on acquittal on one or more charges until after the jury
returns its verdict. Here, Mr. Valadez-Gallegos sought acquittal of conviction
under both 21 U.S.C. § 841(d)(1) and (d)(2), prior to the jury’s verdict, and the
court reserved its decision. Because the jury convicted Mr. Valadez-Gallegos

                                         -14-
adequate evidence from which a reasonable jury could conclude Mr. Valadez-

Gallegos committed the crime charged. In addition to the massive quantities of

ephedrine found in the camper, the trial court concluded the following evidence

established Mr. Valadez-Gallegos’ knowledge of the presence of ephedrine: (1)

his inherently inconsistent, contradictory, and incredible stories told to various

police officers on many occasions and different settings; (2) the annotated road

map found in the cab where he was a passenger; (3) the overwhelming and

pervasive smell of perfumed dryer sheets within the truck; (4) Mr. Marquez-

Munoz’s statement to Mr. Valadez-Gallegos that he “didn’t know there was

heroin;” (5) Mr. Valadez-Gallegos’ failure to respond when asked how the

ephedrine could have been put in the ceiling of the camper “if he never left the

vehicle.” At sentencing, Mr. Valadez-Gallegos received seventy-eight months in

prison and three years supervised release.



                                     ANALYSIS

      Mr. Valadez-Gallegos argues his conviction should be set aside because (1)

insufficient evidence exists to support either the jury verdict or the trial court’s




only under 21 U.S.C. § 841(d)(2), the trial court considered the motion with
respect to that statute only and entered a Judgment of Acquittal on the 21 U.S.C.
§ 841(d)(1) charge.


                                          -15-
denial of his Rule 29 motion for acquittal; and (2) the trial court improperly

admitted Rule 404(b) evidence concerning his prior arrest.



                            Sufficiency of the Evidence

      Mr. Valadez-Gallegos claims insufficient evidence supports the verdict

because neither his joint occupancy in the vehicle nor his presence and proximity

to the contraband is sufficient to show actual or constructive possession of the

ephedrine. He asserts the government failed to meet its burden of proof since

even knowledge of the presence of ephedrine is insufficient to show the requisite

dominion and control necessary for possession. Finally, he contends his

inconsistent statements and contradictions, and failure to respond to questions on

how the ephedrine got into the camper ceiling, may create a general suspicion but

do not prove he knew of the ephedrine’s existence.



      Our standard of review on a motion for acquittal is the same as the trial

court’s in ruling on the motion in the first instance. United States v. Miles, 772

F.2d 613, 615 (10th Cir. 1985). We review the evidence in the light most

favorable to the government and “‘then determine whether there is substantial

evidence from which a jury might properly find the accused guilty beyond a

reasonable doubt.’” Id. (quoting United States v. White, 673 F.2d 299, 301 (10th


                                         -16-
Cir. 1982)). The jury, as fact finder, has discretion to resolve all conflicting

testimony, weigh the evidence, and draw inferences from the basic facts to the

ultimate facts. See United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995),

cert. denied, 516 U.S. 1081 (1996). However, we may not uphold a conviction

obtained by piling inference upon inference. United States v. Jones, 44 F.3d 860,

865 (10th Cir. 1995). “An inference is reasonable only if the conclusion flows

from logical and probabilistic reasoning.” Id. The evidence supporting the

conviction must be substantial and do more than raise a suspicion of guilt. United

States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997).



      In this case, the determinative issue is whether Mr. Valadez-Gallegos

constructively possessed the ephedrine. Generally, a person has constructive

possession when he or she knowingly holds ownership, dominion or control over

the object and premises where it is found. Id. at 1144-45. Exclusive possession

of the premises supports an inference of constructive possession. However, joint

occupancy of a premises cannot sustain such an inference. Id. (citing United

States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994)). To prove constructive

possession when there is joint occupancy of a vehicle, the government must

present direct or circumstantial evidence to show some connection or nexus

individually linking the defendant to the contraband. See United States v. Miller,


                                         -17-
84 F.3d 1244, 1253 (10th Cir.) (relying on Mills, 29 F.3d at 549), cert. denied,

117 S. Ct. 443 (1996), 118 S. Ct. 419 (1997)). The government must present

“‘some evidence supporting at least a plausible inference that the defendant had

knowledge of and access to the ... contraband.’” Taylor, 113 F.3d at 1145

(quoting United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993), cert.

denied, 510 U.S. 1198 (1994)); see also Mills, 29 F.3d at 549-50.



      On careful review of the record and the trial court’s order concerning the

motion for acquittal, we conclude the evidence fails to link Mr. Valadez-Gallegos

to the narcotics in any way, other than presence and proximity. Presence and

proximity are inadequate to support a conviction.



      In so holding, we first address the evidence considered by the trial court.

As the trial court indicates, Mr. Valadez-Gallegos did make inconsistent and

contradictory statements concerning the dates and time of travel, night-time

accommodations, weather, and the presence of another passenger on the trip.

However, conflicting or inconsistent statements do not always provide evidence

sufficient to show knowledge or constructive possession of drugs. See, e.g.,

United States v. Leos-Quijada, 107 F.3d 786, 795 (10th Cir. 1997) (inconsistent

stories about travel plans, along with other factors, were not sufficient to connect


                                         -18-
defendant with drug venture for purpose of conviction for aiding and abetting in

possession of marijuana with intent to distribute); Jones, 44 F.3d at 868-69 (citing

conspiracy cases in which conflicting or implausible stories did not provide

sufficient link to firearms or contraband or show knowledge of an illegal

activity). While these cases involve charges of aiding and abetting or conspiracy

to possess and distribute drugs, in each, the jury, as in this case, was required to

draw inferences from the evidence as to the defendant’s knowledge or

constructive possession of an illegal drug. Applying the same analysis, we

conclude that in this case, Mr. Valadez-Gallegos’ conflicting or inconsistent

stories merely raise a suspicion or an inference he suspected illegal activity.



      The fact “massive quantities” of ephedrine were hidden in the camper

ceiling does not directly link Mr. Valadez-Gallegos, a passenger in the cab of the

same vehicle, to the contraband. While a pervasive smell of perfumed dryer

sheets permeated the camper, the evidence clearly establishes the sheets emitted

no odor in the cab. Moreover, no evidence establishes Mr. Valadez-Gallegos ever

opened the door of the camper.



      Even though authorities found the lipstick-smudged, annotated road map in

the cab where Mr. Valadez-Gallegos was the only passenger, nothing shows a


                                          -19-
direct link between the annotations and drug activity, when the annotations were

made, or even who made them. Moreover, Officer Johnston testified it was not

unusual for vacationers to carry a road map in a vehicle with markings, including

mileage and time scheduling.



      Even though Mr. Valadez-Gallegos said the vehicle never left his sight, his

failure to respond when asked how the ephedrine got in the camper is not

dispositive. No evidence establishes whether Mr. Valadez-Gallegos slept in the

cab or camper, drove or had keys to the vehicle, or accessed or accompanied Mr.

Marquez-Munoz into the camper, or even looked in it. Likewise, no evidence

establishes when the ephedrine was hidden in the ceiling.



      Mr. Valadez-Gallegos’ statement he knew others must be involved but did

not know who they were or the destination for the ephedrine, is not dispositive,

but merely an inference. Similarly, Mr. Marquez-Munoz’s statement to Mr.

Valadez-Gallegos he “didn’t know there was heroin,” creates only an attenuated

inference, insufficient to establish a direct link between Mr. Valadez-Gallegos

and the ephedrine.



      The other evidence presented to the jury also does not establish Mr.


                                        -20-
Valadez-Gallegos’ constructive possession of the ephedrine. At trial, Officer

Johnston testified Mr. Valadez-Gallegos showed no signs of nervous behavior,

while Mr. Marquez-Munoz showed signs of extreme nervousness, including a

shaky voice, trembling hands, shaking legs, vomiting, defecating, excessive

urinating and smoking. He testified Mr. Valadez-Gallegos sat the same way

during the trial as he sat the night of the arrest – stiffly and straight-up, avoiding

eye contact – which could be his normal behavior. Officer Johnston

acknowledged Mr. Valadez-Gallegos’ irritated or evasive behavior during the

initial stop may have resulted from his own limited ability to speak Spanish. He

also acknowledged the roll of black, sticky tape found inside the truck’s cab,

though uncommon, is similar to that seen in “work trucks.” Nothing in the

evidence establishes Mr. Valadez-Gallegos knew, or should have known, the same

black tape helped seal a hidden ceiling compartment containing the ephedrine.

The fact Mr. Valadez-Gallegos spent $400 dollars in two days and did not know

the driver except by his nickname does not establish the required nexus. In fact,

Officers Johnston and Hartranft testified nothing in the vehicle nor their

investigation directly connected Mr. Valadez-Gallegos to the ephedrine found in

the truck.



      Finally, even assuming proper admission of the 404(b) evidence of Mr.


                                          -21-
Valadez-Gallegos’ prior Oklahoma stop, that evidence was admitted for the

limited purpose of showing knowledge, intent and pattern. The fact Mr. Valadez-

Gallegos was a passenger in another vehicle containing ephedrine created only an

inference of his involvement in an illegal activity. The 404(b) evidence admitted

did not establish the ephedrine’s location in the other vehicle or whether Mr.

Valadez-Gallegos knew of its existence, or had possession or control over it.



      In instances where there is joint occupancy, as here, constructive

possession requires a link or nexus between Mr. Valadez-Gallegos and the

contraband. See Miller, 84 F.3d at 1253. Here, the government failed to present

evidence sufficiently linking Mr. Valadez-Gallegos with the contraband found in

the camper. Consequently, the evidence cannot sustain the conviction and

sentence.



                               Rule 404(b) Evidence

      Having found the evidence, including the Rule 404(b) evidence at issue,

insufficient to find Mr. Valadez-Gallegos guilty beyond a reasonable doubt, we

need not reach the remaining issue presented by Mr. Valadez-Gallegos on appeal.

The evidence being insufficient, the judgment on conviction is REVERSED.




                                        -22-
