             NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 10a0433n.06

                                      No. 08-3473                                 FILED
                                                                                Jul 15, 2010
                      UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                           FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                 )
                                          )
       Plaintiff-Appellee,                )
                                          )    ON APPEAL FROM THE UNITED
v.                                        )    STATES DISTRICT COURT FOR
                                          )    THE SOUTHERN DISTRICT OF
KARLA RUIZ,                               )    OHIO
                                          )
       Defendant-Appellant.               )



Before: KENNEDY and COLE Circuit Judges, and JORDAN, District Judge*

       JORDAN, District Judge. Following a lengthy jury trial, appellant Karla Ruiz

was found guilty of traveling in interstate commerce with the intent to promote or

facilitate an unlawful activity (18 U.S.C. § 1952(a)(3)). The jury, however, found her

not guilty of the alleged unlawful activity, that is, a conspiracy to distribute controlled

substances. In this appeal, Ms. Ruiz argues that the district court erred in denying

her motion for judgment of acquittal or for a new trial because the jury’s verdict was

so inconsistent that her conviction cannot stand and, in any event, the evidence was




       *
      The Honorable Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
insufficient to support the conviction. W e find no merit to either of the appellant’s

arguments, and we AFFIRM her conviction.

                                 I. BACKGROUND

      At trial, the government’s evidence showed that numerous persons, some in

California and some in Ohio and Illinois, were importing large amounts of marijuana

and cocaine from California to Ohio and other states. Various witnesses testified

that the conspirators used several females who transported the drugs and cash

proceeds in two vehicles – a green Honda Odyssey van or a grey Dodge Intrepid.

The government’s theory was that Ruiz was one of the females who arranged the

trips and, on occasion, drove one of the vehicles. One of the other drivers was

Eunice Silva. Prior to trial, Silva pleaded guilty and testified about her courier

activities with Ruiz.

      Silva described how she was recruited by her brother who was in jail in

California with Ruiz’s husband. Although Silva was not specifically told that the trips

would involve drugs and cash, she knew that was the purpose. Karla Ruiz called

Silva and arranged for her to drive on a “test” trip to W aukegan, Illinois, with Bonnie

Rendon. Silva was not paid for that trip. Ruiz then called and arranged for Silva to

transport eight kilograms of cocaine to Springfield, Ohio, in November 2001 with

Ruiz’s sister-in-law, Monica Garcia, in whose name the van was registered. Ruiz

paid Silva $2000 upon her return.




                                           2
       Ruiz arranged another trip with Silva to Springfield in December 2001, but by

this time agents were aware of the activities of the conspiracy and the group was

under investigation. The Odyssey van was driven to a restaurant parking lot in

Springfield, Ohio, where it was left with the keys inside. Two other conspirators who

had flown into Ohio to conduct the drug transaction picked up the van and drove it

to a garage, and seven kilograms of cocaine were removed from a secret

compartment in the dashboard. Agents were able to interrupt the drug transaction

and seize most of the cocaine and some drug proceeds. The van was returned to

the parking lot and Ruiz and Silva began their trip back to California. This time,

however, at the request of a DEA agent the van was stopped for a traffic violation.

Ruiz was driving and Silva and Ruiz’s three-year-old child were passengers in the

van.

       The Ohio State Trooper who stopped the van had a drug dog with him which

he used to check the exterior of the van. The dog alerted and the van was searched

for drugs and cash. Only a small amount of cocaine and methamphetamine were

found in a compact in Silva’s bag, and she was arrested for possession. The van

was seized and searched more carefully. Two hidden compartments were found,

one in the dashboard and one in the rear panel, but both were empty. Ruiz and her

child were released. Silva testified that she drove to Ohio and other states after the

December trip and that each trip was arranged by Ruiz.




                                          3
      Ruiz was indicted with three others and charged with conspiracy to distribute

and to possess with the intent to distribute in excess of five kilograms of cocaine.

She was also charged with a violation of the Travel Act, 18 U.S.C. § 1952(a)(3),

which prohibits traveling in interstate commerce with the intent to promote or

facilitate an unlawful activity. The “unlawful activity” that formed the basis of this

charge was identified in the indictment as “a business enterprise involving an

unlawful conspiracy to possess with the intent to distribute a controlled substance.”

Ruiz and Asmed Escareno went to trial, but the other co-conspirators pleaded

guilty. Ruiz was found guilty of the Travel Act count and Escareno was convicted

of all the charges against him. Ruiz filed a post-trial motion for judgment of

acquittal or a new trial which was denied by the district court. She was sentenced

to 54 months in prison and a three-year term of supervised release.

                                  II. DISCUSSION

                               A. Standard of Review

      On the issue of whether the jury verdict was so inconsistent that Ruiz is

entitled to a new trial, this court reviews the district court’s decision to deny a new

trial for an abuse of discretion. United States v. Lawrence, 555 F.3d 254, 261 (6th

Cir. 2009), cert. denied, 130 S. Ct. 1879 (2010). An abuse of discretion may be

found when the district court relies on “clearly erroneous findings of fact, uses an

erroneous legal standard, or improperly applies the law.” Id. (quoting United States

v. White, 492 F.3d 380, 408 (6th Cir. 2007)). This court reviews de novo Ruiz’s

                                          4
claim that she is entitled to a judgment of acquittal because the evidence was not

sufficient. United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007). The

question is “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 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

                            B. Inconsistent Jury Verdict

      Ruiz argues that conspiracy was an element of the Travel Act count and

therefore the jury’s determination that she was guilty of the Travel Act count but not

the conspiracy count creates an impermissible inconsistent verdict.              She

characterizes the conspiracy charge and the Travel Act charge as “mutually

exclusive crimes,” arguing that the conspiracy was a necessary element of the

Travel Act charge. Ruiz takes the position that the not-guilty verdict on the

conspiracy count demonstrates that the “jury did not (and apparently could not) find

that a conspiracy existed,” and in the absence of a conspiracy, the Travel Act count

must be dismissed.

      Ruiz recognizes that the Supreme Court has repeatedly found that jury

verdicts like the one in this case should not be reviewed. In United States v.

Powell, 469 U.S. 57 (1984), the Court considered a factual situation very much like

the one before this court and found that there was no reason to review the jury’s

verdict. Id. at 69. In Powell, the defendant was charged in a 15-count indictment

with conspiring with her minor son and husband to possess with the intent to

                                          5
distribute cocaine, possession with the intent to distribute cocaine, and several

counts of using a telephone to commit and facilitate the drug felonies. The jury

acquitted her on the conspiracy count and the possession count, but found her

guilty of three of the telephone facilitation counts. Id. at 59-60.

      Powell argued that proof of the conspiracy or the possession counts was an

element of each of the telephone facilitation counts, so the jury’s verdict was

inconsistent. Id. at 60. The Court reiterated the rule it adopted in Dunn v. United

States, 284 U.S. 390, 393 (1932):

      The most that can be said in such cases is that the verdict shows that
      either in the acquittal or the conviction the jury did not speak their real
      conclusions, but that does not show that they were not convinced of
      the defendant’s guilt. We interpret the acquittal as no more than their
      assumption of a power which they had no right to exercise, but to
      which they were disposed through lenity.

Id. at 63 (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)). The

Court went on to point out that a defendant’s assumption that the error was in the

conviction is no more than speculation; the opposite could have been true – that the

error was in the acquittal, but the government has no right to challenge the acquittal

on grounds of inconsistency. Id. at 65. “The fact that the inconsistency may be the

result of lenity, coupled with the Government’s inability to invoke review, suggests

that inconsistent verdicts should not be reviewable.”         Id. at 66.    Instead, a

defendant’s protection against an inconsistent verdict lies in an independent review

of the sufficiency of the evidence. Id. at 67.


                                          6
      Nevertheless, Ruiz has seized upon a footnote in the Powell opinion that

excepts a situation where a guilty verdict on one count necessarily excludes a

finding of guilt on another. Id. at 69, n. 8; see also United States v. McCall, 85 F.3d

1193, 1197-98 (6th Cir. 1996) (using the term “mutually exclusive” but finding that

the verdicts were not reviewable). This court finds, however, that this is not a case

where the exception would apply. In crafting the exception, the Court contemplated

a situation in which a defendant receives two guilty verdicts that are logically

inconsistent, for example if a jury convicted a defendant of both larceny and

embezzlement based on the same underlying conduct. See United States v.

Daigle, 149 F. Supp. 409, 414 (D.D.C. 1957), cited in Powell, 469 U.S. at 69 n.8.

Even putting aside the obvious distinction that Ruiz has received one guilty and one

not-guilty verdict, just as in Powell, we conclude that the two charged crimes are

interdependent rather than mutually exclusive. Contrary to Ruiz’s contention, a not-

guilty verdict on the conspiracy count is not determinative of whether Ruiz intended

to promote or facilitate an unlawful activity while traveling in interstate commerce.

As the Court noted in Powell, the verdict could reflect jury lenity, or even a mistaken

acquittal. Powell, 469 U.S. at 64-65.

      We find that this issue is controlled by the Supreme Court’s decision in

Powell and decline to review the jury’s verdict. There is no reason to vacate a

conviction “merely because the verdicts cannot rationally be reconciled.” Powell,

469 U.S. at 69.

                                          7
                          C. Sufficiency of the Evidence

      As directed by the Supreme Court, Ruiz’s avenue of relief, if any, is through

a sufficiency of the evidence evaluation. The indictment charged that Ruiz traveled

from California to Springfield, Ohio, to facilitate the distribution of controlled

substances. In order to prove this charge, the government had the burden to show

that the defendant traveled in interstate or foreign commerce with the intent to

promote or facilitate an unlawful activity and that she performed or attempted to

perform an act that promoted or facilitated the unlawful activity. United States v.

Driver, 535 F.3d 424, 430 (6th Cir.), cert. denied, 129 S. Ct. 662 (2008).

      In support of her contention that the government has failed to satisfy its

burden, Ruiz asserts that “the jury did not (and apparently could not) find that a

conspiracy existed,” so one of the elements of the Travel Act – the unlawful activity

– did not exist. To the extent that this is simply her argument that the jury verdict

is impermissibly inconsistent restyled as an insufficient evidence claim, the

Supreme Court has foreclosed it in Powell:

      [R]espondent’s argument that an acquittal on a predicate offense
      necessitates a finding of insufficient evidence on a compound felony
      count simply misunderstands the nature of the inconsistent verdict
      problem. Whether presented as an insufficient evidence argument, or
      as an argument that the acquittal on the predicate offense should
      collaterally estop the Government on the compound offense, the
      argument necessarily assumes that the acquittal on the predicate
      offense was proper – the one the jury “really meant.” This, of course,
      is not necessarily correct; all we know is that the verdicts are
      inconsistent.


                                         8
469 U.S. at 68.

      When treated as an argument that there was insufficient evidence for a

reasonable trier of fact to conclude beyond a reasonable doubt that she traveled

across state lines to promote or facilitate the “unlawful activity” of a drug-trafficking

conspiracy, Ruiz’s argument likewise fails. Our review of this claim should be

“independent of the jury’s determination that evidence” on the conspiracy count

“was insufficient.” Id. at 67. Much of the testimony during the lengthy trial

concerned the existence of the conspiracy, that is, who was involved and how the

cocaine was delivered. Part of that proof came from Silva who detailed her

involvement as a courier for the conspiracy. She described how Ruiz called her to

set up the trips to Ohio and that Ruiz was with her in December 2001 when the van

was stopped. Silva testified that she knew that they were transporting drugs and

cash, although she had not been specifically told that information. Thus, based on

Silva’s testimony, there was evidence that Ruiz traveled from California to Ohio in

a van that had secret compartments to hold drugs and cash. Further, Silva’s

testimony about her courier activities was corroborated by other evidence, including

the stop of the van.

      Although Ruiz contends that Silva’s testimony was so incredible that it could

not support her conviction, it was for the jury to decide whether to credit Silva’s

testimony. The jury was told to consider the co-defendants’ testimony with “more

caution,” but they could base their verdict on the unsupported testimony of these

                                           9
witnesses if they believed it beyond a reasonable doubt. Obviously, the jury

believed enough of Silva’s testimony to find that Ruiz was a courier for the

conspiracy.   Considering all the evidence in the light most favorable to the

government, we find that there was sufficient evidence to support the defendant’s

conviction.

                               III. CONCLUSION

      For the foregoing reasons, the judgment of conviction is AFFIRMED.




                                       10
