                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          April 9, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,

     v.                                                    No. 06-8040
                                                    (D.C. No. 05-CR-60-W FD)
    VINH V. LE,                                             (D . W yo.)

              Defendant-Appellant.



                              OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




          Following a trial in February 2006 in the United States District Court for

the District of W yoming, Vihn V. Le was convicted by a jury of one count of

possession of marijuana with intent to distribute in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C). Specifically, the jury found M r. Le guilty of

possessing 142 pounds of marijuana with intent to distribute. In M ay 2006, the




*
       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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
district court imposed a sentence of forty-one months imprisonment and three

years of supervised release. M r. Le is now appealing his conviction, arguing that

the evidence presented at his trial was insufficient to find him guilty beyond a

reasonable doubt of knowingly possessing marijuana with intent to distribute.

Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that M r. Le’s

conviction is supported by sufficient evidence. W e therefore affirm.

                                          I.

      W e commend defense counsel and counsel for the government for the

quality of the briefs they submitted to this court. W e also appreciate the parties’

thorough factual statements summarizing the evidence that w as presented at trial.

Further, because defense counsel has succinctly and accurately summarized that

evidence, we will adopt the following portions of appellant’s opening brief as our

background statement:

             On February 2, 2005, W yoming Highway Patrol trooper
      Timothy Boumeester stopped a U-Haul van traveling eastbound on
      Interstate 80 in Albany County, W yoming. The U-Haul (hereinafter
      van) had been clocked by radar as speeding 81 in a 75 mile per hour
      zone. The van, driven by Vinh V. Le, was stopped without incident.

            Trooper Boumeester contacted the driver, M r. Le, and obtained
      the van rental agreement as well as Le’s driver’s license. During the
      course of the . . . contact with M r. Le, the Trooper was told that Le
      had flown [from his home in Beaumont, Texas] to Seattle,
      W ashington to pick up a sofa and chairs from his brother and that the
      van contained the furniture he had obtained in Seattle. During the
      course of this conversation Trooper Boumeester noticed that Le was
      sweating, wouldn’t make eye contact and his hands were shaking.
      After being advised that M r. Le’s driver’s license was valid the

                                         -2-
      Trooper issued a warning for speeding and asked him if he had any
      questions. M r. Le indicated he had no questions and the Trooper told
      him to have a safe trip and M r. Le exited the patrol vehicle.

             Trooper Boumeester also exited his patrol vehicle and asked
      Le if he could ask some more questions. M r. Le nodded his head
      affirmatively and said “yes.” The Trooper asked M r. Le if he had
      any drugs or anything illegal in the van. M r. Le said “no.” M r. Le
      was then asked if there was any marijuana in the van and Le shook
      his head “no” but said “yes.” Trooper Boumeester repeated the
      question and received the same response. M r. Le shook his head
      “no” but said “yes.” Boumeester asked if he could search the van
      and M r. Le reached into his pocket, revealed a key and unlocked the
      padlocked cargo area of the van.

             W hen the Trooper opened the cargo area of the van he
      immediately noticed what he characterized as an overwhelming odor
      of dryer sheets.[ 1 ] W hen asked why the cargo area of the van
      smelled like dryer sheets, Le gave no response. As indicated earlier
      by M r. Le, there was furniture in the van and the Trooper also
      noticed a portion of a bag beneath and behind the furniture in the
      cargo area nearest the cab of the van. Trooper Boumeester closed the
      cargo area and advised M r. Le that he would be calling for another
      Trooper and his K-9.

             Trooper Chatfield arrived with his K-9 who deployed around
      the exterior of the van and positively alerted. As a result, the
      Troopers opened the back of the van and crawled inside and over the
      furniture to where the bags were located in the cargo area nearest the
      cab and farthest from the rear of the van. Trooper Chatfield
      unzipped one of the bags and found a number of clear plastic bags
      containing suspected marijuana. M r. Le, who was now seated in
      Trooper Boumeester’s patrol car w as, again, approached and asked if
      there was marijuana in the van. He answered “no.”

            M r. Le was arrested, the van was unloaded and two other bags
      containing suspected marijuana were [found], as well as, a black



1
      Trooper Boumeester testified that dryer sheets are often used to mask the
odor of drugs in a vehicle. See R., Vol. 3 at 53.

                                        -3-
      plastic trash bag in a cardboard box containing a dining room chair.
      In total there were determined to be 142 bags of marijuana located in
      the 3 duffle bags and the plastic trash bag.

             On February 4, 2005, M r. Le was charged by Criminal
      Complaint with violation of Title 21 U.S.C. 841(a)(1) possession
      with intent to distribute marijuana. . . . On M arch 18, 2005, the
      Federal Grand Jury for the District of W yoming indicted M r. Le
      charging the same offense as in the previous Criminal Complaint. . . .

             Trial to a jury commenced in Casper, Wyoming on February
      21, 2006, and on February 24, 2006, the jury returned its verdict and
      found M r. Le guilty of possession of marijuana with the intent to
      distribute as charged in the indictment.

Aplt. Opening Br. at 1-4 (footnote added). 2

                                         II.

      M r. Le contends that there was insufficient evidence to support his

conviction. He argues that the government failed to present sufficient evidence to

prove beyond a reasonable doubt that he knowingly possessed the marijuana that

was found in the U-Haul van. Instead, according to M r. Le, the government

proved only that he had possession and control of the van in which the marijuana

was located, and he argues that “it is not the position of this court and never has

been that control of a vehicle containing contraband – absent other evidence – is

sufficient to prove guilt beyond a reasonable doubt” for purposes of a conviction

under 21 U.S.C. § 841(a)(1). A plt. O pening Br. at 16.



2
       The pages in M r. Le’s opening brief are not numbered, but we will assume
that page one is the page containing M r. Le’s “Statement of Jurisdiction” and that
the pages are numbered in sequential order thereafter.

                                         -4-
      “W e review the sufficiency of the evidence de novo.” United States v.

Triana, 477 F.3d 1189, 1194 (10th Cir. 2007). “W e ask only whether, taking any

evidence–both direct and circumstantial, together with the reasonable inferences

to be drawn therefrom–in the light most favorable to the government, a reasonable

jury could find the defendant guilty beyond a reasonable doubt.” Id. (quotation

omitted); see also United States v. Gurule, 461 F.3d 1238, 1243 (10th Cir. 2006)

(stating that “[t]his court will reverse [for insufficient evidence] only if no

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt”) (quotation omitted). It is also well established that the

evidence necessary to support a criminal conviction “need not conclusively

exclude every other reasonable hypothesis and need not negate all possibilities

except guilt.” United States v. Wilson, 182 F.3d 737, 742 (10th Cir. 1999)

(quotation omitted). “Furthermore, we do not question the jury’s credibility

determinations or its conclusions about the weight of the evidence.” United

States v. Lauder, 409 F.3d 1254, 1259 (10th Cir. 2005) (quotation omitted).

      To support a conviction for possession of a controlled substance with intent

to distribute in violation of 21 U.S.C. § 841(a)(1), the evidence must prove

beyond a reasonable doubt that: “(1) the defendant knowingly possessed the

illegal drug; and (2) the defendant possessed the drug with the specific intent to

distribute it.” United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996). W ith

regard to the first element, we have explained that

                                          -5-
      [p]ossession may be either actual or constructive: “constructive
      possession may be found if a person knowingly has ownership,
      dominion or control over the narcotics and the premises where the
      narcotics are found.” United States v. Jones, 49 F.3d 628, 632
      (10th Cir. 1995) (citation omitted). “Dominion, control, and
      knowledge, in most cases, may be inferred if a defendant has
      exclusive possession of the premises.” United States v. M ills,
      29 F.3d 545, 549 (10th Cir. 1994). . . . The jury may draw
      reasonable inferences from direct or circumstantial evidence, yet an
      inference must amount to more than speculation or conjecture.
      [United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995)].

Id.: see also United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir. 1986)

(“Possession may be actual or constructive and may be proved by circumstantial

evidence.”). W ith regard to the second element, we have held that a jury “may

infer intent to distribute from the possession of large quantities of drugs.” 3

Triana, 477 F.3d at 1194 (quotation omitted).

      M r. Le’s sufficiency of the evidence challenge involves only the first

element. He argues that “[a] number of cases have affirmed convictions for

possession . . . based upon possession and control of the vehicle where the

contraband was found. These cases did not, however, approve conviction based

upon presence and control of the vehicle as the sole factor leading to conviction.”

Aplt. Opening Br. at 14. M r. Le also relies on our statement in Hooks that “proof




3
       Although M r. Le has not specifically challenged the jury’s finding that he
intended to distribute the marijuana that was found in the U-Haul van, given the
large quantity of marijuana that was found in the van, this element was easily
satisfied.

                                          -6-
of dominion or control, without the requisite showing of knowledge, is

insufficient to sustain a conviction.” Id. at 15 (quoting Hooks, 780 F.2d at 1531).

      Having conducted the required de novo review of the evidence presented at

trial, and having viewed that evidence in the light most favorable to the

government, we agree with the government that “the totality of circumstances

prove [M r. Le’s] knowing possession beyond a reasonable doubt.” A plee. Br.

at 11. To begin w ith, the evidence at trial proved that M r. Le w as the renter,

driver, and sole occupant of the U-Haul, and M r. Le does not dispute that the

vehicle was loaded with his furniture and 142 pounds of marijuana. In addition,

the three duffle bags and the black garbage bag containing the marijuana w ere

located behind M r. Le’s furniture near the front of the U-Haul’s cargo area, and

the jury could reasonably infer from this evidence that the marijuana was loaded

into the cargo area before M r. Le’s furniture. M oreover, the duffle bags were not

hidden or concealed; M r. Le’s furniture was loaded on top of one of the duffle

bags; the black garbage bag was found inside one of the boxes that contained

M r. Le’s furniture; and it is undisputed that the cargo area smelled strongly of

dryer sheets. M r. Le also appeared to be excessively nervous during his

encounter with Trooper Boumeester, and the jury could reasonably infer that

M r. Le’s nervousness was caused by his fear that Trooper Boumeester would

search the U-Haul and find the marijuana. Finally, as argued by the government,

“it [was] reasonable for the jury to infer that the expense of traveling by plane

                                          -7-
from Texas to W ashington, renting a U-Haul for $1,549.22, and then driving from

Seattle, W ashington, to Beaumont, Texas, with only a load of furniture makes

little sense.” Id. at 17.

       In sum, the evidence showing M r. Le’s exclusive possession and control of

the U-Haul, the manner in which the marijuana was loaded into the U-Haul, and

the surrounding circumstances and reasonable inferences to be drawn therefrom,

provided sufficient evidence for a reasonable jury to find M r. Le guilty beyond a

reasonable doubt of knowingly possessing the marijuana that was found in the

U-H aul.

       M r. Le’s conviction is A FFIRMED.


                                                    Entered for the Court


                                                    Neil M . Gorsuch
                                                    Circuit Judge




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