                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            SEP 2 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                              No. 98-2318
                                                   (D. Ct. No. CR-97-442 LH)
 JAIME BENITEZ-LONGORIA,                                   (D.N. Mex.)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA, McKAY, and MURPHY , Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

       Plaintiff Benitez-Longoria appeals his conviction of possession with intent

to distribute more than 500 grams of cocaine and aiding and abetting in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. He argues that



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. This 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.
sufficient evidence did not exist for a jury to find that he had actual or

constructive possession of the drugs found secreted in the battery of the car he

drove. We AFFIRM.

      Defendant drove into a border patrol checkpoint near Las Cruces, New

Mexico on July 1, 1997. Despite both he and his passenger having the proper

immigration documents, United States Border Patrol Agent Pouliot described

defendant as “extremely, extremely nervous, extremely.” Agent Pouliot stated

that defendant avoided eye contact, continually revved the motor as if in a hurry,

and shook violently. Agent Pouliot asked who owned the vehicle he drove, and

defendant hesitated, according to Agent Pouliot, as if trying to think of what to

say. Agent Pouliot requested permission for a narcotic detecting canine to search

the vehicle, and Mr. Benitez-Longoria consented. The dog alerted to the front of

the vehicle, and a subsequent search uncovered 7.02 pounds of cocaine hidden in

the car battery.

      Defendant asserts that the government introduced insufficient evidence to

prove that he knew he possessed the cocaine. He claims he did not know of the

cocaine’s presence. He emphasizes that he did not own nor have sole possession

of the car and that the cocaine was very well hidden. “[I]n reviewing the

sufficiency of the evidence to support a jury verdict, this court must review the

record de novo and ask only whether, taking the evidence – both direct and


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circumstantial, together with 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.”     United States v. Voss , 82 F.3d 1521, 1524-25

(10th Cir. 1996) (internal quotation marks and citations omitted);    see also United

States v. Lazcano-Villalobos , 175 F.3d 838, 843 (10th Cir. 1999). “We do not

use this evaluation as a chance to second-guess the jury’s credibility

determinations, nor do we reassess the jury’s conclusions about the weight of the

evidence presented.”    United States v. Yoakum , 116 F.3d 1346, 1349 (10th Cir.

1997) (internal quotation marks and citation omitted);     accord , Lazcano-

Villalobos , 175 F.3d at 843.

       The government argues that it presented sufficient evidence from which a

jury could conclude that defendant constructively possessed the cocaine. “A

person constructively possesses contraband when he or she knowingly holds

ownership, dominion or control over the object and premises where it is found.”

Lazcano-Villalobos , 175 F.3d at 843; accord United States v. Valadez-Gallegos     ,

162 F.3d 1256, 1262 (10th Cir. 1998). “Exclusive possession of the premises

supports an inference of constructive possession. However, joint occupancy of a

premises cannot sustain such an inference.”      Valadez-Gallegos , 162 F.3d at 1262;

see also Lazcano-Villalobos , 175 F.3d at 843. “To prove constructive possession

where there is joint occupancy, the government must present direct or


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circumstantial evidence to show some connection or nexus individually linking

[defendant] to the contraband.”    Lazcano-Villalobos , 175 F.3d at 843; accord

Valadez-Gallegos , 162 F.3d at 1262. “While caution must be taken that the

conviction not be obtained by piling inference on inference, an inference of

constructive possession is reasonable if the conclusion flows from logical and

probabilistic reasoning. Thus, the government must present evidence supporting

at least a plausible inference [defendant] knew of the contraband.”   Lazcano-

Villalobos , 175 F.3d at 843 (internal citations and quotation marks omitted).

       Here, ample evidence exists from which a jury could have found defendant

knew of the cocaine. Agent Pouliot testified that Benitez was extremely nervous

during routine questioning. Eventually, according to Agent Pouliot, his whole

body shook to such a degree that agents fifteen feet away observed his nervous

reaction. Agent Pouliot also testified that when he informed Mr. Benitez-

Longoria that he knew drugs were contained in the car, defendant yelled, “Go

ahead and take it out,” at the top of his lungs. When informed that the agents had

found the cocaine, defendant just dropped his head.

       In addition to this evidence, Mr. Benitez-Longoria gave conflicting stories

at the time of the seizure and at trial as to who owned the vehicle, his travel

plans, and the reasons for the trip. Finally, the jury heard evidence that only three

months prior to the incident involved here, defendant had been arrested for


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possession with intent to distribute marijuana. In that case, officials found

marijuana hidden in a secret smuggling compartment of the car he was driving.

Defendant claimed in that case he had no knowledge of the hidden drugs. The

jury could properly use this evidence to support a finding of knowledge.   See id.

at 846.

      Thus, viewing the evidence in the light most favorable to the government,

sufficient evidence exists to support the jury’s guilty verdict. The government

presented evidence supporting at least a probable inference that defendant knew

of the cocaine hidden in the battery. We AFFIRM.

                                         ENTERED FOR THE COURT,


                                         Deanell Reece Tacha
                                         Circuit Judge




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