UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VICTOR CASTILLO-NAJER, Defendant - Appellant. No. 12-3340 (D.C. No. 2:11-CR-20023-KHV-1) (D. Kan.)

ORDER AND JUDGMENT *

Before GORSUCH , ANDERSON , and HOLMES , Circuit Judges.
Victor Castillo-Najer appeals his convi ction for aiding in the distribution of more than 100 kilograms of marijuana. He says the district c ourt should’ve granted his motion for a new trial because there wasn ’t enough evidence to establish his guilt. This court has explained that a “district court should gr ant such a motion only in exceptional cases in which th e evidence preponderates heavil y against the verdict.”

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 18, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - United States v. Cesareo-Ayala , 576 F.3d 1120, 1126 (10t h Cir. 2009) (internal quotation marks omitted). We review the di strict court’s denial of a motion for new trial for an abuse of discretion. Id . Here we see none. At the heart of this cas e lies a credibility contest. At trial the government presented evidence linking Mr . Castillo-Najer to the dr ug deal; Mr. Castillo-Najer offered an innocent explanation of the facts. In the end, the jury chose to credit the government’s account. As th e district court observed, the jury’s choice was a reasonable if not unassailable one, and it ce rtainly can’t be said to labor upstream against the predominant tide of evidence presented at trial. The government’s case we nt like this. A confidentia l informant was tasked by Mexican drug smugglers to trans port a large shipment of ma rijuana to Kansas City. The informant tipped off authorities to the shipment and proceeded to work with them to apprehend the intended recipient. The informant told of ficers that the drugs were to be delivered to “Kiko” in Ka nsas City. Two underc over detectives, John Hernandez and Octavio Pasill as, then took possession of the marijuana and told the informant to give Kiko their phone numbe r. The informant later notified the detectives that their ph one number had been provided to Kiko, and gave the detectives Kiko’s phone numbe r (228-215-6217). Soon, th e detectives received two calls from 918-530-6172, but they did not answer those calls. Instead, Detective Pasillas called the 228-215-6217 number to arra nge a meeting to deliver the drugs. He testified that the person on the phone identified himself as Kiko.- 3 - The next day the detectives drove th eir truck loaded with the drugs to a parking lot by a Lowe’s store. When they arrived, Dete ctive Pasillas called Kiko to let him know where they were parked. During the conversation, Kiko asked Detective Pasillas to meet him somewhere else, but Dete ctive Pasillas refused. Several minutes later, a blue Toyota Tund ra approached the detectives’ truck and Detective Pasillas spoke with the driver. Detective Pasillas testified that the driver (again) asked to move the transfer to a di fferent location, but th e detective told the driver “this is the way it’s going to have to go, we have to stay here. My orders were to deliver it to you. If you’re Kiko, then I’m going to deliver it to you right here, right now.” R., Vol. 2 at 304. Detective Pasillas testified that the driver said he was Kiko but drove away. Soon enough, though, he and Detectiv e Pasillas exchanged a few more phone calls about how the transfer should be ma de. Ultimately, Kiko advised Detective Pasillas that he would be sending someone else in a grey vehicle to pick up the drugs. And, in fact, within a few minutes a grey minivan arrived and parked next to the detectives’ truck. Two men loaded th e minivan with garbage bags from the detectives’ truck. The bags smelled of marijuana and, at one point, one of the bags opened revealing bricks of ma rijuana wrapped in cellophane. After the bags were loaded into the miniva n, the undercover detectives gave a signal to other detectives in the area — detectives who proceeded to arrest the two men by the minivan and Mr. Castillo-Najer who was found in the bl ue Toyota Tundra truck in a different- 4 - parking lot nearby. At trial, Detective Pa sillas identified Mr. Ca stillo-Najer as the driver of the truck who had said he was Kiko. In the truck, the detectives foun d four cell phones and a hand gun. Mr. Castillo-Najer told the detectives that two of the phones were his: numbers 913-752-7552 and 918-530-6172 (the numbe r from which the detectives had received two unanswered calls the day before the transf er). Mr. Castillo-N ajer said that the other two phones belonged to his cousin “Primo”; they had numbers 319-462-1046 and 228-215-6217 (the number the informan t had provided to the detectives as Kiko’s phone number and had been used to coor dinate the transfer of the drugs). The government introduced phone records at tr ial showing calls from 228-215-6217 to the confidential informant’s phone and the undercover detectives’ phone on the day before and the day of the transfer; and calls from 913-752-7552 and 319-462-1046 to the phone of one of the men who arrived in the minivan to help transfer the drugs, calls made in the minutes leading up to the transfer. For his part, Mr. Castillo-Najer offered a very different version of events at trial. He testified that Kiko was someone from whom he bought cheap construction supplies to use in his home renovation busine ss. He asserted that three of the four phones belonged to Kiko or Primo a nd that the only phone belonging to him bore the number 913-752-7552. He said th e other phones were given to him by Kiko to help arrange a pick-up of construction materials. He said that he spoke to the detectives on the phones given to him by Kiko but thought the transaction being- 5 - arranged was for construction materials, not drugs. On cross-examination, however, Mr. Castillo-Najer was unable to provide information about Kiko’s real name, employment information, or whereabouts. When denying Mr. Castillo-Najer’s request for a new trial, the district court observed that on this record “the jury c ould reasonably have ch osen not to believe that the phantom Kiko was responsible for or chestrating the shipment, and rather to conclude that defendant and Kiko were the same individual. ” R., Vol. 1 at 310-11. We see no basis to disagree w ith this assessment. Withou t any, we cannot fault the district court for denying the motion for a new trial. The judgment is affirmed.

Entered for the Court

Neil M. Gorsuch Circuit Judge