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

### MAY 10 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 03-3161 ROBERTO COTA-MEZA,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 02-CR-10176-01-MLB) Kurt P. Kerns, Ariagno, Kerns, Mank & White, LLC, W ichita, Kansas, for Defendant -Appellant. Matt Treaster, Assistant United States Attorney (Er ic F. Melgren, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff - Appellee.

Before MURPHY , ANDERSON , andMcCONNELL , Circuit Judges.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Defendant-appellant Roberto Cota-Meza was pulled ov er for a traffic violation. Upon return of his documents by the off icer and being told that he was free to go, Cota-Meza consented to a search of the vehicle. The search revealed 18.8 kilograms of cocaine stowed in a hidden compartment under the front seats of the vehicle. Cota-Meza denied any knowledge of the cocaine. Cota-Meza was charged with one count of possession with the intent to distribute five or more kilograms of cocaine in vio lation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. No fingerprints were found on t he cocaine packages, and no fingerprint analysis was conducted on the minivan. As a consequence, fingerprint evidence was not available at trial. The government did not videotape Cota-Meza’s interr ogations. CotaMeza’s interview with a DEA agent was audio-taped, but only the transcripts of that interview, not the audiotape itself, were prod uced at trial. Cota-Meza was convicted after a jury trial and sent enced to 151 months’ imprisonment and 5 years’ supervised release. Cota -Meza argues on appeal that the district court abused its discretion when it gave two jury instructions. He also argues that the evidence at trial was insufficient to support his conviction. Exercising jurisdiction pursuant 28 U.S.C. § 1291, this court affirms CotaMeza’s conviction.-3-

II. BACKGROUND Cota-Meza was traveling through Kansas on his way t o Maine. He was driving a minivan which belonged to one Mario Quint ero. Cota-Meza claims that he agreed to take the minivan to Maine at the reque st of Quintero, who promised him a job as a cook in Maine or money in return. Officer Chris Tedder spotted Cota-Meza committing atraffic infraction and activated his lights and siren to stop Cota-Meza. Cota-Meza drove for a mile and a half before he stopped. As Officer Tedder approa ched the vehicle, he noticed Cota-Meza was “real fidgety” and rocking in his seat. Officer Tedder obtained Cota-Meza’s driving documentation and noticed that Cota-Meza’s hand was shaking as he provided his license. Officer Tedderasked Cota-Meza to step out of the vehicle and gave him a warning ticket. Officer Tedder returned Cota-Meza’s driver’s licens e and registration and informed him that he was free to leave. Cota-Meza began to walk hurriedly back to the minivan. Officer Tedder then asked Cota-Mez a if there was anything illegal in the van. Cota-Meza said, “No.” When as ked specifically about illegal drugs in the van, Cota-Meza paused, looked at the g round, and again responded “no” in a low tone. Cota-Meza subsequently consented to a search of the vehicle. Officer Tedder found a hidden compartment concealing packag es underneath the front-4-

driver’s and passenger’s seats which contained a nu mber of bundles totaling 18.8 kilograms of highly pure cocaine. When confronted about the hidden compartment, Cota-Meza hung his head and claimed to have no knowledge of it. At a later interview with a DEA agent, Cota-Meza ag ain denied knowledge of the cocaine. III. DISCUSSION This court reviews a district court’s decision to g ive a particular jury instruction for an abuse of discretion and consider s the instructions as a whole de

novo to determine whether they accurately informed the j ury of the governing law. United States v. Soussi , 316 F.3d 1095, 1106 (10th Cir. 2002). On review, this court merely determines whether the jury was misled by the instructions and whether it had an understanding of the issues and i ts duty to resolve those issues. United States v. Jaynes , 75 F.3d 1493, 1504 (10th Cir. 1996). If there is an instructional error, this court then determines whe ther or not it is harmless. Soussi , 316 F.3d at 1105. An instructional error is harm less unless the error had a substantial influence on the outcome of the trial o r if the court is left in grave doubt as to its influence. Id. The conviction will stand if the error is harmles s. Id.-5-

1. Jury Instruction on Permissive Inference The main issue in this case was whether Cota-Meza k new of the cocaine’s presence in the vehicle. The challenged instructio n stated:

If you find that the government has proved beyond areasonable doubt that defendant had sole possession of the vanin which the cocaine was found, you may, but are not required to, infer that defendant had constructive possession of the cocaine. This inference does not relieve the government of i ts obligation to prove all of the elements of the offense beyond a r easonable doubt. Cota-Meza argues that this jury instruction violate d his due process rights because it emphasized his sole possession of the ve hicle to the exclusion of all the other evidence presented in this case. Cota-Meza a rgues that this instruction favored the prosecution by discouraging the jury fr om considering all the evidence. Cota-Meza further claims that this instr uction undermined the general presumption of an accused’s innocence and requires a reversal of his conviction. He urges this court to follow a Ninth Circuit case in which the court exercised its supervisory power over the district court to declar e a similar permissive inference instruction improper. See United States v. Rubio-Villareal , 967 F.2d 294, 298, 301 (9th Cir. 1992). Assuming, without deciding, that this Court has the authority to reverse Cota-Meza’s conviction on the basis of s upervisory power, we choose not to do so. This court must first decide whether the presumptio n in the jury instruction is permissive or mandatory. See County Court of Ulster County v. Allen , 442 U.S.-6-

140, 159 n.16, 160-61 (1979). The instruction in q uestion is permissive because it tells the jury that it may , but is not required to, draw the inference of Cot aMeza’s knowledge of the cocaine, and that it is notrequired to convict the defendant based on this inference alone. See Ulster County , 442 U.S. at 159 n.16 (instruction is permissive if it makes clear that t he predicate facts do not have conclusive force as to the truth of the permitted c onclusion); United States v. Tecumseh , 630 F.2d 749, 753 (10th Cir. 1980) (instruction t elling jury that it may infer a fact is a permissive instruction). It furt her states that the jury is not required to infer constructive possession, thus leaving the jury discretion to determine the ultimate fact of guilt beyond a reaso nable doubt independent of the inference. See Tecumseh , 630 F.2d at 754. The district court did not abuse its discretion in choosing to give the above permissive inference jury instruction. A permissiv e inference instruction is valid if there is a rational connection between the fact that the prosecution proved and the ultimate fact presumed, and the latter is more likely than not to flow from the former. Ulster County , 442 U.S. at 165. We judge that likelihood not in the abstract but as applied to the specific case in whi ch the instruction was given. See id. at 162-63. In this case, there was evidence indic ating the owner of the drugs would not allow the vehicle to be used by som eone who had no knowledge of the drugs: the drugs had an estimated street val ue of $2.6 million; the secret1 Levario approved the inference in the context of a sufficie ncy of the

evidence challenge, not a permissive inference inst ruction. In relying on it, we do not mean to suggest that standards governing the tw o contexts are the same. We leave for another the day the question of whether a n inference could be rational enough to avoid reversal under this deferential standard but dubious enough that a judge could not properly recommend it, even permiss ively, to the jury. -7- compartment was operated by the passenger window co ntrol, making it readily discoverable by an unsuspecting passenger. Furthermore, there was evidence that Cota-Meza received payment for driving the vehicle. On these facts, we have no trouble concluding that the inference of Cota-Meza’ s constructive possession of the hidden drugs is more likely than not to flow fr om the undisputed fact of his sole possession of the minivan. The instruction is consistent with Tenth Circuit precedent which allows the jury to infer that the d river of a vehicle has knowledge of contraband in the vehicle. See United States v. Levario , 877 F.2d 1483, 1485-86 (10th Cir. 1989), overruled on other grounds by Gozlon-Peretz v. United States , 498 U.S. 395 (1991). 1 The challenged jury instruction did not impermissib ly shift the burden of proof to Cota-Meza. See Ulster County , 442 U.S. at 156-57 (permissive instructions cannot shift the burden of proof to th e defendant or lessen the burden upon the government); Tecumseh , 630 F.2d at 754 (same). The instruction in the instant case states that the government had to prov e all the elements of the crime-8-

beyond a reasonable doubt, including the permissive inference’s underlying fact that the defendant was in sole possession of the mi nivan. A de novo review of the jury instructions as a whole shows th at they accurately informed the jury of the governing law. In this context, the challenged instruction neither undermines the jury’s ability t o deliberate nor prevents the jury from considering all the evidence. See Rubio-Villareal , 967 F.2d at 299 (jury instructions must not infringe on the jury’s sole r esponsibility to evaluate allthe evidence presented at trial). The jury was instruc ted to consider the jury instructions as a whole. The other instructions cl early stated that the government had to prove each element of the offense beyond a r easonable doubt. The jury was instructed to look at all the evidence presente d in the case. It was also instructed that the defendant was presumed to be in nocent, and that in giving the instructions, the court did not mean to express anyview about how the jury should decide the case. This court cautions that the permissive instruction in question is not a model of clarity, and this court would not have cho sen to so instruct a jury. Permissive inference instructions such as the one at bar have been roundly criticized for encouraging the jury to convict on t he basis of one damning fact without considering all of the other evidence. See Rubio-Villareal , 967 F.2d at 298. A better instruction would have stressed thatthe jury was permitted to draw-9-

the inference only if in light of all of the other evidence, the defendant’s sole possession of the vehicle convinced the jury beyonda reasonable doubt that he knew of the drugs. As noted above, however, the ot her instructions largely dispelled any possibility of misunderstanding. The refore, despite this instruction’s infirmities, the district court’s dec ision to use it does not constitute an abuse of discretion in this case. 2. Jury Instruction on Law Enforcement Methods Cota-Meza argues that Jury Instruction 24 sent a me ssage to the jury that “it was okay that the government didn’t fingerprint , that it didn’t get videorecorders fixed or that [the] lost audio-tapes of M r. Cota-Meza[’s] interview were irrelevant.” In turn, Cota-Meza argues, Instructio n 24 prevented the jury from considering whether the government’s failure to pro duce such evidence led to a reasonable doubt of his guilt. Cota-Meza claims th at this instruction requires the reversal of his conviction. Jury Instruction 24 provided: Evidence has been received regarding law enforcemen t methods and equipment used in the investigation of this case. Likewise, evidence has been received concerning enf orcement methods and equipment which were not used in relati on to the investigation. You may consider this evidence for the purpose of e valuating the weight of the evidence produced by the governme nt and the credibility of law enforcement personnel involved i n the investigation. However, there is no legal requirem ent that the government, through its enforcement agents, must us e all known or-10-

available crime detection methods or any particulartype of equipment in its investigations. This instruction does not constitute an abuse of di scretion. This court will not reverse a district court’s decision to give a p articular jury instruction unless there is substantial doubt that the jury was fairly guided. United States v. Valdez , 225 F.3d 1137, 1139 (10th Cir. 2000). The challeng ed instruction does not misstate the law; Cota-Meza himself acknowledges th at there is no legal requirement that law enforcement officers utilize e very available investigative method. Merely because the instruction informs the jury that the utilization of all known investigative methods is not legally required does not prevent the jury from concluding that a failure to employ certain in vestigative methods nevertheless detracts from the credibility of the g overnment’s evidence. The instruction specifically notes that the jury can co nsider the manner in which the investigation was conducted for the purposes of eva luating the weight of the evidence produced by the government and the credibi lity of the testimony of the law enforcement personnel involved in the investigation. Other jury instructions further informed the jury that they were the sole j udges of the credibility of witnesses and the weight to be given to evidence. For all these reasons, there is no substantial doub t that the jury was fairly guided. Therefore, the district court did not abus e its discretion in giving Jury Instruction 24.-11-

3. Sufficiency of the Evidence This court reviews de novo the question of whether there is sufficient evidence to support a conviction. Jaynes , 75 F.3d at 1498. In considering the sufficiency of the evidence, this court looks at th e evidence in the light most favorable to the government and determines whether enough evidence was presented at trial for a jury to find the defendantguilty beyond a reasonable doubt. Id

. Cota-Meza argues that there was insufficient eviden ce to convict him of the possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a). He notes that the main element at issue in this cas e was whether he knowingly possessed the cocaine. Cota-Meza argues that infer ring such knowledge from his sole possession of the vehicle, without more, violates the presumption of innocence. Cota-Meza acknowledges, however, that t his Court has held that it is permissible to infer that a driver of a vehicle has knowledge of the drugs hidden within it. See Levario , 877 F.2d at 1485-86. Cota-Meza nevertheless urge s this court to adopt the Fifth Circuit’s view that knowle dgeable possession requires circumstantial evidence that is suspicious in natur e or demonstrates guilty knowledge. See United States v. Anchondo-Sandoval , 910 F.2d 1234, 1236 (5th Cir. 1990). Under this standard, possession of or control over a vehicle does not, standing alone, suffice to prove guilty knowledge. See id. This court declines the-12-

invitation to abandon this circuit’s precedent in f avor of the Fifth Circuit approach. Sufficient evidence was presented at trial to suppo rt Cota-Meza’s conviction. This court has held that it is permiss ible to infer that the driver of a vehicle has knowledge of the contraband found withi n it. Levario , 877 F.2d at 1485-86. Cota-Meza was in sole possession of the v ehicle in which the cocaine was found. Thus, the jury could reasonably infer t hat he had knowledge of the cocaine. Id

. Moreover, other evidence supports the inference that Cota-Meza knowingly possessed the cocaine with intent to distribute it. This court has repeatedly recognized that the value of drugs can support an i nference of knowledge. United States v. Rodriguez , 192 F.3d 946, 950 (10th Cir. 1999); United States v. Pollock, 926 F.2d 1044, 1050 (10th Cir. 1991) (one million d ollars worth of cocaine supports an inference of knowledge of the contraban d). The hidden compartment of the minivan Cota-Meza was driving contained 18.8 kilograms of cocaine with a wholesale street value in excess of $2.6 million. Such a large amount of cocaine with a high street value supports a reasonable infe rence of Cota-Meza’s knowledge of the presence of the contraband in the minivan.-13-

Thus, there was sufficient evidence presented at tr ial for a reasonable jury to find Cota-Meza guilty of possessing cocaine withintent to distribute beyond a reasonable doubt. IV. CONCLUSION For the foregoing reasons, this court affirms Cota-Meza’s conviction.