* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 3 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 97-2172

v. (D.C. No. CR-96-220-JC) BRYANT L. MARSHALL, (D. New Mex.) Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and EBEL , Circuit Judges.

Defendant Bryant Marshall was convicted of conspira cy to possess with intent to distribute methamphetamine and aiding and abetting and possession with intent to distribute methamphetamine. In this appe al, he claims that the evidence was insufficient to support either of his convictio ns. On June 18, 1996, Defendant, along with ten co-defe ndants, was indicted in a superseding indictment on two counts arising fromdrug trafficking activities in California and New Mexico. Count I charged conspir acy to possess with intent to1 The record indicates that Mr. Brown, Mr. Clark, andMs. Young testified

at trial pursuant to plea agreements and that, at t he time of trial, Mr. Lee and Ms. Sanchez were fugitives. Mr. Vera pled guilty to Co unts I and III of the Superseding Indictment but did not testify at trial

.

2 A detailed explanation of the underlying facts is s et out in a companion case, United States v. Harper , No. 97-2153, 1998 WL 794972 (10th Cir. Nov. 16, 1998). For the purposes of this case, we recite on ly the facts in the conspiracy directly relating to Defendant. -2- distribute one kilogram and more of a substance containing methamphetamine and aiding and abetting in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and it named as defendants Mr. Marshall and Joe Altamirano , Kenneth Brown, Michael Clark, Alfred Ellick, Ulysses Harper, Christopher L ee, Burch Woody McCoy, Mary Sanchez, Ricardo Vera, and Melanie Young. Cou nt II charged Defendant and Mr. Ellick, Mr. Lee, and Ms. Young with possess ion with intent to distribute 100 grams and more of a substance containing methamphetamine on April 4, 1996, and aiding and abetting in violation of 21 U. S.C. § 841(a)(1) & (b)(1)(B) and 18 U.S.C. § 2. Defendant was tried with Mr. Al tamirano, Mr. Ellick, Mr. Harper, and Mr. McCoy. 1 On January 31, 1997, a jury convicted Defendant o n both counts. Defendant was sentenced to 240 months ’ imprisonment for Count I and 151 months’ imprisonment for Count II, to run c oncurrently, and terms of supervised release. Defendant’s convictions stem from his participationin a methamphetamine distribution ring in Roswell, New Mexico, in 1995 and 1996. 2 According to-3-

testimony at trial, the Drug Enforcement Agency beg an receiving information in late 1994 or early 1995 about a possible methamphet amine distribution ring in Roswell, New Mexico. Defendant testified that in J une 1995, he drove Mr. Lee and Mr. Harper to the train station in Albuquerque, New Mexico. On June 14, 1995, codefendants Mr. Lee and Mr. Harper were arre sted for possession of five pounds of methamphetamine before they boarded an Amtrak train headed back to New Mexico. In April 1996, Federal Express employe es seized a package containing one pound, or 454 grams, of methamphetam ine which was addressed to co-defendant Ms. Melanie Young in Alamogordo, New M exico. On April 4, 1996, DEA agents executed a controlled delivery of the package to Ms. Young’s residence. After completing the delivery, the agen ts executed a search warrant on the property and arrested Defendant and Ms. Young. In addition to recovering the one-pound package of methamphetamine, agents also s eized a pistol belonging to Defendant, a book containing phone numbers for Mr. Lee and Defendant, a piece of paper with Mr. Vera’s phone number, and photographs of Mr. Harper and Mr. Lee. Following the controlled delivery, DEA agents interviewed Mr. Lee and secured his cooperation to ferret out the other mem bers of the conspiracy including Mr. Altamirano, Mr. Ellick, Mr. Harper, M r. Vera, Mr. Brown, and Ms. Sanchez. Defendant contends that the evidence was insufficie nt to show that he-4-

possessed methamphetamine with intent to distribute and that he was a member of the conspiracy charged in the indictment. We revie w the sufficiency of the evidence de novo, viewing both direct and circumstantial evidence and the inferences therefrom in a light most favorable to t he government to determine if a reasonable jury could find beyond a reasonable doub t that the defendant was guilty. See United States v. Voss , 82 F.3d 1521, 1524-25 (10th Cir.), cert. denied , U.S. , 117 S. Ct. 226 (1996). In conducting our review , “‘we may neither weigh conflicting evidence nor consider the credibility of witnesses.’” United States v. Pappert , 112 F.3d 1073, 1077 (10th Cir. 1997) (citation om itted). To obtain a conviction for possession of narcotics with intent to distribute, the government must establish beyond a reasonable d oubt that the defendant knowingly possessed the illegal drug with the speci fic intent to distribute it. See United States v. Carter , 130 F.3d 1432, 1440 (10th Cir. 1997), cert. denie d , U.S. , 118 S. Ct. 1856 (1998). Possession may be actua l or constructive. See id. at 1441. To establish constructive possession, th e government must present evidence, either direct or circumstantial, that the defendant “knowingly holds the power and ability to exercise dominion and control over the property.” Id. In short, the government must establish a sufficient n exus between the defendant and the drug, but constructive possession may be joint among several individuals. See id.-5-

Defendant asserts that his presence at Ms. Young’s house during the controlled delivery is insufficient to establish co nstructive possession and that the evidence does not support actual possession. Howev er, after reviewing the record, we conclude that the evidence sufficiently demonstrates Defendant’s actual or constructive possession. As noted above, possession with intent to distribute methamphetamine was the contemplated cri me of the conspiracy. Therefore, Defendant “‘is deemed to possess the [me thamphetamine] through his co-conspirators’ possession.’” Carter , 130 F.3d at 1441 (quoting United States v. Medina , 887 F.2d 528, 532 (5th Cir. 1989)). Because at l east one of Defendant’s co-conspirators, Mr. Lee, undoubtedly had actual po ssession of the one-pound methamphetamine package with intent to distribute i t, Defendant is deemed to have had actual possession of it. Further, circumstantial evidence indicates that Def endant constructively possessed the methamphetamine. He was present for the controlled delivery and, according to Ms. Young’s testimony, was going to re ceive the package once it arrived. Ms. Young testified that Defendant statedthat the package was “their package,” referring to himself and Mr. Lee. R., Tr ial Tr. IV at 336. Ms. Young also testified that Defendant was to sign for the p ackage if she was not home when it was delivered. Additionally, a narcotics p olice officer testified that Defendant attempted to flee the trailer when law en forcement personnel arrived.-6-

In light of this testimony and evidence that Defend ant possessed a firearm at the time of the controlled delivery, the jury could rea sonably infer Defendant’s nexus to the package of methamphetamine. Viewed collecti vely and in the light most favorable to the government, the evidence is suffic ient to support an inference that Defendant at least had joint constructive poss ession of the methamphetamine delivered to Ms. Young’s trailer. We therefore aff irm the jury’s verdict on the possession count. Turning now to the conspiracy charge, Defendant doe s not dispute that the government established the existence of a conspirac y to distribute large amounts of methamphetamine; he merely claims that the gover nment has failed to prove that he joined the conspiracy. In order to prove t hat a defendant is guilty of conspiracy under 21 U.S.C. § 846, the government be ars the burden of showing the following elements: (1) the defendant agreed w ith at least one other person to violate the law; (2) he knew the essential objectiv es of the conspiracy; (3) he knowingly and voluntarily became involved; and (4) the alleged co-conspirators were interdependent. See Carter , 130 F.3d at 1439; United States v. Edwards , 69 F.3d 419, 430 (10th Cir. 1995), cert. deniedsub nom. Chaplin v. United States , 517 U.S. 1243 (1996). We repeatedly have confirmed that a jury may infer an agreement to conspire “‘from the acts of the parties and other c ircumstantial evidence-7-

indicating concert of action for the accomplishmentof a common purpose.’”
Carter , 130 F.3d at 1439 (quoting United States v. Johnso n , 42 F.3d 1312, 1319 (10th Cir. 1994), cert. denied , 514 U.S. 1055 (1995)); see also United States v. Bell , 154 F.3d 1205, 1208 (10th Cir. 1998); United Stat es v. Johnston , 146 F.3d 785, 789 (10th Cir. 1998). Thus, the government ne ed not provide direct evidence of an agreement. See Bell , 154 F.3d at 1208. However, to demonstrate that the defendant entered into an agreement, the g overnment must show more than mere association with the alleged co-conspirat ors. See United States v.
Evans , 970 F.2d 663, 669 (10th Cir. 1992), cert. denied , 507 U.S. 922 (1993). In this case, Defendant’s agreement to participate in the conspiracy may be inferred from his actions and from trial testimony. Defendant testified that he agreed to drive his good friend, Mr. Harper, and Mr . Lee to the Amtrak station for their trip to California. Mr. Harper and Mr. Lee s ubsequently were arrested in California for possession of five pounds of methamp hetamine. Mr. Clark testified that he knew Defendant, Mr. Ellick, Mr. Lee, and Mr . Harper through Mr. Vera and that he knew Mr. Vera sold them drugs and referred to them as “big money.” R., Trial Tr. IV at 408-09. Mr. Baxter Jones, test ifying pursuant to a separate indictment and plea agreement, stated that Defendan t and Mr. Lee were “drug partners,” id. at 252, that Defendant transported drugs for Mr. L ee and was his “flunky,” id. at 257, and that Defendant “was just always there, always around”-8-

when Mr. Jones dealt with Mr. Harper. Id. at 256-57. Ms. Young testified that she delivered two ounces of methamphetamine from Mr . Lee to Defendant and that Defendant supplied her with methamphetamine. Mr. Jones partially corroborated this testimony when he stated that Ms. Young told him that she had two ounces of methamphetamine to deliver to Defendant from Mr. Lee but that Defendant never picked it up. As noted above, Ms. Young also testified that Defendant was supposed to receive the package that was delivered to her trailer on April 4, 1996. In response to Defendant’s argum ents that much of the above testimony is incredible, uncorroborated accomplice testimony, we remind Defendant that accomplice testimony is admissible e ven if it is uncorroborated.
See United States v. Sloan , 65 F.3d 861, 863 (10th Cir. 1995), cert. denied , 516 U.S. 1097 (1996); United States v. McGuire , 27 F.3d 457, 462 (10th Cir. 1994). Further, although we address tangentially the quest ion of the credibility of accomplice testimony here, we will not otherwise co nsider on appeal arguments pertaining to the credibility of witnesses. See Pappert , 112 F.3d at 1077. Taking all inferences in the light most favorable to the g overnment, the circumstantial evidence is sufficient to support the jury’s findin g beyond a reasonable doubt that Defendant agreed to the conspiracy’s objective of p ossessing methamphetamine with intent to distribute. To show knowing and voluntary involvement in the co nspiracy, the-9-

government must demonstrate that the defendant had a general awareness of both the scope and the objective of the conspiracy. See Evans , 970 F.2d at 669-70. In conspiracy cases, a “‘defendant’s guilty knowledge and voluntary participation may be inferred from surrounding circumstances.’” Carter , 130 F.3d at 1440 (quoting United States v. Christian , 786 F.2d 203, 211 (6th Cir. 1986)). This means that “‘the jury may presume that a defendant is a knowing participant in the conspiracy when he acts in furtherance of the o bjective of the conspiracy.’” Johnston , 146 F.3d at 789 (quoting Johnson , 42 F.3d at 1319). “The defendant’s participation in or connection to the conspiracy ne ed only be slight, so long as sufficient evidence exists to establish the defendant’s participation beyond a reasonable doubt.” Id. As noted above, Defendant does not challenge the ex istence of a conspiracy to distribute methamphetamine. Rather, his positio n is that he did not knowingly and voluntarily enter the conspiracy charged in the indictment and that the evidence shows, at most, a buyer-seller relationshi p. He argues that none of the witnesses testified that they saw him handling meth amphetamine on the scale alleged in the indictment and that there is no evid ence creating an affirmative link between him and the distribution of methamphetamine . The record supports the jury’s finding to the contrary. Defendant’s knowing and voluntary involvement in th e conspiracy can be-10-

inferred from his participation in his co-defendant s’ June 1995 trip to California. He testified that he willingly drove Mr. Harper andMr. Lee to the Amtrak station in June 1995. The jurors could reasonably infer fr om the nature of the trip that its sole purpose was to obtain or distribute methamphet amine and that Defendant’s participation by driving Mr. Lee and Mr. Harper to the station evidenced more than mere proximity to illegal activity. Additiona lly, jurors could infer Defendant’s knowing participation in the conspiracyfrom his presence at Ms. Young’s residence when the controlled delivery was made and his subsequent attempt to flee the residence upon the arrival of l aw enforcement personnel. Mr. Clark’s testimony that he knew Mr. Vera sold drugs to Defendant, Mr. Ellick, Mr. Lee, and Mr. Harper and referred to them as “big mo ney,” R., Trial Tr. IV at 408- 09, also supports an inference of knowing participation. Trial testimony also indicates that two wire transfers to Mr. Vera were made in Defendant’s name, that Defendant rented a hotel room in California in the vicinity of the drug purchases, and that a phone call was made from that room to Mr . Ellick in New Mexico. Viewing all of this evidence, and the testimony of Mr. Jones and Ms. Young to which we previously referred, in the light most fav orable to the government, we hold that the jury’s conclusions that Defendant kne w that the central objective of the conspiracy was the distribution of methamphetam ine and that he was a voluntary and knowing participant were reasonable.-11-

Finally, the government must produce sufficient evi dence of “‘the essential element of interdependence’ among the co-conspirato rs.” United States v. Fox , 902 F.2d 1508, 1514 (10th Cir.) (quoting United States v. Dickey , 736 F.2d 571, 582 (10th Cir. 1984), cert. deniedsub nom. Beasley v. United States , 469 U.S. 1188 (1985)), cert. denied , 498 U.S. 874 (1990). Interdependence exists wher e “each co-conspirator[‘s] activities ‘constituted es sential and integral steps toward the realization of a common, illicit goal.’” Edwar ds , 69 F.3d at 431 (quoting Fox , 902 F.2d at 1514 (citation omitted)). “[T]he gover nment need not show that the “[c]oconspirators . . . know the identities or deta ils of each scheme or have connections with all other members of the conspirac y.’” Id. (quoting United States v. Roberts , 14 F.3d 502, 511 (10th Cir. 1993)). Much of the record evidence described above support s a finding of interdependence. For example, jurors could reasonably infer interdependence from Defendant’s participation in the June 1995 tri p to California, from the wire transfers in Defendant’s name to Mr. Vera in Califo rnia, from Mr. Jones’ testimony concerning Defendant’s role and relations hip with Mr. Lee and Mr. Harper, from Mr. Clark’s testimony describing Mr. V era’s relationship with Defendant and other co-defendants, and from the pap ers found at Ms. Young’s residence on which Mr. Vera’s, Mr. Lee’s and Defend ant’s phone numbers were written. We conclude that the evidence is sufficie nt to support an inference that-12-

the co-conspirators were interdependent. Accordingly, we hold that the jury could reasonablyinfer from this evidence that Defendant willfully joined the conspi racy and took actions to aid the possession and distribution of the methamphetam ine. Admittedly, the evidence against Defendant is not as strong as thatagainst some of his codefendants, but it is nevertheless sufficient to es tablish his participation in the conspiracy beyond a reasonable doubt. In conclusion, we affirm Defendant’s convictions onboth counts.
AFFIRMED. Entered for the Court

Monroe G. McKay Circuit Judge