* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 

### JUN 27 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GENARO JARAMILLO-GARCIA, Defendant - Appellant. No. 99-2226 (D.C. No. CR-98-653) (District of New Mexico)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON and LUCERO , Circuit Judges.
A jury convicted defendant-appellant Genaro Jaramil lo-Garcia (“Genaro”) of conspiracy to possess with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846, possessi on with intent to distribute more than 50 kilograms of marijuana and aiding and abetting in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and knowing and int entional use of a minor to commit possession with intent to distribute marijuana in violation of 21 U.S.C. § 861(a)(1) and 18 U.S.C. § 2. The district court sentenced him to 135 months1 Because most of those involved in the drug conspi racy are part of the

Jaramillo family, the members of the Jaramillo fami ly are identified by their first names. -2- imprisonment and eight years supervised release. H e appeals his conviction on the grounds that mere inferences connect him to the marijuana conspiracy and that there is insufficient evidence of his constructive possession of the marijuana seized. We exercise jurisdiction pursuant to 28 U. S.C. § 1291 and affirm.
I The facts as they emerged at trial paint a picture of a “family-style” drug smuggling operation. 1 Events leading to Genaro’s arrest began on February 2, 1998, when customs officials at a New Mexico borderstation found drugs stashed in a van driven by Genaro’s sister-in-law, Ani Lou Jaramillo. Also present in the van were San Juana Jaramillo (Genaro’s mother), Est er Lugo (Genaro’s commonlaw wife), and other relatives including Maria de R osa Jaramillo, Norma Jaramillo, and numerous children. Search of one of the passengers in the van also revealed a key to a room at the Crossroads Motel inAlbuquerque, New Mexico. About one hour later, a second vehicle arrived at t he same customs checkpoint, carrying Genaro, his father, Raymundo J aramillo, Sr. (“Raymundo Sr.”), and his brother, Raymundo Jaramillo, Jr. (“R aymundo Jr.”), who was driving. Although the three of them appeared to be interested in ascertaining who was being detained and a detector dog alerted the a gents to the presence of drug-3-

odors in their car, the customs agents found no dru gs on them. Genaro and Raymundo Jr. admitted to having been married to Est er and Ani Lou, respectively, but claimed they were divorced and had not seen the women in a long time. Customs agents arrested Ani Lou and Ester, Raymundo Sr., and others, but not Genaro and Raymundo Jr. Ani Lou and Ester late r became cooperating witnesses, and provided information which led to th e arrests of Genaro and Raymundo Jr. Ani Lou testified at trial that the f amily, including Genaro, had gathered together in a Mexican border town immediat ely prior to apprehension to plan the smuggling of the marijuana. This plan con sisted of sending the van with the women and children first, in the hope that cust oms inspectors would be less suspicious of the women and children than of the me n. The men would follow the van to Albuquerque, New Mexico, alert the drug sour ce if the van was stopped, and meet at the Motel 6 or Crossroads Motel in Albu querque. Ani Lou testified that Genaro, along with Raymundo Jr. and Sr., loade d the marijuana into the van. She also described previous similar trips, during f our of which Genaro had been physically present. Raymundo Jr. and Genaro allege dly forced the women to participate in the operation with threats and had t hem register the motel rooms at the Motel 6 and Crossroads in their names in order to deflect suspicion from the men in case of apprehension. She also testified th at San Juana would distribute the proceeds of their drug trips among all adults p resent including Genaro.-4-

Ester testified that Genaro recruited her into sell ing drugs with his parents. She had been on several smuggling trips prior to th e February 2, 1998, trip which resulted in her arrest. Her testimony corroboratedthat of Ani Lou’s to the effect that the group would take their children to distrac t suspicion and that they stayed in motels in Albuquerque often registered in Ester’ s name under threats from Genaro. These threats often materialized into beat ings. Genaro paid Ester for her participation. Although he was not physically pres ent on all of the trips in which Ester participated, he was, according to Ester, an active participant in the smuggling operation. Records obtained during the investigation further c orroborate the drug smuggling operation described by Ani Lou and Ester. Hotel records from the Motel 6 and Crossroads Motel in Albuquerque verify the Jaramillos’ stays at those motels during the course of the drug operation on the dates alleged by Ani Lou and Ester. Customs records show other dates on whi ch the van apprehended on February 2 crossed the international border, corrob orating both Ani Lou and Ester’s testimony and the motel records. Agents te stifying at trial stated that based on their experience, the use of two cars, one to transport the drugs and a second car further behind to track the first was co nsistent with drug smuggling operations.2 Raymundo Jr. only contested his sentence on appea l, which we affirmed.

See United States v. Jaramillo-Garcia , No. 99-2229, 2000 WL 289614 (10th Cir. March 20, 2000). -5- After the close of the government’s case, Genaro ma de a motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29. The district court denied the motion and the jury found him guilty of conspir acy to possess with intent to distribute marijuana, possession with intent to dis tribute marijuana and aiding and abetting, and knowing and intentional use of a mino r to commit possession with intent to distribute marijuana. This appeal follow ed. 2
II In reviewing both the sufficiency of the evidence t o support a conviction and the denial of a motion for judgment of acquitta l, this Court must review the record de novo to determine whether, viewing the ev idence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See United States v. Schluneger , 184 F.3d 1154, 1158 (10th Cir. 1999), cert. denied , 120 S. Ct. 800 (2000); United
States v. Voss , 82 F.3d 1521, 1524-25 (10th Cir. 1996). The evid ence necessary to support a verdict “need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities ex cept guilt.” United States v. Wilson , 182 F.3d 737, 742 (10th Cir. 1999) (internal quot ation and citation omitted). When reviewing the denial of a motion fo r judgment of acquittal made3 According to Genaro, his conviction should be rev ersed because “[t]he

‘initial idea’ for the conspiracy was not shown to be [h]is.” (Appellant’s Br. at 24 (quoting United States v. Davis , 965 F.2d 804, 812 (10th Cir. 1992).) It is simpl y not an element of conspiracy that the defendant be the leader, organizer, or initiator of the conspiracy. Cf. Evans , 970 F.2d at 668 (setting forth the elements of conspiracy). Our reference in Davis , 965 F.2d at 812, to the fact that the initial idea for the conspiracy derived from someone other than the defendant rebutted the government’s argument that because the defendant benefitted from the conspiracy, the jury could infer that the defendantwas “illegally benefitting from,” or illegally involved in, the conspiracy. W e rejected the government’s theory and reversed the conviction because there wa s insufficient evidence to prove that the defendant had agreed with one or mor e other persons to violate the law. See id. at 814. Here, there is evidence that Genaro not o nly agreed to violate the law, but also coerced others into parti cipation. -6- at the close of the government’s case-in-chief, we look only to evidence on record at the time of the motion, that is, at the time the government rested. See Fed. R. Crim. P. 29(a) & (b).
A The elements of conspiracy are as follows: To prove conspiracy, the government must show “[1] that two or more persons agreed to violate the law, [2] that th e defendant knew at least the essential objectives of the conspiracy , . . . [3] that the defendant knowingly and voluntarily became a part o f it,” and [4] that the alleged coconspirators were interdependent

. United States v. Evans , 970 F.2d 663, 668 (10th Cir. 1992) (quoting Unite d States
v. Fox , 902 F.2d 1508, 1514 (10th Cir. 1990)). 3 Genaro argues there was insufficient evidence to establish his involvement in the drug conspiracy. Viewed in the light most favorable to the government, the facts include the following: Genaro recruited Ester to participate i n the conspiracy, he knew of it,4 Relying on United States v. Jones , 808 F.2d 754, 756 (10th Cir. 1987),

which discounted ambiguous testimony regarding part icipants in a conspiracy because it was not possible to discern “who ‘they’ were,” Genaro contends there is insufficient evidence to support his conviction because Ani Lou and Ester’s testimony is similarly vague. This argument is mer itless because there is ample testimony from both women implicating Genaro by nam e. -7- he paid her for her work in it, and he instructed h er to register motel rooms in her name to avoid connecting him with the drug smugglin g trips. Ani Lou likewise testified as to his participation. 4 The corroborating evidence consists largely of motel records and testimony from customs agents. W e resolve conflicting evidence in favor of the government, see United States v. Parker , 53 F.3d 1500, 1516 (10th Cir. 1995), and are mindful that the cre dibility of witnesses is for the jury to evaluate, see United States v. Davis , 965 F.2d 804, 811 (10th Cir. 1992). Viewing the evidence in the light most favorable to the government, we conclude that a reasonable jury could have found Genaro guil ty of conspiracy to possess with intent to distribute marijuana. Despite the testimony of Ani Lou and Ester directlyimplicating him in the conspiracy and the evidence corroborating that test imony, Genaro directs us to United States v. Anderson , 981 F.2d 1560, 1563 (10th Cir. 1992), in which we held that a court “cannot sustain a conspiracy conv iction if the evidence does no more than create a suspicion of guilt or amounts to a conviction resulting from piling inference on top of inference.” Id. at 1564 (quoting United States v. Austin , 786 F.2d 986, 988 (10th Cir. 1986)) (further citations omitted). Genaro is-8-

correct that in several cases, we have “reversed co nspiracy convictions because the evidence created only a suspicion of associatio n with criminal activities.” United States v. Esparsen , 930 F.2d 1461, 1474 n.14 (10th Cir. 1991) (citing cases). Moreover, “we may not uphold a conviction obtained by piling inference upon inference,” United States v. Valadez-Gallegos , 162 F.3d 1256, 1262 (10th Cir. 1998) (citing United States v. Jones , 44 F.3d 860, 865 (10th Cir. 1995)), but a “jury may draw reasonable inferences from direct and circumstantial evidence,” United States v. Yoakam , 116 F.3d 1346, 1349 (10th Cir. 1997) (citation om itted). In Anderson , the lack of direct testimony implicating Anderson created the necessity to pile inference upon inference. Anders on was linked to the conspiracy by the following facts: he was twice seen at the do orway of a house in which nearly 2,000 pounds of marijuana were found; his ph otograph with two conspirators was found at the house; and phone reco rds showed Anderson calling numbers also called by conspirators. See Anderson , 981 F.3d at 1563. In the instant case, inferences drawn from Genaro’s familyrelationships, his presence in a car following the drug van, and other circumstant ial evidence are not the core of the evidence presented, but rather merely corroborate the direct testimony of Ani Lou and Ester implicating him. Genaro’s reliance on Evans , 970 F.2d at 673-74, is likewise misplaced. In
Evans , we were faced with the question of whether a defe ndant who purchased-9-

four ounces of crack on one occasion and lent scale s to conspirators knowing that they would be used to measure drugs, thereby had ag reed to participate in an extensive drug distribution conspiracy. See id. We found that evidence insufficient to establish the defendant’s agreementto participate in the conspiracy. See id. at 671-73. Contrasting the large scope of the con spiracy with the defendant’s single four-ounce purchase, we conc luded there was no evidence she was aware of, or joined, the larger conspiracy alleged, see id. at 673-74, and “at the most, [the defendant] joined [the other def endants] in a much smaller conspiracy to distribute crack cocaine on one instance,” id. at 674. We reasoned that “[m]ere knowledge of illegal activity, even in conjunction with participation in a small part of the conspiracy, does not by itse lf establish that a person has joined in the grand conspiracy.” Id. at 670; see also United States v. Slater , 971 F.2d 626, 630 (10th Cir. 1992) (stating that one do es not “become a member of a conspiracy merely by associating with conspirators known to be involved in crime . . . because guilt is always dependent on personal and individual conduct” (citations omitted)). Attempting to analogize his circumstances to that o f the defendant in
Evans —based on the fact that he was not present on all o f the drug smuggling trips—Genaro contends that at most the government p resented evidence of mere knowledge of small parts of the conspiracy, but notof his involvement in the-10-

larger smuggling operation. However, direct testim ony implicated him as a major organizer in the entire scheme of smuggling trips. Evans , like Anderson , is conspicuous for the lack of testimony by co-conspir ators affirmatively establishing the defendant’s involvement. That dis tinction is an important one that cannot be overlooked. The testimony of Ani Lou and particularly that of E ster could lead a jury to infer beyond a reasonable doubt that Genaro was an organizer and leader of the conspiracy and that he coerced the two women into traveling with the drugs and registering for the hotels in their own names in or der to divert attention from himself and avoid apprehension and detection.
B As to Genaro’s conviction for possession with intent to distribute marijuana, we are presented with the issue of wheth er there was sufficient evidence to establish his constructive possession o f the drug. A court may find constructive possession “if a person knowingly has ownership, dominion, or control over the narcotics and the premises where the narcotics are found.” United States v. Reece , 86 F.3d 994, 996 (10th Cir. 1996) (quoting UnitedStates
v. Jones , 49 F.3d 628, 632 (10th Cir. 1995)). “Where posse ssion is not clear, such as when the contraband may be attributed to mo re than one individual, constructive possession requires some nexus, link, or other connection between-11-

the defendant and the contraband.” Id. (citing United States v. Mills , 29 F.3d 545, 549 (10th Cir. 1994)). “The government may pr ove constructive possession by circumstantial evidence.” Mills , 29 F.3d at 549 (citation omitted). Because he did not physically possess the drugs due to his presence in a different car, Genaro argues there was insufficientevidence to establish his constructive possession of the marijuana. Contraryto Genaro’s contention, the evidence to support constructive possession was sub stantial and raised more than “a mere suspicion of guilt.” United States v. Tayl or , 113 F.3d 1136, 1144 (10th Cir. 1997) (quoting United States v. Sanders , 929 F.2d 1466, 1470 (10th Cir. 1991)). The government presented evidence that Gen aro loaded the drugs, followed the van, planned to meet the van in Albuqu erque, and although he denied exercising control over the van, he exercise d control over Ester’s actions by means of beatings and threats. This evidence supports “at least a plausible inference that the defendant had knowledge of and a ccess to the . . contraband.” Id. at 1145 (internal quotations and citations omitted ). A jury could reasonably infer that this gave him control over the van and i ts contents. Relying on Reece , 86 F.3d at 994, Genaro argues the government fail ed to meet its burden to prove that he knowingly and inte ntionally possessed the marijuana. In Reece , 86 F.3d at 996-97, the court found no constructiv e possession on the part of a driver who denied priorknowledge of his passenger’s-12-

drugs. Although the government offered a theory th at the driver and passenger were acting in concert to distribute the drugs, see id. at 996, absent from Reece was any testimony by either of the participants in the alleged conspiracy implicating the defendant. There, the court proper ly rejected an attempt to infer constructive possession from mere proximity. The e vidence in the instant case, as noted, involves more than mere proximity, but also includes direct testimony implicating Genaro in coordinating the smuggling sc heme and in loading the drugs into the van. Also without merit is Genaro’s reliance on Mills , 29 F.3d at 545, for the proposition that the government has failed to show constructive possession. In Mills , the defendant lived in the same house as another occupant, Judy Hall. See id. at 547. At the instruction of police seizing a tr uck parked at the house, the defendant removed several guns from the truck and p ut them in the garage. See id. One week later, the guns were found in a compartm ent of a table owned by Hall. See id. at 547, 550. Again, no one testified that the gun s belonged to Mills. The court rejected the theory that his placement of the guns in the garage, and their later presence in the table, was sufficient e vidence to establish constructive possession. See id. at 550. “[T]he government had to come forward wit h evidence to connect Mills with knowing constructive possession of the firearms extending beyond his handling them” a week before. See id. Here, Genaro’s-13-

loading of the truck is much more proximate in time than the unloading at issue in Mills . Evidence that Genaro loaded the contraband and t hat he, at least in part, was organizing and exercising control over the ship ment is sufficient to meet this threshold. Viewing the evidence in the light most favorable to the government, a reasonable jury could find him guilty of possessionwith intent to distribute marijuana.
III The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge