* This order and judgment is not binding precedent, except under the doctrines of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

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

### AUG 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.BERNARDO HERNANDEZCASTILLO, Defendant - Appellant. No. 97-2296 (D. Ct. No. CR-96-704-HB) (D. N. Mex.)

ORDER AND JUDGMENT *

Before TACHA , BALDOCK , and KELLY , Circuit Judges.
The defendant was found guilty of possession with i ntent to distribute more than 50 kilograms of marijuana in violation of 21 U .S.C. §§ 841(a)(1) and (b)(1)(C), and for aiding and abetting in violationof 18 U.S.C. § 2. He appeals his conviction on two different grounds. We exerci se jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.- 2 -

On November 11, 1996, United States Border Patrol A gent James Scott stopped at several motels in Las Cruces, New Mexico to look for suspicious vehicles that he believed could be harboring contraband or undocumented aliens. At the Western Inn motel, Agent Scott observed a ma le driver and a female passenger exit a brown 1977 Chevrolet pickup truck and walk toward the motel. Agent Scott conducted a canine inspection on the truck. The dog immediately alerted to the area between the cab and the bed. S everal agents inspected the vehicle and discovered evidence they considered to be consistent with false compartments in the bed of the truck. The agents observed a man later identified as Franc isco Castaneda-Lopez standing barefoot in the breezeway of the motel. T he agents thought he appeared surprised and fearful. After questioning Mr. Castaneda-Lopez, the agents determined he was an illegal alien and detained him . The agents escorted Mr. Castaneda-Lopez to his motel room to retrieve his s hoes and discovered Bernardo Hernandez-Castillo and Priscilla Delgado fully clothed in bed. Agent Scott noticed a set of keys on the motel room dresser he believed were the keys to the brown pickup truck. Agent Scott unequivocally aske d all the occupants of the room whom the keys belonged to. Mr. Hernandez-Cast illo did not respond until Ms. Delgado indicated that he had been the driver o f the truck. He reluctantly provided an additional ignition key to the truck th at he stored in his wallet- 3 -

wrapped in layers of tissue paper. Mr. Hernandez-C astillo was taken into custody and the truck was seized. At that time, Mr. Hernan dez-Castillo admitted that he was the owner of the truck, and he indicated that h e had purchased it two weeks earlier from Mr. Castaneda-Lopez. Pursuant to a vehicle search, agents subsequently u ncovered approximately 122 pounds of marijuana concealed in false compartm ents inside the wheel wells and front bed of the truck. Mr. Hernandez-Castillo and Mr. Castaneda-Lopez, were indicted on November 11, 1996. They were trie d together before a jury. At trial, Mr. Hernandez-Castillo admitted ownership of the truck, but denied knowledge that marijuana was concealed therein. Atthe conclusion of the government’s case, both defendants moved for judgme nts of acquittal pursuant to Fed. R. Crim. P. 29(a). The trial court granted Mr . Castaneda-Lopez’s motion, but denied Mr. Hernandez-Castillo’s motion. After all evidence was presented, the jury found Mr. Hernandez-Castillo guilty. Mr. Hernandez-Castillo appeals on two grounds. He contends the evidence at trial was insufficient to support the jury’s fin ding that he possessed marijuana with intent to distribute. He also argues that the district court erred by not declaring a mistrial after it dismissed the case ag ainst Mr. Castaneda-Lopez, while allowing the same jury to decide the case aga inst Mr. Hernandez-Castillo. With regard to each challenge, we affirm the distri ct court.- 4 -

I. Sufficiency of the Evidence In determining whether there is sufficient evidence to support the jury’s verdict, this court reviews the record de novo . See, e.g. , United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Evidence suffi ciently supports a verdict if, when considered in the light most favorable to the government, it would allow a reasonable juror to find the defendant guilty beyon d a reasonable doubt. See id. In evaluating the evidence under this standard, the court will not question a jury’s credibility determinations or its conclusions aboutthe weight of the evidence. See United States v. Johnson , 57 F.3d 968, 971 (10th Cir. 1995). To obtain a conviction for possession of marijuana with intent to distribute under 21 U.S.C. § 841, the government must prove th at Mr. Hernandez-Castillo (1) possessed a controlled substance, (2) knew he p ossessed a controlled substance, and (3) intended to distribute the contr olled substance. See United States v. Mains , 33 F.3d 1222, 1228 (10th Cir. 1994). With regar d to the first element, the statute does not require a defendant t o have had actual possession of the marijuana; constructive possession is sufficient. See id. An individual has constructive possession over an object when he or s he knowingly has exclusive ownership, dominion, or control over the object or the premises where the object is found. See United States v. Taylor , 113 F.3d 1136, 1144-45 (10th Cir. 1997). Here, there is no question that Mr. Hernandez-Casti llo exclusively owned the- 5 -

truck in which the narcotics were found. He admitt ed such at trial. Thus, the first element is satisfied. The second element—whether the defendant knew he po ssessed a controlled substance—is disputed by the parties. M r. Hernandez-Castillo urges us to adopt the Fifth Circuit’s approach of looking fo r additional factors indicating knowledge in cases in which contraband is discovere d in hidden compartments within a vehicle. See United States v. Resio-Trejo , 45 F.3d 907, 911 (5th Cir. 1995). It is unnecessary, however, for us to decid e whether to follow the Fifth Circuit approach. In reviewing the evidence in the light most favorable to the government, we find sufficient evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doub t even if we were to require additional evidence indicating knowledge of possess ion. First, we look at Mr. Hernandez-Castillo’s connecti on to the truck. He testified that he drove the truck every day he had work. Two cans of plumbing sealant, used to line the false compartments, were found in the truck. Finally, Agent Scott testified that Ms. Delgado identified M r. Hernandez-Castillo as the driver of the truck. Next, we look at the evidence of Mr. Hernandez-Cast illo’s hesitant behavior as described by Agent Scott. Mr. Hernande z-Castillo was reluctant to claim ownership of the truck and to produce its key s. This allows a reasonable- 6 -

juror to infer guilty knowledge that defendant poss essed contraband. A jury’s reasonable inference of Mr. Hernandez-Castillo’s kn owledge is further supported by the evidence presented by the government showing that the marijuana was reasonably fresh and that the addition of the false compartments were recent. This evidence would allow a reasonable juror to discountthe defense’s theory that both the false compartments and the contraband concealedtherein were in place prior to the defendant’s taking possession of the truck. The circumstantial evidence similarly permitted the jury to draw a reasonable i nference that Mr. HernandezCastillo was at the motel, in an area with high lev els of drug and alien smuggling activity, in order to wait for an opportunity to cr oss the border checkpoints when they were closed. Furthermore, the defendant admitted on cross-examin ation lying to border patrol agents on two occasions, the first when he i nitially denied ownership of the truck, and the second when he gave them a false add ress for his claimed residence in the United States. In light of the totality of evidence, we conclude there is sufficient evidence to support a finding that defen dant knew he possessed a controlled substance. On the third element of a section 841 case—intent t o distribute the controlled substance—Mr. Hernandez-Castillo does no t assert that the evidence was insufficient to demonstrate intent. Thus, in e valuating the evidence under the- 7 -

three-part standard, we conclude there is sufficient evidence to support a conviction against defendant for possession of mari juana with intent to distribute. II. Right to a Fair Trial Mr. Hernandez-Castillo argues that the district cou rt prejudiced the case against him and violated his constitutional rights to due process and a fair and impartial trial by failing to declare a mistrial af ter dismissing the case against Mr. Castaneda-Lopez. Mr. Hernandez-Castillo did not mo ve for a mistrial below nor object at any time to the continuation of the trial , thus we simply review for plain error. See United States v. Young , 470 U.S. 1, 15-16 (1985). Accordingly, our review is limited to determining whether the distri ct court’s decision not to sua sponte declare a mistrial so prejudiced the case against the defendant and impinged on the fundamental fairness of the trial p rocess, see id. at 16, that, in view of all the circumstances, the defendant must b e deemed to have been deprived of his Fifth Amendment due process or Sixth Amendment impartial jury guarantees. Under this standard, there was clearlyno plain error here. The district court properly instructed the jury not to draw any conclusions from the dismissal of the case against Mr. Hernandez-Castill o’s co-defendant. Such curative instructions were sufficient here to prote ct the defendant from prejudice amounting to plain error. Based upon the foregoing conclusions, we find that the evidence was- 8 -

sufficient to sustain the conviction, and we also f ind that the district court did not plainly err in not declaring a mistrial. Therefore , we affirm the decision of the district court. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge