* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### SEP 15 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DAMIAN INOCENTE GONZALEZ, Defendant-Appellant. No. 99-3392 (District of Kansas) (D.C. No. 98-CR-40079-02-SAC)

ORDER AND JUDGMENT *

Before BRORBY , KELLY, and MURPHY , Circuit Judges.

I. INTRODUCTION After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 In his pro se supplemental brief, Gonzalez cryptically asserts that the jury

actually acquitted him of the § 846 conspiracy char ge. A review of the appellate record, with particular reference to the jury’s spe cial verdict form, the courtroom minute sheet, and the district court’s judgment of conviction, demonstrates that this assertion is completely frivolous.

2 Gonzalez was provided with a copy of counsel’s Anders brief and motion to withdraw and filed a supplemental pro se brief in response thereto. See Anders v. California , 386 U.S. 738, 744 (1967) (“A copy of counsel’s [Anders ] brief should be furnished the indigent [defendant] and ti me allowed him to raise any points he chooses . . . .”). This court has fully considered Gonzalez’s pro se brief in resolving this appeal. -2- Damien Gonzalez was convicted, following a jury tri al, of one count of conspiracy to possess with intent to distribute coc aine in violation of 21 U.S.C. § 846 and one count of possession of cocaine with i ntent to distribute in violation of 21 U.S.C. § 841(a). 1 This case is before the court on counsel’s motionto withdraw and accompanying Anders brief. See Anders v. California , 386 U.S. 738 (1967). In his appellate filings, counsel indi cates that Gonzalez insists on challenging the sufficiency of the evidence to supp ort his convictions. Accordingly, counsel has submitted a brief “referri ng to anything in the record that might arguably support” a sufficiency of the e vidence challenge. Id. at 744. Nevertheless, counsel has indicated that upon a “co nscientious examination” of the record, he has determined that the appeal is “w holly frivolous.” Id. Upon de

novo review of the parties’ briefs and contentions 2 and the entire record on appeal, this court agrees with counsel’s assessmentand concludes that the record demonstrates no non-frivolous appellate issues. Ac cordingly, exercising3 The driver of the Crown Victoria was later identifi ed as Lazaro Diaz.
4 The Crown Victoria and Mazda were traveling in clos e proximity to each other and both bore Texas license plates.

5 Brockman took special notice of the Crown Victoria because he had received information that a vehicle matching the Cr own Victoria’s make and license plate would be carrying drugs through the area. -3- jurisdiction pursuant to 28 U.S.C. § 1291, this cou rt grants counsel’s motion to withdraw and affirms the district court’s judgment of conviction.

II. BACKGROUND On August 26, 1998, while patrolling the Kansas Turnpike, Kansas Highway Patrol Trooper Jim Brockman noticed and beg an to follow a maroon Ford Crown Victoria. 3 Trooper Brockman observed that the Crown Victoriawas traveling in tandem with a bronze-colored Mazda. 4 As he continued to follow the Crown Victoria, 5 Trooper Brockman noticed that the Mazda slowed con siderably. When the Mazda eventually exited the Turnpike, Broc kman continued following the Crown Victoria and notified a fellow trooper of the developments and requested that he provide assistance by monitoring the Mazda. Shortly thereafter, Trooper Brockman initiated a tr affic stop of the Crown Victoria. When Brockman asked for proof of insuran ce, Diaz handed him insurance documents showing that Gonzalez was the i nsured. After issuing Diaz6 Trooper Brockman testified as follows regarding the reason for the traffic

stop: I could see the driver of the Crown Victoria was ch ecking his rear view mirrors. He was obviously nervous because I w as behind him. He drove completely off the roadway, straddling the white line that designates between the driving portion and the shou lder of the roadway. This occurred several times. I continuedfollowing the vehicle until just prior to the stop where he made an illegal lane change by failure to signal the lane change. -4- a warning, 6 Trooper Brockman requested consent to search the v ehicle. Diaz gave written consent and Brockman searched the vehicle. Approximately 30 pounds of cocaine were found in a hidden compartment between the rear seat and trunk of the Crown Victoria. Trooper Brockman also seized abill of sale and a Texas liability insurance card from the glove box of the vehicle. The bill of sale reflected that Gonzalez had purchased the vehicle a nd the insurance card reflected that Gonzalez had insured the vehicle. In the meantime, Kansas Highway Patrol Trooper Thom as Walters stopped the Mazda. There were four individuals in the Mazd a: the driver Gonzalez and passengers Elisa Kindelan, Eduardo Moruarte-Jimenez , and Blanca Hernandez. Gonzalez presented Trooper Walters with a Texas dri vers’ license in the name of Damian Inocente Gonzalez. Based upon information r eceived regarding Trooper Brockman’s stop of the Crown Victoria, the individu als in the Mazda were arrested. A search warrant was obtained and the ve hicle searched. During that search, officers found a vehicle title for the Crow n Victoria in Kindelan’s purse.7 Hernandez, Moruarte-Jimenez, and Diaz were also ind icted on cocaine

possession and conspiracy counts. All three eventu ally pleaded guilty to lesser charges. Kindelan, the fourth occupant of the Mazd a, was not charged in the indictment.

8 At the time of her testimony, Hernandez had entered into a plea agreement with the government, entered a guilty plea to a les ser charge, and was awaiting sentencing. -5- Gonzalez was indicted on cocaine possession and con spiracy charges and the case eventually went to trial. 7At trial, Hernandez testified for the government. 8 She testified that all of the individuals in the Mazda, with the exception of Kindelan, knew that there was cocaine in the Crown Victoria and that they had followed Diaz, who drove the Crown Vi ctoria, all the way from Houston. She further testified that seven kilogram s of the cocaine came from Gonzalez and that the night before they left Housto n, Gonzalez woke her up to help him “scrape” the cocaine. She watched him scr ape off approximately eight ounces of cocaine and repackage it. Hernandez test ified that Gonzalez, as well as co-defendants Diaz and Moruarte-Jimenez, were prese nt and participated in placing the drugs in the Crown Victoria. She also testified that Gonzalez placed the certificate of title to the Crown Victoria in K indelan’s purse because Hernandez refused to let him put it in the glove co mpartment of her vehicle. Kansas City, Missouri Police Officer Terry Carter t estified at trial that the amount of cocaine seized from the Crown Victoria, 2 9.4 pounds or 13.34 kilograms, was clearly intended for distribution rather than personal use. He-6-

further testified that one kilogram of cocaine has a street value of approximately $25,000 to $30,000. Lucilo Alverado testified that in 1997 she sold ins urance to Gonzalez covering the Crown Victoria. When he purchased the insurance, Gonzalez provided Alverado with a bill of sale for the vehic le and his driver’s license. Alverado testified that Gonzalez paid for the insur ance either with cash or by money order and that Gonzalez made the most recent premium payment on August 24, 1998. Bassam Farhat testified that he owned the car deale rship that sold Gonzalez the 1992 Crown Victoria. Mr. Farhat identified the bill of sale to Gonzalez as well as the copy of the driver’s license provided b y Gonzalez at the time he purchased the Crown Victoria. Gonzalez testified at trial and admitted that he pu rchased the Crown Victoria and purchased insurance. He claimed, howe ver, that he did so at the request of his employer, Kindelan, that Kindelan pa id him for the vehicle and insurance, and that he had never had possession of the vehicle. Gonzalez further testified that he drove to Kansas City at the reque st of Hernandez. According to Gonzalez, Hernandez advised him that her husband wa s on probation for a DUI conviction and needed a driver. Gonzalez testified his understanding was that the-7-

group was traveling to Kansas City to change Hernan dez’s husband’s area of probation.

III. ANALYSIS This court reviews de novo the question whether the government introduced sufficient evidence to sustain Gonzalez’s convictio ns. See United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999). In advanci ng a sufficiency-ofthe-evidence challenge, Gonzalez is “faced with a h igh hurdle.” See United States v. Voss , 82 F.3d 1521, 1524 (10th Cir. 1996). This court must examine the evidence adduced at trial in the light most favorab le to the government, determining only whether any rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt. See Hanzlicek, 187 F.3d at 1239. In that regard, this court must consider both direct and circumstantial evidence, as well as any reasonable inferences to b e drawn from that evidence, in resolving a sufficiency-of-the-evidence challenge. See United States v. Davis , 1 F.3d 1014, 1017 (10th Cir. 1993). Furthermore, in resolving such a challenge, this court does not weigh conflicting evidence or c onsider the credibility of witnesses. See United States v. Pappert , 112 F.3d 1073, 1077 (10th Cir. 1997). It is the jury’s prerogative as fact finder to resolve conflicting testimony, weigh the-8-

evidence, and draw inferences from the facts presented. See United States v. Nieto , 60 F.3d 1464, 1469 (10th Cir. 1996). In order to sustain Gonzalez’s conspiracy convictio n under § 846, the government must have presented sufficient evidence at trial to prove the following four elements: (1) there was an agreementbetween Gonzalez and at least one other person to violate federal drug laws ; (2) Gonzalez had knowledge of the essential objectives of the conspiracy; (3) Gonzalez knowingly and voluntarily involved himself in the conspiracy; and(4) there was interdependence among the alleged conspirators. See United States v. Ruiz-Castro , 92 F.3d 1519, 1530 (10th Cir. 1996). “An agreement constituting a conspiracy may be inferred from the acts of the parties and other circumstanti al evidence indicating concert of action for the accomplishment of a common purpos e.” See United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994). With regardto Gonzalez’s conviction for possession with intent to distribute , the government had to prove that Gonzalez: (1) possessed a controlled substance ; (2) knew he possessed a controlled substance; and (3) intended to distribut e the controlled substance. See United States v. Mains , 33 F.3d 1222, 1228 (10th Cir. 1994). Possession of a controlled substance can be either actual or constructive. See United States v. Lazcano-Villalobos , 175 F.3d 838 843 (10th Cir. 1999).-9-

The evidence set forth above, particularly the test imony of Hernandez, is more than sufficient for a reasonable juror to findGonzalez guilty on both the conspiracy and possession-with-intent-to-distribute counts. Without completely recapitulating the testimony and evidence set out a bove, this court notes that Gonzalez purchased the “load vehicle” with the hidd en compartment, the Crown Victoria, approximately nine months before his arre st and maintained insurance on the vehicle during that time period. Gonzalez o wned seven kilograms of the cocaine found in the hidden compartment and was res ponsible for combining and repackaging his drugs with the drugs of other consp irators to make up the entire twelve-kilogram shipment. Gonzalez, along with his co-conspirators, participated in the hiding of the drugs in the hidden compartment on the night before the party left Houston to travel to Kansas City. Gonzalez dr ove the “escort vehicle,” the Mazda, following very closely behind the Crown Vict oria for the entire trip. Finally, Officer Carter testified that the large qu antity of cocaine was inconsistent with personal use and was clearly intended for distribution. In his supplemental pro se brief, Gonzalez contends that this court should disregard the testimony of Hernandez because: (1) h er testimony was pursuant to a plea agreement wherein she was offered lenient tr eatment; and (2) her testimony may have been influenced by correspondence she rece ived while in prison from co-defendant Diaz. Considered in the context of th is case, both contentions are-10-

patently frivolous. The plea agreement reached between Hernandez and the government obligated Hernandez to testify truthfull y at Gonzalez’s trial in exchange for the government’s promise not to prosec ute Hernandez on other charges. This agreement was fully disclosed to the defense and explored in depth at trial. Accordingly, Gonzalez’s claims regarding the testimony fail under this court’s decisions in United States v. Singleton , 165 F.3d 1297 (10th Cir. 1999) ( en banc ) and United States v. Del Mercado , No. 99-3247, 2000 WL 1224538 (10th Cir. Aug. 26, 2000). As to the letters Hernandez r eceived in prison from Diaz, we simply note that the letters were disclosed to the defense and were used by the defense at trial in an effort to impeach the testim ony of Hernandez. Despite these efforts at impeachment, the jury obviously chose to credit Hernandez’s testimony. As noted above, it is the jury’s function to determ ine credibility and resolve conflicting testimony; this court will not second g uess the jury’s credibility determinations on appeal.

IV. CONCLUSION For those reasons set forth above, this court concl udes that Gonzalez’s sufficiency-of-the-evidence challenges are wholly f rivolous. Furthermore, after a thorough review of the record, this court concludes that this case does not raise any other non-frivolous issues. See Anders , 386 U.S. at 744 (noting court of-11-

appeals has duty, in light of counsel’s Anders brief, to examine “all the proceedings[] to determine whether the case is whol ly frivolous”). Accordingly, this court GRANTS counsel’s motion to withdraw and AFFIRMS the district court’s judgment of conviction. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge