* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or 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.

1 After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 

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

### AUG 27 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE GONZALEZ-GONZALEZ, Defendant-Appellant. No. 96-2163 (D.C. No. CR-94-262-03-MV)

(NM)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

Jose Gonzalez-Gonzalez was convicted by a jury of o ne count of conspiracy to possess more than 1000 kilograms of marijuana wi th intent to distribute, and one count of possession with intent to distribute m ore than 1000 kilograms of marijuana. He was sentenced to twenty years impris onment. He appeals, 12Mr. Gonzalez’ opening brief was filed by retained counsel and raised the

sufficiency of the evidence. Mr. Gonzalez filed a motion with this court asking that the brief be stricken and that he be allowed t o obtain substitute counsel. Retained counsel then filed a request to withdraw a s counsel, and advised us that it gave Mr. Gonzalez instructions on his options wi th respect to requesting appointed counsel or substitute counsel, and of the steps necessary to pursue his appeal. Material submitted by retained counsel ind icates that Mr. Gonzalez was properly advised of his options. In addition, this court advised Mr. Gonzalez to file a motion for appointment of counsel in distric t court. Mr. Gonzalez did so. However, that motion is still pending because Mr. G onzalez has not returned the financial affidavit. Because Mr. Gonzalez has not completed the steps for obtaining either appointed counsel or substitute re tained counsel and has not submitted a pro se brief, we address the issue rais ed in the brief filed by retained counsel. Mr. Gonzalez’ motion to strike is denied and retained counsel’s motion to withdraw is dismissed as moot. In his motion, Mr. Gonzalez asserts that retained c ounsel was ineffective. Ineffective assistance claims should be brought in collateral proceedings, not on direct appeal. United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Such claims are presumed dismissible when b rought on direct appeal and virtually all of them will be dismissed. Id. Although we have considered such a claim on direct appeal in those rare circumstances where it needs no further development prior to our review, see, e.g. , United States v. Gallegos , 108 F.3d 1272, 1279-80 (10th Cir. 1997), this case does not present those circumstances. Accordingly, to the extent that Mr. Gonzalez’ motio n can be construed as a pro se assertion that his counsel was incompetent at trial or on appeal, it is dismissed as premature. -2- asserting that the evidence was insufficient to sup port his conviction. 2 The government asserts that Mr. Gonzalez waived his challenge to the sufficiency of the evidence by failing to move for a judgment of acquittal at the close of evidence at trial. We have stated that ab sent a motion for acquittal following the presentation of the government’s evid ence and the renewal of that motion at the conclusion of the trial, federal courts will not pass on the-3-

sufficiency of the evidence. See United States v. Guerrero , 517 F.2d 528, 530 (10th Cir. 1975). Although Mr. Gonzalez did not mo ve for a judgment of acquittal, he did argue unsuccessfully at the concl usion of trial that insufficient evidence had been presented to establish the existe nce of a conspiracy for purposes of the admission of coconspirator statements. In any event, as we discuss below, the evidence was more than sufficient to support the verdict on both counts. In assessing the sufficiency of the evidence, we lo ok at all the evidence in the light most favorable to the government and drawall reasonable inferences in favor of the verdict to determine if the evidence i s substantial enough to establish guilt beyond a reasonable doubt. United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994). The evidence must do more than r aise a mere suspicion, but it need not conclusively exclude all other reasonable possibilities. Id. The offense of conspiracy under 21 U.S.C. § 846 requires proof that the defendant knew at least the essential objectives of the conspiracy an d knowingly and voluntarily became part of it. Johnson , 42 F.3d at 1319. An agreement may be inferred fr om the acts of the parties and other circumstantial ev idence indicating concerted action for a common purpose. Id. Knowing participation may be inferred from acts done in furtherance of the conspiracy. Id. To prove possession, the government must show that the defendant had either actual or constructive-4-

possession. United States v. Hanif , 1 F.3d 998, 1003 (10th Cir. 1993). Constructive possession is shown by evidence that the defendant had some appreciable ability to guide the destiny of the dru g, that he knowingly held the power to exercise dominion and control over the dru gs. Id. Viewed in this light, the evidence shows that Mr. G onzalez was part of a drug conspiracy involving approximately 5000 pounds of marijuana. His role in the conspiracy was to arrange for the transportatio n of this marijuana from El Paso, Texas to California. Mr. Gonzalez recruited Jose Ramirez, the owneroperator of a tractor trailer truck, to meet him wi th the truck in El Paso, load the drug in the truck, and drive the load to California . Mr. Gonzalez gave Mr. Ramirez a beeper number to call when he arrived in El Paso. When Mr. Ramirez called the number, Mr. Gonzalez and another coconsp irator came to meet him in a rented gray Ford Taurus and led him to the warehous e at which the marijuana was stored. While the marijuana was being loaded on th e truck, Mr. Gonzalez and Mr. Ramirez drove the Taurus to obtain a bill of lading for the load. Mr. Ramirez was concerned about a border checkpointthat the truck would have to pass west of Las Cruces, New Mexico. Mr. G onzalez agreed to “scout” the checkpoint by driving through it in a gold Linc oln Towncar rented by another coconspirator and dialing Mr. Ramirez on a beeper i f the checkpoint were open. Mr. Ramirez’ instructions were to avoid the checkpo int if he was beeped.-5-

When the gold Lincoln passed through the open checkpoint, the border patrol agents figured it was a scout car, and referred it to a secondary inspection area. They found no reason to detain the car, howe ver, and allowed it to leave. The agents subsequently observed that the car had turned around and was traveling back the way it had come. Two agents fol lowed it after it again passed by the checkpoint going in the opposite direction. Shortly thereafter, Mr. Ramirez arrived at the checkpoint because he had apparentlybeen out of range to receive the beep from Mr. Gonzalez. Mr. Ramirez was referr ed to the secondary inspection area where the truck was subjected to a dog sniff, searched, and the marijuana was discovered. Mr. Ramirez was arrestedand placed in a holding cell at the checkpoint. While he was in the cell, Mr. R amirez heard over the station intercom that the gold Lincoln was back at the chec kpoint again. He informed the agents that the Lincoln was involved in the conspir acy, and then provided other information, including information concerning the g ray Taurus, that enabled the agents to immediately arrest Mr. Gonzalez and the o ther coconspirators. Much of the above evidence implicating Mr. Gonzalez was provided through the testimony of Mr. Ramirez, who was coope rating as part of a plea bargain. A criminal conviction may be upheld solel y on the uncorroborated testimony of a coconspirator, if the testimony is n ot incredible or insubstantial. United States v. McIntyre , 997 F.2d 687, 708 (10th Cir. 1993). The credibil ity of-6-

Mr. Ramirez was strenuously challenged during trial and his motive to testify favorably to the government was vigorously presente d to the jury, which nonetheless determined he was credible. That asses sment is committed exclusively to the finder of fact, and we may not r eweigh the credibility of witnesses. United States v. Youngpeter , 986 F.2d 349, 352-53 (10th Cir. 1993). When the evidence as a whole is considered most fav orably to the government, it supports the jury verdict overwhelmi ngly. Mr. Gonzalez was clearly an integral part of the conspiracy and comm itted many acts to further its goals. His constructive possession is established by his activity in scouting the checkpoint and his authority to direct the truck co ntaining the marijuana away from the checkpoint upon discovering that it was op en. Accordingly, Mr. Gonzalez’ conviction is AFFIRMED.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge