*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, or collateral estoppel. The 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.

1

 After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision 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 one count of conspiracy

to possess more than 1000 kilograms of marijuana with intent to distribute, and

one count of possession with intent to distribute more than 1000 kilograms of

marijuana. He was sentenced to twenty years imprisonment. He appeals,1
2

 Mr. 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 to obtain substitute counsel. 

Retained counsel then filed a request to withdraw as counsel, and advised us that

it gave Mr. Gonzalez instructions on his options with respect to requesting

appointed counsel or substitute counsel, and of the steps necessary to pursue his

appeal. Material submitted by retained counsel indicates 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 district court. Mr. Gonzalez did so. 

However, that motion is still pending because Mr. Gonzalez has not returned the

financial affidavit. Because Mr. Gonzalez has not completed the steps for

obtaining either appointed counsel or substitute retained counsel and has not

submitted a pro se brief, we address the issue raised 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 counsel 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 brought 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’ motion can be construed as a pro se

assertion that his counsel was incompetent at trial or on appeal, it is dismissed as

premature.

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asserting that the evidence was insufficient to support 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 absent a motion for acquittal

following the presentation of the government’s evidence and the renewal of that

motion at the conclusion of the trial, federal courts will not pass on the
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sufficiency of the evidence. See United States v. Guerrero, 517 F.2d 528, 530

(10th Cir. 1975). Although Mr. Gonzalez did not move for a judgment of

acquittal, he did argue unsuccessfully at the conclusion of trial that insufficient

evidence had been presented to establish the existence 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 look at all the evidence in

the light most favorable to the government and draw all reasonable inferences in

favor of the verdict to determine if the evidence is 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 raise 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 and knowingly and voluntarily

became part of it. Johnson, 42 F.3d at 1319. An agreement may be inferred from

the acts of the parties and other circumstantial evidence 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
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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 drug, that he knowingly held the

power to exercise dominion and control over the drugs. Id.

Viewed in this light, the evidence shows that Mr. Gonzalez was part of a

drug conspiracy involving approximately 5000 pounds of marijuana. His role in

the conspiracy was to arrange for the transportation of this marijuana from El

Paso, Texas to California. Mr. Gonzalez recruited Jose Ramirez, the owneroperator of a tractor trailer truck, to meet him with 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 coconspirator came to meet him in a

rented gray Ford Taurus and led him to the warehouse at which the marijuana was

stored. While the marijuana was being loaded on the 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 checkpoint that the truck would

have to pass west of Las Cruces, New Mexico. Mr. Gonzalez agreed to “scout”

the checkpoint by driving through it in a gold Lincoln Towncar rented by another

coconspirator and dialing Mr. Ramirez on a beeper if the checkpoint were open. 

Mr. Ramirez’ instructions were to avoid the checkpoint if he was beeped.
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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, however, 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 followed it after it again passed

by the checkpoint going in the opposite direction. Shortly thereafter, Mr. Ramirez

arrived at the checkpoint because he had apparently been out of range to receive

the beep from Mr. Gonzalez. Mr. Ramirez was referred to the secondary

inspection area where the truck was subjected to a dog sniff, searched, and the

marijuana was discovered. Mr. Ramirez was arrested and placed in a holding cell

at the checkpoint. While he was in the cell, Mr. Ramirez heard over the station

intercom that the gold Lincoln was back at the checkpoint again. He informed the

agents that the Lincoln was involved in the conspiracy, and then provided other

information, including information concerning the gray Taurus, that enabled the

agents to immediately arrest Mr. Gonzalez and the other coconspirators.

Much of the above evidence implicating Mr. Gonzalez was provided

through the testimony of Mr. Ramirez, who was cooperating as part of a plea

bargain. A criminal conviction may be upheld solely on the uncorroborated

testimony of a coconspirator, if the testimony is not incredible or insubstantial. 

United States v. McIntyre, 997 F.2d 687, 708 (10th Cir. 1993). The credibility of
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Mr. Ramirez was strenuously challenged during trial and his motive to testify

favorably to the government was vigorously presented to the jury, which

nonetheless determined he was credible. That assessment is committed

exclusively to the finder of fact, and we may not reweigh 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 favorably to the

government, it supports the jury verdict overwhelmingly. Mr. Gonzalez was

clearly an integral part of the conspiracy and committed 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 containing the marijuana away

from the checkpoint upon discovering that it was open. Accordingly, Mr.

Gonzalez’ conviction is AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge