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

### APR 19 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. MANUEL DOZAL, Defendant - Appellant. No. 98-3099

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. RUDY GONZALEZ, Defendant - Appellant. No. 98-3103

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. Nos. 97-CR-10120-1, 97-CR-10120-02-MLB)
E. Jay Greeno, Greeno & Boohar, Wichita, KS, for De fendant-Appellant, Manuel Dozal. Cyd Gilman, Assistant Federal Public Defender, Offi ce of the Federal Public Defender, District of Kansas, Wichita, KS, for Defe ndant-Appellant, Rudy Gonzalez.1 Mr. Gonzalez’ case, No. 98-3103 was submitted on the briefs, see Fed. R.

App. P. 34(a), whereas Mr. Dozal’s case, No. 98-309 9, was orally argued. - 2 - D. Blair Watson, Assistant United States Attorney ( Jackie N. Williams, United States Attorney, with him on the briefs), U.S. Atto rney’s Office, Wichita, KS, for Plaintiff-Appellee.

Before BRORBY , M C WILLIAMS , and KELLY , Circuit Judges.

KELLY , Circuit Judge.
Defendants-Appellants Manuel Dozal and Rudy Gonzale z 1 were charged with conspiring to distribute cocaine in violation of 21 U.S.C. § 846 (count 1); distribution of approximately twelve ounces of coca ine in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2 (count 2); and possessio n with intent to distribute approximately thirty ounces of cocaine in violationof 21 U.S.C. §841(a) and 18 U.S.C. § 2 (count 3). The jury found Mr. Dozal andMr. Gonzalez guilty of counts 1 and 3 and acquitted them of count 2. Both defendants received sentences of sixty-three months’ imprisonment on each count, to run concurrently. On appeal, Mr. Dozal contends that the trial court erred in (1) denying his motion to quash his arrest and suppress evidence se ized from an apartment that he shared with Mr. Gonzalez; (2) allowing testimony re garding his refusal to consent to a search of property under his exclusive control in violation of Due Process;2 In this Opinion, we refer to Manuel Dozal as “Mr. D ozal” and Robert

Dozal-Rivera as “Mr. Dozal-Rivera.” Collectively, they are called “the Dozal brothers.” - 3 - and (3) admitting evidence concerning his prior arr est for possession with intent to distribute marijuana under Fed. R. Evid. 404(b). Mr. Gonzalez challenges (1) the trial court’s denia l of his motion to suppress evidence seized after an allegedly coerciv e search of the apartment; (2) its refusal to include requested “mere presence” language in its conspiracy instruction; and (3) the sufficiency of the evidenc e to convict him of counts 1 and 3. Our jurisdiction arises under 28 U.S.C. § 1291, andwe affirm.

Background This case involves an alleged conspiracy to distrib ute cocaine by Mr. Dozal, Mr. Gonzalez and a third defendant – Mr. Doz al’s brother, Robert DozalRivera. 2 On August 28, 1997, a confidential informant and two county sheriffs, working undercover, met Mr. Dozal-Rivera in a trail er in Wichita, Kansas and arranged to purchase twelve one-ounce packages of c ocaine. Mr. Dozal-Rivera also offered to sell the undercover officers an add itional two to six ounces of cocaine. After being shown $12,000 in cash, Mr. Do zal-Rivera stated that he had to retrieve the drugs from another location.- 4 -

Officers established surveillance of a second resid ence – the address to which Mr. Dozal-Rivera’s car was registered – afterthey lost contact with Mr. Dozal-Rivera. Detectives watching the second house observed Mr. Dozal-Rivera arrive with another person, whom Mr. Dozal-Rivera’s girlfriend identified at trial as Mr. Gonzalez. According to the girlfriend’s tes timony, Mr. Dozal-Rivera and Mr. Gonzalez went into the unfinished basement of the house, where cocaine was later seized. Then they departed in a red Nissan. A detective who followed the Nissan testified that Mr. Gonzalez repeatedly looke d over his shoulder, as if checking to see whether they were being followed. Mr. Dozal-Rivera and Mr. Gonzalez drove to the trai ler where the deal had been arranged, and Mr. Gonzalez waited in the car w hile Mr. Dozal-Rivera entered the trailer with a Nike shoe box containing cocaine. Inside the trailer, Mr. Dozal-Rivera showed twelve individual bags of c ocaine to the officers and indicated that he could arrange for them to purchas e as many as twenty-nine additional ounces. The officers arrested Mr. Dozal -Rivera and Mr. Gonzalez. After being advised of his Fourth Amendment rights in Spanish, Mr. Gonzalez consented to a search of the apartment that he shared with Mr. Dozal. When officers arrived at the apartment and informedMr. Dozal of Mr. Gonzalez’ consent, Mr. Dozal barred the officers from the liv ing room, which he exclusively controlled, but allowed them to search Mr. Gonzalez ’ bedroom, as well as- 5 -

“common areas” like the bathroom and walk-in closet . Mr. Dozal specifically identified a wallet and cash in a trash can in the bedroom and another trash can in the living room as his property. Mr. Dozal was arrested after two one-ounce packages of cocaine were discovered in a charcoal bag in the shared bathroom . A search of the walk-in closet yielded a scale, later determined to bear tr aces of cocaine. Several Nike shoe boxes similar to the one used to conceal illeg al drugs were discovered in Mr. Gonzalez’ bedroom. After obtaining a search warrant, officers found thirty packages of cocaine in the trash can in the living room. The bag concealing these packages bore Mr. Dozal-Rivera’s fingerprint. The trash can in the bedroom contained $634 in cash, and additional packages of cocaine were discovered inside Mr. Dozal’s stereo speakers and in a bathroo m drawer. The district court held a hearing outside the prese nce of the jury to determine whether prior drug-related activity by Mr . Dozal could be introduced under Rule 404(b). This evidence was found admissi ble. The court also denied Mr. Gonzalez’ motion to suppress evidence obtained pursuant to his allegedly involuntary consent to search, Mr. Dozal’s motion t o quash his arrest and suppress evidence from the apartment, and Mr. Dozal ’s motion in limine concerning his refusal to consent to the search.- 6 - I. No. 98-3099 (Mr. Dozal’s Appeal) A. Denial of Motion to Quash Arrest and Suppress Evi dence Mr. Dozal contends that (1) the warrantless search of the premises prior to his arrest was undertaken without legal justificati on; (2) the officers arrested him without either a warrant or probable cause; and (3) a search warrant was unconstitutionally obtained on the basis of his den ial of consent to search. The record demonstrates that the officers limited t heir warrantless search of the apartment to Mr. Gonzalez’ bedroom and the comm on areas. See 4 R. at 195. Mr. Dozal does not charge the officers with obtaini ng Mr. Gonzalez’ consent coercively or with exceeding the scope of that cons ent. A person who resides with the defendant and engages in mutual use of the property may authorize a warrantless search. See United States v. Matlock , 415 U.S. 164, 172 n.7 (1974); United States v. Rith , 164 F.3d 1323, 1328 (10th Cir. 1999). Because Mr . Dozal admits that Mr. Gonzalez lived in the apartment and at least shared control over all areas searched without a warrant, we find his f irst argument without merit. In framing his second argument, Mr. Dozal correctlyasserts that a warrantless arrest must be supported by probable cause. See United States v. Vazquez-Pulido , 155 F.3d 1213, 1216 (10th Cir.), cert. denied , 119 S. Ct. 437 (1998). We review the legal issue of probable caus e de novo and the factual findings supporting the district court’s determinat ion for clear error. See United- 7 -

States v. Dodds , 946 F.2d 726, 727 (10th Cir. 1991). An officer has probable cause to arrest if, under the totality of circumsta nces, he “learned of facts and circumstances through reasonably trustworthy inform ation that would lead a reasonable person to believe that an offense has be en or is being committed by the person arrested.” Vazquez-Pulido , 155 F.3d at 1216 (quoting United States v. Guerrero-Hernandez , 95 F.3d 983, 986 (10th Cir. 1996)). Although pro bable cause need not be based on facts sufficient for a f inding of guilt, it requires “more than mere suspicion.” Id. (citing United States v. Hansen , 652 F.2d 1374, 1388 (10th Cir. 1981)). Association with persons suspec ted of criminal conduct or nearness to the site of illegal activity does not a lone suffice. See id. ; see also Hansen , 652 F.2d at 1390 (holding that merely traveling w ith drug dealers did not create probable cause at time of defendant’s arrest ). Furthermore, “probable cause is lacking when an officer arrests a person f or refusing to consent to a warrantless search or seizure.” Gasho v. United St ates , 39 F.3d 1420, 1438-39 (9th Cir. 1994). In the instant case, the totality of circumstances supported a finding of probable cause to arrest Mr. Dozal. A consensual s earch of the shared bathroom yielded two ounces of cocaine. See ,e.g. , 4 R. at 231. Moreover, an officer monitoring surveillance equipment overheard Mr. Doz al-Rivera indicate by the use of the words “we” and “us” that multiple person s played a role in the cocaine- 8 -

transaction. See 1 R., doc. 66 at 4; Vazquez-Pulido , 155 F.3d at 1216 n.5 (finding of probable cause may be based, in whole or in part , on co-conspirator’s hearsay statement). Finally, Mr. Dozal does not contend th at he failed to comprehend the officers’ request to search the apartment or that h is will was overborne when he allowed them to look in the bathroom. Given these circumstances, we hold that the officers had probable cause to arrest Mr. Dozal

. With regard to evidence seized under the state sear ch warrant, we must grant the magistrate’s decision “‘great deference’ such that we ask only whether [he or she] had a ‘substantial basis’ for determini ng probable cause existed.” Lawmaster v. Ward , 125 F.3d 1341, 1348 (10th Cir. 1997). State sear ches must conform to federal constitutional requirements, whe ther or not they are “federal in character.” United States v. Millar , 543 F.2d 1280, 1283 (10th Cir. 1976). Here, the affidavit supporting the warrant specifically a sserted that, during their warrantless search, the officers found only two oun ces of cocaine, whereas Mr. Dozal-Rivera led them to believe that he had access to at least two more ounces. See 1 R., doc. 46, exh. A. Moreover, in the affiant’s eleven years of experience, drug traffickers’ homes often contain drug packagin g supplies and large amounts of cash. See id. The affidavit thus established the probability th at the officers would find more evidence of criminal conduct in the apartment, see Lawmaster , 125 F.3d at 1348, and the warrant listed with parti cularity the items ultimately- 9 -

seized. Although the affiant noted that Mr. Dozal would notlet the officers search his part of the residence, nothing in either the af fidavit or the warrant indicates that the warrant was based on such a denial. Hence , the trial court did not err in denying Mr. Dozal’s motion to suppress this evidenc e.

B. Admissibility of Testimony About Refusal to Conse nt to Search Mr. Dozal also objects to the government’s use of h is refusal to allow officers to search property under his exclusive control “to show that [he] had an interest in not having these areas searched.” Aplt . Br. at 10. In his view, admission of such testimony “erroneously allowed th e jury to infer guilty knowledge based on the exercise of his constitution ally guaranteed rights.” Id. According to the government, Mr. Dozal failed to object to testimony he now contends allowed the impermissible inference th at he knew areas under his exclusive control contained illegal drugs. We reje ct this characterization of the record. During Officer Crawford’s testimony, defen se counsel made several objections to evidence that Mr. Dozal limited the s earch. See 4 R. at 188, 234. We nevertheless find the defendant’s challenge with out merit. Relying on Doyle v. Ohio , 426 U.S. 610 (1976), Mr. Dozal argues that using evidence of his assertion of Fourth Amendment and Fifth Amendment r ights to show that he had- 10 -

something to hide violates Due Process. See Aplt. Br. at 12. The Doyle Court held that a defendant may not be impeached with evi dence of his silence at the time of his arrest and after his receipt of Mirandawarnings. See Doyle , 426 U.S. at 619. To the extent that Mr. Dozal argues that h e was penalized for invoking his Fifth Amendment privilege against self-incrimin ation, see Aplt. Br. at 12, we note that he was not in custody at the time he refu sed to consent to the search. See Michigan v. Summers , 452 U.S. 692, 702 (1981) (distinguishing custodia l interrogation from Fourth Amendment detentions, whi ch are “substantially less intrusive”); United States v. Ritchie , 35 F.3d 1477, 1485-86 (10th Cir. 1994) (holding that defendant was not in custody during s earch of his residence). Accordingly, his statements to the officers were no t protected by Miranda safeguards. See Illinois v. Perkins , 496 U.S. 292, 297 (1990) (stating that Mirandaprohibits coercion arising from custodial interrog ation). Mr. Dozal also attempts to extend the Doyle strictures to the Fourth Amendment context. We recognize that “[t]he failur e to consent to a search cannot form any part of the basis for reasonable su spicion,” United States v. Wood , 106 F.3d 942, 946 (10th Cir. 1997), and we note that asking a jury to draw adverse inferences from such a refusal may be impermissible if the testimony is not admitted as a fair response to a claim by the d efendant or for some other proper purpose. See United States v. Thame , 846 F.2d 200, 207 (3d Cir. 1988);- 11 -

see also United States v. McNatt , 931 F.2d 251, 258 (4th Cir. 1991) (defense that officer planted evidence in defendant’s truck invit ed testimony about refusal to permit officer to search the truck “at the time mos t important to this issue”). In this case, however, a careful review of the tria l transcript convinces us that the contested statements were introduced, not to impute guilty knowledge to Mr. Dozal, but for the proper purpose of establishi ng dominion and control over the premises where a large part of the cocaine was found. The trial court did not abuse its discretion in allowing this testimony und er these circumstances.

C. Rule 404(b) Evidence Finally, Mr. Dozal challenges the admissibility of testimony by Oklahoma Highway Patrol Officer Michael Plunkett about Mr. D ozal’s prior arrest for possession of marijuana. Officer Plunkett testifie d that on August 2, 1996, he conducted a routine traffic stop of a vehicle, driv en by Mr. Dozal-Rivera, in which Mr. Dozal was a passenger. See 4 R. at 254-55. After a drug-sniffing dog detected the presence of contraband, Officer Plunke tt found three bundles of marijuana concealed within the door on Mr. Dozal’s side of the car and two bundles hidden in the same manner on Mr. Dozal-Rive ra’s side. See id. at 259. The trial court admitted this evidence under Fed. R . Evid. 404(b) to show Mr. Dozal’s knowledge and intent to commit the charged drug crimes. See id. at 213-- 12 -

14. We review evidentiary rulings under Rule 404(b) forabuse of discretion and ask whether the trial court satisfied four requ irements: (1) evidence of other crimes, wrongs, or acts must be introduced for a proper purpose; (2) the evidence must be relevant ; (3) the court must make a Rule 403 determination whether the prob ative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) the court, upon request, must in struct the jury that the evidence of similar acts is to be considered on ly for the limited purpose for which it was admitted. United States v. Viefhaus , 168 F.3d 392, 397 (10th Cir. 1999) (citing Huddle ston v. United States , 485 U.S. 681, 691-92 (1988)). The defendant’s kno wledge and intent are among the permissible purposes for intro ducing prior bad acts evidence. See United States v. Russell , 109 F.3d 1503, 1506-07 (10th Cir. 1997) (citing Fed. R. Evid. 404(b)). However, without either a conviction or some eviden ce that Mr. Dozal was knowingly involved with the concealed drugs, his pr ior arrest does not constitute a “crime” or a “wrong.” The fact that the officer f ound marijuana behind the door panels of a car in which Mr. Dozal was merely a pas senger does not establish knowledge or intent. Although evidence of prior drug transactions may be introduced “to show intent to enter [a] drug conspi racy, knowledge of the conspiracy, motive to hide [the] drugs . . . , and absence of mistake or accident that the drugs were found in [the defendant’s home] ,” id. at 1507, the government- 13 -

did not demonstrate that Mr. Dozal engaged in a dru g transaction in 1996 or even that he knew the door panels contained contraband. Thus, the district court should not have admitted testimony about the 1996 arrest. Yet, given the discovery of more than thirty ounces of cocaine in areas of the apartment that Mr. Dozal controlled, we hold th at the record contained “substantial evidence of [his] guilt” and the jury could have reached its verdict without Officer Plunkett’s testimony. See Viefhaus , 168 F.3d at 398 (citing United States v. Oberle , 136 F.3d 1414, 1419 (10th Cir.), cert. denied , 119 S. Ct. 197 (1998)). Admitting evidence of the 1996 arrestconstituted harmless error.

II. No. 98-3103 (Mr. Gonzalez’ Appeal) A. Denial of Motion to Suppress Evidence Mr. Gonzalez challenges the admissibility of eviden ce seized from the apartment he shared with Mr. Dozal on two grounds. First, he argues that he would not have consented to a search of the apartme nt but for his allegedly unlawful arrest. Second, he contends that his cons ent was involuntary. Although we review the legal issue of probable caus e de novo, see United States v. Dodds , 946 F.2d 726, 727 (10th Cir. 1991), we will not d isturb the district court’s findings unless we determine that, given the totality of circumstances, the arresting officer lacked suffici ently reliable information to- 14 -

form a reasonable belief that the defendant was com mitting or had committed a crime. See United States v. Vazquez-Pulido , 155 F.3d 1213, 1216 (10th Cir. 1998). Here, the district court’s findings supportthe existence of probable cause to arrest Mr. Gonzalez. First, the district court found that the arresting officer, Detective Lathrop, was experienced and cautious. S ee 1 R., doc. 66 at 10. Second, prior to Mr. Gonzalez’ arrest, Detective Lathrop overheard statements by Mr. Dozal-Rivera indicating that he had at least on e partner in the cocaine transaction. See id . Third, because Detective Lathrop knew that Mr. D ozalRivera was making a sale in the trailer, and Mr. Go nzalez was sitting outside in the car, Detective Lathrop reasonably inferred thatMr. Gonzalez was posted as a lookout. See id. Fourth, Mr. Gonzalez joined Mr. Dozal-Rivera duri ng the latter’s self-described trip to get twelve ounces o f cocaine, and such a meeting could be viewed as more than coincidental. See id. at 11. Finally, Detective Lathrop legitimately worried about the safety of ch ildren in the area, given the potential for violence inherent in illegal drug tra nsactions. See id. Given these factual findings, the district court did not err in its determination that the detective had probable cause to arrest Mr. Gonzalez , and because the arrest was not improper, we do not consider the defendant’s co nsent to be fruit of the poisonous tree under Wong Sun v. United States , 371 U.S. 471 (1963). Next, Mr. Gonzalez contends that he did not voluntarily consent to a search- 15 -

of the apartment. Voluntariness is a question of f act to be determined by the totality of circumstances, see Schneckloth v. Bustamonte , 412 U.S. 218, 227 (1973); United States v. Glover , 104 F.3d 1570, 1583 (10th Cir. 1997), and “we cannot overturn the district court’s findings of fa ct unless they are clearly erroneous.” United States v. Doyle , 129 F.3d 1372, 1377 (10th Cir. 1997). Mr. Gonzalez argues that his consent arose from duress because he was “held in custody in an interrogation room without the opportunity to see an attorney, or loved ones” and “was not given his Miranda rights r egarding his right to remain silent until after he had executed the consent to s earch form.” Aplt. Br. at 42-43. However, Supreme Court and Tenth Circu it precedent establishes that “[c]onsent to search may be voluntary even though the consenting party is being detained at the time consent is given,” Doyle , 129 F.3d at 1377 (citing United States v. Watson , 423 U.S. 411, 424 (1976)), and law enforcement ag ents fail to advise him of his Mirandarights. See United States v. McCurdy , 40 F.3d 1111, 1118 (10th Cir. 1994). The proper inquiry centers on whether the defendant suffered, inter alia, “physical mistreatment, use o f violence or threats of violence, promises or inducements, deception or trickery.” G lover , 104 F.3d at 1584. Here, the district court found “no evidence that [M r.] Gonzalez was refused food, water or bathroom privileges,” or that the of ficers detaining him employed trickery or threats. 1 R., doc. 66 at 13. Moreove r, his consent was obtained in- 16 -

Spanish by a detective fluent in that language. Se e id. at 13-14; 6 R. at 142. Because the court did not clearly err in finding th at Mr. Gonzalez voluntarily consented under the totality of circumstances, it p roperly denied his motion to suppress evidence seized during the warrantless search.

B. Jury Instruction Mr. Gonzalez also challenges the trial court’s refu sal to include language that he requested in the conspiracy instruction. T he instruction that the court gave stated in relevant part: Mere similarity of conduct among various persons, and the fact they may have associated with each other, and may have a ssembled together and discussed common aims and interests, d oes not necessarily establish proof of the existence of a c onspiracy. 1 R., doc. 89, no. 11. Mr. Gonzalez contends that declining to use the exact words “mere presence at the scene of an event, evenwith knowledge that a crime is being committed” prejudiced his case. Aplt. Br. at 31-32. We disagree. We review the district court’s decision to give a p articular jury instruction for abuse of discretion and consider the instructio ns as a whole de novo to determine whether they accurately informed the juryof the governing law. See Gust v. Jones , 162 F.3d 587, 596 (10th Cir. 1998). Although we recognize that “[a] defendant is entitled to an instruction on his theory of the case if the instruction is a correct statement of the law and i f he has offered sufficient- 17 -

evidence for the jury to find in his favor,” United States v. McIntosh , 124 F.3d 1330, 1337 (10th Cir. 1997), “[i]t is not error to refuse to give a requested instruction if the same subject matter is adequatel y covered in the general instructions.” United States v. Alonso , 790 F.2d 1489, 1496 (10th Cir. 1986) (quoting United States v. Miller , 460 F.2d 582, 588 (10th Cir. 1992)). Mr. Gonzalez makes much of the difference between t he word “presence” (which involves existence in a place) and “associat ion” (which implies some kind of relationship to another person). See Aplt. Br. at 34. Yet, no evidence suggests that his “presence” outside the trailer or at Mr. D ozal-Rivera’s house was independent of his “association” with his co-defen dants. Moreover, this case does not involve a single crime scene or event to w hich a jury could easily relate a mere presence instruction. See 7 R. at 386. Given the discovery of cocaine, scales, and Nike bo xes in areas of the apartment that Mr. Gonzalez controlled or shared, the trial court could have instructed the jury on the elements of conspiracy w ithout including mere presence or mere association language. See United States v. Negrete-Gonzales , 966 F.2d 1277, 1282 (9th Cir. 1992) (mere presence instructi on unnecessary unless government’s case rests primarily on defendant’s pr esence at crime scene); see also United States v. DeMasi , 40 F.3d 1306, 1315 (1st Cir. 1994) (“[A] defendant’s mere presence argument will fail in situations where the mere is- 18 -

lacking.”) (internal quotation marks and citation o mitted). Instead, the court gave an instruction that encompassed Mr. Gonzalez’ theory that he did not belong to the conspiracy. The trial judge did not abuse his discretion in refusing to use the precise language that Mr. Gonzalez requested. See Alonso , 790 F.2d at 1496; United States v. Hester , 140 F.3d 753, 757-58 (8th Cir. 1998). The jury instructions, taken as a whole, properly guided the jury. See Gust , 162 F.3d at 596.

C. Sufficiency of the Evidence Mr. Gonzalez’ final claim questions the sufficiencyof the evidence supporting his conviction on the conspiracy and pos session counts. We review the record de novo to determine whether, “after vie wing the evidence in the light most favorable to the prosecution, any rational tri er of fact could have found the essential elements of the crime[s] beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979); United States v. Vaziri , 164 F.3d 556, 565 (10th Cir. 1999). A conviction for possession of cocaine with intent to distribute under 21 U.S.C. § 841(a) and 18 U.S.C. § 2 requires proof th at the defendant “(1) possessed a controlled substance; (2) knew he posse ssed a controlled substance; and (3) intended to distribute the controlled subst ance.” United States v. Wilson ,- 19 -

107 F.3d 774, 778 (10th Cir. 1997). Possession is constructive, rather than actual, when the defendant “knowingly has ownership, domini on or control over the narcotics and the premises where the narcotics are found.” Id. (quoting United States v. Hager , 969 F.2d 883, 888 (10th Cir. 1992)). Constructiv e possession satisfies the first element of the crime. See id. Most of the evidence against Mr. Gonzalez was circu mstantial; yet, a rational jury could conclude that he had mutual con trol over the small bathroom where cocaine was found and that he knowingly posse ssed the drugs. A rational jury could also find – based on the large quantity of cocaine in the apartment and the scales in the closet – that the cocaine was int ended for distribution, rather than personal use. We hold that the evidence suppo rted Mr. Gonzalez’ conviction on the possession with intent to distribute count. A conspiracy in violation of 21 U.S.C. § 846 consis ts of four elements. See United States v. Bell , 154 F.3d 1205, 1208 (10th Cir. 1998). The govern ment must prove beyond a reasonable doubt “(1) an agreem ent with another person to violate the law, (2) knowledge of the essential obj ectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdep endence among the alleged conspirators.” Id. (quoting United States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997)). The jury may infer an agreement from circumstantial evidence that indicates concerted action in furtherance of a comm on purpose. See id. It may- 20 -

also infer guilty knowledge from the surrounding ci rcumstances and presume that a defendant acting in furtherance of a conspiracy i s a knowing participant therein. See id. (citing Carter , 130 F.3d at 1440). Here, Mr. Gonzalez rode in a car with Mr. Dozal-Riv era on the way to make a drug sale. He repeatedly looked over his sh oulder as if he were scanning for a “tail” and waited in the vehicle while Mr. Do zal-Rivera consummated the transaction. His room contained shoe boxes like th e one concealing cocaine, and shared areas of the apartment where he lived were u sed to hide cocaine, large amounts of cash, and scales bearing cocaine residue . Given this strong circumstantial evidence, the jury could have reason ably inferred that (1) Mr. Gonzalez and the Dozal brothers agreed to distribut e the illegal drugs; (2) Mr. Gonzalez had knowledge of the essential objectives of the conspiracy; (3) he knowingly and voluntarily participated in it; and ( 4) the co-defendants’ activities constituted integral steps toward the possession an d distribution of cocaine. AFFIRMED.