* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 23 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 02-2210

v. (D. New Mexico) ROBERT CASTANEDA,

Defendant-Appellant. (D.C. No. CR-01-1582-JP)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and TYMKOVICH , Circuit Judges.
This case involves Robert Castaneda’s appeal of his conviction on two criminal charges related to the distribution of coc aine. Two issues are presented for review: (1) whether the trial court properly de nied Castaneda’s motions for acquittal and a new trial, and (2) whether the tria l court abused its discretion in allowing the prosecution to reopen its case in orde r to explicitly identify Castaneda. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.-2- I. On August 20, 2001, defendant Robert Castaneda drov e into a United States Border Patrol checkpoint on Interstate 25 ne ar Las Cruces, New Mexico, where he was stopped by Border Patrol Agent Fernand o Contreras. When Castaneda appeared nervous and gave inconsistent an swers during routine questioning, Agent Contreras asked if he could sear ch the trunk and Castaneda consented. Castaneda then hit the trunk release bu tton, which not only opened the trunk but apparently cut off the engine. This caus ed Castaneda to appear increasingly nervous. Upon request, Castaneda gave Agent Contreras consent to inspect the car with a police dog. The dog detecte d drugs in the front of the car. After the dog’s inspection, additional agents open ed the front hood so they could try to jump start the engine and move the carto a secondary inspection area out of the flow of traffic. Upon opening the hood, they discovered that the battery was full of dirt and rocks, and a motorcycl e battery had been rigged to power the car. After further inspection of the she ll of the car battery, Agent Contreras found bundles of white powder, which was later identified as cocaine. Border Patrol agents arrested Castaneda, and later that evening turned him over to Agent Henry Shaw of the U.S. Customs Service. Castaneda was indicted and tried before a jury on c harges of conspiracy to possess with intent to distribute over 500 grams of cocaine in violation of 21-3-

U.S.C. §§ 846 and 841(b)(1)(B), and possession withintent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. After both the prosecution and the defense had rest ed, Castaneda’s attorney moved for a judgment of acquittal under Federal Rul e of Criminal Procedure 29, arguing that the evidence was insufficient to suppo rt a conviction because no agent had identified Castaneda as the person who ha d committed the crimes. The district court took the motion under advisement. T he government then moved to reopen its case to recall Agent Shaw for the sole p urpose of identifying Castaneda. Over Castaneda’s objection, the distric t court granted the government’s motion, and Agent Shaw answered two qu estions, identifying the defendant as the person whom he had taken into cust ody. The defense did not cross examine Agent Shaw or move to offer any otherevidence, and the case was given to the jury. The jury found Castaneda guilty on both counts. Ca staneda then filed a motion for a new trial on the grounds that the tria l court abused its discretion in allowing the government to reopen its case. The tr ial court denied this motion and the earlier Rule 29 motion, and ordered Castane da into custody.-4- II. We review de novo a district court’s denial of a m otion challenging the sufficiency of the evidence to support a conviction

. United States v. Almaraz , 306 F.3d 1031, 1040 (10th Cir. 2002). In doing so we view the evidence in the light most favorable to the government to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation omitted). Among the elements required for a criminal conviction, and the only one relevant to this appea l, is the identification of the defendant as the perpetrator. See United States v. Skipworth , 697 F.2d 281, 284 (10th Cir. 1983). Our review of the trial record reveals ample eviden ce on which a rational trier of fact could have relied to find that RobertCastaneda was in fact the person found possessing the cocaine on August 20, 2001. At trial, the agents called to testify repeatedly referred to the person they had arrested as “Mr. Castaneda” or “the defendant.” Defense counsel never objected to this clear correlation between Castaneda and the person the agents had arrested, and never presented any evidence that contradicted it. In fact, during cro ss-examination defense counsel asked one of the arresting agents how the agent was able to observe “my client’s demeanor” at the checkpoint stop. The agent respon ded, “I could see him as plainly as I can see him sitting there, actually pr obably a little bit closer.”-5-

This evidence was sufficient to support a conclusio n beyond a reasonable doubt that the person who had committed the crimes in question was indeed Robert Castaneda.
III. Because we conclude that the evidence presented pri or to the initial close of the prosecution’s case was sufficiently strong to i dentify Castaneda, we need not reach Castaneda’s second contention. The explicit identification presented after the reopening did not affect the outcome of the case, a nd therefore even if we were to assume that the court erred in allowing the prosecution to reopen its case, any such error was harmless. See United States v. Toles , 297 F.3d 959, 968 (10th Cir. 2002) (holding that appellate court should review error i n trial procedure to determine if it was harmless beyond a reasonable doubt). The judgment below is AFFIRMED.

Entered for the Court Timothy M. Tymkovich Circuit Judge