* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### OCT 7 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. GUSTAVO ROSALES, Defendant - Appellant. No. 98-5109 (D.C. No. 97-CR-150-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO , and KELLY , Circuit Judges. **
Mr. Rosales appeals from his conviction for possess ion with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1) & (b)(1)(A). Mr. Rosales and co-defendant Alberto Gonzalez were named in a singl e count indictment. Mr. Gonzales entered a conditional plea and Mr. Rosales was found guilty by a jury and sentenced to 151 months and fined $1,500. On appeal, Mr. Rosales- 2 -

challenges the sufficiency of the evidence and the denial of a motion to suppress. We affirm. Sufficiency of the evidence is a legal inquiry, reviewed de novo. United States v. Wilson , 182 F.3d 737, 742 (10th Cir. 1999). “[T]he relev ant question is whether, after viewing the evidence in the light mo st favorable to the prosecution, any rational trier of fact could have found the ess ential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). In reviewing the record, the court does not reweigh th e evidence or consider the credibility of the witnesses. United States v. Haslip , 160 F.3d 649, 652-53 (10th Cir. 1998). Instead, we consider “the direct and c ircumstantial evidence, along with reasonable inferences therefrom . . . .” United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997) (quoting United States v. Mains , 33 F.3d 1222, 1227 (10th Cir. 1994)). Mr. Rosales claims that the evidence fails to prove possession, an essential element of the crime. Mr. Rosales did not have act ual possession of the drugs which were found on co-defendant Gonzalez. Therefo re, sufficient evidence must exist to demonstrate constructive possession. “C onstructive possession occurs when a person knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found. Al though constructive possession may be shown by circumstantial evidence, the govern ment must show a sufficient- 3 -

nexus between the defendant and the narcotics.” United States v. Jenkins , 175 F.3d 1208, 1216 (10th Cir. 1999) (citations and int ernal quotation marks omitted). Here, sufficient evidence of constructive possessi on exists. First, the police officers were informed by a police drug taskforce that Mexican males would be arriving in Tulsa on a particular morning flight carrying narcotics. See 5 R. 32. Second, Mr. Rosales and co-defendant Gonz alez, both Mexican males, arrived on the same 1 a.m. flight from Ontario, Cal ifornia, to Tulsa, Oklahoma, although Mr. Gonzalez testified that this was “justa coincidence, nothing else.” Id. at 78, 80, 88. Third, both men exited the plane s eparately and walked between 10 to 25 yards apart without communication, until t hey met together outside the terminal. See id. at 7, 22-23, 36. Fourth, Mr. Rosales motioned forthe taxicab and was only then met by Gonzalez, after which the two drove off in the cab together. See id. at 37. Finally, Mr. Rosales directed the taxicab driver as to where to go throughout the cab ride. See id. at 52-57. Mr. Rosales relies principally on the trial testimo ny of co-defendant Gonzalez in bringing his sufficiency challenge. Go nzalez testified that Mr. Rosales knew nothing about the drugs or the purpose of the trip. See id. at 87-88. However, his testimony was impeached by a police of ficer that interviewed Gonzalez shortly after the arrest. According to th e officer, Gonzalez stated that he was working for Rosales delivering drugs and that Rosales knew about the- 4 -

purpose of the trip. See id. at 102-03. Taken in a light most favorable to the prosecution, this evidence was sufficient for a rea sonable jury to find constructive possession. Mr. Rosales also challenges the district court’s de nial of a motion to suppress. He claims that the police officers did n ot have probable cause to detain him outside the taxi when they ordered him to keep his hands in view. Another panel of the court has already addressed the propri ety of the denial of the same motion in the context of co-defendant Gonzalez’s appeal. United States v. Gonzalez , No. 98-5070, 1999 WL 381114 (10th Cir. June 11, 1 999). Having considered the arguments raised by Mr. Rosales, we adopt the analysis and disposition of the Gonzalez panel in full and, specifically, the conclusion “t hat under the totality of the circumstances the officer s had reasonable suspicion to briefly detain and question defendant.” Id . at *2. AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge