UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOHN LEROY MILNE, 

 Defendant - Appellant. 

No. 18-2037 

(D.C. No. 2:17-CR-01923-RB-1) 

(D.N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, KELLY, and MORITZ, Circuit Judges. 

_________________________________ 

Defendant-Appellant John Leroy Milne was convicted by a jury of conspiracy to 

distribute 100 kilograms or more of marijuana (Count 1), 21 U.S.C. § 846, and 

possession with intent to distribute 100 kilograms or more of marijuana (Count 2), 

21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. He was sentenced to concurrent 78-

month terms of imprisonment for each count, followed by four years of supervised 

release for each count also to run concurrently. 1 R. 270–71. On appeal, he challenges 

the district court’s decisions (1) denying his motion to suppress; (2) allowing the physical 

 

*

 This order and judgment is not binding precedent, except under the doctrines of law of 

the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive 

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 14, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

evidence to be brought in the courtroom and admitting evidence that Mr. Milne had 

heroin in his wallet when arrested; (3) denying his motion for judgment of acquittal; and 

(4) imposing an obstruction of justice sentencing enhancement, U.S.S.G. § 3C1.1. Our 

jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), and we affirm. 

Background 

Mr. Milne and a codefendant, Manuel Pavón-Rodriguez, were indicted after 

Border Patrol agents found bundles of marijuana in the rear cargo area of Mr. Milne’s 

vehicle and Mr. Pavón, an illegal alien, hiding in the back seat. 

A. The Suppression Hearing 

Mr. Milne moved to suppress the bundles of marijuana and the presence of Mr. 

Pavón, arguing that Border Patrol Agent Matthew Defayette pulled him over without 

reasonable suspicion and that all evidence derived from his encounter was derivative 

evidence. See 1 R. 22–27. In the alternative, Mr. Milne argued that even if he were not 

seized initially, the encounter developed into a seizure without reasonable suspicion. 

Id. at 25. The district court held a two-day hearing on the suppression motion. See 3 R. 

5–225. 

Agent Defayette testified that on the morning of June 23, 2017, he was stationed in 

his vehicle at the intersection of State Line Road and Highway 80 just south of Rodeo, 

New Mexico. Id. at 11, 14. Just before 8:00 a.m., he observed Mr. Milne pass him 

headed northbound on Highway 80 in a Ford Explorer with tinted windows without any 

visible license plates. Id. at 14, 23. Agent Defayette further testified that he got behind 
3 

Mr. Milne’s vehicle and followed it northbound on Highway 80 for about a mile-and-ahalf to two miles before the vehicle pulled over at the Rodeo Tavern. Id. at 15. Mr. 

Milne did not park in a parking space perpendicular to both the Rodeo Tavern and 

Highway 80, but rather parallel to Highway 80. Id. at 18. Agent Defayette parked 

approximately two car lengths behind Mr. Milne, facing the same direction, and he 

alerted his dispatch that he was conducting a “welfare check” on Mr. Milne’s vehicle. Id. 

According to Agent Defayette, he turned on his rear-facing emergency lights to 

warn oncoming motorists of his presence on the side of the road, but he did not turn on 

his siren or his front-facing emergency lights while he was driving or parking behind Mr. 

Milne. Id. 19, 49, 189. On cross-examination, Mr. Milne’s counsel questioned the agent 

about a photograph taken an hour after his encounter with Mr. Milne that clearly shows 

his front-grille lights illuminated. Id. at 43–45. Agent Defayette testified on redirect that, 

although he did not remember turning his lights on, he was sure that he did not turn them 

on prior to his encounter with Mr. Milne. Id. at 51. 

Upon pulling over, Mr. Milne exited his vehicle and approached the driver’s side 

of the agent’s vehicle. Id. at 18–19. Agent Defayette asked Mr. Milne if everything was 

okay, to which Mr. Milne responded that he was stopping to get something to drink. Id. 

at 19. The agent thought Mr. Milne’s response “kind of odd,” as the Rodeo Tavern was 

neither a grocery store nor open at that time in the morning. Id. at 19–20. In the ensuing 

colloquy, Agent Defayette thought that several responses of Mr. Milne were odd: (1) Mr. 

Milne indicated that he was traveling from Benson, Arizona to Phoenix, Arizona, but 

Rodeo is east of both Benson and Phoenix; (2) Mr. Milne claimed he was looking for 
4 

work in Rodeo, but Rodeo is a small town lacking many opportunities for work; and 

(3) Mr. Milne appeared nervous and was sweating throughout the conversation, but the 

weather was not hot at the time. Id. at 20–21. According to Agent Defayette, the tone of 

the conversation was “normal.” Id. at 21. 

Agent Defayette asked Mr. Milne if he was transporting anything illegal or if 

anyone else was inside the vehicle, and if he could look inside. Id. Mr. Milne declined. 

When asked for identification, Mr. Milne told the agent that he lacked identification, but 

he gave his name and date of birth. Id. at 22. As Agent Defayette was about to run a 

records check, Border Patrol Agents Roger Evan Jay, Jr., and Rene Rocha arrived. Id. 

at 22, 47, 56. Agent Jay informed Agent Defayette that Mr. Milne had a temporary 

license plate taped on the inside of the back glass of his vehicle, but Agent Defayette 

testified that it was difficult to see because of the tinted glass. Id. at 23. According to 

Agent Defayette, Mr. Milne offered to retrieve the temporary license plate out of the 

window.1

 Id. at 23–24; 35. Mr. Milne then opened the glass portion of his vehicle’s back 

hatch about four inches “just so he could get his hand in there,” at which point Agent 

Defayette noticed numerous burlap sacks in the vehicle’s rear cargo area. Id. at 24. 

Agent Defayette asked him about the sacks, and Mr. Milne told him that they were 

“bales.” Id. at 25. Agent Defayette testified that such sacks are normally used in 

narcotics smuggling. Id. at 24. Agent Defayette then asked him if there was anyone else 

 

1

 Agent Jay testified at the suppression hearing that he asked Mr. Milne if he could pull 

out the temporary license plate, to which Mr. Milne consented. 3 R. 61. 
5 

inside the vehicle, to which Mr. Milne responded that there was a person lying in the 

back seat. Id. at 25. The agents subsequently arrested Mr. Milne. Id. at 25–26. 

Agent Jay also testified at the suppression hearing. Germane to this appeal, he 

testified that he activated his rear-facing emergency lights when he and Agent Rocha 

arrived at the Rodeo Tavern. Id. at 57, 67. According to Agent Jay, he and other Border 

Patrol agents typically activate their rear-facing emergency lights before exiting their 

vehicles near a road as a “precaution” to alert oncoming vehicles of their presence. Id. 

at 57–58. He also testified that he observed Agent Defayette’s rear-facing emergency 

lights but did not notice any activated front-facing lights. Id. at 59. 

Contrary to Agent Defayette’s testimony, Mr. Milne testified that Agent Defayette 

turned on his front-grille emergency lights, forcing Mr. Milne to pull over. Id. 145–47, 

177. He explained that he parked parallel to Highway 80 rather than in a parking space 

because Agent Defayette had pulled him over, and that he was aware that the Rodeo 

Tavern was closed. Id. at 149. He also denied stating that he stopped for a drink, and he 

testified that if he were thirsty, he would have gone to a nearby grocery store. Id. at 150. 

The district court found that the Border Patrol agents were more credible than Mr. 

Milne, and that it would resolve any factual disputes in favor of the Border Patrol agents’ 

testimony. United States v. Milne, No. CR 17-1923 RB, 2017 WL 4675745, at *1 

(D.N.M. Oct. 16, 2017). Accordingly, it found that Mr. Milne pulled over voluntarily 

and exited his vehicle of his own accord. Id. at *5. It further found that Mr. Milne was 

free to leave his encounter with Agent Defayette. Id. Next, it reasoned that Mr. Milne 

had volunteered suspicious answers to Agent Defayette’s questions such that, even if Mr. 
6 

Milne was detained for Fourth Amendment purposes when Agents Jay and Rocha 

arrived, such detention was supported by reasonable suspicion. Id. at *6. Finally, it 

found that Mr. Milne voluntarily retrieved his temporary license plate, which allowed the 

officers to observe the burlap sacks in his vehicle. Id. at *7. The sacks, in conjunction 

with Mr. Milne’s statements that they contained “bales” and that there was a man lying 

down in his back seat, created probable cause to believe that the vehicle contained 

evidence of a crime. Id. Because “[a]t no stage of the interaction did Border Patrol 

violate Messrs. Milne and Pavón’s Fourth Amendment rights,” the court denied Mr. 

Milne’s motion to suppress. Id. 

B. The Trial 

Prior to trial, the government informed the court that it intended to display the 

marijuana seized from Mr. Milne’s vehicle, 3 R. 231–32, which was in 11 duct-taped 

bundles.2

 4 R. 143, 157. It also informed the court that the Border Patrol had destroyed 

the burlap sacks surrounding the bundles pursuant to agency practice. 3 R. 231–32. Mr. 

Milne objected to their admission at trial, arguing that “[w]e don’t know if the smell is 

going to be the same as it was” at the time of his arrest, and that he did not know how the 

government ascertained the contents of the bundles. 4 R. 63–64. The court overruled his 

 

2

 In his brief, Mr. Milne characterizes the marijuana as “sealed,” both in the courtroom 

and in his vehicle when covered by the burlap sacks. Aplt. Br. at 16, 30, 39. Such 

terminology is misleading. The record and the parties’ briefs make clear that the 

marijuana was divided into “bundles,” each wrapped in duct tape, and that these bundles 

were surrounded by burlap while in the rear cargo area of Mr. Milne’s vehicle. See, e.g., 

United States v. Milne, 297 F. Supp. 3d 1146, 1148 (D.N.M. 2017); Aplt. Br. at 16, 51–

52; Aplee. Br. at 7, 13; 1 Supp. R. 42–43. 
7 

objection, reasoning that the marijuana was relevant to Mr. Milne’s knowledge of the 

bundles’ contents, that Mr. Milne could argue to the jury that the marijuana’s smell had 

changed over time, and that additional testimony would elucidate the government’s 

testing methodology. Id. at 64. 

At trial, Agent Defayette testified as he did at the suppression hearing, id. at 46–

62, 65–80, including how Mr. Milne retrieved his temporary license plate.3 Id. at 57. In 

addition, the government brought the bundles of marijuana into the courtroom during his 

testimony. Id. at 65. Agent Defayette testified that the bundles were the same bundles 

that he recovered from Mr. Milne’s vehicle, but that they were missing their burlap 

covering. Id. at 66. He also testified that marijuana smells stronger in smaller areas than 

larger ones. Id. Supervisory Border Patrol Agent Edward Marshall also testified that the 

smell of marijuana was stronger without the burlap sacks, and that the sacks altered the 

odor in degree, not in kind. Id. at 113, 115–16. 

Counsel for Mr. Pavón, Mr. Milne’s codefendant, sought to cross-examine Agent 

Defayette about 0.2 grams of heroin found in Mr. Milne’s wallet after Mr. Milne’s arrest. 

Mr. Pavon’s counsel argued that the evidence was relevant to Mr. Milne’s credibility, 

while Mr. Milne argued that it was unduly prejudicial compared to its probative value. 

Id. at 71–72. The court allowed the questions pursuant to Fed. R. Evid. 404(b) over Mr. 

 

3

 Agent Rocha also testified that Mr. Milne had trouble pulling out the temporary license 

plate, as he did so by opening only the “top part of the window, the hatch” and reaching 

up to about his elbow. 4 R. 93. 
8 

Milne’s objection, id. at 73, 77, but it included in its final charge to the jury that Mr. 

Milne was “not on trial for any act, conduct, or crime not charged in the Indictment.” 4 

Id. at 442. 

Agent Jay testified at trial that there was a “very strong” marijuana odor in Mr. 

Milne’s vehicle at the time of the search. Id. at 85. He also testified that Mr. Pavón was 

wearing camouflage when the agents found him in the back seat of Mr. Milne’s vehicle, 

“which is notorious . . . for smuggling of narcotics.” Id. at 86. 

The government also presented evidence that the bundles contained about 246 

pounds of marijuana, or over 111 kilograms. Id. at 61, 137. Drug Enforcement Agency 

(DEA) Special Agent Billy Ray Hopkins testified that, pursuant to DEA policy, he sent 

11 samples to a laboratory to test for narcotics. Id. at 137. All 11 samples came from 

one bundle, id. at 138, and all tested positive for marijuana. Id. at 134, 193–99. 

 

4

 The cross-examination regarding the heroin consisted of the following line of 

questioning: 

Q. [W]hen the other defendant, Mr. Milne, was searched, you found 

something in his wallet, didn’t you? 

A. Yes, sir. 

Q. And it was a tiny amount that was field-tested for positive for [sic] 

heroin? 

A. Yes, sir. 

Q. And it was like, what, .2 grams or a very small amount? 

A. Yes, sir. It was a small amount. 

4 R. at 77–78. 
9 

The government also called DEA Special Agent Joseph Montoya, who testified as 

a drug-investigations expert. Id. at 217. He provided information about “backpackers” 

and drug couriers, including their method of transportation, their frequent use of 

camouflage, the value of different controlled substances, and favored drug-smuggling 

routes, including Highway 80. Id. at 214–15, 217–226. 

After the government rested, Mr. Milne moved for a judgment of acquittal on both 

charges, arguing that no reasonable jury could find that (1) Mr. Milne conspired to 

commit a crime; (2) the offenses involved at least 100 kilograms of marijuana; and 

(3) Mr. Milne knowingly possessed marijuana. Id. at 240–41. The district court denied 

the motion as to the conspiracy charge, id. at 243, and it took the motion as to the 

quantity of marijuana under advisement. Id. at 245. 

Mr. Milne testified that he had recently divorced, that he was homeless, and that 

he was recently convicted of amphetamine possession and an escape charge. Id. at 250. 

He had been working as a handyman, and he testified that he had driven to southern 

Arizona and New Mexico in search of handyman or ranch work. Id. at 251–52. On the 

day before his arrest, he drove east on Interstate 10 (“I-10”) from Tucson, Arizona, 

through Benson and Willcox, Arizona, then south onto Highway 80 through Rodeo to 

Apache, Arizona, before returning to Willcox for the night. Id. at 254–61. He testified 

that the following day, he drove back east on I-10. He observed at the intersection of I10 and Highway 80 three men standing in front of a temporary tent selling rugs and 

paintings. Id. at 262, 264. He asked them about work opportunities, and they told him 

that they needed feed delivered from a ranch house at the south end of Rodeo to a house 
10 

on Highway 80 at the north end of Rodeo. Id. at 264–65. He agreed and drove south on 

Highway 80 until he came to the ranch house, where he testified he saw five to six 

“regular guys” wearing jeans or cargo pants, a few wore cowboy hats, and one wore a 

baseball cap. Id. at 269–70. According to Mr. Milne, he opened his trunk, and the men 

loaded burlap sacks into the back of his vehicle without his help. Id. at 271–72. He 

described the sacks as smelling “dirty” and “musty” but not like the burning marijuana he 

had smelled at concerts he had attended. Id. at 272. After the men loaded the sacks, Mr. 

Milne testified that a Spanish-speaking man — Mr. Pavón — entered his vehicle and lay 

down. Id. at 273. Mr. Milne assumed the man was a ranch hand who would help to 

unload the bales, and he did not object or ask any questions as to the man’s presence. Id. 

at 273–74. Mr. Milne then recounted pulling over for Agent Defayette. Id. at 275–79. 

Mr. Pavón also testified. He testified that he paid a smuggler to take him from 

Agua Prieta, Mexico, to Phoenix. Id. at 338–40. He traveled with a group from Mexico 

to the driveway of the ranch house in Rodeo, where Mr. Milne arrived in his Ford 

Explorer. Id. at 341–43. Like Mr. Pavón, the other members of the group were wearing 

camouflage. Id. at 346. When Mr. Milne arrived, some members of his group collected 

sacks from behind shrubs and loaded them into Mr. Milne’s vehicle, and Mr. Pavón’s 

smuggler told him to get in Mr. Milne’s vehicle. Id. at 343. According to Mr. Pavón, 

Mr. Milne told him to lie down. Id. Mr. Pavón testified that “you couldn’t really smell” 

the marijuana in the vehicle. Id. at 344. He further testified that Mr. Milne told him, “a 

moment,” after he pulled over at the Rodeo Tavern, which Mr. Pavón interpreted to mean 

that he should wait in the vehicle. Id. at 351. 
11 

At the close of Mr. Milne’s case, the government informed the court that it had, in 

the interim, tested each bundle, and it was prepared to call a witness to testify as to their 

contents. Id. at 364–65. Mr. Milne objected, arguing that the government already had an 

opportunity to present such evidence. Id. at 365–66. He then renewed his motion for 

acquittal. Id. at 366. The court held that it would not allow the government to reopen, 

and it allowed the jury to render a verdict. Id. at 367–79. 

The jury acquitted Mr. Pavón, but not Mr. Milne. Id. at 511. Mr. Milne filed a 

renewed motion for mistrial,5 1 R. 160, which the court denied. Id. at 215. At 

sentencing, the district court accepted the government’s argument that Mr. Milne’s 

offense level should include a two-level enhancement for obstruction of justice because 

of perjured testimony. The district court explained that Mr. Milne “was not truthful in his 

testimony pretty much from the time that he left Phoenix until he was arrested,” and that 

“he was misleading the jury” with respect to his reasons for being in Rodeo and his 

purported ignorance as to the marijuana and the purpose of Mr. Pavón’s presence in his 

vehicle. 4 R. 526. 

Discussion 

Mr. Milne raises four issues on appeal. We consider each in turn. 

 

5

 Mr. Milne had filed a motion for mistrial during trial, arguing that government agents 

had stored the marijuana bundles adjacent to the courtroom, where they “loudly” opened 

and field-tested them, in a manner that allowed jurors to smell them upon exiting the 

courtroom and that “significantly altered an admitted exhibit.” See 1 R. 161–62. The 

court took the matter under advisement and modified the jury instructions to mitigate any 

potentially prejudicial effects. 4 R. 421–35. 
12 

A. Motion to Suppress 

Whether and when a defendant was unreasonably “seized” under the Fourth 

Amendment is a question of law we review de novo. United States v. Hernandez, 847 

F.3d 1257, 1263 (10th Cir. 2017). However, on appeal from the denial of a motion to 

suppress, we view the evidence in the light most favorable to the district court’s ruling, 

id., and we accept its findings of fact and determinations of witness credibility unless 

clearly erroneous. United States v. Chavez, 534 F.3d 1338, 1343 (10th Cir. 2008). A 

district court clearly errs if its findings lack support in the record, or, “after reviewing all 

the evidence, we are left with a definite and firm conviction that a mistake has been 

made.” United States v. Cash, 733 F.3d 1264, 1273 (10th Cir. 2013) (quoting United 

States v. Tafoya, 557 F.3d 1121, 1126 (10th Cir. 2009)). 

The Fourth Amendment prohibits unreasonable seizures by the government. U.S. 

Const. amend. IV. A seizure only occurs when an officer, “by means of physical force or 

show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 

392 U.S. 1, 19 n.16 (1968). In the absence of physical force, a seizure occurs only upon a 

showing that (1) an officer displayed his authority, and (2) the citizen submitted to such 

show of authority. United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010). 

Because the government concedes that Agent Defayette lacked reasonable 

suspicion to pull over Mr. Milne’s vehicle,6

 the sole issue is whether Mr. Milne pulled 

 

6

 The stopping of a vehicle, even if brief, constitutes a seizure, Delaware v. Prouse, 440 

U.S. 648, 653 (1979), and must be evaluated for reasonableness. Such evaluation 

“depends on a balance between the public interest and the individual’s right to personal 
13 

over voluntarily. Whether Agent Defayette turned on his front-grille emergency lights is 

highly relevant. Mr. Milne contends he did not pull over voluntarily, but in response to 

Agent Defayette’s emergency lights. In support, he relies upon the following evidence: 

(1) he stopped in the parking lot of a closed restaurant; (2) he parked on the side of and 

parallel to Highway 80 rather than in a parking space; and (3) the photograph that clearly 

shows Agent Defayette had activated his front-grille emergency lights. Aplt. Br. at 34–

35. Undoubtedly, such evidence plausibly supports his account. But the district court 

heard testimony that contradicted his account, and it credited that testimony over his 

testimony. Agent Defayette unequivocally denied that he had activated his front-grille 

emergency lights prior to stopping behind Mr. Milne, and the other agents testified that 

they did not notice his front-grille emergency lights activated. In addition, Mr. Milne’s 

unprompted exiting of his vehicle belied his contention that he had been 

unconstitutionally seized. Faced with two plausible views of the evidence, the district 

court credited the testimony of the agents, which was consistent, and we cannot find clear 

error. The denial of the suppression motion must be upheld. 

 

 

security free from arbitrary interference by law officers.” United States v. BrignoniPonce, 422 U.S. 873, 878 (1975). Because Border Patrol agents serve a “special 

function” of preventing illegal alien traffic and contraband smuggling, they lack authority 

to enforce traffic laws. Id. at 883 & n.8. We have long held that a Border Patrol agent 

may stop a vehicle only upon reasonable suspicion that the vehicle is involved in illegal 

trafficking or smuggling. See United States v. Cantu, 87 F.3d 1118, 1121–22 (10th Cir. 

1996). 
14 

B. Evidentiary Decisions 

We review a district court’s decision to admit or exclude relevant evidence under 

Fed. R. Evid. 403 for an abuse of discretion. United States v. Archuleta, 737 F.3d 1287, 

1292 (10th Cir. 2013). “A district court abuses its discretion when it renders an arbitrary, 

capricious, whimsical, or manifestly unreasonable judgment.” United States v. Silva, 889 

F.3d 704, 709 (10th Cir. 2018) (quoting Ralston v. Smith & Nephew Richards, Inc., 275 

F.3d 965, 968 (10th Cir. 2001)). 

Mr. Milne argues that the district court abused its discretion regarding the bundles 

of marijuana because the prejudicial effect of the bundles without their burlap sacks 

substantially outweighed their probative value. Given the importance of knowledge in 

this case, Mr. Milne argues that because the smell was stronger in court than in his 

vehicle, the jury’s conclusion as to his knowledge was affected. Mr. Milne also 

challenges the relevance of the marijuana’s smell, as he only testified to knowing the 

smell of burning marijuana, a point further bolstered by the fact that he described the 

bundles’ smell as “dirty” and “musty.”7

Mr. Milne’s arguments are not persuasive. Under Fed. R. Evid. 403, “[t]he court 

may exclude relevant evidence if its probative value is substantially outweighed by” 

 

7

 Mr. Milne also cites a Seventh Circuit case in which the court held open containers of 

marijuana were unfairly prejudicial. Aplt. Br. at 40–41 (citing United States v. Garcia, 

986 F.2d 1135, 1141–42 (7th Cir. 1993)). However, the Seventh Circuit did not find the 

marijuana’s odor per se prejudicial, but rather that the district court erred by allowing the 

marijuana to remain in the courtroom and uncovered throughout the defendant’s case-inchief. Garcia, 986 F.2d at 1141–42. 
15 

certain factors, including unfair prejudice and misleading the jury. Fed. R. Evid. 403. As 

the government correctly notes, this court has held that the admission of actual drug 

evidence generally is not more prejudicial than probative, and that deficiencies of the 

evidence speak to its weight, not its admissibility. Aplee. Br. at 28; see also United 

States v. Thomas, 749 F.3d 1302, 1310 (10th Cir. 2014). Here, the smell and appearance 

of the bundles — the same bundles recovered from Mr. Milne’s vehicle — were highly 

probative both as to whether Mr. Milne was aware of the nature of his cargo, and as to 

whether the untested bundles in fact contained marijuana. Further, Agent Jay testified 

that he smelled marijuana in Mr. Milne’s vehicle, 3 R. 63, and Agent Marshall testified 

that the burlap sacks only altered the pungency, not the nature of the odor. 4 R. 113, 

115–16. Witnesses also testified that the bundles likely smelled stronger without the 

burlap sacks, thereby allowing the jury to discount the probative nature of the smell if it 

chose to do so. Aplee. Br. at 27–28. In short, this issue was for the jury, which was 

aided by the physical evidence, and the district court did not abuse its discretion in 

allowing the contraband to be present. 

Mr. Milne also argues that the court erred by allowing Mr. Pavón’s attorney to 

question Mr. Milne about the heroin on his person at the time of his arrest. He 

characterizes the heroin as either irrelevant, highly prejudicial, or impermissible 

propensity evidence. Aplt. Br. at 41–44. The government counters that it was relevant to 

show absence of mistake and intent to distribute marijuana. Aplee. Br. at 34. In the 

alternative, it argues that its introduction was harmless because the heroin played a minor 

role at trial, Mr. Milne volunteered that he was recently convicted for amphetamine 
16 

possession, which is arguably more prejudicial than Mr. Pavón’s questioning, the court 

mitigated any risk of unfair prejudice through its limiting instruction, and the evidence of 

Mr. Milne’s guilt was otherwise overwhelming. We agree with the government: the 

testimony likely had little effect on the jury’s verdict so any error in admitting the heroin 

possession is harmless when placed in context and would not warrant reversal. Fed. R. 

Crim. P. 52. 

C. Sufficiency of the Evidence 

We review a denial of a motion for judgment of acquittal by evaluating the 

evidence on the record as a whole, but we only review the evidence at the time the 

defendant’s motion was made if the court reserves ruling on the motion. United States v. 

Delgado-Uribe, 363 F.3d 1077, 1082 (10th Cir. 2004). Accordingly, we review Mr. 

Milne’s challenge as to the proof of knowledge by evaluating the record as a whole, but 

we review Mr. Milne’s challenge as to the drug-quantity evidence only by evaluating the 

government’s evidence.8

 We review all of the evidence (direct and circumstantial) in the 

light most favorable to the government to determine whether a reasonable trier of fact 

could find guilt beyond a reasonable doubt. United States v. Rufai, 732 F.3d 1175, 1188 

(10th Cir. 2013). 

 

8

 The government notes that our review of this latter challenge is actually for plain error, 

as Mr. Milne did not renew his motion on this issue. Because “review under the plain 

error standard . . . and a review of sufficiency of the evidence usually amount to largely 

the same exercise,” United States v. Rufai, 732 F.3d 1175, 1189 (10th Cir. 2013) (quoting 

United States v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir. 1998)), such distinction does 

not affect our analysis. 
17 

Mr. Milne argues that no reasonable jury could have concluded either that he knew 

the burlap sacks contained marijuana or that every bundle contained marijuana, and thus 

that the court should have sentenced him pursuant to his possession only of the one tested 

bundle. We agree that the government’s sampling allowed the jury to hear direct 

evidence only as to the contents of one of the bundles recovered from Mr. Milne’s 

vehicle. But we do not require proof by direct evidence as to every item of contraband. 

The district court instructed the jury to consider direct and circumstantial evidence 

equally, and to draw reasonable inferences from such evidence. 1 R. 180. Here, the jury 

heard enough circumstantial evidence that proved Mr. Milne knowingly committed both 

crimes. Although we might question why the government sampled only from one bundle 

initially,9

 the jury heard circumstantial evidence supporting the conclusion that all 

bundles in fact contained marijuana, and that Mr. Milne knew they contained marijuana. 

This evidence included Mr. Milne’s words and conduct during his conversation with 

Agent Defayette, the similar appearance of all the bundles, agents’ testimony that Mr. 

Milne’s vehicle smelled like marijuana, and Mr. Pavón’s testimony. Particularly because 

our standard of review requires us to view the evidence in the light most favorable to the 

 

9

 The government offers many examples in which this court has held that sampling — 

some of which was as low as 1% of the total seized substances — sufficiently proved that 

all seized substances consisted of illegal narcotics. Aplee. Br. at 44–45. Mr. Milne is 

correct to criticize the government for failing to conduct a random sample. Aplt. Br. 

at 49–50. Nevertheless, our circuit does not require such random sampling; rather, it has 

held that the “government must establish that a sampling technique used to determine the 

existence and quantity of drugs is reasonably reliable.” United States v. Garner, 223 F. 

App’x 792, 795 (10th Cir. 2007) (unpublished) (emphasis added). That the government 

only sampled one bundle speaks only to the weight of the evidence. 
18 

prevailing party and consider all evidence, direct and circumstantial, we hold that there 

was ample evidence supporting the jury’s conclusion, and the district court’s denial of 

Mr. Milne’s motions for acquittal and its sentence that accounted for his possession of 

over 100 kilograms of marijuana must be upheld. 

D. Obstruction of Justice Enhancement 

We review the facts underlying an obstruction of justice enhancement for clear 

error; legal conclusions concerning the Sentencing Guidelines are reviewed de novo. 

United States v. Hawthorne, 316 F.3d 1140, 1145 (10th Cir. 2003). 

Mr. Milne argues that the district court erred by increasing his sentence solely 

because it found him to be not credible. Section 3C1.1 of the Sentencing Guidelines 

permits a district court to increase an offense level by two levels if it finds that “the 

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the 

administration of justice with respect to the investigation, prosecution, or sentencing of 

the instant offense of conviction.” U.S.S.G. § 3C1.1 (2014). A finding of perjury is 

sufficient to trigger this guideline enhancement. United States v. Rodebaugh, 798 F.3d 

1281, 1300 (10th Cir. 2015). A defendant perjures himself when he (1) gives false 

testimony under oath; (2) about a material matter; and (3) his false testimony was willful. 

Id. 

Mr. Milne argues that the district court erred by not specifying what portions of 

his testimony were not truthful. Aplt. Br. at 54. This court requires that sentencing 

courts “be explicit about which representations by the defendant constitute perjury.” 

Hawthorne, 316 F.3d at 1146. But a sentencing court is not required to “specifically 
19 

identify” the perjurious statements, so long as it identifies the statements “at least in 

substance.” United States v. Massey, 48 F.3d 1560, 1573 (10th Cir. 1995). 

That said, the district court specifically identified many of Mr. Milne’s statements, 

including his desire to find work in Rodeo, his belief that the bales were animal feed, and 

that he did not know Mr. Pavón was an illegal alien. 4 R. 526. In light of this circuit’s 

requirements for a § 3C1.1 enhancement for obstruction of justice, the district court went 

“above and beyond in identifying the portions of Milne’s trial testimony upon which it 

based the obstruction enhancement.” Aplee. Br. at 50. The district court’s obstruction of 

justice enhancement must be upheld. 

AFFIRMED. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge