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

### JUL 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JORGE BRISENO-MENDEZ, a.k.a. Jorge Brisenio, Defendant-Appellant.

____________________________ No. 96-2145 (District of New Mexico) (D.C. No. 95-CR-528-3)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. EMILY SILVA, Defendant-Appellant.

____________________________ No. 96-2172 (District of New Mexico) (D.C. No. CR-95-528-2)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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. -2- UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ANGEL JOSE CASTANEDA, Defendant-Appellant. No. 96-2218 (District of New Mexico) (D.C. No. CR-95-528)

ORDER AND JUDGMENT *

Before TACHA , HOLLOWAY, and MURPHY , Circuit Judges.

A superseding two-count indictment charged Emily Si lva, Jorge BrisenoMendez and Angel Jose Castaneda with (1) conspiracyto possess with intent to distribute more than five kilograms cocaine, in vio lation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2, and (2) posses sion with intent to distribute more than five kilograms cocaine, in violation of 2 1 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. All three were tried jointly before a jury. Silva and BrisenoMendez were convicted on both counts; Castaneda was found guilty on the-3-

conspiracy count, but acquitted on the possession c ount. All three appeal their convictions. Their appeals raise the following iss ues: (1) whether the district court erred in refusing to grant Briseno-Mendez andCastaneda severance; (2) whether the court violated Silva’s and Briseno- Mendez’s confrontation rights by prohibiting cross-examination of codefendant Cas taneda regarding his criminal history; (3) whether the court erred in admitting e vidence against Castaneda which was seized during a search of the car he was driving; (4) whether the court erred in refusing Briseno-Mendez’s request for a ju ry instruction regarding intoxication; (5) whether there was sufficient evid ence to sustain BrisenoMendez’s and Castaneda’s convictions; and (6) wheth er the court erred at sentencing by refusing to find that Castaneda was aminimal participant and that his criminal history was exaggerated. This court a ffirms.
BACKGROUND On September 12, 1995 Silva, Briseno-Mendez, and Ca staneda were arrested at an immigration checkpoint station in Ne w Mexico after agents found approximately twenty-one kilograms of cocaine hidde n in their car. When the defendants pulled into the checkpoint, Age nt Hector Lugo asked whether everyone in the car was a United States cit izen. Castaneda, who was driving the vehicle, answered in the affirmative. When Castaneda replied, Agent Lugo noticed that Briseno-Mendez, who was sitting i n the front passenger seat,-4-

did not make eye contact with him, so Agent Lugo ag ain inquired into his citizenship. In response, Briseno-Mendez handed Ag ent Lugo a card from Caesar’s Palace. Upon further inquiry, Agent Lugo discovered that Castaneda was not a United States citizen, as he had represen ted, but rather a resident alien and that Briseno-Mendez was not in the United State s legally. Briseno-Mendez was placed under arrest. Agent Lugo then asked Castaneda for permission to s earch the vehicle. Castaneda responded, “Go ahead. It’s not my car.” Castaneda told Agent Lugo that the car belonged to one of his girlfriends. Agent Lugo signaled Agent Brian May to bring Tessa, a drug sniffing dog, to the car. When the dog reached an open window, s he alerted. Agent May then let Tessa inside the car where she specifically ale rted to the rear seat. A search of the car revealed a hidden compartment behind the re ar seat containing approximately twenty-one kilograms of cocaine, as w ell as coffee grounds to mask the odor. Agent May testified that the trap d oor to the hidden compartment was lightly covered by a layer of “Bondo,” a fillergenerally used to repair damage to the body of a vehicle, and that the Bondo was “still soft and somewhat2 After Castaneda’s arrest, Doña Ana County Metro Nar cotics Agent Dennis

Romero found an upholstery shop business card on hi s person. Two identical business cards were found in the vehicle. -5- pliable,” an indication that it had been in place f or only a day or two. Agent May also testified that the carpet covering the trap do or “appeared to be almost new.” 2 Silva and Castaneda were placed under arrest and su bsequently questioned by Agent May. Silva told Agent May that they had d riven from Bell, California to El Paso, Texas “to party and to just see El Paso ” and that they were on their way back to California. The distance between Bell and El Paso is approximately 800 miles. When Agent May asked what they did in E l Paso, Silva told him that “once they got to El Paso, they decided not to go o ut and they just rented a motel room and stayed there the entire time.” Silva also told Agent May that BrisenoMendez and Castaneda left the motel for a short tim e to fix the car battery, but she did not accompany them. Castaneda similarly told Agent May that they had driven from Bell to El Paso “just to see El Paso.” He reported that they spent most of their time in El Paso at a motel, but said that he and Briseno-Mende z left the motel for a short time to work on the car. Contrary to his earlier s tatement that the car belonged to one of his girlfriends, Castaneda told Agent May th at “Ms. Silva had borrowed the car from a friend of hers.”-6-

Doña Ana County Metro Narcotics Agent Dennis Romero also questioned Silva and Castaneda. Silva and Castaneda both told Agent Romero that they had left Bell the evening of September 10th, had driven all night, had arrived in El Paso mid-morning on September 11th, and left El Pas o again the afternoon of September 12th. Silva told Agent Romero that once they arrived in El Paso, she stayed in the motel room, while Briseno-Mendez, who m Silva identified as her boyfriend, and Castaneda left to get beer. Castane da, on the other hand, told Agent Romero that they remained in the motel throug hout their stay in El Paso. Silva also told Agent Romero that she had borrowed the car from a friend and that it was her idea to go to El Paso. After questioning Silva and Castaneda, Agent Romero searched the car. Agent Romero testified that he immediately noticed there were deodorizers in the car and stated that the car had a strong powdery fr agrance. In the trunk of the car, Agent Romero found three bags with clothing, but no ted that he did not find any toiletries. At trial, Wendy Farrier testified that she had sold the vehicle the defendants were driving to a person named “Miguel” who was acc ompanied by two other Mexican men. Miguel paid $1,000 cash for the car. Farrier told the three men that she needed to find the car’s title, but they s aid it was not necessary. A month later, Farrier signed a release of liability at the DMV after she was unable to-7-

reach the men who had purchased the car. Farrier t estified that she was not certain, but Briseno-Mendez “look[ed] familiar, lik e he was one of the men that was there.” Farrier’s boyfriend, Steve Siddler, wa s also present during the sale. Siddler testified that while he could not identify the men’s faces, based on age, height, weight, and national origin, Castaneda and Briseno-Mendez fit the description of two of the men who were present duri ng the sale. Castaneda and Silva both testified on their own beh alf. Castaneda testified that he had met Silva about a month and a half befo re the trip to El Paso. He stated that Silva asked him if he wanted to go on atrip and offered him money to drive her to El Paso. A few days after Silva asked him to drive, Silva’s boyfriend, Briseno-Mendez, came over and asked Cast aneda if he was ready to leave. Castaneda testified that he grabbed a small bag with clothes; got in a truck that belonged to Silva; waited for Silva’s daughterto arrive; followed Silva’s daughter, who was driving a Volkswagen, to a house; and then got into the Volkswagen with Silva and Briseno-Mendez and depart ed. Castaneda stated that they left California in the evening and drove fourt een hours “straight through the night and daytime.” He testified that at about 5:0 0 a.m., he “started slapping the hell out of [his] face because [he] couldn’t drive no more.” When they got to El Paso, Castaneda stated that he drove to a cheap motel. Silva gave him money for the motel room and instruc ted him to pay for a-8-

telephone in the room, which Silva used. Castanedatestified that he left the motel room to eat and then again to go get beer wit h Briseno-Mendez. Castaneda testified that the next day, Silva asked him to drive her and gave him instructions. Silva directed Castaneda across the Mexican border to Ciudad Juarez. Castaneda stated that he “panicked because [he] was crossing the border” and became “suspicious . . . the car was stolen or something . . . was going down.” Castaneda testified that during their trip to Mexic o, Silva had him drive down the street so she could look for a friend’s car. They stopped for a short period and Silva phoned Briseno-Mendez at the motel . Briseno-Mendez told Silva to go over the border and wait. An individua l then approached their vehicle and Castaneda was instructed to follow another car. They stopped in front of a restaurant. There were two men present. Silva han ded the car key to one of the men. One man said he was going to check the motor. Castaneda went inside the restaurant. Approximately twenty-five minutes later , the two men returned, handed over the key, and helped Castaneda push the car because it was not functioning properly. Castaneda testified that Silva and he then returned to El Paso, checked out of the motel, and started the trip back to Californ ia. At the checkpoint where they were arrested, Castaneda testified that he never cl aimed he or Briseno-Mendez-9-

were United States citizens, as Agent Lugo had stat ed. Castaneda further testified that when agents asked if they could search the veh icle, he told them: “Go ahead. I don’t got nothing in here, you know.” Castaneda denied knowledge of the cocaine. Silva testified that she met Castaneda through Bris eno-Mendez the day before their trip to El Paso, although she had seen him around. Silva stated that the three of them were looking for something differ ent to do and Castaneda suggested driving to El Paso. Silva testified thatCastaneda thought he could borrow a car and offered to do the driving. The ne xt day, Castaneda informed Silva and Briseno-Mendez that he had a car and woul d like to leave that night. That evening, Castaneda, who was driving the borrow ed car, followed Silva to her daughter’s house. Silva left the truck she was dri ving at her daughter’s house and they departed in the car Castaneda had borrowed. Silva testified that when they arrived in El Paso, Castaneda paid for a motel room. They rested and then went out to dinner. Later, Briseno-Mendez and Castaneda left for a short period to get beer, but otherwise Silva, Briseno-Mendez and Castaneda remained in the motel room. Silva te stified that because they did not have much money, they decided to return to Bell the following day. Silva denied that she and Castaneda crossed the Mexican b order.-10-

Silva further testified that when they stopped at t he checkpoint on their way back to Bell, Castaneda initially told the agent th at they were all United States citizens. Silva also testified that Castaneda told Agent Lugo the car belonged to his girlfriend. Silva testified that she was askedby an agent if the car belonged to friend and answered in the affirmative because she thought the agent was referring to Castaneda, whom she considered a frien d. However, Silva also testified that she did not recall telling agents th at she had borrowed the car from a friend. On cross-examination, Silva again denied that she had obtained the car and insisted that Castaneda had provided the car. Silva also denied telling Agent Romero that it was her idea to go to El Paso, claim ing instead that it was Castaneda’s idea. She further denied knowledge of the cocaine. Briseno-Mendez did not testify.
SEVERANCE Castaneda and Briseno-Mendez argue that the distric t court erred in denying their motions for severance. The decision to grant or deny a motion to sever is within the sound discretion of the trial c ourt and will not be disturbed on appeal absent a showing of abuse of discretion. See United States v. RodriguezAguirre , 108 F.3d 1228, 1233 (10th Cir. 1997). Severance should be granted by the district court, pursuant to Rule 14 of the Fede ral Rules of Criminal Procedure, “only if there is a serious risk that a joint trial would compromise a specific trial-11-

right of one of the defendants, or prevent the juryfrom making a reliable judgment about guilt or innocence.” Zafiro v. United States , 506 U.S. 534, 539 (1993); accord United States v. Youngpeter , 986 F.2d 349, 353 (10th Cir. 1993). On appeal, it is not enough for a defendant to showseverance would have improved his chances of acquittal; instead, a defen dant bears the burden of making a “strong showing” of “real prejudice.” United States v. Dirden , 38 F.3d 1131, 1140 (10th Cir. 1994) (internal quotations om itted). Castaneda and Briseno-Mendez argue that the defense s presented at trial were mutually antagonistic. “Severance may be nece ssary if the defenses are ‘so antagonistic that they are mutually exclusive.’” Dirden , 38 F.3d at 1141 (quoting United States v. Esch , 832 F.2d 531, 538 (10th Cir. 1987)). The mere fa ct that “defense theories conflict” or that “one defendant is attempting to cast blame on the other,” however, is insufficient to warrant a s everance. Id. “Mutually antagonistic defenses are not prejudicial per se.” Zafiro , 506 U.S. at 538. Rather, to establish prejudice, “[t]he defenses tru ly must be mutually exclusive, such that the jury could not believe the core of on e defense without discounting entirely the core of the other.” Dirden , 38 F.3d at 1141; see also United States v.
Linn , 31 F.3d 987, 992 (10th Cir. 1994). In this case, all three defendants argue that they did not have knowledge of the drugs in the car. Silva attempted to place the blame for the drugs on3 Castaneda’s counsel suggested in closing arguments that Briseno-Mendez

was involved in Silva’s plan to transport drugs. B riseno-Mendez’s closing argument did not attempt to shift blame to Castaned a, as Silva’s did, but rather focused on the lack of evidence against Briseno-Men dez and on BrisenoMendez’s intoxication and suggested as an alternati ve theory that the two individuals who sold the car were involved in a con spiracy to transport drugs. On appeal, however, Briseno-Mendez argues that the con flict between Castaneda’s and Silva’s defenses prejudiced him. Briseno-Mende z argues that if the jury believed Castaneda, it would have precluded his acq uittal, and that if the jury believed Silva, it would have precluded Castaneda’s acquittal while requiring Briseno-Mendez’s acquittal. Briseno-Mendez furtherasserts that it is likely the jurors unjustifiably inferred the guilt of all thre e defendants based on the conflict between Castaneda’s and Silva’s defenses. -12- Castaneda, while Castaneda tried to implicate Silvaand, by his association with Silva, Briseno-Mendez. Both Castaneda and Briseno- Mendez argue that they should have been granted severance based on the con flict between Castaneda’s and Silva’s defenses. 3 During closing argument, counsel for Castaneda argu ed that “Angel Castaneda was set up by Emily Silva, and the govern ment didn’t care.” Castaneda’s attorney argued that Silva paid him to drive her to El Paso and that during the trip, Silva had him drive her across the border to Mexico, where the jurors could infer she picked up the cocaine. Cast aneda’s counsel further suggested that Briseno-Mendez knew about and was a part of Silva’s plan. Counsel for Silva, on the other hand, argued that S ilva’s guilt depended on whether the jurors believed Castaneda’s testimony and argued that Castaneda’s testimony should not be believed. In closing argum ent, Silva’s counsel accused-13-

Castaneda of lying, referencing his statement to Ag ent Lugo that he was a U.S. citizen, his statements regarding the source of the car, and his testimony about the trip to Mexico. Silva’s counsel further suggested that Castaneda knew about the cocaine, was being paid to transport it, and used S ilva and her boyfriend as cover. While Castaneda and Silva were clearly attempting t o shift blame for the cocaine, their defenses were not so inconsistent th at to accept the core of one defense the jury had to discount entirely the other . In essence, both Castaneda and Silva were arguing they had no knowledge of the drugs. While each suggested the other’s involvement, neither directlyimplicated the other. Silva, for instance, testified that the trip to El Paso wa s Castaneda’s idea and that he borrowed the car, but she did not testify that Cast aneda knew about the cocaine or that he was otherwise engaged in criminal activity. Castaneda’s testimony, if believed, was slightly mo re damaging toward Silva. He not only testified that the trip was Sil va’s idea and that she paid him to drive her to El Paso, but he also testified that Si lva had made calls from the hotel room and that she had instructed him to drive to Me xico, where they left the car for a short time with two men. Still, Castaneda di d not testify that Silva knew about the cocaine or that cocaine was actually plac ed in the car during their stop. Nor did Castaneda directly implicate Briseno-Mendez

.4 Briseno-Mendez also argues that the district court’ s failure to grant him

severance resulted in a denial of his Sixth Amendme nt confrontation rights because of the limitations placed on his cross-exam ination of co-defendant Castaneda. As discussed below, the limitations pla ced on the cross-examination of Castaneda did not violate Briseno-Mendez’s confr ontation rights. -14- Because Castaneda’s and Silva’s testimony was incon sistent, it was not possible for a reasonable juror to fully believe bo th Castaneda and Silva. A juror, however, could believe the core of both of their de fenses, namely that they did not have knowledge of the cocaine. Acquittal of Silva therefore did not preclude acquittal of Castaneda, nor did acquittal of Castan eda preclude acquittal of Silva and Briseno-Mendez. Mere finger pointing by a code fendant is insufficient to

warrant severance. See Zafiro , 506 U.S. at 539-41 (rejecting petitioner’s argument that severance must be granted when “two d efendants both claim they are innocent and each accuses the other of the crim e”); Linn , 31 F.3d at 992 (holding severance not warranted when defendants ar gued their co-defendants committed arson and that they had nothing to do wit h the fire). Castaneda and Briseno-Mendez further argue that anyprejudice resulting from the joinder was enhanced by differing degrees of culpability among the three co-defendants. 4 “The mere fact that one co-defendant is less culp able than the remaining co-defendants is not alone sufficient gro unds to establish a trial court abused its discretion in denying a severance.” Youngpeter , 986 F.2d at 353; accord United States v. Williams , 45 F.3d 1481, 1484 (10th Cir. 1995). In this-15-

case, the differing degrees of culpability did not compromise a specific trial right of either Castaneda or Briseno-Mendez, nor did it p revent the jurors from making reliable judgments about guilt or innocence. See Youngpeter , 986 F.2d at 353. This case was not so factually complex as to limit the jury’s ability to separate the evidence against each defendant, nor was there sucha dramatic difference in the strength of the government’s cases against co-defen dants that spillover was likely. Cf. Zafiro , 506 U.S. at 539 (noting that in complex cases, “m arkedly different degrees of culpability” among co-defendants heighte ns the risk that prejudice will result from joint trial); Linn , 31 F.3d at 992-93 (holding in “simple conspiracy case involving a few actors and a straightforward s et of events . . . . [t]he concerns justifying severance based upon differing degrees of culpability are simply not present”). Finally, the district court properly instructed the jury that it must find guilt beyond a reasonable doubt and that “[t]he case of e ach defendant and the evidence pertaining to that defendant should be con sidered separately and individually. The fact that you may find one of th e defendants guilty or not guilty should not control your verdict as to any other def endant.” Further, the jurors were instructed that they “may not infer that the d efendant was guilty of participating in criminal conduct merely from the f act that he associated with other people who were guilty of wrongdoing” and that “mere presence at the-16-

scene of a crime and knowledge that the crime is be ing committed are not sufficient to establish that a defendant either dir ected or aided and abetted the crime unless [they] find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.” T hese limiting instructions sufficed to cure any possibility that the defendant s were prejudiced by the joint trial. See Zafiro , 506 U.S. at 540-41; United States v. Emmons , 24 F.3d 1210, 1219 (10th Cir. 1994). Castaneda and Briseno-Mendez have failed to demonstrate that they were prejudice by the joint trial. The district court t herefore did not abuse its discretion in denying Castaneda’s and Briseno-Mende z’s motions for severance.
CONFRONTATION RIGHTS Silva and Briseno-Mendez claim the district court v iolated their Sixth Amendment right to confrontation by prohibiting cro ss-examination of codefendant Castaneda regarding his prior arrests andconvictions on narcotics charges after he testified that he had no knowledge of the drugs or why he and5 Before trial, the United States filed a Notice of I ntention to Use Evidence

of Other Crimes or Bad Acts as to defendant Castane da pursuant to Rule 404(b) of the Federal Rules of Evidence. Castaneda subseq uently sought a pre-trial ruling excluding the introduction of his prior arre sts and convictions under Rules 404(b) and 609 of the Federal Rules of Evidence. C oncluding that the prejudicial effect of Castaneda’s prior convictions outweighed their probative value, the district court ordered exclusion of the prior convi ctions under both rules. -17- Silva traveled to Juarez. 5 They argue that this limitation denied them the opportunity to effectively attack Castaneda’s credi bility and truthfulness. The ultimate question of whether improper restricti ons on crossexamination were so severe as to constitute a violation of a defendant’s confrontation rights is reviewed de novo

. See United States v. Pedraza , 27 F.3d 1515, 1529 (10th Cir. 1994). Evidentiary matters and the extent of crossexamination with respect to appropriate subjects, h owever, are within the sound discretion of the trial court. See United States v. Ruiz-Castro , 92 F.3d 1519, 1528 (10th Cir. 1996). This court has therefore held th at a district court decision excluding cross-examination regarding a witness’ pr ior criminal record is reviewed for abuse of discretion and “should be setaside on appeal only if the trial court’s decision reflects an arbitrary, capri cious, whimsical, or manifestly unreasonable judgment.” Id. (internal quotations omitted). Silva and Briseno-Mendez repeatedly argued, both du ring trial and in their motion for a new trial, that Castaneda’s prior reco rd should be admitted pursuant to Rules 405 and 406 of the Federal Rules of Eviden ce and that the district court’s-18-

failure to admit the evidence impermissibly infring ed on their confrontation rights. Neither evidentiary rule supports the admi ssibility of Castaneda’s prior convictions and arrests. Rule 405 permits specific instances of a person’s conduct to be offered as character evidence when “character or a trait of ch aracter of a person is an essential element of a charge, claim, or defense.” Fed. R. Evid. 405(b). “The rule deals only with allowable methods of proving c haracter, not with the admissibility of character evidence, which is cover ed in Rule 404.” Fed. R. Evid. 405 advisory committee’s note. In this case, Silvaand Briseno-Mendez have not demonstrated that Castaneda’s character was an esse ntial element of the charges or defense, nor have they addressed Rule 404's gene ral prohibition on using character evidence to prove action in conformity th erewith. See Fed. R. Evid. 404(a). Evidence of Castaneda’s prior criminal act s was therefore not admissible under Rule 405. Rule 406, which allows evidence of habit or routine practice to prove conduct is in conformity therewith, is similarly in applicable. See Fed. R. Evid. 406. Silva and Briseno-Mendez argued at trial and in their motion for a new trial that Castaneda’s seven page “rap sheet” dealing with narcotics convictions and arrests was evidence of a habit. The advisory comm ittee notes to Rule 406 of the Federal Rules of Evidence, however, define “habit” as a “person’s regular-19-

practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairw ay two stairs at a time, or of giving the hand-signal for a left turn . . . . The doing of the habitual acts may become semi-automatic.” Fed. R. Evid. 406 advisorycommittee’s note. Nothing reflected in Castaneda’s rap sheet constitutes a ha bit for purposes of Rule 406. The district court therefore did not err in denying the admission of Castaneda’s prior convictions on the evidentiary ba ses argued by Silva and Briseno-Mendez during the trial. Nor did the distr ict court abuse its discretion in determining that the prejudicial effect of Castaned a’s prior convictions outweighed their probative value. The risk of the jury improperly inferring guilt from Castaneda’s prior drug offenses was great. Th e probative value of the prior offenses, however, was limited. Castaneda’s past c riminal history did not directly reflect on his claim that he had no knowledge of th e drugs in this instance, nor did Silva or Briseno-Mendez argue his past crimes w ere the type that involved dishonesty or false statements. The trial court’s decision to exclude Castaneda’s prior offenses therefore was not arbitrary, caprici ous, whimsical, or manifestly unreasonable. Nor were the limitations placed on the cross-examin ation of Castaneda so great as to amount to a violation of Silva’s and Br iseno-Mendez’s confrontation rights. While the Sixth Amendment “guarantees an opportunityfor effective6 On direct examination, Castaneda testified that he would not know the two

men who were present when he and Silva exited the c ar in Mexico, “even if [he] look[ed] at them in a picture.” On cross-examinati on, however, Castaneda testified that if he saw a picture, he would “know who they are.” -20- cross-examination,” it does not guarantee a “cross- examination that is effective in whatever way, and to whatever extent, the defense m ight wish.” Delaware v.
Fensterer , 474 U.S. 15, 20 (1985) (emphasis in original); accord Pedraza , 27 F.3d at 1529. “Our duty in reviewing the adequacy of the cross-examination is to determine whether the jury had sufficient informati on to make a discriminating appraisal of the witness’ motives and bias.” United States v. Sinclair , 109 F.3d 1527, 1537 (10th Cir. 1997) (internal quotations om itted). Silva and Briseno-Mendez had ample opportunity to attack Castaneda’s credibility. It was readily apparent that Castaned a, as a co-defendant, had motive to shift blame from himself to Silva and Briseno-Me ndez. Castaneda’s testimony at trial was inconsistent with what checkpoint agents testified he told them during the stop. His testimony regarding the trip to Mexi co was internally inconsistent 6 and not corroborated by a 72-hour lane check conduc ted by agents to determine whether the vehicle had crossed the United States-M exico border. The jurors were thus presented with sufficient information to assess Castaneda’s motives and biases. The exclusion of Castaneda’s prior convict ions and arrests therefore did not violate Silva’s and Briseno-Mendez’s confrontat ion rights.7 The government argues that Castaneda lacks standing to challenge the

search of the car because he has not demonstrated h e had any legitimate expectation of privacy in the car. The government notes that Castaneda -21- SEARCH Castaneda argues the district court erred in denyin g his motion to supress. In reviewing a district court’s ruling on a motion to suppress, this court accepts the district court’s factual findings unless they are clearly erroneous and views the evidence in the light most favorable to the distric t court’s findings. See United States v. Toro-Pelaez , 107 F.3d 819, 824 (10th Cir. 1997). The ultimate determination of whether the challenged conduct is reasonable under the Fourth Amendment, however, is a question of law which we r eview de novo

. See id

. Castaneda asserts that his continued detention at the immigration checkpoint, after agents determined he was legally in the United States, was unlawful. Castaneda argues that Agent Lugo’s reque st to search the car, which occurred after Lugo determined Castaneda was a resi dent alien, was “outside the scope of permissible routine questioning and not ba sed upon a showing of reasonable suspicion.” Castaneda further contends that any consent he gave to search the vehicle was not voluntary, knowing, or i ntelligent. He concludes that because his continued detention and the subsequent search were not justified by reasonable suspicion, the district court erred in n ot granting his motion to
supress. 7consistently claimed the car was not his. Even whe n a defendant lacks standing to

directly challenge the search of a vehicle, the def endant may still seek suppression of evidence discovered in the vehicle i f the evidence is the fruit of the defendants’ unlawful detention. See United States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996). -22- At fixed checkpoints, border patrol agents may brie fly detain and question a person without any individualized suspicion that th e person is engaged in criminal activity. See United States v. Martinez-Fuerte , 428 U.S. 543, 562 (1976); United
States v. Massie , 65 F.3d 843, 847 (10th Cir. 1995). The Fourth Am endment protects an individual’s liberty interests at fixedcheckpoints by limiting the scope of the stop. See Martinez-Fuerte , 428 U.S. at 566-67; United States v. RasconOrtiz , 994 F.2d 749, 752 (10th Cir. 1993). “A routine c heckpoint stop must be brief and unintrusive.” Rascon-Ortiz , 994 F.2d at 752. During a routine fixed-checkpoint stop, agents may inquire into an individual’s citizenship or immigration status and request documentation; may make a cursory visual inspection of the vehicle; an d may briefly question an individual “concerning such things as vehicle owner ship, cargo, destination, and travel plans,” so long as such questions are “reaso nably related to the agent’s duty to prevent the unauthorized entry of individuals in to this country and to prevent the smuggling of contraband.” Id.; accord Massie , 65 F.3d at 847-48. In addition, if an agent observes “suspicious circumst ances” during a routine stop, “the agent may briefly question the motorist concer ning those suspicions and ask8 While there is no single definition of “suspicious circumstances,” this

court has held that suspicious circumstances need n ot meet the more rigid “reasonable suspicion” standard. See United States v. Massie , 65 F.3d 843, 848 (10th Cir. 1995); United States v. Rascon-Ortiz , 994 F.2d 749, 753 n.6 (10th Cir. 1993); United States v. Sanders , 937 F.2d 1495, 1500 (10th Cir. 1991). In determining whether suspicious circumstances exist, this court applies “‘a common sense view of the totality of the circumstan ces.’” Massie , 65 F.3d at 848 (quoting Sanders , 937 F.2d at 1501). “[S]ome deference is properlygiven to border patrol agents who . . . are specifically tra ined to look for indicia of crime, with an emphasis on immigration and customs laws.” Sanders , 937 F.2d at 1500. -23- the motorist to explain.” 8 Rascon-Ortiz , 994 F.2d at 753; accord Massie , 65 F.3d
at 848. Any detention beyond the scope of a routine checkpo int stop, however, must be based on reasonable suspicion, probable cau se, or consent. See MartinezFuerte , 428 U.S. at 567; Rascon-Ortiz , 994 F.2d at 753. While a visual inspection of a vehicle is permissible as part of a routine ch eckpoint stop, Agents may not search vehicles stopped at a checkpoint in the abse nce of probable cause or

consent. See Rascon-Ortiz , 994 F.2d at 754. In the instant case, the district court found that at the checkpoint Castaneda originally claimed that he, Briseno-Mendez, and Sil va were United States citizens. Upon subsequent questioning, Castaneda a dmitted that he was not a United States citizen, but a resident alien. This prompted further questioning, which resulted in the discovery that Briseno-Mendez was in the country illegally. The district court further found that “[w]hile the defendant Castaneda was out of-24-

the vehicle, within less than five minutes of havin g arrived at the check stop, he was asked and consented to a search of the vehicle. ” These factual findings, which are supported by Agents Lugo’s testimony duri ng the hearing on the motion to suppress, are not clearly erroneous. The questions concerning the citizenship status of the defendants were clearly within the scope of permissible, routine qu estioning during a checkpoint stop. The matter Castaneda challenges as beyond th e scope of routine questioning is the request for consent to search the car, which occurred after agents had satisfied their concerns about his immigration status. The request for consent to search the car was permissible. The request was di rectly related to agents’ duty to prevent the smuggling of contraband. The fact thatthe defendants were initially referred to a secondary inspection area because of concerns about their citizenship status does not prevent agents from investigating o ther suspicious circumstances.
See Massie , 65 F.3d at 848. In this case, Castaneda’s misrepresentation of his and Briseno-Mendez’s citizenship status created suspici ous circumstances; the brief questioning that occurred and the request to searchthe vehicle were well within the permissible scope of questioning when suspiciou s circumstances are observed during a routine stop. Castaneda also challenges the voluntariness of his consent. “Consent to search is voluntary if it is not the product of dur ess or coercion, express or-25-

implied.” United States v. Espinosa , 782 F.2d 888, 892 (10th Cir. 1986) (internal quotations omitted). The “voluntariness” of consent is a factual question to be determined from the totality of the circumstances. See id

. Castaneda argues his consent was not voluntary, kno wing, or intelligent because, at the time Agent Lugo requested his permi ssion to search the car, Castaneda had already been stopped and detained; Br iseno-Mendez had already been arrested; Agent Lugo was wearing sunglasses an d had both a firearm on his left side and a side handle baton; Agent Lugo was a ccompanied by three other agents, all of whom were dressed in green uniforms and carrying sidearms and side handle batons; and Castaneda was not informed of his right to decline consent. Castaneda, however, does not allege that the agents threatened him. At the hearing on the motion to supress, Agent Lugo te stified that when he requested permission to inspect the vehicle more closely, Cas taneda replied, “Go ahead. This is not my car.” At trial, Castaneda himself t estified that when an agent asked for his permission to search the car, he toldthe agent, “Go ahead. I don’t got nothing in here, you know.” The mere presence of uniformed agents with sidearms and side handle batons did not render Cast aneda’s consent involuntary. Nor does the evidence indicate that threats, promis es, or force were used to obtain the consent. See id . The district court’s finding that Castaneda cons ented to the search is therefore not clearly erroneous.9 Conspiracy to distribute a controlled substance is a specific intent crime.

See United States v. Merriweather , 78 F.3d 1070, 1078 (6th Cir. 1996). A defendant is not guilty of a specific intent offens e if voluntary intoxication prevented the defendant from forming the requisite specific intent. See United States v. Sands , 968 F.2d 1058, 1064 (10th Cir. 1992); see also United States v. Boyles , 57 F.3d 535, 541 (7th Cir. 1995); United States v. Echeverry , 759 F.2d 1451, 1454 (9th Cir. 1985).

10 Jurors were given a voluntary intoxication instruct ion as to the possession with intent to distribute count. -26- Further, this court has held that when defendants are lawfully detained, consent for a dog sniff is not required. See Massie , 65 F.3d at 849 (holding consent not required for dog sniff during checkpoint stop when defendants were lawfully detained based on suspicious circumstances ). Even in the absence of Castaneda’s consent, therefore, the dog sniff was p ermissible as part of a brief investigation into suspicious circumstances observe d during the checkpoint stop. See id . Once the dog alerted, agents had probable cause to search the car, making Castaneda’s consent unnecessary for the search of the car’s interior and his continued detention during the search. See id

. The district court therefore did not err in denying Castaneda’s motion to
suppress. INTOXICATION INSTRUCTION Briseno-Mendez argues the district court erred by f ailing to instruct the jury that voluntary intoxication may negate the requisit e specific intent 9 for a conspiracy conviction. 10 “A defendant is entitled to correct instructions on-27-

defenses supported by sufficient evidence for a jury to find in [the] defendant’s favor.” United States v. Davis , 953 F.2d 1482, 1492 (10th Cir. 1992); see also United States v. Simmonds , 931 F.2d 685, 688-89 (10th Cir. 1991); United States v. Prazak, 623 F.2d 152, 154 (10th Cir. 1980). District cou rts, however, have substantial discretion in formulating jury instruct ions; this court’s review is confined to determining whether the instructions, c onsidered as a whole, sufficiently cover the issues presented by the evid ence and constitute correct statements of the law. See Davis , 953 F.2d at 1492. The evidence in the record is insufficient to neces sitate an intoxication instruction on the conspiracy count. To be entitle d to an intoxication instruction there must be evidence that a defendant’s intoxicat ion prevented him from forming the requisite intent required for a convict ion. See United States v. Boyles , 57 F.3d 535, 542 (7th Cir. 1995). “A bald statement that the defendant had been drink ing or was drunk is insufficient--insufficient not because it falls short of the quantum of evidence necessary, but because it is not eviden ce of the right thing. In order to merit an intoxication instructi on . . . the defendant must point to some evidence of mental impairment du e to the consumption of intoxicants sufficient to negate the existence of the [specific] intent[.]” Id. (alterations and ellipses in original) (quoting State v. Strege , 343 N.W.2d 100, 105 (Wis. 1984)).-28-

There is evidence that Briseno-Mendez drank during the trip and may have been either intoxicated or hungover at the time of his arrest. There is testimony that Briseno-Mendez and Castaneda drank beer the ev ening before they were arrested, as well as the day the trip was first dis cussed. Silva testified that Briseno-Mendez was a “drinker” and that he had a hangover at the checkpoint. At the time of his arrest, agents asked Briseno-Men dez only for biographical information, rather than conducting a full intervie w, due at least in part to agents’ concern that he was intoxicated. Agent Romero test ified that he smelled a strong odor of alcohol on Briseno-Mendez and that Briseno- Mendez told him that he had consumed approximately two quarts of beer during th e drive from El Paso to the checkpoint. Agent Romero, however, stated that he could not tell whether or not Briseno-Mendez was intoxicated or merely impaired. Agent Lugo described Briseno-Mendez as glassy-eyed. Agent Lugo, however , testified Briseno-Mendez appeared to understand his questions, did not have problems communicating, and did not have difficulty walking. Agent May did notrecall smelling alcohol on Briseno-Mendez and testified that Briseno-Mendez ha d no problem answering biographical questions. While this evidence was sufficient to show that Bri seno-Mendez was drinking, it does not warrant an intoxication instruction. The alleged conspiracy extended from September 10, 1995 to September 12, 1 995. During that time-29-

period, the defendants drove from Bell to El Paso, spent a night in El Paso, and began the return trip to California. Contrary to B riseno-Mendez’s contention on appeal, the evidence does not show Briseno-Mendez w as drinking “the entire time,” much less that he was so intoxicated during the three-day period as to be unable to form the requisite intent for a conspirac y conviction. At best, the evidence shows Briseno-Mendez drank the evening bef ore his arrest and was either drunk or had a hangover at the time of his a rrest. Even assuming that Briseno-Mendez had been drinking the previous eveni ng and was drunk at the time he was arrested, a voluntary intoxication inst ruction was not required because there was no evidence his intoxication created a mental impairment sufficient to negate the existence of specific inte nt. See id. (holding voluntary intoxication instruction not required when defendant, although inebriated at time of offense, failed to present evidence that his deg ree of inebriation made him incapable of forming requisite intent or resulted i n suspension of his power to reason); see also Prazak, 623 F.2d at 154 (“[T]here need be no instruction on a defendant’s theory of defense where there is no sup port therefor in the evidence or the law.”). The district court therefore did no t err in refusing BrisenoMendez’s request for a voluntary intoxication instruction on the conspiracy count.-30- SUFFICIENCY OF EVIDENCE Briseno-Mendez contends that the evidence was insuf ficient to sustain his conviction on both the possession and conspiracy co unts and Castaneda challenges the sufficiency of the evidence to suppo rt his conspiracy conviction. In determining the sufficiency of the evidence, thi s court reviews the recordde

novo and “ask[s] only whether, taking the evidence--both direct and circumstantial, together with the reasonable infere nces to be drawn therefrom--in the light most favorable to the government, a reaso nable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Owens , 70 F.3d 1118, 1126 (10th Cir. 1995) (internal quotations om itted). This court will not reverse a jury’s guilty verdict for insufficient ev idence unless “no reasonable juror could have reached the disputed verdict.” Id. (internal quotations omitted). To obtain a conviction for possession of narcotics with intent to distribute, the government must establish beyond a reasonable d oubt that the defendant (1) knowingly possessed the illegal drug and (2) ha d the specific intent to distribute it. See United States v. Carter , 130 F.3d 1432, 1440 (10th Cir. 1997). Possession may be actual or constructive. See id. at 1441. Constructive possession is established by evidence, either direc t or circumstantial, that the defendant “knowingly holds the power and ability to exercise dominion and-31-

control over the property.” Id. Constructive possession may be joint among several individuals. See id

. A conviction for conspiracy, in violation of 21 U.S .C. § 846, requires the jury to find, beyond a reasonable doubt, “(1) an ag reement 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. at 1439. An agreement constituting a conspiracy m ay be inferred “‘from the acts of the parties and other c ircumstantial evidence indicating concert of action for the accomplishment of a commo n purpose.’” Id. (quoting United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994)). Mere assoc iation with coconspirators or mere proximity to illegal ac tivity, while material and probative, are insufficient to support a conspiracyconviction. See United States v. Ivy , 83 F.3d 1266, 1285 (10th Cir. 1996); United States v. Jones , 44 F.3d 860, 865-66 (10th Cir. 1995); United States v. Riggins , 15 F.3d 992, 994 (10th Cir. 1994). Additionally, a defendant who aids and abets the co mmission of a crime is punishable as a principle. See 18 U.S.C. § 2(a). In order to establish guilt as an aider and abetter, the government must show that th e defendant willfully associated himself with the criminal venture and so ught to make the venture-32-

succeed through some act of his own. See United States v. Leos-Quijada , 107 F.3d 786, 794 (10th Cir. 1997). A. Sufficiency of Evidence to Convict Briseno-Mend ez Briseno-Mendez maintains that the only evidence pre sented by the government to establish he was in possession of the cocaine was his presence in the vehicle. Mere presence in a vehicle containing narcotics is insufficient to support a conviction for either possession of narco tics or conspiracy to possess narcotics. See Jones , 44 F.3d at 865-866, 869-70 (holding defendant’s p resence in vehicle containing cocaine coupled with evidence that she suspected illegal activity was insufficient to support possession andconspiracy convictions); see also United States v. Reece , 86 F.3d 994, 996-97 (10th Cir. 1996) (holding driver’s dominion over vehicle in which contraband was found and proximity to contraband was insufficient to support possession c onviction when there was more than one person who could be in possession of contraband); Riggins , 15 F.3d at 994 (holding that even if defendant knew he r mother and sister were hiding drugs in van, defendant’s presence in van wa s insufficient to support conspiracy conviction). In the instant case, however, the evidence showed m ore than BrisenoMendez’s mere presence in the vehicle. Briseno-Men dez accompanied Silva and Castaneda on a 800-mile trip from Bell to El Paso. The three defendants stayed in-33-

El Paso only one night before beginning the return trip to Bell. Agents found no toiletries in the car which would be consistent with a pleasure trip and defendants did not see any sights during their stay in El Paso , despite Castaneda’s and Silva’s claim that they just wanted to see what El Paso was like. The Bondo covering the trap door to the compartment where the cocaine was found was still fresh, indicating that the cocaine had been in the vehicle only a day or two, a time period which coincides with defendants’ three-day trip. While the modifications to the car were not necessa rily apparent from the outside, Agent May testified that the modifications were “very evident” from inside the car. Agents testified that the carpet c overing the trap door “appeared to be almost new.” Upholstery shop business cards anda toilet bowl deodorizer were recovered from the floorboard of the passengersear where Briseno-Mendez was sitting and the car was filled with the masking odor of coffee and deodorizers. Jurors could thus infer Briseno-Mende z was aware of the cocaine. Additionally, Wendy Farrier, the previous owner of the vehicle in which the cocaine was found, testified that while she was notcertain, Briseno-Mendez looked “familiar,” like one of the two men who was present during the purchase the vehicle. Farrier’s boyfriend, who was present during the sale, was not able to positively identify Briseno-Mendez, but testified that Briseno-Mendez’s and Castaneda’s age, height, weight, and national origi n fit the description of the two11 During cross examination, Castaneda testified that Briseno-Mendez did

not direct him to cross the border and that Briseno -Mendez did not know how to talk on the phone. In reviewing the sufficiency of evidence, however, this court accepts the jury’s resolution of conflicting eviden ce and its credibility assessments. See United States v. Owens , 70 F.3d 1118, 1126 (10th Cir. 1995). -34- men who had accompanied the purchaser of the vehicl e. Finally, while Castaneda’s testimony was internally inconsistent, Castaneda testified on direct examination that on the day he and Silva were drivi ng around near the border, Silva called Briseno-Mendez, who had stayed at the motel, and Briseno-Mendez instructed Silva to go into Mexico. 11 Castaneda also testified that either he or Briseno-Mendez were behind the wheel during the dri ve to El Paso. This evidence is sufficient to support an inference that Briseno-Mendez had joint constructive possession of the cocaine found in the vehicle or, in the alternative, that Briseno-Mendez willfully joined t he criminal venture and took actions to aid the possession of the cocaine. Briseno-Mendez also challenges the sufficiency of e vidence to support his conspiracy conviction. He argues that the only evi dence of his participation in the conspiracy was Castaneda’s testimony that Silvamade a phone call to him and that he instructed Silva and Castaneda to go across the border to Mexico. Briseno-Mendez contends that this testimony is insu fficient because it is inconsistent with other testimony by Castaneda and is it not supported by any of the other evidence presented at trial. Additionall y, Briseno-Mendez argues that-35-

because his status as an illegal alien ultimately l ed to the demise of the plan, interdependence is not present. These arguments la ck merit. The three defendants traveled 800 miles from Bell t o El Paso, spent only one night in El Paso before beginning the return tr ip to Bell, and were arrested when agents found cocaine in a freshly sealed hidde n compartment of their car. This evidence is sufficient to support an inference that Briseno-Mendez, Silva, and Castaneda agreed to possess cocaine with intentto distribute. The government introduced evidence that the alterations to the vehicle were “very evident” from inside the car. This evidence, along with Briseno-Mendez’s presence during the highly suspicious three-day tri p, is sufficient to support the conclusion that Briseno-Mendez had knowledge of the essential objectives of the conspiracy. Briseno-Mendez’s knowing and voluntary involvement could be inferred from his participation in the three-day trip to El Paso. The nature of the trip was such that jurors could reasonably infer the sole pu rpose of the trip was to acquire cocaine and that Briseno-Mendez’s involvement in th e trip was thus evidence of more than mere proximity to illegal activity. Addi tionally, jurors could infer Briseno-Mendez’s participation in the conspiracy fr om evidence that he was present when the car was purchased and from Castane da’s testimony that BrisenoMendez instructed Silva to go to Mexico. While Bri seno-Mendez argues that this-36-

evidence is not credible, when viewed in the light most favorable to the government and in conjunction with the other eviden ce presented at trial, it is sufficient to support a finding that Briseno-Mendez was knowingly and voluntarily involved in the conspiracy. Finally, the evidence is sufficient to support an i nference that the coconspirators were interdependent. This court rej ects Briseno-Mendez’s contention that there was no interdependence becaus e his status as an illegal alien led to the conspiracy’s demise. There is no eviden ce that the defendants knew they would pass through an immigration checkpoint. Furthermore, even if the defendants had known about the checkpoint, there is no evidence that they thought they would have problems getting through it . Jurors could infer from Castaneda’s initial lie about Briseno-Mendez’s citi zenship status and BrisenoMendez’s silence that the two were working togetherto bluff their way through the checkpoint. There is thus sufficient evidence to sustain Brisen o-Mendez’s possession and conspiracy convictions. B. Sufficiency of Evidence to Convict Castaneda Castaneda also challenges the sufficiency of eviden ce supporting his conspiracy conviction. He argues that because he w as acquitted on the possession count, his conviction for conspiracy “must be rever sed as it was essential to the-37-

conviction for conspiracy that Castaneda possess th e cocaine.” He further contends that the only evidence presented by the go vernment to support his conviction was his presence in the vehicle containi ng cocaine. This court need not address Castaneda’s argument th at his conviction for conspiracy was inconsistent with his acquittal on the possession count. “Consistency in the verdict is not necessary.” Dunn v. United States , 284 U.S. 390, 393 (1932); see also United States v. Powell , 469 U.S. 57, 62-64 (1984) (reaffirming rule established by Dunn ); United States v. Jaynes , 75 F.3d 1493, 1508-09 (10th Cir. 1996) (upholding conspiracy conv iction despite defendant’s acquittal of aiding and abetting substantive offens es). This court’s review is thus limited to determining whether there was sufficientevidence to support12 In a footnote of his brief, Castaneda argues that n o factual scenario would

support the inconsistent verdicts. He contends that the jurors did not believe he had knowledge of the cocaine and that they misunder stood the conspiracy instruction. He therefore requests this court grant him an opportunity to supplement the record and remand the case for an ev identiary hearing, including an examination of the jurors. In United States v. Powell , 469 U.S. 57 (1984), the Supreme Court rejected as “imprudent and unworkable , a rule that would allow defendants to challenge inconsistent verdicts on th e ground that in their case the verdict was not the product of lenity, but of some error that worked against them.” Id. at 66. The Court noted that “with few exceptions , once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury’s collective judgment. Courts have always res isted inquiring into a jury’s thought processes; through this deference the jury brings to the criminal process . . . an element of needed finality.” Id. at 67 (internal citations omitted). This court therefore denies Castaneda’s request for an e videntiary hearing. -38- Castaneda’s conspiracy conviction. 12 See Powell , 469 US. at 67; Jaynes , 75 F.3d
at 1509. Contrary to Castaneda’s assertions, there was ample evidence to support his conviction. Much of the evidence supporting Brisen o-Mendez’s conviction also supports Castaneda’s conviction. Like Briseno-Mend ez, Castaneda was a participant in a highly suspicious three-day trip. From evidence that the Bondo was still fresh, jurors could infer that the cocain e was placed in the vehicle during the trip. As discussed above, the evidence that th e modifications to the car were apparent from the inside is sufficient to support an inference that the passengers in the vehicle knew the cocaine was present. Furth ermore, Farrier’s boyfriend testified that Castaneda and Briseno-Mendez fit the description of two of the persons who were present when the vehicle was purch ased.-39-

In addition, checkpoint agents testified that Casta neda lied about his and Briseno-Mendez’s citizenship status; that Castanedaoriginally claimed he had borrowed the car from one of his girlfriends and ch anged his story after cocaine was found; and that Castaneda told them he had trav eled from Bell to El Paso, spending only one night in El Paso, just to get away from Bell and to see what El Paso was like. At trial, however, Castaneda testif ied to a different version of events. He claimed that the car had come from Silv a’s daughter; that he drove all night, completely exhausted, because Silva had offe red him an undisclosed amount of money; and that he never lied about his o r Briseno-Mendez’s citizenship status. Additionally, there were discr epancies between what Castaneda told agents he did while in El Paso and h is own testimony as to what he did during the trip. Significantly, Castaneda clai med for the first time at trial that he and Silva entered Mexico. His testimony regardi ng the alleged trip to Mexico was not supported by a 72-hour lane check and was i nternally inconsistent. The above evidence is sufficient to support a findi ng that Castaneda agreed with Silva and Briseno-Mendez to possess cocaine, that Castaneda had knowledge of the essential objectives of the conspiracy, thathe voluntarily participated in the conspiracy, and that the coconspirators were interd ependent. Viewed in the light most favorable to the government, the evidence supp orts an inference that Castaneda acquired the vehicle which was used to tr ansport the cocaine, either-40-

borrowing it from a friend or helping to purchase i t. There is also evidence that the modifications to the vehicle were apparent from inside the car; jurors could thus infer Castaneda had knowledge of the cocaine. Castaneda did most, if not all, of the driving and the explanation he offered for the 800-mile trip lacked credibility. Castaneda’s actions in acquiring the car, driving between Bell and El Paso, and trying to bluff defendants’ way through the checkpoint helped further the defendants’ common goal of possessing cocaine w ith the intent to distribute. There was thus sufficient evidence to support Castaneda’s conspiracy conviction.
SENTENCING GUIDELINES A. Minimal Participant Castaneda contends the district court erred in fail ing to find that he was a “minimal participant” in the conspiracy. He argues that by acquitting him of possession with intent to distribute cocaine, the j ury determined that he played a minimal role in the conspiracy. Section 3B1.2 of t he Sentencing Guidelines provides a four-level decrease in a defendant’s off ense level if the court finds the defendant was a “minimal participant” in the crimin al activity, a two-level decrease if it finds the defendant was a “minor participant,” and a three-level decrease if it finds the defendant was more than a minimal participant but less than a minor participant. See U.S.S.G. § 3B1.2. In determining whether a defendant is entitled to a reduction under § 3B1.2, courts examine the defendant’s-41-

culpability relative to that of other participants in the offense. See U.S.S.G. § 3B1.2 application notes 1, 3; see also United States v. Williamson , 53 F.3d 1500, 1524 (10th Cir. 1995). Castaneda bears the burden of establishing by a pre ponderance of the evidence that he is entitled to an offense level re duction under § 3B1.2. See Williamson , 53 F.3d at 1523. A district court’s decision that a defendant is not a minor or minimal participant in an offense is a fac tual finding which this court reviews only for clear error. See id . A factual finding is clearly erroneous if it is “without factual support in the record, or if afterreviewing the evidence we are left with the definite and firm conviction that a m istake has been made.” Id. (internal quotations omitted). Based on our review of the record, this court canno t say the district court’s finding that Castaneda was neither a minimal nor mi nor participant in the conspiracy was clearly erroneous. Castaneda’s acqu ittal on the possession count does not require this court to hold otherwise. Jur ors were asked to determine whether or not Castaneda was guilty of the offenses , not to determine his relative role in each offense. As a consequence, Castaneda’ s acquittal on the possession charge does not necessarily reflect upon his relati ve participation in the conspiracy. Nor does Castaneda’s denial of culpabi lity compel a finding that he was either a minor or minimal participant. As disc ussed above, there is-42-

substantial evidence that Castaneda was a knowing p articipant in the conspiracy and played a critical role in transporting a large amount of cocaine. Finally, even if the district court had found that Castaneda was recruited by Silva and Briseno-Mendez to act as a courier, it wo uld not be required to grant him an offense level reduction under § 3B1.2. Whil e commentary to § 3B1.2 suggests that a downward adjustment may be appropri ate “where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs,” U.S.S.G. § 3B1.2 application note 2, this court has firmly rejected the argument that a defendant’s status as a courier alone compels an offense level reduction under § 3B1.2. See United States v. Ballard, 16 F.3d 1110, 1115 (10th Cir. 1994) (“[T]his court has refu sed to adopt per se rule that couriers are minor or minimal participants.”); United States v. Carter , 971 F.2d 597, 600 (10th Cir. 1992) (discussing indispensable role couriers play); see also United States v. Montoya , 24 F.3d 1248, 1249 (10th Cir. 1994) (collecting c ases). Even if Castaneda was involved in the conspiracy so lely as a courier, there was sufficient evidence to support the district court’s conclusion that he was not a minor or minimal participant, especially in light o f the distance traveled and the quantity of cocaine found in the vehicle. The dist rict court therefore did not err in denying Castaneda a downward adjustment under § 3B1.2. B. Criminal History Category-43-

Finally, Castaneda argues that due to numerous subs tance abuse related convictions, his criminal history exaggerated his p ast criminal conduct and his need to be punished and that the district court the refore should have departed downward in sentencing him. This court lacks juris diction to review a district court’s discretionary decision not to depart downward absent evidence that the district court erroneously believed it lacked autho rity to depart. See United States v. Belt , 89 F.3d 710, 714-15 (10th Cir. 1996). “‘[U]nless the judge’s language unambiguously states that the judge does not believ e he has authority to downward depart, we will not review his decision.’” Id. (alteration in original) (quoting United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). There is no evidence that the district court did not beli eve it had discretion to depart downward in this case; we therefore do not have jur isdiction to review Castaneda’s claim.
CONCLUSION The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED

. Entered for the Court, Michael R. Murphy Circuit Judge