* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The Court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### MAR 26 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ROY SODER, a/k/a Howard Clark, a/k/a James Bilal Ali, Defendant - Appellant. No. 01-5040 (D.C. No. 99-CR-136-C) (N.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges.

James Roy Soder appeals his convictions for conspir acy to use identification documents to defraud, in violation o f 18 U.S.C. § 371, and for possession of identification documents, in violatio n of 18 U.S.C. § 1028(a)(3). The district court sentenced Soder to two concurrent twenty-one-month prison terms and two concurrent three-year supervised rele ase terms. The court also- 2 -

imposed a $1000 fine and a $200 Special Monetary As sessment. Soder contends that the district court erred in denying his motion for judgment of acquittal, in which he argued there was insufficient evidence to support his conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm. I On February 3, 1999, Soder and Renee Johnson obtain ed driver’s licenses in the names of Howard Clark and Corr Kellene Harri s from the same tag agency in Tulsa, Oklahoma. On February 4, Johnson and a f emale companion rented rooms 325 and 327 at the Fairfield Inn in Tulsa usi ng a fraudulent check in the name of Corr Kellene Harris. On February 5, a hous ekeeper at the Fairfield Inn discovered a large number of checks made out to var ious businesses and four birth certificates for four individuals with differ ent dates of birth in room 325. The housekeeper took the checks to her supervisor, who contacted the Tulsa Police Department and reported possible check fraud . Law enforcement officers arrived at the Fairfield Inn and set up surveillanc e. They noticed a U-Haul truck in the parking lot and upon investigation learned t hat it had been rented by Johnson using a fraudulent check under the name Corr Kellene Harris. Later that day Soder arrived at the Fairfield Inn i n a green pick-up truck, entered the U-Haul truck parked in the parking lot, and drove to a Maytag- 3 -

appliance store. Johnson arrived separately at the Maytag store in the green pickup truck. Detectives observed both Soder and Johns on enter the store. Johnson approached a clerk and prepared to purchase a washe r and dryer with a check on the account of Corr Kellene Harris. The clerk want ed to hold the check until it cleared, so Johnson offered to call her bank to ver ify the check. When she placed the call a detective observed Soder step outside of the store and answer his cell phone. Johnson was unable to obtain bank approval so the clerk offered to have the washer and dryer delivered the following Monday . Johnson was not interested in that arrangement so she took the check out of th e clerk’s hand and left the store, as did Soder. They returned to their respec tive vehicles and exited the parking lot. Soder and Johnson were pulled over by law enforceme nt officers and arrested. The arresting officers obtained the foll owing items from Johnson upon her arrest: a driver’s license in the name of CorrKellene Harris, a check payable to Maytag, and a receipt for the washer and dryer t hat Johnson had attempted to purchase. Officers also found receipts and additio nal fraudulent checks in the green pick-up truck. Upon Soder’s arrest, law enfo rcement officers discovered in his possession a driver’s license in the name of Ho ward Clark, a piece of paper1 The birth certificates discovered in room 325 of the Fairfield Inn were

issued by Ohio Vital Records.

2 During cross-examination of the officer that test ified to this fact, Soder’s lawyer suggested that the entry key was actually fo und in Johnson’s purse when she emptied its contents on a table at the Tulsa Po lice Department. The officer then admitted that he was not absolutely certain th at the entry key was found in Soder’s wallet. - 4 - with notations regarding Ohio Vital Records, 1 and an entry key for room 325 of the Fairfield Inn. 2 II In reviewing a motion for judgment of acquittal bas ed on sufficiency of the evidence, we review the evidence in the light most favorable to the government and decide if a rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Pretty , 98 F.3d 1213, 1217 (10th Cir. 1996). To prove conspiracy under 18 U.S.C. § 371, the gove rnment must prove “(1) an agreement; (2) to break the law; (3) an overt act; (4) the purpose of which is to further the object of the conspiracy; and (5) that the defendant entered the conspiracy wilfully.” United States v. Davis , 965 F.2d 804, 811–12 (10th Cir. 1992). Circumstantial evidence is sufficient to pr ove a conspiracy. Pretty , 98 F.3d at 1218. Soder argues there was insufficient evidence to dem onstrate an agreement between himself and Johnson to break the law. He c ontends the government has only established that he was present when Johnson c ommitted or attempted to- 5 -

commit check fraud. However, the government’s evid ence established more. There was evidence that Soder and Johnson obtained fraudulent driver’s licenses on the same day from the same tag agency, and that the driver’s license Johnson acquired was used to pass fraudulent checks. Law e nforcement officers found a note on Soder with notations regarding Ohio Vital R ecords, and birth certificates from Ohio Vital Records were found in Johnson’s hot el room. Finally, Soder was present at the Maytag appliance store when Johnson attempted to purchase a washer and dryer with a fraudulent check. The comb ination of circumstantial and direct evidence presented in this case could lead arational jury to conclude beyond a reasonable doubt that Soder and Johnson ag reed to work together to obtain goods with fraudulent checks, that they ente red the Maytag appliance store to purchase a washer and dryer with a fraudulent ch eck, and that Soder’s participation was wilful. The government also presented sufficient evidence f or a rational jury to find Soder guilty beyond a reasonable doubt of poss ession of identification documents in violation of 18 U.S.C. § 1028(a)(3) (p rohibiting knowing possession with intent to use unlawfully five or more false id entification documents). As the jury instructions noted, the jury could find Soder guilty of violating 18 U.S.C. § 1028(a)(3) if it found that Soder, either alone o r jointly, had actual or constructive possession of five or more identificat ion documents. See, e.g. ,- 6 -

United States v. Zink , 612 F.2d 511, 516 n.1 (10th Cir. 1980) (noting th at a jury instruction on actual or constructive possession th at was nearly identical to the one used in the present case is a “stock instructio n . . . which has been affirmed many times”). Constructive possession occurs when a person knowingly has the power and the intention to exercise dominion or con trol over an item either directly or through another person. Id. The evidence presented at trial showed that four bi rth certificates from Ohio Vital Records were found in room 325 of the Fa irfield Inn, which was rented by Johnson. Soder was seen at the FairfieldInn picking up the U-Haul truck and evidence was presented that law enforceme nt officers found in his possession an entry key for room 325 at the Fairfie ld Inn and a piece of paper with notations regarding Ohio Vital Records. Basedon this evidence the jury could reasonably have determined that Soder jointlypossessed the four birth certificates with Johnson. This, in addition to ev idence that Soder had a driver’s license in the name of Howard Clark and that he and Johnson had conspired to purchase goods with false checks, could lead a rati onal jury to conclude that Soder possessed, with intent to use unlawfully, fiv e false identification documents.- 7 -

We conclude that the trial court did not err in denying Soder’s motion for judgment of acquittal because there was sufficient evidence to support his convictions. III Accordingly, the judgment of the district court is AFFIRMED . The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge