FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

MAY 20 2005 

PATRICK FISHER 

Clerk 

UNITED ST ATES OF AMERICA, 

Plaintiff - Appellee, 

V. No. 04-2139 

JAIME ENRIQUEZ, 

(D. New Mexico) 

(D.Ct. No. CR-00-1610-LH) 

Defendant - Appellant. 

ORDER AND JUDGMENT* 

Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34. l.9(G). The case is 

therefore ordered submitted without oral argument. 

Defendant Jaime Enriquez appeals his conviction for conspiracy to 

distribute 100 kilograms and more of marijuana in violation of 21 U .S.C. § 846, 

• This order and judgment is not binding precedent except under the doctrines of 

law of the case, res judicata and collateral estoppel. The court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 36.3. 

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claiming the jury's verdict is not supported by sufficient evidence. We exercise 

jurisdiction under 28 U.S.C. ~ 1291 and affirm. 

I. Background 

Agent Israel Barrera worked as an undercover narcotics officer for the 

Border Operations Task Force of the Bureau of Immigration and Customs 

Enforcement in New Mexico. In February 2000, a confidential informant 

contacted Barrera and told him a person named Memmo Anaya was looking for 

assistance in smuggling marijuana from Mexico to New Mexico. On March 3, 

2000, the informant told Barrera that Anaya had a load of marijuana he wanted to 

move between March 5 and March 7. On March 7, 2000, Barrera met with the 

informant and Anaya, guised as a local sheriff, at a truck stop in Roadforks, New 

Mexico, to discuss transporting the marijuana through a remote desert area of 

southwestern New Mexico known as the "booth eel" and into Arizona. Barrera 

agreed to escort the load through the bootheel and to provide a diversion if the 

driver encountered law enforcement. 

On March 8, 2000, the informant called Barrera telling him to meet the 

informant and Anaya at the truck stop in Roadforks. While meeting with them, 

Barrera saw two men arrive in a red pickup truck, 1 one of whom was later 

identified as Enriquez. Anaya spoke with the men and then instructed Barrera to 

'This was not the same truck eventually used to transport the marijuana. 

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show them his badge as proof he was really a pol ice officer. As the men left, 

Anaya told Barrera that the two men were happy with Anaya and would allow him 

to lead the operation. Anaya then told Barrera the deli very would be made the 

next day, March 9, 2000. 

In the meantime, Leticia Torres-Drewel (Torres), a resident of Benson, 

Arizona, contacted a relative in Mexico to procure money for an eye operation for 

her mother. She was told she could earn money if she would drive a truck with 

fence making supplies from New Mexico to Arizona. She agreed to do it and was 

instructed to be in Douglas, Arizona, on March 9, 2000, and to wait at a 

convenience store for a relative's friend who would bring the truck. Torres 

informed her relative she would be driving a white convertible Chrysler Le Baron. 

Torres followed her relative's instructions and, with her mother, waited at 

the convenience store. As planned, two men arrived in a red pickup truck with a 

gooseneck trailer. One of the men told her to follow them to the Motor Vehicle 

Department to register the trailer. At trial, Torres tenuously identified one of the 

men as Enriquez. It is uncontested that on March 9, Enriquez registered the 

trailer in his own name and received a temporary tag. The men then told Torres 

and her mother to follow them toward Rodeo, New Mexico. Once there, the 

women exchanged vehicles with the men. Torres was instructed to drive the truck 

and trailer to a cafe in Animas, New Mexico, while the men drove Torres' Le 

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Baron to Roadforks. 

When Barrera arrived at Roadforks on March 9, he saw Anaya talking with 

Enriquez, who was leaning on the Le Baron in the parking lot. Anaya then told 

Barrera that the truck and trailer were in Animas, located in the middle of the 

bootheel, and they were to meet the drivers there. Anaya, Barrera and the 

informant, who was also at Roadforks, drove to Animas where Torres and her 

mother were waiting in the truck. Anaya asked Barrera to assist the women in 

locating the backpackers bringing in the shipment because they did not know the 

area. Barrera agreed. However, when the three were unable to find the correct 

location for the delivery in the bootheel 's back country, they headed back to 

Animas where they met with Anaya and the informant. Torres and her mother 

then drove the truck to Roadforks and checked in at the motel. Barrera, Anaya 

and the informant also drove back to Roadforks. 

When Barrera arrived in Roadforks, Anaya told Barrera to go inside the 

truck stop and wait. While inside, the informant told Barrera that Anaya was 

meeting with "the bosses" in the parking lot. Looking out a window from the 

game room, Barrera saw Anaya speaking with Enriquez and two other men in a 

si her car. Anaya finished speaking with the men and came into the game room. 

Anaya asked Barrera if he would be willing to attempt the pickup the next day. 

Barrera agreed but told Anaya that the two women driving the truck looked 

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suspicious and that he would rather do the pickup alone. Anaya agreed to pay 

Barrera an extra $2,000.00 to drive the truck to the pickup location and return to 

Roadforks. That night, Enriquez also checked in at the motel in Roadforks. 

Barrera returned to Roadforks the next morning and took the truck and 

trailer to Animas by himself. Anaya and the informant traveled in another car. 

Meanwhile, Torres and her mother waited at the Roadforks restaurant. In 

Animas, Barrera received speci fie direction from Anaya about where to meet the 

backpackers moving the marijuana. Barrera eventually found the correct location 

and watched while the backpackers loaded the marijuana in a hidden compartment 

in the bottom of the trailer. Barrera then returned to Animas where he followed 

Anaya and the informant back to Roadforks. Barrera was dismissed and Torres 

and her mother drove the truck and trailer onto the freeway. As Barrera was 

backing his car out of his parking space, he saw Enriquez walk out of the truck 

stop and towards the Le Baron. However, Barrera did not actually see Enriquez 

enter the car. 

Torres understood the Le Baron would follow her to Tucson, Arizona, and 

that it would then pull in front and show her where to drop the truck and trailer. 

Throughout these activities, narcotics agents remained in contact with Barrera. 

After learning that Barrera had delivered the truck and loaded trailer, surveillance 

agents followed the truck and observed the Le Baron maintaining a position 

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behind them. Eventually, Arizona law enforcement agents stopped the truck for a 

traffic violation. Torres consented to a search and the marijuana was discovered 

in the trailer's hidden compartment. A few days later, Torres, who had been 

released from custody, recovered her Le Baron at her uncle's house in Mexico. 

On December 22, 2000, Enriquez and Torres 2 were charged in a two count 

indictment with conspiracy to possess with intent to distribute more than 100 

kilograms and more of marijuana (Count I) and possession with intent to 

distribute I 00 kilograms and more of marijuana (Count II). Enriquez' case was 

tried before a jury on January 20-22, 2004. On January 21, at the close of the 

government's case, Enriquez moved for a judgment of acquittal under Rule 29 of 

the Federal Rules of Criminal Procedure. The court took the motion under 

advisement and reserved ruling. The defense presented its case, calling Enriquez 

as a witness. 

On January 22, 2004, the jury returned a guilty verdict on Count Oneconspiracy-but was unable to reach a unanimous verdict on Count Twopossession. The parties agreed to a partial verdict and on June I, 2004, the court 

declared a mistrial as to Count II, reserving the right of the government to re-try 

Enriquez on Count II. On the same day the court also issued a Memorandum 

2

Torres entered a plea of guilty on August 11, 2003, and testified for the 

government at trial. 

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Opinion and Order denying Enriquez' motion for judgment of acquittal and 

sentenced him to sixty three months imprisonment. Enriquez now appeals his 

conviction claiming the government presented insufficient evidence to support a 

finding of guilt beyond a reasonable doubt. 

II. Discussion 

"We review the record de novo when reviewing both the sufficiency of the 

evidence to support a conviction and the denial of a motion for judgment of 

acquittal." United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 

2004); United States v. Vallo, 238 F.3d 1242, 1246-47 (10th Cir. 2001). We 

view the evidence in the light most favorable to the government. United States , .. 

Owen, 15 F.3d 1528, 1532 (10th Cir. 1994 ). We do not weigh conflicting 

evidence or evaluate witness credibility; these are the exclusive province of the 

jury. United States v. Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). 

Thus, "viewing the evidence in the light most favorable to the Government," we 

must determine whether "any rational trier of fact could have found the defendant 

guilty of the crime beyond a reasonable doubt." Delgado-Uribe, 363 F .3d at 1081 

( internal quotation omitted). 

If the court denies a defendant's motion for judgment of acquittal at the end 

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of the government's case-in chicf,1 the defendant may rest his case or proceed and 

present his evidence. Id. at I 082. "If a defendant chooses to rest his case, our 

review of the record is necessarily limited to evidence produced during the 

Government's case-in-chief alone." Id. If he "chooses to present additional 

evidence, however, [he] waives the right to have the sufficiency of the evidence 

tested by the government's case alone and we review the entire record on appeal." 

Id., quoting United States v. Bowie, 892 F.2d 1494, 1496 ( I 0th Cir.1990). See 

also United States v. Lazcano- Villalobos, 175 F.3d 838, 844 n.3 ( I 0th Cir.1999). 

Because Enriquez chose to present evidence, we review the entire record to 

"determine whether the evidence and all reasonable inferences drawn therefrom 

could allow a reasonable jury to find [Enriquez] guilty beyond a reasonable 

doubt." United States v. !vfunro, 394 F.3d 865, 869 (10th Cir.), cert. denied, 

U.S. , 2005 WL 717191 (2005). 

The elements of conspiracy are well-settled. Under 21 U.S.C. § 846, "[t]he 

government must prove beyond a reasonable doubt: ( 1) an agreement with 

.iRule 29(a) of the Federal Rules of Criminal Procedure provides: 

After the government closes its evidence or after the close of all the 

evidence, the court on the defendant's motion must enter a judgment of 

acquittal of any offense for which the evidence is insufficient to sustain a 

conviction. The court may on its own consider whether the evidence is 

insufficient to sustain a conviction. If the court denies a motion for a 

judgment of acquittal at the close of the government's evidence, the 

defendant may offer evidence without having reserved the right to do so. 

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another person to violate the law, (2) knowledge of the essential objectives of the 

conspiracy, (3) knowing and voluntary involvement, and (4) interdependence 

among the alleged conspirators." United States v. Do::.al, 173 F.3d 787, 797 ( 10th 

Cir. 1999) ( internal quotations omitted). Enriquez argues the government failed 

to present sufficient evidence establishing an agreement to transport marijuana 

between him and any other person. In support, he relies on the fact that there was 

no witness who testified at trial as to the existence of an agreement between 

Enriquez and any other co-conspirator. We are not persuaded. 

An agreement may be inferred from circumstantial evidence that indicates 

concerted action. United States v. Jones, 44 F .3d 860, 865 ( I 0th Cir. 1995 ). To 

be reasonable, however, the inference of an agreement must be more than mere 

speculation or conjecture. Id. In reviewing the inferences supporting the jury's 

verdict, we may consider, inter alia: ( 1) a defendant's presence at the crime scene; 

(2) a defendant's association with co-conspirators; (3) evidence of conflicting 

stories; (4) active attempts to divert officers' attention from a stopped vehicle; (5) 

participation in drug transactions; or (6) knowledge of and control over drugs. 

See id. at 868-69. Any single factor, standing alone, may be insufficient to 

support an inference of a conspiracy. See United States v. Riggins, 15 F.3d 992, 

994 (10th Cir. 1994 ). A direct correlation exists, however, between the number 

of circumstantial facts and the existence of a conspiracy. See Jones, 44 F.3d at 

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868-69. 

111. Conclusion 

The evidence sufficiently establishes a reasonable inference of Enriquez' 

involvement in the conspiracy. He was certainly present at the crime scene. He 

arrived the day before the truck and trailer appeared, meeting with Anaya (the 

admitted organizer of the smuggling scheme) in the parking lot at Road forks. 

Barrera testified he flashed his badge to Enriquez. The next day Enriquez 

appeared in Douglas, Arizona, with a trailer equipped with a hidden compartment, 

registered the trailer in his name, had the women follow him, and then traded 

vehicles with directions for them to drive to the Animas cafe~the place where 

the women eventually meet with Barrera to search for the marijuana. Thereafter, 

Enriquez remained at the scene, driving Torres' Le Baron to Road forks where 

Barrera again saw him, this time in conference with the "bosses." (Tr. at 46.) 

Enriquez checked in at the motel, stayed the night and did not leave until Barrera 

returned with the loaded trailer. Barrera saw Enriquez walk toward the Le Baron 

after the delivery, and only then did Enriquez vanish. A reasonable juror could 

conclude that Enriquez' control and registration of the trailer, his continued 

presence throughout the three days' activities and his meetings with the other 

smugglers at critical times sufficiently establish beyond a reasonable doubt his 

agreement with the others, his knowledge of the objective, his voluntary 

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participation in the illegal activity and an interdependence between the 

conspirators. Enriquez' conviction is AFFIRMED. 

Entered by the Court: 

Terrence L. O'Brien 

United States Circuit Judge 

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