UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ALEJANDRO LOPEZ, 

 Defendant - Appellant. 

No. 14-2192 

(D.C. No. 2:13-CR-02152-RB-1) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, GORSUCH, and McHUGH, Circuit Judges. 

_________________________________ 

A jury found Alejandro Lopez guilty of possession with intent to distribute 

500 grams or more of cocaine. He now contends there was insufficient evidence to 

support his conviction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. Factual Background 

A confidential informant advised agents from the Las Cruces Metro Narcotics 

Task Force (“Metro Narcotics”) and the Federal Bureau of Investigation (“FBI”) that 

 *

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

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 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 

October 27, 2015

Elisabeth A. Shumaker 

Clerk of Court

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the defendant’s brother, Eddy Lopez,1

 was willing to sell a kilogram of cocaine for 

$27,000. The confidential informant negotiated the price down to $22,000 and 

arranged a controlled buy, with Metro Narcotics Agent Ernesto DiMatteo posing as 

the buyer. Based on previous experience, the agents believed Eddy would be assisted 

by Alejandro and another individual named Angel Torres. The agents also believed 

that Torres was the source of the cocaine. 

On the day of the buy, Eddy agreed to meet the confidential informant at a 

park near Eddy’s house in Anthony, New Mexico. The agents conducting 

surveillance saw Torres drive to Eddy’s house. The two men spoke briefly, but the 

agents did not see any delivery take place. Torres then left Eddy’s house and drove 

slowly around the area, apparently checking for surveillance. A short time later, the 

agents saw Eddy walk from his house almost to the park. He did not appear to be 

carrying any packages, and his clothing would not have allowed him to conceal a 

package large enough to contain the quantity of cocaine for sale. 

Eddy returned to his house and waited outside until Alejandro picked him up 

in a silver Dodge truck. The brothers proceeded to the park and met the confidential 

informant. Eddy removed a package from the truck and put it in a gym bag on the 

back seat of the confidential informant’s car. Then Alejandro dropped Eddy at 

Eddy’s house and followed the confidential informant to Las Cruces, New Mexico, 

where the buyer was supposedly waiting with payment. 

 1

 Because the defendant and his brother share the same last name, we refer to 

the defendant as “Alejandro” or “Mr. Lopez” and to his brother as “Eddy.” 

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The police stopped and arrested Eddy, who had left his house and was driving 

with his wife, and found several pounds of marijuana in the trunk of Eddy’s car 

during a consensual search. The police also instigated a traffic stop and arrested 

Alejandro. No drugs or cash were found in his truck or on him. Meanwhile, Agent 

DiMatteo met the confidential informant and obtained the package that Eddy had 

placed on the back seat. The package, which had a hole in the top through which 

white powder was escaping, field-tested positive for cocaine and weighed 794 grams 

without packaging. 

The police took the brothers separately to the FBI’s office for processing and 

interrogation. According to the agents, Alejandro waived his Miranda rights and 

agreed to be interviewed. FBI Agent Bryan Acee conducted the interview, with some 

questioning by Agent DiMatteo. Agent Acee has been in law enforcement for 

fourteen years, has extensive training in drug trafficking, and has participated in 

thousands of drug investigations. Agent DiMatteo is a twenty-year veteran who has 

conducted several hundred investigations in narcotics cases. 

The interview was not recorded, but both agents testified about its substance 

and referred to their written reports as needed. At first, Alejandro denied any 

knowledge of illegal activity, but he eventually admitted to delivering the package to 

Eddy. Alejandro also admitted that (1) he picked up the drugs from a house that was 

identified as Torres’s house; (2) he originally thought the package contained 

marijuana but knew it contained cocaine when he saw white powder spilling out of 

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the hole in the packaging; (3) he knew he was supposed to pick up $22,000 in 

Las Cruces; and (4) Eddy was going to pay him $100 for his efforts. 

The grand jury indicted Alejandro, the trial court denied a motion for a 

judgment of acquittal under Fed. R. Crim. P. 29, and the jury convicted Alejandro of 

possession with intent to distribute 500 grams or more of cocaine in violation of 

21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The trial court sentenced him to 60 months in 

prison. 

II. Discussion 

On appeal, Mr. Lopez contends the evidence was insufficient to support the 

conviction because the government did not present evidence on where Eddy obtained 

the package or evidence that Alejandro directly or constructively possessed the 

cocaine. 

We review sufficiency-of-the-evidence challenges de novo. United States v. 

Camick, 796 F.3d 1206, 1213 (10th Cir. 2015). Our task is to “view[] the evidence in 

the light most favorable to the Government to determine whether any rational trier of 

fact could have found the defendant guilty of the crime beyond a reasonable doubt.” 

Id. at 1213–14 (internal quotation marks omitted). In doing so, we consider “the 

collective inferences to be drawn from the evidence as a whole.” United States v. 

Bader, 678 F.3d 858, 873 (10th Cir. 2012) (internal quotation marks omitted). “[W]e 

do not weigh conflicting evidence or consider witness credibility . . . .” Camick, 

796 F.3d at 1214 (internal quotation marks omitted). And we do not “second-guess 

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the fact-finding decisions of the jury.” United States v. Irving, 665 F.3d 1184, 1193 

(10th Cir. 2011) (internal quotation marks omitted). 

“[W]e must simply determine whether [the] evidence, if believed, would 

establish each element of the crime.” United States v. Delgado-Uribe, 363 F.3d 

1077, 1081 (10th Cir. 2004) (second alteration in original) (internal quotation marks 

omitted). To obtain a conviction for possession with intent to distribute, the 

government was required to prove beyond a reasonable doubt that Mr. Lopez 

“(1) possessed the controlled substance; (2) knew he possessed the controlled 

substance; and (3) intended to distribute or dispense the controlled substance.” 

Id. at 1084. “Possession of a controlled substance may be actual or constructive,” 

and “[c]onstructive possession may be established by circumstantial evidence and 

may be joint among several individuals.” Id. 

Viewed in the light most favorable to the government, the following evidence 

was sufficient to satisfy these elements: 

 Alejandro admitted during questioning that, as a favor to Eddy, he picked 

the drugs up from a house that matched the description of Torres’s house 

and transported the drugs to the park. Alejandro also identified Torres’s 

house on a map on the computer. 

 Former Metro Narcotics Agent Brian Johnston testified that he did not see 

Eddy carrying a package when he got into Alejandro’s truck and Eddy’s 

clothing would not have allowed him to conceal a package large enough to 

contain the quantity of cocaine for sale. He also testified that the brothers 

drove directly to the park, where Eddy took the package of cocaine from 

the truck and gave it to the confidential informant. Agent Acee provided 

expert testimony that it would be highly unlikely for Eddy to risk carrying 

the drugs in the neighborhood after he carefully planned the transaction. 

And Agent DiMatteo testified that he did not witness any kind of exchange 

when Eddy and Torres met before the controlled buy. A rational trier of 

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fact could infer from this testimony that Alejandro already had the drugs in 

his truck and thus in his possession when he picked up Eddy and went to 

the park to meet the confidential informant. 

 Alejandro admitted during questioning that he initially thought the package 

contained marijuana but later realized it contained cocaine when he saw 

white powder coming out of a hole in the packaging. 

 Alejandro accompanied Eddy to the controlled buy. 

 Alejandro admitted during questioning that he was driving to Las Cruces to 

pick up the payment for the drugs and knew the amount due was $22,000. 

 Alejandro admitted during questioning that Eddy was going to pay him 

$100 for his efforts. 

 Agent Acee provided expert testimony that it would be highly unlikely for 

Eddy and Torres to allow Alejandro to be present at the actual exchange 

with the confidential informant, to follow the informant to receive payment, 

and to bring back the money if Alejandro was not familiar with the nature 

of the transaction—particularly since Eddy and Torres appeared to be 

cautious and careful. Agent Acee further testified that the facilitator of a 

drug transaction usually has a very active role, and issues might arise as to 

quality and payment in the first transaction between parties. For instance, 

the buyer might want to inspect or evaluate the drugs, in which case 

Alejandro would need to be knowledgeable. 

 Alejandro changed his story during questioning. He initially stated he was 

going to Las Cruces to “scout out a construction job” and to “meet a guy.” 

Aplt. Corrected App. at 147. But when asked who he was meeting, 

Alejandro said he “was following a guy.” Id. And after finding out his 

brother was also under arrest, Alejandro admitted he agreed to help Eddy 

with the deal, picked up the package from Torres’s house, and brought it to 

the park. “False exculpatory statements made by a defendant are 

admissible to prove consciousness of guilt and unlawful intent.” United 

States v. Tager, 481 F.2d 97, 100 (10th Cir. 1973). 

Mr. Lopez admits the government presented this evidence but makes a conclusory 

statement that the evidence was not sufficient to prove possession. We are not 

persuaded. 

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III. Conclusion 

This court will reverse only when “no rational trier of fact could have reached 

the disputed verdict.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 

(10th Cir. 2004) (internal quotation marks omitted). Taking the evidence presented 

at Mr. Lopez’s trial, as well as all reasonable inferences therefrom, in the light most 

favorable to the government, a rational trier of fact could conclude that Mr. Lopez 

possessed the cocaine during the controlled buy, knew it was cocaine, and intended to 

distribute it. We therefore affirm his conviction. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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