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

### DEC 17 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DAVID VALADEZ-GALLEGOS, Defendant-Appellant. No. 98-2017

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-97-84-2-JC)
David N. Williams (John J. Kelly, United States Att orney; Charles L. Barth, Assistant United States Attorney, on the brief), As sistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee. Todd B. Hotchkiss of Frechette & Associates, Albuqu erque, New Mexico, (Peter J. Giovannini, Las Cruces, New Mexico, on the brief s), for Defendant-Appellant.

Before SEYMOUR, PORFILIO and BRORBY , Circuit Judges.

BRORBY , Circuit Judge.

Defendant-Appellant David Valadez-Gallegos appeals his jury conviction-2-

on one count of violating 21 U.S.C. § 841(d)(2), fo r knowingly and intentionally possessing a listed chemical knowing or having reas onable cause to believe the listed chemical would be used to manufacture methamphetamine. Mr. ValadezGallegos argues (1) insufficient evidence supports the jury verdict and the trial court’s denial of his motion for acquittal, and (2) the trial court improperly admitted prejudicial evidence concerning a prior ar rest. We exercise jurisdiction under 28 U.S.C. § 1291 and, for the reasons set forth below, reverse on grounds the evidence is insufficient to support Mr. Valadez -Gallegos’ conviction.

FACTUAL BACKGROUND Around midnight on January 17, 1997, New Mexico State Police Officer Urbie Johnston stopped a vehicle after radar showedit going substantially slower than the speed limit, and weaving and straddling th e white shoulder line. The vehicle – a late 1980's model white Chevy pickup wi th a camper shell – contained the driver, Horacio Marquez-Munoz, and a front cab passenger, Mr. ValadezGallegos. On request, Mr. Marquez-Munoz produced h is license and registration, showing the vehicle registered to Jose Vasquez of M odesto, California. During his conversation with Officer Johnston, Mr. Marquez -Munoz seemed very preoccupied, and displayed a shaky voice and trembl ing hands. He advised Officer Johnston he was going to Modesto, Californi a.-3-

While conversing with Mr. Marquez-Munoz, Officer Jo hnston noticed Mr. Valadez-Gallegos sitting stiffly and straight up, l ooking straight ahead, and avoiding eye contact. Officer Johnston next questi oned Mr. Valadez-Gallegos, who spoke Spanish and some English. Mr. Valadez-Ga llegos gritted his teeth and appeared irritated and evasive. He told Officer Jo hnston he was heading back to Modesto after spending two or three days in El Paso visiting the driver’s aunt. He did not know the driver’s name. Similarly, the dri ver told Officer Johnston he did not know Mr. Valadez-Gallegos’ name – only his nickname “Guero.”

New Mexico State Police Officer Landis Hartranft an d United States Border Patrol Agent Steve Rose arrived at the scene while Officer Johnston was questioning Mr. Valadez-Gallegos. Agent Rose assis ted in translating. Mr. Valadez-Gallegos reiterated he was heading to Modes to from El Paso, and again explained he: (a) did not know the driver’s name, but he had known him for three or four months; (b) did not know who owned the vehi cle, but said it belonged to a friend of the driver; and (c) did not know the name of the driver’s aunt, but he stayed at her house in El Paso.

Both Mr. Valadez-Gallegos and Mr. Marquez-Munoz granted permission for a search of the truck. Inside the truck’s cab, officers found a roll of black,-4-

sticky tape, which Officer Johnston thought uncommo n but had seen in some “work trucks.” The officers also found a New Mexic o state police speeding citation issued two days before to Mr. Marquez-Muno z on Interstate 40, eastbound, near Tucumcari, New Mexico. Officer Joh nston noted that Tucumcari is not on a direct route between Modesto, Californi a and El Paso, Texas.

During the search, Officer Johnston lifted the camp er door and immediately detected an overwhelming odor of fabric softener. Examination of the camper showed only a sleeping bag, pillow, large blanket, suitcase, and “odds and ends.” Officer Johnston next deployed his narcotics dog, N ero, who “reacted” to the camper shell and, when directed inside, stuck his n ose to the ceiling and its light. Officer Johnston removed the light and inserted a d rill bit, producing a white piece of cloth smelling of fabric softener. Becaus e of the presence of fabric softener, Officer Johnston decided to investigate f urther. However, because of the severe cold and wind, the officers removed the vehicle and its occupants to a nearby border patrol station for everyone’s safety.

On re-examination of the camper, it appeared a hidd en compartment existed in the ceiling, with black sticky tape, similar to that previously found in the cab, stuck along the ceiling and seams where the roof an d sides meet. The screws also-5-

appeared to be worn, and removed and replaced sever al times. On removing the screws and ceiling cover, the officers discovered m any one-gallon plastic freezer bags lining the entire width and length of the camp er top. The bags contained either a white powdery substance, a rolled-up cooki e dough-like substance, or little white pills. They also recovered hundreds o f fabric softener sheets over and inside the plastic bags. Tests later revealed the substances in the bags contained varying strengths or percentages of psuedoephenedri ne hydrochloride – referred to as “ephedrine.” Ephedrine is used to manufactur e methamphetamine, perfume, or over-the-counter drugs. Drug Enforcement Admini stration agents found no latent fingerprints on the bags.

Further inspection of the cab revealed a road map o f the United States marked with annotations for time and distances betw een locations, and a lipstick smudge. Although no annotation appeared near El Pa so, some of the circled locations on the map included Needles, California; Tucumcari, New Mexico; and Amarillo, Texas – all high narcotic interdiction ar eas. The cab contained no guns, knives, beepers, cell phones, or large amounts of c ash – items commonly associated with drug trafficking. The cab emitted no odor of fabric softener sheets, and until removal of the camper ceiling, th ey emitted no odor outside the shell.-6-

After completing their search and field testing the substances, the officers arrested Mr. Marquez-Munoz and Mr. Valadez-Gallegos for possession of controlled substances. Mr. Gonzalo Cordova, coordi nator for the Southwestern New Mexico Narcotics Task Force, interviewed Mr. Va ladez-Gallegos in Spanish while in custody. Mr. Valadez-Gallegos repeated he lived in Modesto, California, and met the driver only four or five months before in a Modesto bar, knowing him only by his nickname, “El Flaco.” Mr. Valadez-Gall egos told Officer Cordova that Mr. Marquez-Munoz invited him to go along whil e Mr. Marquez-Munoz transported his aunt to El Paso. They left Modesto on Tuesday, arriving in El Paso on Thursday.

Mr. Valadez-Gallegos acknowledged he and Mr. Marque z-Munoz received the traffic citation near Tucumcari but said they d rove a northern route because of bad weather to the south. However, the officers no ted the weather to the south had been no worse than that in the northern part of the state. When Agent Cordova questioned Mr. Valadez-Gallegos about the $ 200 the officers seized from him, Mr. Valadez-Gallegos explained he left Ca lifornia with $600, but in the two days of travel, spent $400 on gas and food.

Mr. Valadez-Gallegos said they made no significant stops nor did any sight--7-

seeing along the way, other than staying at Mr. Mar quez-Munoz’s aunt’s house in El Paso on Thursday and Friday, where he spent mostof the time sleeping. During this time, he had no knowledge of the vehicl e leaving the residence, but could not explain how the contraband got in the camper.

According to Mr. Valadez-Gallegos, the aunt travele d in the camper. However, the camper contained no women’s clothing o r articles. When advised the speeding citation showed no other person accomp anied them, Mr. ValadezGallegos recanted, stating Mr. Marquez-Munoz told h im to say the aunt traveled with them to El Paso. Later, on being told of Mr. Valadez-Gallegos’ statement, Mr. Marquez-Munoz appeared angry, denied he gave th ose instructions, and wanted to confront Mr. Valadez-Gallegos.

The next interview occurred at the task force headq uarters in Deming, New Mexico. While Drug Enforcement Administration Agent Luis Medina took biographical information from Mr. Valadez-Gallegos and Mr. Marquez-Munoz, Agent Richard Sanders advised them that some of the substance field tested positive for heroin. On hearing this, Mr. Marquez- Munoz immediately turned to Mr. Valadez-Gallegos and, in Spanish, stated “I did n’t know this was heroin.” Mr. Valadez-Gallegos did not reply.-8-

After receiving a Miranda warning in Spanish, Mr. V aladez-Gallegos agreed to a third interview, conducted in Spanish b y Agents Medina, Sanders and Cordova. Mr. Valadez-Gallegos repeated he met Mr. Marquez-Munoz at a bar in California only four or five months before. He acc ompanied Mr. Marquez-Munoz because he had never visited the area and felt it agood time to go. This time, instead of leaving Modesto on Tuesday, he said theyleft on Wednesday at 4:00 p.m., drove all night, and arrived in El Paso on Th ursday. Instead of staying at the aunt’s as he previously stated, he said they st ayed in a mobile home in central El Paso, but he received no introduction to its occ upants. According to Mr. Valadez-Gallegos, they did not bring Mr. Marquez-Mu noz’s aunt to El Paso because she changed her mind and decided not to mak e the trip. Mr. ValadezGallegos said they left El Paso on Friday, heading west on I-10.

Agent Cordova also interviewed the driver, Mr. Marq uez-Munoz, whose story varied substantially from Mr. Valadez-Gallego s’. Mr. Marquez-Munoz indicated they drove the northern route to El Paso because he did not know the road – not due to bad weather. They traveled to El Paso, not to transport his aunt but to look for her. Since they could not find her , they stayed overnight at a rest stop in El Paso.-9-

On February 4, 1997, Agent Medina conducted a fourth interview with Mr. Valadez-Gallegos, who wanted to provide informationto assist in the investigation. Mr. Valadez-Gallegos again changed his story, saying they made four stops during the trip from Modesto to El Paso and stayed at a truck stop in El Paso, not a trailer. He did not know the truck sto p’s location. Because they could not find the aunt’s residence in El Paso, they head ed back towards Modesto. When specifically asked, Mr. Valadez-Gallegos gave no indication that he knew the ephedrine’s final destination. When asked whet her there were other people involved, Mr. Valadez-Gallegos indicated there were , but he stated he did not know their names. He said the pickup never left hi s sight during the trip but he failed to respond when asked how the ephedrine got in the camper.

At trial, Officer Johnston testified that during th e entire stop and search, Mr. Marquez-Munoz showed signs of extreme nervousne ss, including vomiting several times, shaky legs, acting antsy and not sitting still, defecating, urinating at least two times, and lighting up several cigarettes . Mr. Valadez-Gallegos, however, showed no signs of nervous behavior. He a lso testified Mr. ValadezGallegos sat the same way during the trial as he sat the night of the arrest – stiffly and straight up, avoiding eye contact – which Offic er Johnston admitted may be normal for him. Although Mr. Valadez-Gallegos gritted his teeth and appeared1 Although arrested, Mr. Valadez-Gallegos was neverprosecuted.

-10- irritated and evasive during his initial interview, Officer Johnston acknowledged this behavior or appearance may have resulted from Officer Johnston’s limited ability to speak Spanish. He testified it is not u nusual for vacationers to carry a road map in the vehicle with markings, including mi leage and time scheduling. Officers Johnston and Hartranft also testified thatnothing in the vehicle, nor their investigation, directly connected Mr. Valadez-Galle gos to the ephedrine found in the truck.

PROCEDURAL BACKGROUND Prior to trial, the government filed a notice of cr imes, wrongs or acts, pursuant to Fed. R. Evid. 404(b), indicating its in tent to use evidence of Mr. Valadez-Gallegos’ prior Oklahoma arrest, 1 five months earlier, for possession of pseudoephedrine to show his knowledge and intent. When arrested in Oklahoma, Mr. Valadez-Gallegos was a passenger in another veh icle containing ephedrine. Mr. Valadez-Gallegos filed a motion in limine in op position. The court ruled the evidence could not “be offered in the case in chief unless the defense develops a theory and paints a picture that Mr. Valadez knows nothing about psuedoephedrine and has no idea what that is.”-11-

At trial, the prosecutor attempted to introduce evi dence of the prior arrest by asking Agent Medina whether Mr. Valadez-Gallegos told him “about being stopped previously for suspected cocaine.” A. No, sir, he did not. Q. Did he tell you what Mr. Villa Senor had stated about that stop? A. Yes, sir. Q. And was it cocaine? Before the witness answered, the trial court interr upted and requested a bench conference. The prosecutor asked the court to perm it the testimony because of its similarity to the present arrest, and offered the e vidence as a “statement against interest” because the defense, through cross-examin ation of witnesses, was attempting to show nothing connected Mr. Valadez-Ga llegos with the drugs found in the vehicle. Defense counsel objected, claimed the testimony “tainted” the jury, and requested a mistrial. The trial court de nied the motion for a mistrial, ruled the witness could not be asked any more quest ions concerning the prior arrest, and allowed the prosecution to reserve suchquestioning for its last two witnesses. The judge then instructed the jury to d isregard the questions and answers relating to Mr. Villa Senor.

Prior to calling its last two witnesses, the prosec ution again requested-12-

permission to present Rule 404(b) testimony on Mr. Valadez-Gallegos’ prior arrest, to show “knowledge, intent, and ... pattern .” Defense counsel objected to the proposed evidence as extremely and unduly preju dicial. A lengthy colloquy ensued, after which the trial court granted the pro secution’s request but limited the evidence to discussion of a stop, not an “arres t”; where the stop occurred; the origin and route of the trip; and the fact “a large quantity of psuedoephedrine was found with Mr. Valadez-Gallegos being a passenger i n the vehicle.” The trial court gave the jury a cautioning instruction prior to any further testimony being presented.

The prosecution then called Oklahoma Highway Patrol man Mark Nelson, who testified that on August 15, 1996, he stopped ablue Dodge pickup truck, traveling from Dallas, Texas, to Modesto, Californi a, and containing the driver, Samuel Villa Senor, and a passenger, Mr. Valadez-Ga llegos. Officer Nelson smelled an odor similar to fabric softener sheets, but called for assistance due to his inability to speak Spanish.

Oklahoma Bureau of Narcotics Agent Frank Maldonado then testified he spoke in Spanish with Mr. Valadez-Gallegos, who was traveling from Modesto to Dallas and then to Houston, on vacation. Mr. Valad ez-Gallegos told Agent-13-

Maldonado that he and Mr. Villa Senor slept in a mo tel in Dallas one night and a motel in Houston the next night, where he swam in t he pool. He said he and Mr. Villa Senor borrowed the truck for the trip. When the officers removed certain “objects” from the vehicle, Mr. Valadez-Gallegos as ked if they “were going to make sure of what that was.” Neither officer testi fied that the “objects” removed from the vehicle contained ephedrine. The trial co urt instructed the jury about the limited “knowledge or intent” purposes of Fed. R. E vid. 404(b) evidence.

At the close of the government’s case, Mr. Valadez- Gallegos moved for judgment of acquittal under Fed. R. Crim. P. 29(a), arguing insufficient evidence existed to show the knowledge or intent required to commit the crime charged. The judge deferred a decision on the motion until a fter the jury rendered a verdict.

The judge provided, in relevant part, the following jury instructions: (1) the government must prove Mr. Valadez-Gallegos guil ty beyond a reasonable doubt; (2) the government must prove beyond a reaso nable doubt that (a) Mr. Valadez-Gallegos knowingly possessed a listed chemi cal, (b) the listed chemical was pseudoephedrine, and (c) Mr. Valadez-Gallegos p ossessed the listed chemical with intent to manufacture methamphetamine, or know ing, or having reasonable2Under Fed. R. Crim. P. 29(b), the trial court may reserve a decision on a

motion for judgment on acquittal on one or more cha rges until after the jury returns its verdict. Here, Mr. Valadez-Gallegos so ught acquittal of conviction under both 21 U.S.C. § 841(d)(1) and (d)(2), prior to the jury’s verdict, and the court reserved its decision. Because the jury conv icted Mr. Valadez-Gallegos -14- cause to believe, the pseudoephedrine would be usedto manufacture methamphetamine; and (3) the law recognizes two kin ds of possession – (a) actual possession in which the person knowingly has directphysical control over a thing at a given time, and (b) constructive possession, i n which the person, although not in actual possession, knowingly has both the power and intention, at a given time, to exercise dominion or control over a thing eitherdirectly or through another person. He also instructed the jury mere presence at the scene of a crime, or knowledge a crime is being committed, is not suffic ient to establish the defendant either directed or aided and abetted in the crime.

The jury found Mr. Valadez-Gallegos guilty of one c ount of violating 21 U.S.C. § 841(d)(2), for possessing a listed chemica l knowing and having reasonable cause to believe the listed chemical wou ld be used to manufacture a controlled substance.

The trial court subsequently denied Mr. Valadez-Gal legos’ Rule 29 motion for judgment of acquittal. 2 The trial court ruled the government presentedonly under 21 U.S.C. § 841(d)(2), the trial court c onsidered the motion with

respect to that statute only and entered a Judgmentof Acquittal on the 21 U.S.C. § 841(d)(1) charge.

-15- adequate evidence from which a reasonable jury coul d conclude Mr. ValadezGallegos committed the crime charged. In addition to the massive quantities of ephedrine found in the camper, the trial court conc luded the following evidence established Mr. Valadez-Gallegos’ knowledge of the presence of ephedrine: (1) his inherently inconsistent, contradictory, and inc redible stories told to various police officers on many occasions and different settings; (2) the annotated road map found in the cab where he was a passenger; (3) the overwhelming and pervasive smell of perfumed dryer sheets within the truck; (4) Mr. MarquezMunoz’s statement to Mr. Valadez-Gallegos that he “ didn’t know there was heroin;” (5) Mr. Valadez-Gallegos’ failure to respo nd when asked how the ephedrine could have been put in the ceiling of the camper “if he never left the vehicle.” At sentencing, Mr. Valadez-Gallegos rece ived seventy-eight months in prison and three years supervised release.

ANALYSIS Mr. Valadez-Gallegos argues his conviction should b e set aside because (1) insufficient evidence exists to support either the jury verdict or the trial court’s-16-

denial of his Rule 29 motion for acquittal; and (2) the trial court improperly admitted Rule 404(b) evidence concerning his prior arrest.

Sufficiency of the Evidence Mr. Valadez-Gallegos claims insufficient evidence s upports the verdict because neither his joint occupancy in the vehicle nor his presence and proximity to the contraband is sufficient to show actual or c onstructive possession of the ephedrine. He asserts the government failed to mee t its burden of proof since even knowledge of the presence of ephedrine is insu fficient to show the requisite dominion and control necessary for possession. Fin ally, he contends his inconsistent statements and contradictions, and fai lure to respond to questions on how the ephedrine got into the camper ceiling, may create a general suspicion but do not prove he knew of the ephedrine’s existence.

Our standard of review on a motion for acquittal is the same as the trial court’s in ruling on the motion in the first instan ce. United States v. Miles , 772 F.2d 613, 615 (10th Cir. 1985). We review the evid ence in the light most favorable to the government and “‘then determine wh ether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt.’” Id. (quoting United States v. White , 673 F.2d 299, 301 (10th-17-

Cir. 1982)). The jury, as fact finder, has discret ion to resolve all conflicting testimony, weigh the evidence, and draw inferences from the basic facts to the ultimate facts. See United States v. Nieto , 60 F.3d 1464, 1469 (10th Cir. 1995), cert. denied, 516 U.S. 1081 (1996). However, we may not upholda conviction obtained by piling inference upon inference. United States v. Jones , 44 F.3d 860, 865 (10th Cir. 1995). “An inference is reasonable only if the conclusion flows from logical and probabilistic reasoning.” Id . The evidence supporting the conviction must be substantial and do more than rai se a suspicion of guilt. United States v. Taylor , 113 F.3d 1136, 1144 (10th Cir. 1997).

In this case, the determinative issue is whether Mr . Valadez-Gallegos constructively possessed the ephedrine. Generally, a person has constructive possession when he or she knowingly holds ownership , dominion or control over the object and premises where it is found. Id. at 1144-45. Exclusive possession of the premises supports an inference of constructi ve possession. However, joint occupancy of a premises cannot sustain such an infe rence. Id. (citing United States v. Mills , 29 F.3d 545, 549 (10th Cir. 1994)). To prove con structive possession when there is joint occupancy of a vehic le, the government must present direct or circumstantial evidence to show s ome connection or nexus individually linking the defendant to the contraban d. See United States v. Miller,-18-

84 F.3d 1244, 1253 (10th Cir.) (relying on Mills , 29 F.3d at 549), cert. denied, 117 S. Ct. 443 (1996), 118 S. Ct. 419 (1997)). The government must present “‘some evidence supporting at least a plausible inf erence that the defendant had knowledge of and access to the ... contraband.’” Taylor, 113 F.3d at 1145 (quoting United States v. Mergerson , 4 F.3d 337, 349 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994)); see also Mills , 29 F.3d at 549-50.

On careful review of the record and the trial court ’s order concerning the motion for acquittal, we conclude the evidence fail s to link Mr. Valadez-Gallegos to the narcotics in any way, other than presence an d proximity. Presence and proximity are inadequate to support a conviction.

In so holding, we first address the evidence consid ered by the trial court. As the trial court indicates, Mr. Valadez-Gallegos did make inconsistent and contradictory statements concerning the dates and t ime of travel, night-time accommodations, weather, and the presence of anothe r passenger on the trip. However, conflicting or inconsistent statements do not always provide evidence sufficient to show knowledge or constructive posses sion of drugs. See, e.g., United States v. Leos-Quijada , 107 F.3d 786, 795 (10th Cir. 1997) (inconsistent stories about travel plans, along with other factor s, were not sufficient to connect-19-

defendant with drug venture for purpose of convicti on for aiding and abetting in possession of marijuana with intent to distribute); Jones , 44 F.3d at 868-69 (citing conspiracy cases in which conflicting or implausibl e stories did not provide sufficient link to firearms or contraband or show knowledge of an illegal activity). While these cases involve charges of ai ding and abetting or conspiracy to possess and distribute drugs, in each, the jury, as in this case, was required to draw inferences from the evidence as to the defenda nt’s knowledge or constructive possession of an illegal drug. Applyi ng the same analysis, we conclude that in this case, Mr. Valadez-Gallegos’ c onflicting or inconsistent stories merely raise a suspicion or an inference he suspected illegal activity.

The fact “massive quantities” of ephedrine were hid den in the camper ceiling does not directly link Mr. Valadez-Gallegos , a passenger in the cab of the same vehicle, to the contraband. While a pervasive smell of perfumed dryer sheets permeated the camper, the evidence clearly e stablishes the sheets emitted no odor in the cab. Moreover, no evidence establis hes Mr. Valadez-Gallegos ever opened the door of the camper.

Even though authorities found the lipstick-smudged, annotated road map in the cab where Mr. Valadez-Gallegos was the only pas senger, nothing shows a-20-

direct link between the annotations and drug activi ty, when the annotations were made, or even who made them. Moreover, Officer Joh nston testified it was not unusual for vacationers to carry a road map in a ve hicle with markings, including mileage and time scheduling.

Even though Mr. Valadez-Gallegos said the vehicle n ever left his sight, his failure to respond when asked how the ephedrine gotin the camper is not dispositive. No evidence establishes whether Mr. V aladez-Gallegos slept in the cab or camper, drove or had keys to the vehicle, oraccessed or accompanied Mr. Marquez-Munoz into the camper, or even looked in it . Likewise, no evidence establishes when the ephedrine was hidden in the ce iling.

Mr. Valadez-Gallegos’ statement he knew others mustbe involved but did not know who they were or the destination for the e phedrine, is not dispositive, but merely an inference. Similarly, Mr. Marquez-Mu noz’s statement to Mr. Valadez-Gallegos he “didn’t know there was heroin,” creates only an attenuated inference, insufficient to establish a direct link between Mr. Valadez-Gallegos and the ephedrine.

The other evidence presented to the jury also does not establish Mr.-21-

Valadez-Gallegos’ constructive possession of the ep hedrine. At trial, Officer Johnston testified Mr. Valadez-Gallegos showed no s igns of nervous behavior, while Mr. Marquez-Munoz showed signs of extreme nervousness, including a shaky voice, trembling hands, shaking legs, vomitin g, defecating, excessive urinating and smoking. He testified Mr. Valadez-Ga llegos sat the same way during the trial as he sat the night of the arrest – stiffly and straight-up, avoiding eye contact – which could be his normal behavior. Officer Johnston acknowledged Mr. Valadez-Gallegos’ irritated or eva sive behavior during the initial stop may have resulted from his own limited ability to speak Spanish. He also acknowledged the roll of black, sticky tape fo und inside the truck’s cab, though uncommon, is similar to that seen in “work t rucks.” Nothing in the evidence establishes Mr. Valadez-Gallegos knew, or should have known, the same black tape helped seal a hidden ceiling compartmentcontaining the ephedrine. The fact Mr. Valadez-Gallegos spent $400 dollars intwo days and did not know the driver except by his nickname does not establis h the required nexus. In fact, Officers Johnston and Hartranft testified nothing i n the vehicle nor their investigation directly connected Mr. Valadez-Galleg os to the ephedrine found in the truck.

Finally, even assuming proper admission of the 404( b) evidence of Mr.-22-

Valadez-Gallegos’ prior Oklahoma stop, that evidenc e was admitted for the limited purpose of showing knowledge, intent and pattern. The fact Mr. ValadezGallegos was a passenger in another vehicle contain ing ephedrine created only an inference of his involvement in an illegal activity . The 404(b) evidence admitted did not establish the ephedrine’s location in the o ther vehicle or whether Mr. Valadez-Gallegos knew of its existence, or had poss ession or control over it.

In instances where there is joint occupancy, as her e, constructive possession requires a link or nexus between Mr. Val adez-Gallegos and the contraband. See Miller , 84 F.3d at 1253. Here, the government failed to present evidence sufficiently linking Mr. Valadez-Gallegos with the contraband found in the camper. Consequently, the evidence cannot sust ain the conviction and
sentence.

Rule 404(b) Evidence Having found the evidence, including the Rule 404(b ) evidence at issue, insufficient to find Mr. Valadez-Gallegos guilty be yond a reasonable doubt, we need not reach the remaining issue presented by Mr. Valadez-Gallegos on appeal. The evidence being insufficient, the judgment on co nviction is REVERSED

.