* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral 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. 

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

### OCT 13 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ELMER SALVADOR-RODRIGUEZ, Defendant-Appellant. No. 98-4153 (D.C. No. 96-CR-161-2) (D. Utah)

ORDER AND JUDGMENT *

Before KELLY , HOLLOWAY , and BRISCOE , Circuit Judges.
Elmer Salvador-Rodriguez appeals his jury convictio n of possession of cocaine, methamphetamine, and heroin, with intent t o distribute, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. We affirm.
I. In August 1996, local law enforcement officers in S alt Lake City, Utah, obtained a warrant to search a residence implicatedin unlawful drug trafficking.-2-

While executing the warrant, officers knocked on th e door twice and announced their presence in both English and Spanish. No one answered, but the officers heard shuffling within the residence. The officers employed a battering ram to force the door open and entered the house. Once in side, the officers heard someone running down stairs in the rear of the resi dence. After tracking the sounds, officers discovered Salvador-Rodriguez’s co -defendant, Rafael Rubalcava-Hernandez, in a basement storage area. Among other things, a search of the kitchen and the basement revealed approximat ely 29 kilograms of cocaine, eight kilograms of methamphetamine, 240 grams of he roin, $41,399 in U.S. currency, a firearm, drug paraphernalia (such as pa ckaging materials, scales, and drug spoons), and numerous “pay-owe” sheets. The s earch also revealed several documents and photographs implicating Salvador-Rodr iguez. A federal grand jury indicted Salvador-Rodriguez onthree counts of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At no time d uring the proceedings did Salvador-Rodriguez move for judgment of acquittal b ased on insufficiency of the evidence. A jury returned guilty verdicts on all three counts, and the district court sentenced Salvador-Rodriguez to 188 months imprisonment. II. Salvador-Rodriguez’s appeal is straightforward. A conviction under 21-3-

U.S.C. § 841(a) and 18 U.S.C. § 2 “requires proof that the defendant ‘(1) possessed a controlled substance; (2) knew he posse ssed a controlled substance; and (3) intended to distribute the controlled substance.’” United States v. Dozal , 173 F.3d 787, 797 (10th Cir. 1999) (quoting United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997)). Salvador-Rodriguez’s s ole claim is that the evidence was insufficient to establish that he possessed the drugs discovered in the residence. While Salvador-Rodriguez’s failure to r aise this claim in a motion for judgment of acquittal normally would limit our revi ew to a search for plain error, “review under the plain error standard . . . and a review of sufficiency of the evidence usually amount to largely the same exercise.” United States v. Duran , 133 F.3d 1324, 1335 n.9 (10th Cir. 1998); accord United States v. Leopard , 936 F.2d 1138, 1140 n.2 (10th Cir. 1991); United States v. Bowie , 892 F.2d 1494, 1496-97 (10th Cir. 1990). We review the record for sufficiency of the evidence de novo. Dozal , 173 F.3d at 797; Wilson , 107 F.3d at 778. The relevant inquiry is whether , “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt.” Dozal , 173 F.3d at 797 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)); accord Leopard , 936 F.2d 1140; Bowie , 892 F.2d at 1497. “Rather than examining the evidence in ‘bits and pi eces,’ we evaluate the-4-

sufficiency of the evidence by ‘consider[ing] the c ollective inferences to be drawn from the evidence as a whole.’” Wilson , 107 F.3d at 778 (quoting United States v. Hooks , 780 F.2d 1526, 1532 (10th Cir. 1986)). Possession of a controlled substance or other contr aband can be actual or constructive. “A person constructively possesses c ontraband when he or she knowingly holds ownership, dominion or control overthe object and premises where it is found.” United States v. Lazcano-Villalobos , 175 F.3d 838, 843 (10th Cir. 1999); accord Dozal , 173 F.3d at 797; Wilson , 107 F.3d at 778; see also United States v. Ruiz-Castro , 92 F.3d 1519, 1531 (10th Cir. 1996) (defining constructive possession of a narcotic as “an apprec iable ability to guide the destiny of the drug”) (citation omitted). Exclusiv e possession of the object or premises supports an inference of constructive possession. United States v. Valadez-Gallegos , 162 F.3d 1256, 1262 (10th Cir. 1998); accord LazcanoVillalobos , 175 F.3d at 843. In cases involving joint occupancy or nonexclusive possession, when the object may be attributed to mo re than one individual, the government must present “direct or circumstantial e vidence to show some connection or nexus individually linking the defend ant to the contraband.” Valadez-Gallegos , 162 F.3d at 1262; see also id. (stating that the government must present “some evidence supporting at least a p lausible inference that the defendant had knowledge of and access to the . . . contraband”) (citation and-5-

internal quotation marks omitted). While not overwhelming, the evidence in this case i s sufficient to show Salvador-Rodriguez had knowledge of and access to the drugs in the residence. Two items of evidence are particularly damaging. F irst, Salvador-Rodriguez’s fingerprints appeared on one of the drug packages s eized by the police. Second, one of the photographs found at the residence depic ted Salvador-Rodriguez standing with a gun in his waistband in front of th e drugs and a large amount of cash. In addition, a small spiral notebook appeari ng to be a drug ledger was discovered in the living room of the house. Salvad or-Rodriguez’s admitted nickname (“MeMe”) was listed throughout the noteboo k. Finally, officers found utility bills for Salvador-Rodriguez’s separate address and two cellular telephone bills, one for Salvador-Rodriguez and one for Jorge Beza, in the bedroom of the residence. Salvador-Rodriguez admitted applying fo r a driver’s license under the name Jorge Beza. The cellular phone bill in Salvad or-Rodriguez’s name showed approximately 3,500 calls charged to the account du ring a monthly billing cycle. Based on this evidence, a rational jury could concl ude that SalvadorRodriguez was part of a group of individuals involv ed in drug trafficking. The evidence does more than depict Salvador-Rodriguez’s mere presence at the house or his proximity to the drugs. Viewed in the lightmost favorable to the government, the facts developed at trial indicate that Salvador-Rodriguez was-6-

aware of the drugs, handled packages containing the drugs, and was involved in the distribution of the drugs. Although the eviden ce against Salvador-Rodriguez is largely circumstantial, and suggests that Salvad or-Rodriguez did not act alone, it is settled that “[c]onstructive possession may b e established by circumstantial evidence and may be joint among several individuals.” Ruiz-Castro , 92 F.3d at
1531. Salvador-Rodriguez directs our attention to his tes timony, which he claims explains the evidence found in the residence. Acco rding to Salvador-Rodriguez, he purchased the cellular phone and obtained servic e for a friend named “Charlie.” Charlie kept and used the phone and eac h month Salvador-Rodriguez brought Charlie the bill at the residence. As for the photograph and the fingerprints on the drug package, Salvador-Rodrigue z testified that he drank too much at a party and permitted someone else to take the picture. He stated that he “probably” or “may have” touched one of the package s while posing for the photograph. Aplt. App., Vol. II, at 358-59. In aneffort to explain his presence at the residence and the appearance of his name in the notebook, SalvadorRodriguez admitted visiting the house on occasion t o purchase small quantities of drugs for himself and his friends, but denied havin g any dominion or control over the drugs seized by law enforcement officials. While Salvador-Rodriguez’s story is plausible, the jury’s determination that-7-

the government’s explanation was more credible cann ot be second-guessed on appeal. When reviewing the sufficiency of the evid ence “we accept the jury’s resolution of conflicting evidence and its assessme nt of the credibility of witnesses.” United States v. Sapp , 53 F.3d 1100, 1103 (10th Cir. 1995) (quoting United States v. Dirden , 38 F.3d 1131, 1142 (10th Cir. 1994)). Even if Sa lvadorRodriguez’s explanation is consistent with the fact s developed at trial, “the evidence required to support a verdict need not con clusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.” United States v. Clark , 57 F.3d 973, 976 (10th Cir. 1995) (citation omitt ed). Our review is complete once we conclude that the evidence perm itted the jury to find constructive possession beyond a reasonable doubt. See , e.g. , Dozal , 173 F.3d at 797; Wilson , 107 F.3d at 778-79. Accordingly, we AFFIRM Salva dorRodriguez’s conviction. Entered for the Court Mary Beck Briscoe Circuit Judge