from the United States District Court for the District of New
Mexico (D.C. Nos. 2:16-CR-00580-RB-1 &
A. Pincus, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado for Defendant-Appellant Miguel Angel
A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New
Mexico for Defendant-Appellant Jose Remberto
Richard C. Williams, Assistant United States Attorney (James
D. Tierney, Acting United States Attorney, with him on the
briefs), Las Cruces, New Mexico for Plaintiff-Appellee.
LUCERO, HARTZ, and HOLMES, Circuit Judges.
Jose Remberto Guzman-Dominguez and Miguel Angel
Rodriguez-Flores were arrested at a state port of entry after
an inspector found cocaine and heroin in their truck (a
tractor-trailer). The truck contained a large quantity of
legitimate cargo (chemical cleaner), but four boxes
containing the drugs, weighing more than 115 pounds, were
concealed behind that cargo. After a joint trial in the
United States District Court for the District of New Mexico,
Defendants were convicted on all three counts of the
indictment against them: (1) conspiracy to distribute at
least five kilograms of cocaine and at least one kilogram of
heroin, see 21 U.S.C. § 846; (2) possession
with intent to distribute at least five kilograms of cocaine,
see id. §§841(a)(1) and (b)(1)(A); and (3)
possession with intent to distribute at least one kilogram of
heroin, see id. The chief issue at trial was whether
Defendants knew of the contraband in the truck. Both had
denied knowledge in statements to law-enforcement officers
after their arrests. Guzman-Dominguez repeated the denial of
knowledge in his trial testimony. Rodriguez-Flores did not
appeal Rodriguez-Flores challenges the sufficiency of the
evidence that he knew of the contraband in the truck, and
both Defendants challenge the unobjected-to admission of a
statement by an expert witness that he did not believe
persons transporting drugs who denied knowledge of the drugs.
But the evidence was more than sufficient for a reasonable
juror to infer beyond a reasonable doubt that
Rodriguez-Flores was involved in the drug offenses. And on
plain-error review of the admission of the expert testimony,
we hold that Defendants have not shown the prejudice
necessary to require reversal. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
SUFFICIENCY OF THE EVIDENCE AGAINST RODRIGUEZ-FLORES
review de novo the sufficiency of evidence for a criminal
conviction, viewing "the evidence in the light most
favorable to the verdict to ascertain whether any rational
trier of fact could have found the defendant guilty beyond a
reasonable doubt." United States v. Smith, 641
F.3d 1200, 1204-05 (10th Cir. 2011). In making this
determination, we cannot weigh conflicting evidence or
consider the credibility of witnesses, but instead we defer
to the jury's resolution of these matters. See United
States v. Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006).
And "rather than examining the evidence in bits and
pieces, we evaluate the sufficiency of the evidence by
considering the collective inferences to be drawn from the
evidence as a whole." Id. (brackets and
internal quotation marks omitted).
challenges the sufficiency of the evidence against him.
"To obtain a conviction for conspiracy, the government
must prove that (1) there was an agreement to violate the
law; (2) Defendant knew the essential objectives of
the conspiracy; (3) Defendant knowingly and voluntarily
took part in the conspiracy; and (4) the coconspirators
were interdependent." United States v.
Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir. 2004)
(emphasis added) (internal quotation marks omitted). To prove
the two counts of possession with intent to distribute,
"the government must show that  the defendant
possessed the controlled substance;  knew that he had
it; and  possessed it with the intent to distribute
it." Id. at 1131 (emphasis added) (internal
quotation marks omitted).
does not challenge the sufficiency of the evidence on most of
the elements of the three offenses. He limits his argument to
the sufficiency of the evidence that he knew about the drug
cargo. That is, he does not argue that even if he knew about
the drugs, he was innocent of the charges.
reject the challenge. As we proceed to explain, there is
compelling evidence that the drugs were added to the cargo
after Defendants picked up the chemical cleaner, that
Defendants were together and controlled the truck from the
time of that pick-up until their arrests a few hours later,
and that they were close associates who were working together
in the venture.
November 14, 2015, at 12:29 a.m., Guzman-Dominguez drove his
commercial truck into the state port of entry on Interstate
10 near Lordsburg, New Mexico. Rodriguez-Flores was his sole
passenger. Inspector Jesus Salcedo was assigned to do level 1
inspections, which involve examining paperwork, the truck,
and the cargo. Salcedo testified that as he was examining the
underside of the vehicle, Guzman-Dominguez was unusually
chatty. Guzman-Dominguez told the inspector that he had just
installed new brakes, but Salcedo, a former mechanic,
testified that there were no new brakes.
Salcedo searched the cargo area of the truck, he saw 17
four-foot-by-four-foot totes (plastic containers inside metal
cages) filled with liquid chemical cleaner. Each tote weighed
about 2400 pounds. According to the bill of lading, signed by
Rodriguez-Flores but given to Salcedo by Guzman-Dominguez,
the totes had been picked up the previous day from Mirachem,
an industrial-cleaner manufacturer in Phoenix, Arizona.
Climbing into the truck and over the totes, Salcedo
discovered four cardboard boxes, which were unaccounted for
in the bill of lading. One box was open, and he saw green
saran-wrapped bundles inside. From his training he believed
the boxes contained narcotics, so he returned to his booth to
report the discovery. (It was later determined that the boxes
contained 47.9 kilograms of cocaine and 5.24 kilograms of
Mexico State Police officers who had arrest power arrived and
arrested Defendants. Defendants were not interviewed,
however, until after the arrival at 4:35 a.m. of Agents
Antonio Palomares and Johnathan Butler with the
Investigations Bureau of the New Mexico State Police. The
agents began recorded interviews with Guzman-Dominguez at
5:23 a.m. and with Rodriguez-Flores about 6 a.m. Two
investigators with the Department of Homeland Security
(DHS)-Task Force Officer Jose Lopez and Special Agent William
Shafer-arrived about 9:00 a.m. They interviewed
Guzman-Dominguez at 10:30 a.m. and Rodriguez-Flores at 11
The relationship between Defendants
were not mere acquaintances, nor did they have a typical
employer-employee relationship. Their friendship and
association were described in Guzman-Dominguez's trial
testimony and Rodriguez-Flores's statements to
law-enforcement officers after his arrest. The two men had
known each other since they were children in El Salvador. A
few months before their arrests, they had reconnected through
Facebook after 15 years without seeing one another.
Rodriguez-Flores, who had been struggling financially while
living in California, began working with Guzman-Dominguez in
June 2015 so that he could learn the business of commercial
driving and get his commercial driver's license.
Guzman-Dominguez's trucking business was based in Las
Vegas, Nevada; but he kept his truck in Phoenix, Arizona,
because more loads were available there. While the two men
worked together, they slept in the two beds in the sleeper
compartment of the truck; they "practically lived in the
truck." R., Vol. XI at 85-86. Guzman-Dominguez paid
Rodriguez-Flores between $150 and $400 per week, depending on
how much he made. The justification for
Rodriguez-Flores's compensation was that his English was
superior to Guzman-Dominguez's, so he could communicate
better with brokers and shippers. The two planned to go into
business together once Rodriguez-Flores got his commercial
license as two drivers can make more money than one. During
his trial testimony, Guzman-Dominguez referred to
Rodriguez-Flores as his "partner."
traveled together even when they were not working. In early
November, Guzman-Dominguez received a phone call from his
sister in El Salvador, saying that their father had suffered
a heart attack. Rodriguez-Flores was with him when he
received the call. When Guzman-Dominguez said that he would
be going to El Salvador to see his father for a few days,
Rodriguez-Flores offered to keep him company on the trip,
saying he wanted to see his family in El Salvador, where he
had not been for 15 years. Defendants traveled by plane to El
Salvador together, spent five days with their respective
families, and then reunited for the flight home. While in El
Salvador, Guzman-Dominguez had a toothache, but a dentist was
not able to treat it while he was there because his blood
sugar was too elevated (he has diabetes). After returning to
Phoenix, Guzman-Dominguez drove his car to Nogales, Mexico,
to see a dentist, who also could not operate on the tooth but
gave him some antibiotics. Rodrigues-Flores accompanied him.
Getting the job to haul the chemicals
in Nogales, Guzman-Dominguez attempted to obtain a contract
to haul a load of cargo. On November 12 he used a broker
service connecting drivers to cargo to search for a load he
could pick up in Phoenix, but he could not come to an
agreement with the broker. He continued his search the next
November 13 at 7:07 a.m., Rodriguez-Flores told a cousin in a
Facebook chat that he would be going to Michigan and Quebec.
But Guzman-Dominguez had not yet booked a shipping contract.
A search of his computer showed that at 8:09 a.m. he
conducted a search on the broker-service website that led to
his booking the load from Mirachem in Phoenix to Crystal
Clean in Fairless Hills, Pennsylvania.
securing the load, Defendants drove back to Phoenix to
retrieve the truck. The truck had been kept at Vasquez
Diesel, which repairs trucks and rents parking spaces for
them. When Defendants arrived, they discovered that a battery
had died, so they had to purchase a new one and have it
installed. Running a bit late for their pickup, Defendants
arrived at Mirachem shortly after 3:00 p.m. on the 13th.
Mirachem's warehouse shipping manager John Markovci
estimated that it would have taken about 15 minutes to load
the totes of cleaning products into the trailer.
testified that it would be nearly impossible for someone to
place four cardboard boxes in the truck during the loading at
Mirachem without being noticed, and he was surprised when he
heard that the drugs had been found with Mirachem's
product because nothing like that had happened in the past.
Although he did not specifically remember loading the cargo
on November 13, 2015, Markovci said that only he and Anthony
Oliver loaded trucks for Mirachem at that time. Markovci
testified that he was not a drug trafficker and had never
loaded illegal drugs into a commercial vehicle at Mirachem.
Anthony Oliver similarly testified that he did not
specifically remember loading any vehicles on that date, but
he was not a drug trafficker and had never loaded illegal
contraband into a commercial vehicle.
the hub manager for Crystal Clean testified that in November
2015 only he and six others worked at the warehouse that
would offload trucks. They had to wear distinctive protective
equipment and no one else would be allowed in the area. Also,
the only person unloading the truck would be the forklift
operator, so it would be unusual and readily noticed if
someone was carrying smaller boxes off a truck.
the legitimate cargo was loaded on the truck, a Mirachem
employee gave Guzman-Dominguez a bill of lading describing
the cargo and a commercial seal. Once the seal is placed on
the trailer doors, the cargo area cannot be opened without
breaking the seal, and the seal cannot be refastened. Thus,
an unbroken seal shows the recipient that the cargo has not
been tampered with on the trip. But although
Guzmán-Rodriguez admitted that he went to the trailer
after the cargo was loaded and affixed a strap to hold the
cargo in place and closed the trailer door, he did not put on
the seal. Sergeant Terri Gomez, the officer who arrested
Guzman-Dominguez, saw the unbroken seal in the passenger area
of the truck, where Rodriguez-Flores would have been riding,
and found it unusual that it was not used to seal the
trailer. She testified, "[W]hen a seal is given to a
driver, almost always, the seal is placed on the
trailer." R., Vol. VIII at 160. The seal in the truck was a
light one. She explained that a heavy seal was unnecessary
because the size and weight of the totes would make it
difficult for a thief to remove them from the truck, and a
lighter seal is the normal practice with such cargo.
of a seal, there was a padlock on the truck. When Inspector
Salcedo asked Guzman-Dominguez to open the lock, he fumbled
with several keys on a ring, tried a few, stated the keys
were in the truck, walked halfway to the cabin of the truck,
and then finally returned, saying the key had been on the
ring all along. Salcedo found this unusual as truckers are
generally eager to be back on the road and hence are prepared
Guzman-Dominguez told DHS agent Lopez that the reason he did
not put the seal on the truck was that he had forgotten to do
so, his explanation at trial was that it is the shipper's
responsibility to place the seal on the truck, and that some
companies do not attach the seal or require that it be
attached. He instead set the seal with the bill of lading in
the window of the vehicle, which is his custom. He
acknowledged that he did not expect someone to steal the
cargo due to its size and weight, but he insisted that even
if the seal had been placed on the cargo doors, truckers
would still use a padlock "for our own safety"
because this particular seal could be easily broken and
someone could go into the trailer. R., Vol. XI at 73.
Rodriguez-Flores provided the state police investigators with
a puzzling explanation for the padlock: "[W]e don't
know what we're carrying. So, we just, we just lock
it." Gov't Ex. 26A at 12-13.
Montoya, a special agent with the Drug Enforcement
Administration (DEA), testified as an expert witness for the
government. He said that drug traffickers typically avoid
attaching the seal at the time it is provided by the shipper
because it will need to be broken when drugs are loaded in
with the legitimate cargo. Instead, they generally wait to
attach the seal until after they drop off the illegal
contraband so that when the legitimate load is delivered, the
seal will be unbroken. To protect against theft of the drugs,
however, they commonly use a padlock.
The departure from Phoenix
Defendants arrived at Mirachem shortly after 3:00 p.m., and
it would normally take about 15 minutes to load the cargo,
they likely left Mirachem by 3:30 p.m. But they did not
depart Phoenix for another four hours. At 4:14 p.m.
Defendants filled their truck with fuel at the Flying J, a
truckstop in Phoenix, as shown by a receipt found in the
truck that matches Flying J's records. In his
state-police interview Rodriguez-Flores said that after
loading the truck at Mirachem they returned to Vazquez Diesel
(which is only a couple blocks from the Flying J), "ate
and then . . . hit the road." R, Vol. IX at 100-01. He
did not mention any delay after picking up the load, and he
stated that the only time the truck was left alone was while
he and Guzman-Dominguez ate. In his DHS interview
Rodriguez-Flores said that after getting the load they took
about an hour to return to Vasquez Diesel and get something
to eat before leaving Phoenix. Guzman-Dominguez testified
that Defendants were together all day and that after they
left Mirachem no one else had access to the trailer. He also
said that while they were eating at the truck stop they kept
their eyes on the truck.
data indicated that Defendants' departure from Phoenix
was much more than an hour after fueling.
Records of the cell-phone providers for phones of both
Guzman-Dominguez and Rodriguez-Flores indicated that they
were still in Phoenix at 7:36 p.m. And data retrieved from a
GPS device found on the ...