943 F.

2d 58
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

UNITED STATES of America, Plaintiff-Appellee,

v.
Casey QUESADA, Defendant-Appellant.
No. 90-2124.

United States Court of Appeals, Tenth Circuit.

Sept. 4, 1991.
1

Before JOHN P. MOORE and BRORBY, Circuit Judges, and VAN BEBBER,
District Judge.*

ORDER AND JUDGMENT**

VAN BEBBER, District Judge.

This is an appeal following a one-day jury trial which resulted in defendant

Casey Quesada's conviction for possession of over 500 grams of cocaine with
intent to distribute. 21 U.S.C. 841(a)(1), 841(b)(1)(B). Defendant Quesada
raises three issues on appeal dealing with the sufficiency of the evidence and
the jury instructions given by the district court. We find no error and affirm.

The events giving rise to this case began on August 9, 1989, when a package
arrived at the United Parcel Service ("UPS") receiving complex in
Albuquerque, New Mexico. The package had been sent "next day air" and was
addressed to Casey Quesada at a post office box in Albuquerque. UPS does not
deliver to post office boxes, so the package was sent to the "bad address slide."
Attempts were made by UPS employees to find a street address and/or
telephone number for Mr. Quesada. Finally, pursuant to standard company
procedures and in accordance with the priority delivery policy, Kimberly
Young, a UPS employee, opened the package to determine whether it contained

an invoice with a street address for Mr. Quesada.

6

Upon opening the package, Ms. Young discovered a large zip-lock bag filled
with a white, powdery substance. She contacted her supervisor, Rudy Reyes,
who took the package to the UPS Loss Prevention Office. Two Loss Prevention
investigators examined the contents of the package and contacted the
Albuquerque Police Department. Three narcotics officers then met at the UPS
Loss Prevention Office and examined the package. Officer Mike Dwyer
performed a field test and found that the package contained 997.2 grams of
cocaine. The officers then waited at UPS to see if someone would claim the
package. At 6:00 p.m., that evening, after the customer counter closed, the
officers took the cocaine with them and locked it in the police headquarters
narcotics safe.

The next morning, the police decided to substitute a package of sugar for the
cocaine and to effect a controlled delivery of the package. A small amount of
cocaine (approximately .05 grams) was also placed in a cellophane wrapper and
hidden beneath a layer of styrofoam in the bottom of the package. The police
then took the doctored package back to the UPS office and waited for someone
to claim it. A short while later, Mr. Quesada arrived at UPS and presented the
rental receipt for his post office box to Mr. Reyes with the eleven-digit UPS
tracking number for the package written on the back. At the direction of the
police, Reyes handed the package over to Mr. Quesada.

The police followed Mr. Quesada as he drove away, but eventually lost him.
However, Officer Dwyer had already subpoenaed the telephone company for
Mr. Quesada's home address, so the police drove to Quesada's apartment
complex. There, they found Mr. Quesada in his car driving towards the
apartment complex exit. The police stopped the car and Mr. Quesada was
placed under arrest and advised of his rights. Mr. Quesada then gave written
permission to search both his car and his apartment. The police found the
opened UPS package in the trunk of Quesada's car. The sugar had been
removed, but the small amount of hidden cocaine was still intact. In the trunk
of the car, the police also found a package containing 121.52 grams of cocaine
as well as other plastic wrappings, rubber gloves, and zip-lock bags containing
cocaine residue. In Quesada's apartment, the police found the sugar, various
package wrappings and other drug paraphernalia, $34,960 in cash, as well as
4.29 grams of cocaine.

At the close of the government's case, Mr. Quesada moved for a judgment of
acquittal on the grounds that the government had failed to establish that he had
been in possession of an amount of cocaine greater than 500 grams. The court

denied the motion, ruling that sufficient evidence of constructive possession

existed to send the case to the jury. (R. Vol. I at 151-53.)
10

On appeal, Mr. Quesada argues that the district court erred in denying his
motion for judgment of acquittal because the government's evidence failed to
show actual or constructive possession of the cocaine contained in the UPS
shipment. He contends that because the police had already confiscated the
997.2 grams of cocaine prior to his arrival at the UPS office, he cannot be
convicted for actual or constructive possession of that cocaine.

11

In determining the sufficiency of the government's evidence of actual or

constructive possession, the court is required to evaluate the evidence and
reasonable inferences therefrom in the light most favorable to the government.
If any reasonable jury could have found the essential elements of the crime
proven beyond a reasonable doubt from the evidence so viewed, the court must
affirm the judgment. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

12

From the record before us, we conclude that the jury could reasonably have
found that Mr. Quesada had actual possession of the .05 grams of cocaine
hidden in the controlled-delivery package. Defendant argues that he cannot be
convicted for possession of the .05 grams of cocaine because he was not aware
that it was hidden in the doctored package and therefore, he did not have the
requisite intent to distribute the cocaine. However, the evidence of other drug
dealer paraphernalia found in Mr. Quesada's car and apartment is sufficient to
prove that Mr. Quesada had the requisite intent to distribute. Furthermore, the
jury could reasonably have found that Mr. Quesada had constructive possession
of the full 997.2 grams of cocaine because he had the eleven-digit tracking
number which permitted him to claim, and thus exercise dominion and control
over, the original package. Thus, we find that there was sufficient evidence to
support defendant's conviction and we affirm the district court's denial of the
motion for judgment of acquittal.

13

Mr. Quesada next contends that the district court erred in instructing the jury on
actual and constructive possession since these theories were not supported by
the evidence. (R. Vol. I, doc. 33, Instruction No. 13.) Because defendant made
no objection to this instruction at the time of trial, the issue may be raised on
appeal only under plain error standards. Fed.R.Crim.P. 52(b); United States v.
Simmonds, 931 F.2d 685, 687 (10th Cir.1991); United States v. Glick, 710 F.2d
639, 643 (10th Cir.1983), cert. denied, 465 U.S. 1005 (1984). The defendant
cannot, as he argues, preserve his objection to an instruction simply by relying
on his motion for judgment of acquittal. As discussed above, we conclude that
there was sufficient evidence to support either a finding of actual or

constructive possession and thus the court did not commit plain error in
instructing the jury on both theories of possession.
14

Finally, defendant argues that the trial court's instruction on possession

(Instruction No. 13) constructively amended the indictment and that certain
evidence presented at trial created a prejudicial variance between the indictment
and the facts as proven at trial.

15

A constructive amendment of the indictment occurs when the jury instructions

effectively broaden the charges contained in the indictment. See United States
v. Phillips, 869 F.2d 1361, 1364 (10th Cir.1988), cert. denied, 490 U.S. 1069
(1989). Substantial deviation of the instructions from an indictment violates the
defendant's right under the Fifth Amendment to be tried only on charges
presented in a grand jury indictment. United States v. Peterman, 841 F.2d 1474,
1477 (10th Cir.1988), cert. denied, 488 U.S. 1004 (1989). However, since
instructions necessarily deviate somewhat from an indictment, instructions will
be found invalid only if their deviation from the indictment infringes on a
defendant's rights. Id.

16

Likewise, a variance occurs when the facts proved at trial differ from those
alleged in the indictment, and becomes reversible error only if the facts
established in trial materially diverge from facts in the indictment and the
defendant suffers substantial prejudice. United States v. Weissman, 899 F.2d
1111, 1114 (11th Cir.1990).

17

The indictment charges that "on or about the 9th day of August, 1989,"
defendant possessed with intent to distribute "more than 500 grams" of cocaine.
(R. Vol. I, doc. 1.) Defendant contends that the phrase "on or about" August 9,
1989, in the indictment and the phrase "actual or constructive possession, either
alone or jointly with others" in Instruction No. 13 could have led the jury to
conclude that defendant constructively possessed the original contents of the
UPS package prior to its shipment from San Diego on August 8, 1989, by virtue
of his relationship with the sender.

18

An indictment is to be interpreted in a practical, common sense fashion.

Phillips, 869 F.2d at 1364. When, as in this case, a defendant fails to object to
the instructions or the indictment at trial, the indictment is liberally construed in
favor of validity. United States v. Freeman, 813 F.2d 303, 304 (10th Cir.1987).
Again, since there was no objection at trial, reversal is not justified unless the
district court's instruction constituted plain error. Fed.R.Crim.P. 52(b); Phillips,
869 F.2d at 1365. Based on these standards, we cannot conclude that the trial

court's instruction broadened the charge against the defendant beyond that set
out in the indictment.
19

A common sense interpretation of the indictment is that "on or about" August

9, 1989, refers to the receipt of the UPS shipment of cocaine and not to events
occurring before its shipment. The record shows that the indictment fairly
informed Quesada of the charges against which he was required to defend and
that he was aware that he could be convicted for either actual or constructive
possession of the cocaine. The government's theory of constructive possession
focused on defendant's constructive possession of the UPS package after it had
been confiscated by the police and sugar substituted for all but .05 grams of the
cocaine. The prosecution never argued or suggested a joint venture as a theory
of constructive possession. As stated above, we have found that the trial court
did not commit reversible error by instructing the jury on both actual and
constructive possession. In addition, we conclude that the court's instruction on
constructive possession did not constitute a constructive amendment of the
indictment.

20

Finally, defendant argues that the introduction of evidence of the 125.81 grams
of cocaine found in his car and apartment at the time of his arrest created a risk
that he was convicted for possession of this cocaine rather than for possession
of the 997.2 grams of cocaine found in the UPS shipment. Although a limiting
instruction instructing the jury as to the proper use to be made of this evidence
would have been preferable, we find that the facts established at trial did not
materially diverge from the indictment and that the defendant was not
substantially prejudiced by the introduction of this evidence. Evidence of the
125.81 grams of cocaine was used along with evidence of other drug
paraphernalia found in defendant's car and apartment to show that defendant
had the requisite intent to distribute the cocaine found in the UPS shipment.
The government never argued or suggested that defendant should be convicted
for possession of the 125.81 grams of cocaine and the record does not support
the claim that the jury based their verdict upon this evidence. Therefore, we
conclude that the trial court did not err in admitting this evidence.

21

AFFIRMED.

The Honorable G.T. Van Beeber, United States District Judge for the District
of Kansas, sitting by designation

**

This order and judgment has no precedential value and shall not be cited, or

used by any court within the Tenth Circuit, except for the purposes of
establishing the doctrines of law of the case, res judicata or collateral estoppel.
10th Cir.R. 36.3