Pablo Ortega v. United States of Am., United States of Am. v. Daniel Castro, United States of Am. v. Sonya Polmanteer, 270 F.3d 540 (8th Cir. 2001). · Go Syfert
Pablo Ortega v. United States of Am., United States of Am. v. Daniel Castro, United States of Am. v. Sonya Polmanteer, 270 F.3d 540 (8th Cir. 2001). Cases Citing This Book View Copy Cite
“based on entire conversation, a jury could have reasonably inferred that she knew drugs had been hidden in the car”
91 citation events (91 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Bonnie S. Timlick (ca8, 2007-04-10)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) United States v. Bonnie S. Timlick (2×) also: Cited "see"
8th Cir. · 2007 · signal: see · quote attribution · 1 verbatim quote · confidence high
based on entire conversation, a jury could have reasonably inferred that she knew drugs had been hidden in the car
discussed Cited as authority (rule) United States v. Shawn Crews
4th Cir. · 2024 · confidence medium
See United States v. Prince-Oyibo, 320 F.3d 494, 497, 501 (4th 4 USCA4 Appeal: 23-4393 Doc: 33 Filed: 12/23/2024 Pg: 5 of 5 Cir. 2003) (upholding per se ban on polygraph evidence and recognizing that “results of an accused’s or a witness’s polygraph test are not admissible to bolster or undermine credibility”); Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001) (collecting decisions upholding lower courts’ refusals to admit polygraph evidence at sentencing); see also United States v. Scheffer, 523 U.S. 303, 309 (1998) (observing that “there is simply no consensus that polyg…
discussed Cited as authority (rule) State v. Banks (2×) also: Cited "see, e.g."
S.D. · 2023 · confidence medium
In rejecting the use of polygraph evidence at a sentencing hearing in Ortega v. United States, the Eighth Circuit stated that “although at sentencing a district court may consider information that would be inadmissible at trial, the information must have ‘sufficient indicia of reliability to support its probable accuracy.’” 270 F.3d 540, 548 (8th Cir. 2001) (quoting U.S.S.G. § 6A1.3(a)). -10- #29875 The rationale advanced for not admitting evidence of polygraph results, in civil or criminal cases, is that such evidence is irrelevant because of dubious scientific value [(Rule 402)], it…
discussed Cited as authority (rule) United States v. Gary Smith
8th Cir. · 2020 · confidence medium
Cf. United States v. Bagola, 796 F.3d 903, 908 (8th Cir. 2015) (noting that polygraph evidence is disfavored in trials); Ortega v. United States, 270 F.3d 540, 547 (8th Cir. 2001) (rejecting polygraph evidence at sentencing). -5- Smith’s special condition requiring polygraph testing is reasonably related to the factors in § 3553(a).
cited Cited as authority (rule) United States v. Tou Chi Fang
8th Cir. · 2016 · confidence medium
“If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.” Id. (quoting Ortega v. United States, 270 F.3d 540, 544-45 (8th Cir. 2001)).
discussed Cited as authority (rule) United States v. David Griffith
8th Cir. · 2015 · confidence medium
Even where the evidence “rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.2004) (quoting Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001)) (internal quotation marks omitted).
discussed Cited as authority (rule) State v. Allen
La. Ct. App. · 2011 · confidence medium
Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001); see also State v. Walker, 03-188, p. 7 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65-66 , writ denied, 03-2343 (La.2/6/04), 865 So.2d 738 (holding that the driver and sole passenger had custody of the car and the cocaine found in the car was within his immediate control even though ownership of the vehicle was not proven)....
examined Cited as authority (rule) United States v. Aponte (4×) also: Cited "see, e.g."
8th Cir. · 2010 · confidence medium
We have also relied on a defendant's lack of surprise when drugs are discovered, see Hernandez-Mendoza, 600 F.3d at 978 ; United States v. Serrano-Lopez, 366 F.3d 628, 636 (8th Cir.2004), evidence of flight or escape, see Ortega v. United States, 270 F.3d 540, 546 (8th Cir.2001), an obvious odor of drugs or an agent typically used to mask the odor of drugs, see Marquez, 462 F.3d at 829 ; Flores, 362 F.3d at 1034; Ojeda, 23 F.3d at 1476 , and the presence of other circumstances consistent with drug trafficking, see Hernandez-Mendoza, 600 F.3d at 977 (four cell phones in the vehicle); Jimenez, 4…
discussed Cited as authority (rule) United States v. Richard Steele
8th Cir. · 2008 · confidence medium
Though this inference may be plausible, we will not disturb a conviction "[i]f the evidence rationally supports two conflicting hypotheses." United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004) (quoting Ortega v. United States, 270 F.3d 540, 544 (8th Cir. 2001)).
discussed Cited as authority (rule) United States v. Steele
8th Cir. · 2008 · confidence medium
Though this inference may be plausible, we will not disturb a conviction “[i]f the evidence rationally supports two conflicting hypotheses.” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.2004) (quoting Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001)).
discussed Cited as authority (rule) SEC v. Kopsky (2×)
E.D. Mo. · 2008 · confidence medium
Polygraph evidence is highly disfavored in this circuit. [3] See United States v. Gill, 513 F.3d 836, 846 (8th Cir.2008) (refusing to reopen the record to allow testimony regarding polygraph examinations); United States v. Gianakos, 415 F.3d 912, 925 (upholding exclusion of witnesses' failed polygraph tests from evidence where witnesses and police officer could be cross-examined about witnesses' credibility); United States v. Swayze, 378 F.3d 834, 837 (8th Cir.2004) (stating that juries, not polygraph tests, should determine credibility); Ortega v. United States, 270 F.3d 540, 548 (8th Cir.200…
discussed Cited as authority (rule) United States v. Stephen Gill
8th Cir. · 2008 · confidence medium
See, e.g., United States v. Swayze, 378 F.3d 834, 837 (8th Cir. 2004) (“When two witnesses contradict each other, juries, not polygraph tests, determine who is testifying truthfully.”); Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001) (noting the consensus among the courts of appeal against the use of polygraph evidence at sentencing and rejecting the use of polygraph evidence as grounds for a sentencing enhancement for obstruction of justice); Anderson v. United States, 788 F.2d 517 , 519 n.1 (8th Cir.1986) (noting this court’s “rule that polygraph examination results should…
discussed Cited as authority (rule) United States v. Gill
8th Cir. · 2008 · confidence medium
See, e.g., United States v. Swayze, 378 F.3d 834, 837 (8th Cir.2004) (“When two witnesses contradict each other, juries, not polygraph tests, determine who is testifying truthfully.”); Ortega v. United States, 270 F.3d 540, 548 (8th Cir.2001) (noting the consensus among the courts of appeal against the use of polygraph evidence at sentencing and rejecting the use of polygraph evidence as grounds for a sentencing enhancement for obstruction of justice); Anderson v. United States, 788 F.2d 517 , 519 n. 1 (8th Cir.1986) (noting this court’s “rule that polygraph examination results should …
cited Cited as authority (rule) United States v. Curtis Maxwell
8th Cir. · 2007 · confidence medium
Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001).
cited Cited as authority (rule) United States v. Maxwell
8th Cir. · 2007 · confidence medium
Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Julio Valera-Ramirez, Also Known as Roberto
8th Cir. · 2007 · confidence medium
To establish constructive possession, the government was required to prove that Valera-Ramirez had “knowledge and ‘ownership, dominion, or control over the contraband itself, or dominion over the [vehicle] in which the contraband [was] concealed.’ ” United States v. Flores, 362 F.3d 1030 , 1036 (8th Cir.2004) (quoting Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001)) (first alteration in the original).
discussed Cited as authority (rule) United States v. Julio Valera-Ramirez
8th Cir. · 2007 · confidence medium
To establish constructive possession, the government was required to prove that Valera- -3- Ramirez had “knowledge and ‘ownership, dominion, or control over the contraband itself, or dominion over the [vehicle] in which the contraband [was] concealed.’” United States v. Flores, 362 F.3d 1030 , 1036 (8th Cir. 2004) (quoting Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001)) (first alteration in the original).
cited Cited as authority (rule) United States v. Robert S. Johnson
8th Cir. · 2007 · confidence medium
Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001).
cited Cited as authority (rule) United States v. Robert Stanford Johnson
8th Cir. · 2007 · confidence medium
Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001).
cited Cited as authority (rule) United States v. Gerald Dacre
8th Cir. · 2006 · confidence medium
See United States v. Scheffer, 523 U.S. 303, 309-12, 315-17 , 118 S.Ct. 1261 , 140 L.Ed.2d 413 (1998); Ortega v. United States, 270 F.3d 540, 547-48 (8th Cir.2001).
cited Cited as authority (rule) United States v. Sparkman
E.D. Mo. · 2006 · confidence medium
Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001) (citations omitted).
discussed Cited as authority (rule) United States v. Hashim Amin Cawthorn
8th Cir. · 2005 · confidence medium
In such situations, while “‘[t]he possession need not be exclusive, but may be joint,’” Cruz, 285 F.3d at 697 (quoting Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001)), simply finding drugs in a portion of the house accessible equally to all occupants, without more, would be insufficient to sustain a conviction, United States v. Wajda, 810 F.2d 754, 762 (8th Cir. 1987).
discussed Cited as authority (rule) United States v. Hashim Amin Cawthorn
8th Cir. · 2005 · confidence medium
In such situations, while “ ‘[t]he possession need, not be exclusive, but may be joint,’ ” Cruz, 285 F.3d at 697 (quoting Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001)), simply finding drugs in a portion of the house accessible equally to all occupants, without more, would be insufficient to sustain a conviction, United States v. Wajda, 810 F.2d 754, 762 (8th Cir.1987).
discussed Cited as authority (rule) United States v. Luis Zuleta
8th Cir. · 2005 · confidence medium
Sanders, 341 F.3d at 816 (noting that constructive possession may be proved through evidence that a person maintains “knowledge and -3- ownership, dominion, or control over the contraband itself, or dominion over the vehicle in which the contraband is concealed” (quoting Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001))).
discussed Cited as authority (rule) United States v. Luis Zuleta
8th Cir. · 2005 · confidence medium
Sanders, 341 F.3d at 816 (noting that constructive possession may be proved through evidence that a person maintains “knowledge and ownership, dominion, or control over the contraband itself, or dominion over the vehicle in which the contraband is concealed” (quoting Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001))).
cited Cited as authority (rule) United States v. Wirtz
D. Minnesota · 2005 · confidence medium
Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001) (citations omitted).
discussed Cited as authority (rule) State v. Major
La. · 2004 · confidence medium
Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001); see also State v. Walker, 03-188, p. 7 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65-66 , writ denied, 03-2343 (La.2/6/04), *803 865 So.2d 738 (holding that the driver and sole passenger had custody of the car and the cocaine found in the car was within his immediate control even though ownership of the vehicle was not proven).
examined Cited as authority (rule) United States v. Isidro Serrano-Lopez, United States of America v. Eleodoro Lopez-Urias, Also Known as Lole, United States of America v. Elvia Rios (4×) also: Cited "see"
8th Cir. · 2004 · confidence medium
This standard is quite strict; "we will not lightly overturn the jury's verdict." United States v. Cruz, 285 F.3d 692, 697 (8th Cir.2002). "`If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.'" Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001) (quoting United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996) (further quotation omitted)). "[T]he government's `evidence need not exclude every reasonable hypothesis of innocence.'" United States v. Butler, 238 F.3d 1001, 1004 (8th Cir.2001) (quoting United States v. Jolivet, 2…
discussed Cited as authority (rule) UNITED STATES OF AMERICA, — v. HOMERO BUSTOS FLORES, — UNITED STATES OF AMERICA, — v. JUAN SERENO ARREOLA, — (2×) also: Cited "see"
8th Cir. · 2004 · confidence medium
To show constructive possession, the government must offer evidence that defendants had knowledge and "ownership, dominion, or control over the contraband itself, or dominion over the [vehicle] in which the contraband is concealed." Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001) (quotation omitted). 11 There was sufficient evidence of Sereno-Arreola's control over the drugs because he was the driver of the car.
discussed Cited as authority (rule) United States v. Isidro Serrano-Lopez (2×) also: Cited "see"
8th Cir. · 2004 · confidence medium
This standard is quite strict; "we will not lightly overturn the jury's verdict." United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). "'If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.'" Ortega v. United States, 270 F.3d 540, 544 (8th Cir. 2001) (quoting United States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996) (further quotation omitted)). "[T]he government's 'evidence need not exclude every reasonable hypothesis of innocence.'" United States v. Butler, 238 F.3d 1001, 1004 (8th Cir. 2001) (quoting United States v. Jolive…
discussed Cited as authority (rule) United States v. Homero Bustos Flores (2×) also: Cited "see"
8th Cir. · 2004 · confidence medium
To show constructive possession, the government must offer evidence that defendants had knowledge and “ownership, dominion, or control over the contraband itself, or dominion over the [vehicle] in which the contraband is concealed.” Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001) (quotation omitted).
discussed Cited as authority (rule) United States v. Javier Barajas Ramirez
8th Cir. · 2004 · confidence medium
Ortega v. United States, 270 F.3d 540, 544-47 (8th Cir.2001) (incriminating statements, improbable story for trip, and inconsistent stories all pointed toward knowledge of drugs hidden in car under windshield); United States v. Butler, 238 F.3d 1001, 1004 (8th Cir.2001) (finding repeated lies to officer, combined with implausible story, sufficient to establish knowledge of drugs).
discussed Cited as authority (rule) United States v. Javier B. Ramirez
8th Cir. · 2004 · confidence medium
United States v. Ortega, 270 F.3d 540, 544-47 (8th Cir. 2001) (incriminating statements, improbable story for trip, and inconsistent stories all pointed toward knowledge of drugs hidden in car under windshield); United States v. Butler, 238 F.3d 1001, 1004 (8th Cir. 2001) (finding repeated lies to officer, combined with implausible story, sufficient to establish knowledge of drugs).
cited Cited as authority (rule) United States of America, Cross-Appellant/appellee v. James Randall Sanders, Appellant/cross-Appellee
8th Cir. · 2003 · confidence medium
E.g., Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001).
cited Cited as authority (rule) United States v. James R. Sanders
8th Cir. · 2003 · confidence medium
E.g., Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001).
cited Cited as authority (rule) Government of the Virgin Islands v. Forbes
virginislands · 2003 · confidence medium
Ortega v. United States, 270 F.3d 540, 547 (8th Cir. 2001).
discussed Cited as authority (rule) United States v. Jeffrey D'AmbrosiA and Duane Pede (2×)
7th Cir. · 2002 · confidence medium
See Adler v. Espy, 35 F.3d 263, 264 (7th Cir.1994); Ortega v. United States, 270 F.3d 540, 548-49 (8th Cir.2001); United States v. Bartlett, 856 F.2d 1071 , 1080 n. 13 (8th Cir.1988); cf. Woodhill Corp. v. Federal Emergency Management Agency, 168 F.3d 1025, 1027-28 (7th Cir.1999); United States v. White, 882 F.2d 250, 252 (7th Cir.1989).
discussed Cited as authority (rule) United States v. D'Ambrosia, Jeffrey
7th Cir. · 2002 · confidence medium
See Adler v. Espy, 35 F.3d 263, 264 (7th Cir. 1994); Ortega v. United States, 270 F.3d 540, 548-49 (8th Cir. 2001); United States v. Bartlett, 856 F.2d 1071 , 1080 n. 13 (8th Cir. 1988); cf. Woodhill Corp. v. Federal Emergency Management Agency, 168 F.3d 1025, 1027-28 (7th Cir. 1999); United States v. White, 882 F.2d 250, 252 (7th Cir. 1989).
discussed Cited as authority (rule) United States v. Benjamin Chipps
8th Cir. · 2002 · confidence medium
Discussion A. Denial of Motion for Judgment of Acquittal In reviewing the district court’s denial of a motion for judgment of acquittal, “we must view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict[].” Ortega v. United States, 270 F.3d 540, 544 (8th Cir. 2001) (citation omitted). “‘If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.’” Id.; United States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996).
discussed Cited as authority (rule) United States v. Benjamin Godfrey Chipps, Jr.
8th Cir. · 2002 · confidence medium
Discussion A. Denial of Motion for Judgment of Acquittal In reviewing the district court’s denial of a motion for judgment of acquittal, “we must view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict[ ].” Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001) (citation omitted). “ ‘If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.’ ” Id.; United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996).
discussed Cited as authority (rule) United States v. David Malone
8th Cir. · 2002 · signal: cf. · confidence medium
See United States v. Weekly, 118 F.3d 576 , 581 (8th Cir.) (holding that a conflict in the evidence is, standing alone, “independent evidence to support the district court’s finding that [the defendant] had not truthfully provided all information that she had concerning the offense”), cert. denied, 522 U.S. 1020 , 118 S.Ct. 611 , 139 L.Ed.2d 497 (1997); cf. Ortega v. United States, 270 F.3d 540, 547 (8th Cir.2001) (reversing obstruction-of-justice enhancement imposed solely upon evidence of failed polygraph examination).
discussed Cited as authority (rule) United States v. Barela Cruz
8th Cir. · 2002 · confidence medium
United States v. Sanchez, 252 F.3d 968, 972 (8th Cir. 2001). "[T]he possession need not be exclusive, but may be joint." Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001) (citations omitted).
cited Cited as authority (rule) United States v. Barela Cruz, United States of America v. Rufino Gonzales
8th Cir. · 2002 · confidence medium
United States v. Sanchez, 252 F.3d 968, 972 (8th Cir.2001). “[T]he possession need not be exclusive, but may be joint.” Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001) (citations omitted).
cited Cited as authority (rule) United States v. Christopher P. Sianis
8th Cir. · 2002 · confidence medium
Additionally, “the possession need not be exclusive, but may be joint.” Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001) (internal quotations omitted).
cited Cited "see" United States v. James Haney
8th Cir. · 2016 · signal: see · confidence high
See Ortega v. United States, 270 F.3d 540, 548 (8th Cir.2001); United States v. Grimes, 54 F.3d 489, 493 (8th Cir.1995) (standard of review).
cited Cited "see" United States v. Robbie Fetters
8th Cir. · 2012 · signal: see · confidence high
See Ortega v. United States, 270 F.3d 540, 545-46 (8th Cir.2001).
discussed Cited "see" United States v. Bonnie S. Timlick (2×)
8th Cir. · 2007 · signal: see · confidence high
See Ortega v. United States, 270 F.3d 540, 546-47 (8th Cir.2001) (“based on entire [recorded] conversation, a jury could have reasonably inferred that she knew drugs had been hidden in the car”).
discussed Cited "see" United States v. Bertling
N.D. Iowa · 2006 · signal: accord · confidence high
“Unless the district court ultimately determines that a miscarriage of justice will occur, the jury’s verdict must be allowed to stand.” Campos, 306 F.3d at 579 (emphasis added) (citing United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000)); accord Ortega v. United States, 270 F.3d 540, 547 (8th Cir.2001) (“A district court may grant a new trial under Rule 33 ‘ “only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” ’ ”) (quoting Lacey, 219 F.3d at 783 , in turn quoting United States v. Brown, 956 F.2d 782, 786 (8th…
discussed Cited "see" United States v. Johnson (2×)
N.D. Iowa · 2005 · signal: accord · confidence high
“Unless the district court ultimately determines that a miscarriage of justice will occur, the jury’s verdict must be allowed to stand.” Campos, 306 F.3d at 579 (emphasis added) (citing United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000)); accord Ortega v. United States, 270 F.3d 540, 547 (8th Cir.2001) (“A district court may grant a new trial under Rule 33 ‘ “only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” ’ ”) (quoting Lacey, 219 F.3d at 783 , in turn quoting United States v. Brown, 956 F.2d 782, 786 (8th…
discussed Cited "see" United States v. Honken (2×)
N.D. Iowa · 2005 · signal: accord · confidence high
“Unless the district court ultimately determines that a miscarriage of justice tvill occur, the jury’s verdict must be allowed to stand.” Campos, 306 F.3d at 579 (emphasis added) (citing United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000)); accord Ortega v. United States, 270 F.3d 540, 547 (8th Cir.2001) (“A district court may grant a new trial under Rule 33 ‘ “only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” ’ ”) (quoting Lacey, 219 F.3d at 783 , in turn quoting United States v. Brown, 956 F.2d 782, 786 (8t…
Pablo ORTEGA, Appellant,
v.
UNITED STATES of America, Appellee; United States of America, Appellee, v. Daniel Castro, Appellant; United States of America, Appellee, v. Sonya Polmanteer, Appellant
01-1168, 01-1170 and 01-2106.
Court of Appeals for the Eighth Circuit.
Nov 1, 2001.
270 F.3d 540
John P. Messina, Des Moines, Iowa, argued, for appellant Ortega. Robert Tiefen-thaler, Sioux City, Iowa, argued, for appellant Castro. Robert L. Sikma, Sioux City, Iowa, argued, for appellant Pollmanteer., Charles J. Williams, Assistant U.S. Attorney, Cedar Rapids, Iowa, argued, for appellee.
Riley, Ross, Beam.
Cited by 60 opinions  |  Published
ROSS, Circuit Judge.

Pablo Ortega, Daniel Castro, and Sonya Polmanteer appeal from judgments entered upon jury verdicts finding them guilty of possession of methamphetamine with the intent to deliver, in violation of 21 U.S.C. § 841. Appellants challenge the sufficiency of the evidence supporting their convictions. Polmanteer also challenges her sentence. We affirm the convictions, but vacate Polmanteer’s sentence and remand for resentencing.

BACKGROUND

On June 11, 2000, Iowa State Trooper Matt Anderson stopped a Ford Crown Victoria automobile with California license plates in Cerro Gordo County, Iowa, for speeding. Polmanteer was the driver; Castro was the front seat passenger; Ortega and another man were in the back seat. Polmanteer could not produce a driver’s license. Although the automobile was registered to Castro, he could not produce insurance papers. Castro told Anderson that the previous owner had continued insurance on the car. Polmanteer and Castro told Anderson that they were going to the Mall of America in Minneapolis, Minnesota, for shopping. Polman-teer identified the back seat passengers as Ortega and the other as Castro’s uncle, but later told Anderson the fourth passenger was a hitchhiker. Although Castro first had claimed the fourth passenger was his friend, he later stated he did not know the passenger’s name. The fourth passenger was later identified as Viaz Savala.

After Castro consented to a search of the automobile, Savala was placed in the patrol car of a trooper who arrived to assist Anderson. Appellants were placed in Anderson’s patrol car, in which an audio-videotape recorder was operating. Because the video camera, which was located to the right of the rear view mirror, faced forward, it captured the events outside the car. However, a microphone on the door frame captured the conversation inside the car. Polmanteer’s voice was identifiable as[*543] the only female voice, and the government was unable to attribute statements made by the two males specifically to Castro or Ortega. A portion of the conversation was as follows:

Polmanteer: Are there drugs in that f — - car right now?
Male: Why?
Polmanteer: Cause I’m going to f-
jail if there are. I’m going to jail.
And you’re going to jail.
* * * * * *
Male: Don’t get excited. He has to find drugs in the car first [unintelligible]
Polmanteer: He’s taken all those f-. screws off over the
Male: From where?
Polmanteer: From the engine, and from the door ... right there on the engine on the [unintelligible] I guess like from where the f-.
Male: [unintelligible]
Polmanteer: I better not f. go to jail, Pablo. If I go to jail you f — - gotta get me out ...
Male: [unintelligible]
Polmanteer: I am nervous.
Male: [Unintelligible]
Polmanteer: ‘Cause I thought there was nothing in there.

The troopers could not find any drugs during the search. However, because Anderson noticed signs of tampering around the windshield and other indications that drugs might have been hidden, he had the car towed and obtained a search warrant. While waiting for the tow truck, Castro changed his story about purchasing the car from an individual, claiming he had purchased it from a salvage yard. After the tow truck came, Anderson drove appellants and Savala to a restaurant. He gave them a telephone number to call about picking up the car if no contraband was found. Officers found no drugs during the second search. The next day, after viewing the videotape, Anderson applied for another warrant. During the third search, officers removed the windshield and found six and one-half pounds of methamphetamine hidden in a compartment beneath the windshield. Because no one had telephoned about picking up the car, officers looked for and found appellants in an unlit, unused portion of the bus station with tickets to Des Moines, Iowa. They had no credit or ATM cards, checkbooks, or anything else they could have used for shopping at the Mall of America. Savala was not found and became a fugitive.

Castro, Ortega, and Polmanteer were charged with conspiracy to distribute and possession with the intent to distribute more than 500 grams of methamphetamine. After a two-day trial, the jury returned a verdict acquitting them of the conspiracy charges, but finding them guilty of the possession charges. The district court denied their motions for judgment of acquittal, or in the alternative for a new trial. The court also denied Pol-manteer’s motion for reconsideration, which was based on a juror’s comments made after the trial. Castro and Ortega were sentenced to 188 months.

In January 2001, Polmanteer appeared for sentencing. The district court denied a requested acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1, but stated it was considering her request for a role-in-the-offense reduction under U.S.S.G. § 3B1.2. However, the court stated it would not take her “word” and suggested if she were serious about the reduction, she “should take a polygraph test on it.” Although the government stated it had little faith in polygraphs, it indicated that if Polmanteer took a polygraph and failed, it would ask for a two-point enhancement[*544] for obstruction of justice under U.S.S.G. § 3C1.1. The court asked Polmanteer how she felt about taking a polygraph examination, noting it might not be without risk. After Polmanteer told the court she wanted to take the test because she knew it would help her, the court postponed sentencing.

On February 4, 2001, .the district court entered an order that “Polmanteer undergo a polygraph examination and that polygraph evidence then be taken into account for sentencing purposes.” The court noted that the government had filed a resistance, but rejected its argument that the polygraph would taint its assessment of Pol-manteer’s credibility. The court stated “only after hearing evidence regarding the examiner’s qualification, training, the fairness, the questions and other related matters, will the court be in a position to determine the weight, if any, to be given defendant Polmanteer’s polygraph evidence.” The court also added that “out of an abundance of caution, the court will [ ] consider such evidence only after defendant Polmanteer testifies at her sentencing.”

In April, Polmanteer appeared before the court for sentencing. The government informed the court that Polmanteer had taken a polygraph examination conducted by an examiner of her choice and had failed on the issue of her knowledge of drugs in the car. Although the government had not seen a copy of the examiner’s report, it moved for an obstruction-of-justice enhancement. In response to the court’s inquiry about the report, Polman-teer’s counsel responded she did not “pass on the issue of her knowledge ... of methamphetamine in the vehicle,” but resisted the obstruction enhancement and renewed her request for a role-in-the-offense reduction.

After listening to argument by counsel, but without taking any evidence, testimonial or otherwise, the district court granted the government’s motion for a two-point enhancement for obstruction of justice, reasoning that by trying to pass a polygraph examination Polmanteer indirectly had attempted to give false testimony at sentencing in hopes of a lighter sentence. Although the court had suggested the polygraph examination in connection with Polmanteer’s request for a role reduction, it nonetheless found that she was entitled .to the reduction based on the trial evidence. From the 151 to 181 month guideline range, the court sentenced Polmanteer to 151 months.

DISCUSSION

Sufficiency of the Evidence

Ortega, Castro, and Polmanteer argue that the district court erred in denying them motions for judgment of acquittal, asserting that the evidence was insufficient to support the verdicts. Appellants concede that in reviewing their claims we must view the evidence and all reasonable inferences therefrom in the light most favorable to the verdicts. United States v. Butler, 238 F.3d 1001, 1003 (8th Cir.2001). However, quoting United States v. Davis, 103 F.3d 660, 667 (8th Cir.1996), cert. denied, 520 U.S. 1258, 117 S.Ct. 2424, 138 L.Ed.2d 187 (1997), they argue that if the “evidence is equally strong to infer innocence as to infer guilt,” the court was required to direct an acquittal. Appellants’ reliance on Davis is misplaced, (internal quotation omitted) As we have noted in Butler, 238 F.3d at 1004, Davis conflicts with United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996), cert. denied, 520 U.S. 1179, 117 S.Ct. 1456, 137 L.Ed.2d 561 (1997). In Baker, this court stated that “ ‘[i]f the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb[*545] the conviction.’ ” Id. (quoting United States v. Burks, 934 F.2d 148, 151 (8th Cir.1991)). “Although we are not free to overrule Davis, we are free to follow Baker, which is the standard this court has overwhelmingly favored.” Butler, 238 F.3d at 1004.

Appellants concede that substantial evidence of constructive possession would be sufficient to support their convictions. .To prove constructive possession, the government had to present evidence that appellants had knowledge and “ ‘ownership, dominion or control over the contraband itself, or dominion over the [vehicle] in which the contraband is concealed.’ ” United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir.2000) (quoting United States v. McCracken, 110 F.3d 535, 541 (8th Cir.1997)), cert, denied, — U.S.—, 121 S.Ct. 1739, 149 L.Ed.2d 662 (2001). In addition, “[t]he possession ‘need not be exclusive, but may be joint.’” United States v. Wajda, 810 F.2d 754, 761 (8th Cir.) (quoting United States v. Caspers, 736 F.2d 1246, 1249 (8th Cir.1984)), cert, denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). After reviewing the evidence, we hold that the government presented sufficient evidence of constructive possession.

We first address Ortega’s arguments. Ortega does not contest the sufficiency of the evidence as to his knowledge of the drugs, but asserts that there was insufficient evidence of his dominion or control over the drugs or over the car in which the drugs were hidden. Noting he did not own and was not driving the car at the time it was stopped, Ortega asserts that the evidence only showed that he was a backseat passenger. As he points out, “ ‘[m]ere presence as a passenger in a car from which the police recover contraband ... does not establish possession.’ ” United States v. Willis, 89 F.3d 1371, 1377 (8th Cir.) (quoting United States v. Flenoid, 718 F.2d 867, 868 (8th Cir.1983)), cert. denied, 519 U.S. 909, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996). In addition, mere association with persons who possess drugs is insufficient to show constructive possession. Wa jda, 810 F.2d at 762.

In this case, the government presented evidence showing much more than mere presence or association. There was evidence from which a reasonable juror could infer that Ortega had control over the methamphetamine. During the conversation in the patrol car, Polmanteer turned to Ortega regarding the location of the hidden drugs and for assistance if she were arrested. For example, when Anderson began looking near the mirror, Polmanteer asked Ortega, “Should I be worried, Pablo?” When Polmanteer told Ortega that Anderson was taking screws out from the engine and the door, she said “I better not m.f-— go to jail, Pablo. If I go to jail you f-.gotta get me out.” During the conversation, Ortega never expressed surprise that drugs could have been hidden in the car. Contrary to Ortega’s argument, the jury’s rejection of the conspiracy charge does not negate the evidence of his relationship to the other appellants. As the government notes, “ ‘[a] jury may acquit a defendant as to one or more charges for any number of reasons, including an inclination to be merciful, and yet come to the reasonable conclusion that the defendant was guilty of other related charges.’ ” United States v. Madrid, 224 F.3d 757, 762 (8th Cir.2000) (quoting United States v. Whatley, 133 F.3d 601, 606 (8th Cir.), cert. denied, 524 U.S. 940, 118 S.Ct. 2347, 141 L.Ed.2d 717 (1998)).

Ortega’s reliance on United States v. Quintanar, 150 F.3d 902 (8th Cir.1998), is misplaced. In that case, we held that the government failed to present sufficient evidence that the defendant had constructive[*546] possession of drugs in a package addressed to another, noting, among other things, the defendant had never been in the home where the package was delivered or in a car with the drugs. Id. at 904-05. Here, Ortega was present in the car in which the drugs were found and the evidence showed that he had control over them.

Castro, who was the owner of the car, does not challenge the evidence of his dominion or control, but argues that there was insufficient evidence that he knew of the hidden drugs. We disagree. Like Ortega, during the conversation in the patrol car, Castro never expressed surprise that drugs were concealed in the Crown Victoria. Moreover, the jury could have inferred guilty knowledge from Castro's implausible and contradictory statements to the trooper. See Butler, 238 F.3d at 1004. Although Castro stated that appellants were going shopping at the Mall of America, they had no cash, checks, credit or ATM cards. In addition, Castro first told Anderson that he had purchased the car from an individual, but when he realized that Anderson had noticed signs of tampering, he claimed he had bought the car from a salvage yard. The signs of tampering around the windshield also supported an inference that Castro knew drugs had been hidden in the car. See Willis, 89 F.3d at 1377 (scratch marks on wheel well supported inference that defendant knew drugs were hidden therein). The jury also could have inferred guilty knowledge from the fact that Castro did not telephone to inquire about picking up the car after the search at the garage, but instead fled to the bus station. See United States v. Barnes, 140 F.3d 737, 738 (8th Cir.1998) ("Evidence of flight or escape has probative value as evidence of consciousness of guilt.").

Polmanteer argues that there was insufficient evidence of both her control and her knowledge. As the driver of the car in which the drugs were found, there was sufficient evidence of control. See Willis, 89 F.3d at 1377 (driver had control of car even if girlfriend usually drove it); United States v. Ojeda, 23 F.3d 1473, 1475 (8th Cir.1994) (driver had control even though he claimed passenger owned car and records showed neither owned it). As to her knowledge, Polmanteer argues that her statements on the videotape show she did not know that drugs were in the car. We disagree. Polmanteer's argument is based on isolated comments and questions taken out of context. It is also based on her assertion that she did not know an audio-video recorder was capturing her conversation. As to this assertion, there was evidence from which the jury could have inferred that Polmanteer in fact knew that it was operating. Indeed, at one point, she pointed out the recorder and joked about singing into it.

Even if she did not know her tion was being recorded, based on the entire conversation, a jury could have sonably inferred that she knew drugs had been hidden in the car. Although teer highlights to this court her comments that she did not know drugs had been hidden in the car, she does not highlight the following comments:

Polmanteer: Oh, he's gonna find
the Polmanteer: My [unintelligible], he'slooking at it. . . OK, good. . . [radio trafic]
Polmanteer: ... nobody knows any thing about the this f bato right here

At oral argument her counsel suggested she was worried about the officers finding towels she had taken from a motel. How ever when the remarks are put in context it was reasonable for the jury to infer that[*547] she was talking about drugs, not towels. Polmanteer asked Castro why he had consented to a search of the whole car; she worried if the troopers would smell "it;" and it was Polmanteer who told Castro to change his story about purchasing the car from an individual to purchasing it from a salvage yard. In addition, the jury could also have inferred her guilty knowledge from her implausible and inconsistent statements to Anderson, the obvious signs of tampering with the car, and her attempt to flee.

The district court also did not abuse its discretion in denying appellants' motions for new trials based on the weight of the evidence under Fed.R.Crim.P. 33. A district court may grant a new trial under Rule 33 "`only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.'" United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000) (quoting United States v. Brown, 956 F.2d 782, 786 (8th Cir.1992)). The district court was in the best position to make this determination, and the record on appeal gives us no basis to second-guess its determination. Id. at 783-84. Although Polmanteer asks us to consider that after the verdict a juror had expressed concern about the evidence, we will not do so. Polmanteer concedes that the district court properly denied her motion for reconsideration because Fed. R.EVId. 606(b) prohibits juror inquiry into the validity of a verdict. We will not allow Polmanteer to evade the prohibition of Rule 606(b) under the guise of a Rule 33 motion. Nor will we address Castro's claim that his counsel was ineffective for failing to file a suppression motion. This claim should be raised in a 28 U.S.C. § 2255 motion.

Polmanteer's Sentence-Enhancement for Obstruction of Justice

Polmanteer argues that the district court erred in granting a two-point obstruction-of-justice enhancement under TJ.S.S.G. § 3CL1, which applies when "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing" of an offense. Polmanteer does not dispute that "lying for the purpose of obtaining a lighter sentence constitutes obstruction of justice within the meaning of section 3C1.1." United States v. Flores, 959 F.2d 83, 87 (8th Cir.), cert. denied, 506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992). However, noting that "[t]he government bears the burden of proving the facts necessary to support a finding of obstruction of justice," United States v. O'Dell, 204 F.3d 829, 836 (8th Cir.2000), she argues that the government failed to satisfy its burden.

We agree with Polmanteer. Although "[a] formal sentencing hearing is not [] the exclusive means by which the government may meet [its evidentiary burden]," United States v. Elliott, 89 F.3d 1360, 1370 (8th Cir.1996), (internal quotation omitted), cert. denied, 519 U.S. 1118, 117 S.Ct. 963, 136 L.Ed.2d 849 (1997), the government in this case produced no evidence whatsoever that Polmanteer had lied in hopes of receiving a reduction for her role in the offense. Despite the district court's assurances in its February 2001 order that it would assess Polmanteer's credibility "only after hearing evidence regarding the examiner's qualifications, training, the fairness, the questions, and other related matters," it did not do so. As Polmanteer points out, the government failed to offer the examiner's report; nor did the examiner testify as to his qualifications or the questions asked. In fact,' although the court ordered the polygraph so that Pol-manteer could convince it that a role reduction was warranted, her alleged "fail[*548] ure" went to the issue of her knowledge of the drugs, which relates to her guilt, not to her role in the offense. Indeed, the district court granted a two-point reduction for her role in the offense under § 3B1.2, based on its finding that the trial evidence showed she was a minor participant. See Elliott, 89 F.3d at 1370 (court may base sentencing findings on trial evidence).

We also want to remind the government that although at sentencing a district court may consider information that would be inadmissible at trial, the information must have "sufficient indicia of reliability to support its probable accuracy." U.S.S.G. § 6A1.3(a). We note that most courts of appeal that have considered the issue of admissibility of polygraph evidence at sentencing have upheld refusals to admit such evidence. See e.g. United States v. Thomas, 167 F.3d 299, 307-08 (6th Cir.1996) (affirming exclusion of defendant's polygraph evidence in support of role reduction); United States v. Messina, 131 F.3d 36, 42 (2d Cir.1997) (defendant's "polygraph evidence ... was unworthy of credit"), cert. denied, 523 U.S. 1088, 118 5.Ct. 1546, 140 L.Ed.2d 694 (1998); United States v. Stein, 127 F.3d 777, 781 (9th Cir.1997) (defendant's polygraph evidence was "too conclusory to be probative"); of United States v. Weekly, 118 F.3d 576, 581 (8th Cir.) (upholding denial of § 5C1.2(5) safety-valve exception because evidence of defendant's deceitfulness other than refusal to take polygraph examination), cert. denied, 522 U.S. 1020, 118 5.Ct. 611, 139 L.Ed.2d 497 (1997); United States v. Pits, 2 F.3d 723, 729 (7th Cir.1993) (no plain error in sentencing court's reliance on witness's polygraph because it was only one factor in court's credibility assessment and court "recognized that polygraph tests are not an entirely reliable indication of veracity"), cert. denied, 511 U.S. 1130, 114 S.Ct. 2141, 128 L.Ed.2d 869 (1994).

As the Supreme Court noted in upholding a per se exclusion, of polygraph evidence at court martial proceedings, "there is simply no consensus that polygraph evidence is reliable." United States v. Scheffer, 523 U.S. 303, 309, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). Indeed, because of reliability concerns, the government opposed the district court's consideration of polygraph evidence in connection with Pol-manteer's request for a role reduction. However, in an about face, the government advocated use of the polygraph results in support of an obstruction enhancement. The government's position seems somewhat inconsistent with the policy of the Department of Justice (DOJ). Although supporting the limited use of polygraphs for investigatory purposes, given their deficiencies, the DOJ "takes the position that polygraph results should not be introduced into evidence at trial" and "opposes all attempts by defense counsel to admit polygraph evidence or to have an examiner appointed by the court to conduct a polygraph test." United States Attorneys' Manual, § 9-13.300. Polygraphs-Department Policy. In addition, we note that while not addressing the issue of polygraphs, the Guidelines caution that a "court should be cognizant that inaccurate testimony or statements may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice." TJ.S.S.G. § 3C1.1, comment. (n.2); ef Scheffer, 523 U.S. at 313-15, 118 S.Ct. 1261 (fearing jury's credibility assessments may be adversely influenced by polygraph results). Reliability issues aside, we have concerns that it was the district court's "suggestion" that Pol-manteer take a polygraph examination. We do not recommend that other courts follow suit. Such a "suggestion" puts the defendant in an awkward position.

[*549] Accordingly, we affirm the convictions, but vacate Polmanteer’s sentence and remand for resentencing. [1]

1

. We note that after considering the circumstances of the offense, Polmanteer's characteristics and history, and other relevant factors, see 18 U.S.C. § 3553(a), the district court sentenced Polmanteer to the low end of the sentencing range. Of course, these considerations will be relevant in the court’s selection of an appropriate sentence within the new guideline range.