Page 32 - TPA Journal January February 2025

frisking Campos-Ayala, Agent Ramos asked, “I guess that’s just the way things happen,” and
“Why did you help with the drugs?” Campos- that “he understood that he was in possession of
Ayala responded, “I didn’t.” While escorting the marijuana.”
Campos-Ayala to the transport van, Agent Ramos
asked, The matter proceeded to trial. Both defendants
moved for acquittal at the close of the govern-
“Why did you cross with the drugs?” Campos- ment’s case; neither renewed that motion at the
Ayala responded, “I didn’t, I just helped.” close of all the evidence. After three hours of
deliberation, the jury found both defendants
Campos-Ayala, Moncada-De La Cruz, and anoth- guilty, and they appealed.
er passenger in the vehicle were transported to a
station with agents from the Drug Enforcement On appeal, the appellants raise three issues. First,
Administration (DEA). At the station, all three both question the sufficiency of the evidence.
gave the same basic story. Second, both claim the government removed, to
Mexico, a witness who had material evidence
The passengers were strangers but crossed the favorable to the defendants. Third, they assert a
border together and flagged down a random car in Miranda violation during the questioning by law
hopes of travelling further into the United States. enforcement.
There were no drugs in the vehicle when they first
accepted the ride. After they had been on the road Because the panel majority decided the evidence
for some time, the driver dropped the passengers was insufficient, it saw no need to consider the
off at a roadside park and told the passengers he other two issues. We will address all three in turn.
would come back for them. When the driver To convict under 21 U.S.C. § 841(a)(1) and
returned, the car was loaded with the large bundles (b)(1)(B)—possession of a controlled substance
of marihuana. Agents Kettani and Bustamante tes- with intent to distribute—the government must
tified that Moncada-De La Cruz said “he helped prove “(1) knowledge, (2) possession, and (3)
rearrange [the bundles of marihuana] so that intent to distribute.”
everybody could fit inside the vehicle, because it’s
a small vehicle.” Agent Bustamante elaborated Possession “may be actual or constructive.” A
that the agents believed, in doing so, Moncada-De defendant has actual possession if he “knowingly
La Cruz “was possessing the marijuana inside the has direct physical control over a thing.” A person
vehicle.” has constructive possession by “(1) ownership,
dominion or control over the item itself or (2)
DEA Agent Kettani testified that Campos-Ayala dominion or control over the premises.” “[T]he
“ma[de] a statement that he would understand government must establish [an] adequate nexus
what his charge was,” stating, “He understood between the accused and the prohibited sub-
why he had been arrested. And in Spanish he said stance.” “Mere presence in the area where drugs
. . . Well, I guess that’s how it goes. Yes, I was in are found is insufficient to support a finding of
possession of the marijuana.” Agent Bustamante possession.”
confirmed that Agent Kettani was asking Campos-
Ayala if he “understood why he was being arrest- The evidence of possession is insufficient where
ed,” and “what charges [were] being pressed it “has shown only that the defendant ran with bad
against him,” to which Campos-Ayala responded company.” The determination of constructive
in Spanish slang, “That’s just the way things are possession “employ[s] a common sense, fact-spe-
and I was in possession of the marijuana.” cific approach.” Campos introduced no evidence,
Bustamante also testified that Campos-Ayala said, so he was not required to renew his motion for a

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