Submitted: September 22, 2017
from United States District Court for the Northern District
of Iowa - Sioux City
SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
convicted Elizabeth Lopez of possession of methamphetamine
with the intent to distribute and conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)-(B), and 846. The district
court sentenced Lopez to 120 months'
imprisonment, followed by five years of supervised release.
Lopez appeals, arguing that the district court erred by
denying her motion for a judgment of acquittal or a new
trial. We affirm.
his drug arrest in August 2015, Joshua Navrkal opted to
cooperate with law enforcement and revealed his
methamphetamine source. At law enforcement's request,
Navrkal called a phone number stored as "Omaha Mexican
Lady" on his phone. After a very brief conversation, he
told the officers that his suppliers were on their way.
Navrkal subsequently received confirmatory text messages from
that number. He told the officers that the drug delivery soon
was to take place at a residence in Sioux City, Iowa. Law
enforcement arrived at the house, surveilled the scene, and
observed an SUV with Nebraska plates arriving at the house.
Officers arrested the car's driver and the female
passenger. A drug-detection dog alerted to the presence of
drugs. At that point, the passenger- Lopez-informed the
officers that she had one ounce of methamphetamine in her
bra. Law enforcement seized the drugs from Lopez. Officers
found no other drugs or drug paraphernalia. Laboratory
analyses showed that Lopez carried 26.1 grams of 100 percent
pure methamphetamine at the time of her arrest. Lopez claimed
that she carried the methamphetamine for personal use only.
government subsequently charged Lopez with two counts: (1)
conspiracy to distribute methamphetamine and (2) possession
of methamphetamine with intent to distribute. The case
proceeded to a jury trial. Prior to trial, the district court
proposed a set of jury instructions, which included an
instruction permitting the jury to find an "intent to
distribute" based on drug purity. Lopez objected,
arguing that purity alone does not suggest an intent to
distribute, since some recreational users may seek pure
methamphetamine. The court then modified the instruction to
say that the jurors "may, but are not required, to infer
an 'intent to distribute' from . . . drug purity, if
it suggests that the drugs were intended to be 'cut'
or diluted before distribution, rather than used in a
'pure' form, and the defendant was aware of such
purity." Instructions to the Jury at 13, United
States v. Lopez, No. 5:15-cr-04051-MWB-1 (N.D. Iowa May
24, 2016), ECF No. 73-1.
trial, Navrkal and his once girlfriend and co-conspirator,
Tonya Cole-Cabrera, testified for the government. They both
identified Lopez as their direct source of methamphetamine.
Navrkal testified that Lopez delivered the drugs to him or
Cole-Cabrera approximately 8 to 12 times in 2015, at one- to
two-ounce quantities each time. Lopez, Navrkal, and
Cole-Cabrera communicated either by phone calls or through
text messages. To obtain methamphetamine, Navrkal or
Cole-Cabrera would either call or text Lopez. They would then
meet up at a location in Sioux City. Cole-Cabrera
corroborated Navrkal's testimony. Cole-Cabrera also
testified about a series of text messages with Lopez in which
they discussed wire transfers of money for Cole-Cabrera's
drug debt to Lopez.
major contested issue at trial was whether the drugs were
intended for distribution or for personal use. Expert
witnesses testified for both parties. Lopez's expert, a
substance abuse counselor, testified that "[w]hen
someone's on a methamphetamine binge, " she's
"heard people use up to seven and a half grams" of
drugs per day. Transcript of Trial, Vol. 2, at 385,
United States v. Lopez, No. 5:15-cr-04051-MWB-1
(N.D. Iowa May 26, 2016), ECF No. 87. A Drug Enforcement
Administration (DEA) agent testified for the government. The
following exchange occurred:
[Prosecutor]: So the quantities of use-how has quantities for
users been affected by the purity?
[Agent]: Well, you can't do-you could-if you do a gram of
crystal meth, that's a lot. If you do a gram of
methamphetamine that's been cut 5 or 6 times so the
purity is 10 percent or less, a gram of that is not the same
as a gram of crystal meth. So you could do the cut
methamphetamine or the diluted form much more often than you
could the crystal meth because the purity is a lot lower, so
it's going to process through your body faster, and
it's not going to-it's not going to overload your
body as if you would do the same amount of the pure crystal
[Prosecutor]: Again, based on your training and experience,
what is a typical user quantity of crystal meth?
[Agent]: Of crystal meth? It depends on their level of
experience with it or if they're addicted or not. A
first-time user would-a quarter gram, one quarter of one
gram, would be probably about right for first ti-for
beginners. The most I have ever heard of in speaking-and
again, I speak to defendants, users, family members
consistently. And I always have throughout my career. I did
meet a guy that I arrested that claimed he was doing-
[Lopez's Counsel]: Objection. ...