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United States v. Lopez

United States Court of Appeals, Eighth Circuit

January 24, 2018

United States of America Plaintiff-Appellee
v.
Elizabeth Lopez Defendant-Appellant

          Submitted: September 22, 2017

         Appeal from United States District Court for the Northern District of Iowa - Sioux City

          Before SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.

          SMITH, Chief Judge.

         A jury 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[1] 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.

         I. Background

         Following 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.

         The 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.

         At 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.

         The 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 meth.
[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. ...

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