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    1) A jury convicted the defendant of possession with intent to distribute over 100 grams of heroin. During deliberations, the jury had access to the actual heroin evidence, though it was never formally admitted into evidence by the prosecution. 2) The appellate court found that even if the heroin was improperly before the jury, the evidence of the defendant's guilt was so overwhelming that any error was harmless. This included audio recordings, witness testimony, and photographs establishing the defendant's role in the heroin sale. 3) Given this overwhelming evidence, the appellate court affirmed the conviction, finding no possibility that the presence of the actual heroin affected the jury's verdict.

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    Filed: Patrick Fisher

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    1) A jury convicted the defendant of possession with intent to distribute over 100 grams of heroin. During deliberations, the jury had access to the actual heroin evidence, though it was never formally admitted into evidence by the prosecution. 2) The appellate court found that even if the heroin was improperly before the jury, the evidence of the defendant's guilt was so overwhelming that any error was harmless. This included audio recordings, witness testimony, and photographs establishing the defendant's role in the heroin sale. 3) Given this overwhelming evidence, the appellate court affirmed the conviction, finding no possibility that the presence of the actual heroin affected the jury's verdict.

    Original Description:

    Filed: 1999-02-18 Precedential Status: Non-Precedential Docket: 98-2056

    Original Title

    United States v. Chavez-Huerta, 10th Cir. (1999)

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    1) A jury convicted the defendant of possession with intent to distribute over 100 grams of heroin. During deliberations, the jury had access to the actual heroin evidence, though it was never formally admitted into evidence by the prosecution. 2) The appellate court found that even if the heroin was improperly before the jury, the evidence of the defendant's guilt was so overwhelming that any error was harmless. This included audio recordings, witness testimony, and photographs establishing the defendant's role in the heroin sale. 3) Given this overwhelming evidence, the appellate court affirmed the conviction, finding no possibility that the presence of the actual heroin affected the jury's verdict.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    21 views6 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    1) A jury convicted the defendant of possession with intent to distribute over 100 grams of heroin. During deliberations, the jury had access to the actual heroin evidence, though it was never formally admitted into evidence by the prosecution. 2) The appellate court found that even if the heroin was improperly before the jury, the evidence of the defendant's guilt was so overwhelming that any error was harmless. This included audio recordings, witness testimony, and photographs establishing the defendant's role in the heroin sale. 3) Given this overwhelming evidence, the appellate court affirmed the conviction, finding no possibility that the presence of the actual heroin affected the jury's verdict.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    FEB 18 1999

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,

    v.

    MARCO AURELIO CHAVEZHUERTA,

    No. 98-2056

    (D.C. No. CR-97-443-HB)


    (D.N.M.)

    Defendant-Appellant.
    ORDER AND JUDGMENT*
    Before BALDOCK, HENRY, and LUCERO, Circuit Judges.
    A jury convicted Defendant Marco Aurelio Chavez-Huerta of possession with
    intent to distribute over 100 grams of heroin in violation of 21 U.S.C. 841(a)(1). The
    district court sentenced Defendant to sixty-three months imprisonment. On appeal,
    Defendant claims the district court committed reversible error by allowing the heroin into
    the jury room during deliberation because the government never offered, and the district
    court never admitted, the heroin into evidence. Our jurisdiction arises under 28 U.S.C.
    1291. We affirm.
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    *

    I.
    The record reveals that after extensive negotiations between Defendant, another
    individual, and an undercover narcotics officer for the sale of heroin, federal agents
    arrested Defendant and the other individual in Las Cruces, New Mexico, for selling
    approximately six ounces of heroin to the officer. During Defendants trial, the
    district court admitted into evidence, without objection from Defendant, a sample of
    heroin, labeled Government Exhibit 8, that the undercover narcotics officer obtained from
    Defendants consort during the negotiations. The court also allowed the government
    while questioning the officer to show the six ounces of heroin to the jury without
    objection. The government next introduced the following stipulation into evidence:
    The undersigned stipulate and agree that the following is true and correct:
    On July 2, 1997, agents of the U.S. Drug Enforcement Administration
    seized a total of 150.8 grams net weight of suspected heroin, which is
    contained in six zip-lock bags contained in a larger zip-lock bag, all of
    which were contained in a brown/beige bundle.
    The parties agree that the suspected heroin was tested by Edwin G. Albers
    III, a forensic chemist with the Drug Enforcement Administration.
    Those tests conclusively revealed that the tested material did, in fact,
    contain 150.8 grams of the substance, containing a detectable amount of
    heroin, which is a Schedule I controlled substance.
    The parties further agree that a proper chain of custody was maintained for
    the heroin from the time of the seizure on July 2, 1997, to and through the
    trial of this case.
    The parties agree that such heroin, which is designated as Governments
    Exhibit 1, is therefore admissible in court without the need to lay further
    2

    foundation.
    The government, Defendant, and Defendants attorney, signed the stipulation. The court
    then instructed the jury: Its stipulated by the parties. You will accept those as agreed
    facts. The district court subsequently admitted into evidence, again without objection,
    five photographs of the heroin labeled Government Exhibits 9, 10, and 11. Exhibit 9 was
    a photograph of the bundle of heroin at the time of its seizure. Exhibit 10 was two
    photographs of the bundle of heroin as the federal agents began to unwrap and process it.
    Exhibit 11 was two photographs of the unbundled heroin contained in six zip-locked
    bags. The parties agree that the heroin was present during the jurys deliberation.
    II.
    Defendant does not contest the sufficiency of the evidence against him. Rather,
    Defendant argues that the presence of the heroin in the jury room during the jurys
    deliberation was so highly prejudicial that reversal of his conviction is warranted.1
    Specifically, Defendant argues that because the government never formally offered the
    heroin for admission into evidence, and the district court never formally admitted it into
    evidence, the heroin was improperly placed before the jury even though he stipulated that
    the heroin was admissible in court.
    Certainly, the preferable approach is for the government to formally offer its real
    While Defendant seeks reversal of his conviction, assuming we accepted his
    argument the most he would be entitled to is a new trial. See United States v. Wood,
    958 F.2d 963, 966-67 (10th Cir. 1992).
    1

    evidence for admission regardless of whether defendant stipulates to its authenticity. We


    need not decide in this case, however, whether the heroin was properly in evidence, for
    we are satisfied that the presence of the heroin in the jury room did not affect the jurys
    verdict. Even assuming arguendo that the heroin was not properly before the jury, the
    evidence of Defendants guilt is so overwhelming that any error was harmless.2
    In determining whether the jurys viewing of unadmitted evidence constitutes
    prejudicial, and thus reversible error, we view the record in its entirety. United States v.
    Jaramillo, 98 F.3d 521, 525 (10th Cir. 1996). In this circuit, the rule is well established
    that a new trial is warranted if there is the slightest possibility that viewing the
    unadmitted evidence affected the jurys verdict. E.g., Johnston v. Makowski, 823 F.2d
    387, 390-91 (10th Cir. 1987). On at least three prior occasions we have applied the rule
    and concluded that because the evidence of defendants guilt was overwhelming, a jurys
    viewing of unadmitted evidence did not constitute prejudicial error. E.g., Jaramillo, 98
    F.3d at 525 (copies of Medicaid checks); United States v. Klein, 93 F.3d 698, 702-05
    (10th Cir. 1996) (unredacted indictment); United States v. Marx, 485 F.2d 1179, 1184

    The admission of the heroin itself was not a necessary prerequisite to


    Defendants conviction. The government need not present direct evidence to support a
    conviction for possession of a controlled substance so long as circumstantial evidence is
    sufficient to support the inference that defendant actually possessed the substance.
    United States v. Baggett, 890 F.2d 1095, 1096 (10th Cir. 1989) (where the government
    fails to seize substance and analyze its chemical composition, circumstantial evidence
    may be sufficient to support an inference that defendant possessed a controlled
    substance).
    2

    (10th Cir. 1973) (consent-to-search-form and package of marked money);


    In this case, the governments case-in-chief consisted of numerous exhibits and the
    testimony of three witnessesthe undercover narcotics officer, a member of the
    surveillance team that arrested Defendant, and the federal agent responsible for
    monitoring the recording device located on the undercover officer. Defendant did not
    object to any of the governments evidence and offered no evidence in rebuttal. At trial,
    the jury listened to taped conversations between Defendant and the undercover narcotics
    officer in which Defendant arranged the sale of the heroin. Defendant was identified as
    the immediate source of the heroin. The surveillance team witnessed the sale of the
    heroin to the officer. The officer testified that Defendant and his consort provided him
    was a bundle containing a substance believed to be heroin. The price of the heroin,
    approximately six ounces, was $24,000. Defendant stipulated that the substance was in
    fact heroin. Testimony at trial further revealed that following his arrest, Defendant
    provided officers with a statement acknowledging his involvement in the transaction and
    indicating he was to receive for his efforts $500.00 from his source in Juarez, Mexico.
    During deliberation, the jury had before it not only the uncontroverted testimony of the
    three law enforcement officers, but also five pictures of the heroin (marked Government
    Exhibits 9, 10, and 11) taken at or near the time of Defendants arrest. Given the
    overwhelming evidence against Defendant, we do not believe even a slight possibility
    exists that the presence of the heroin in the jury room affected the verdict.
    5

    Accordingly, the judgment of the district court is


    AFFIRMED.

    Entered for the Court,

    Bobby R. Baldock
    Circuit Judge

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