Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1988)

MEMORANDUM^* 

Appellant Francisco "Frank" Almaguer (hereinafter Almaguer) was indicted with his brother Jerry and brother-in-law Apolinar Garcia for violations of federal narcotics laws. Prior to trial, both of Almaguer's co-defendants pled guilty to portions of the indictment. Almaguer was convicted by a jury of one count of conspiring to distribute cocaine and two counts of distributing cocaine in violation of 21 U.S.C. § 841(a) (1), and one count of aiding and abetting the distribution of cocaine in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. He challenges unfavorable evidentiary determinations and claims that he was unduly prejudiced by these and other acts of the trial court. Almaguer also claims that the court erred in failing either to grant his motion for acquittal, or alternatively, to sua sponte dismissing the indictment at the close of the government's case.

This court reviews de novo whether there was evidence sufficient to establish the existence of a conspiracy for the purpose of admitting a co-conspirator's out-of-court statements under Federal Rule of Evidence 801(d) (2) (E). United States v. Crespo de Llano, 838 F.2d 1006, 1016 (9th Cir. 1987); United States v. Smith, 790 F.2d 789, 794 (9th Cir. 1986). We also review de novo whether the government's evidence, viewed as a whole, warranted a judgment of acquittal. Cf. United States v. Merriweather, 777 F.2d 503, 507 (9th Cir. 1985), cert. denied, 475 U.S. 1098 (1986) (appellate and trial court engage in same inquiry when determining propriety of judgment of acquittal).

Almaguer argues that the district court abused its discretion in overruling his objection to the out-of-court statements of an alleged co-conspirator which were used to establish Almaguer's direct participation in cocaine transactions. Almaguer objected on hearsay grounds, when government witness James Ancira, while being questioned about a particular transaction, was asked where Almaguer's brother-in-law Garcia told him he was going to get the cocaine Ancira intended to purchase. In overruling the objection, the court neither made formal findings, nor asked the government to respond to the objection or make an offer of proof. Almaguer claims that the district court should have made formal findings of preliminary facts.

The admission of an alleged co-conspirator's out-of-court statements is governed by Federal Rule of Evidence 801(d) (2) (E) which provides that a statement "is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Thus, the existence of a conspiracy, the defendant's and declarant's involvement in it, and the statements having been made during and in furtherance of the conspiracy, are preliminary questions of fact to be resolved by the court. Bourjaily v. United States, 107 S. Ct. 2775, 2778, 2782 (1987); Crespo de Llano, 838 F.2d at 1017. The offering party must prove these preliminary facts by a preponderance of the evidence. 107 S. Ct. at 2779. There is, however, no requirement that the court make formal, or express, findings regarding the existence of these facts. Thus, the district court did not err by failing to make formal findings regarding the facts upon which proper admission of Garcia's statements depended.

Almaguer also contends that the government failed to establish the necessary foundation for admission of the statements at issue. He argues that there was not sufficient evidence before the court establishing a conspiracy at the time the testimony was offered. The government responds that there was ample evidence of a conspiracy.

Although the Supreme Court has held that the proffered statements can themselves be considered in making preliminary factual determinations under Rule 801(d) (2) (E), the government's witness, James Ancira, had not yet recited the statements. Thus, the only relevant evidence before the court at the time defense counsel objected was the previous testimony of another witness that Almaguer was one object of a D.E.A. investigation.

While not before the court at the time the statements were solicited, substantial evidence was later presented which clearly satisfied the preponderance standard for establishing the facts necessary for proper admission of the statements. The Supreme Court has not yet expressed an opinion on "the proper order of proof that trial courts should follow in concluding that the preponderance of the evidence standard has been satisfied in an on-going trial." Bourjaily, 107 S. Ct. at 2779 n. 1. This court, however, appears to require proof before admission. See Crespo de Llano, 838 F.2d at 1017 ("Before admitting a statement of a co-conspirator into evidence against a defendant, the government must establish [the preliminary facts] by a preponderance of the evidence." (emphasis added)).

We need not, however, decide in this case whether the district court admitted the statements in the absence of a proper foundation. The abundance of independent evidence establishing a conspiracy to distribute cocaine and Almaguer's knowing participation in it, makes any error by the court harmless.

Almaguer also claims that the court made improper comments on the evidence, and thus impermissibly invaded the province of the jury. He first challenges the court's ruling on his objection to admission of the co-conspirator's statements.

When Almaguer objected to the government's question soliciting the co-conspirator's statements, the court overruled Almaguer's objection, "on the basis of the charge in the first count in the indictment." Almaguer argues that this indicates the court used the allegation made in the indictment as proof that he was part of a conspiracy, and admitted the statements based on this conclusion. Viewing the statement in context, however, it appears that the court referred to the indictment merely to show that the statements were not being offered as excepted hearsay statements, but rather as non-hearsay falling within the parameters of Rule 801(d) (2) (E). As such, the court did not improperly comment on the evidence in that its ruling was not a clear and unambiguous signal to the jury that the judge was satisfied beyond a reasonable doubt that a conspiracy existed. Cf. United States v. Birges, 723 F.2d 666, 673 (9th Cir.), cert. denied, 466 U.S. 943 and 469 U.S. 863 (1984) ("The record does not demonstrate that the judge's ruling on the objection led the jury to believe that the court had conclusively determined that [the defendant] was a conspirator.").

Similarly, Almaguer argues that the district court's denial of his motion for acquittal constituted an improper comment on the evidence. This claim is equally without merit, especially since both discussion of the motion and the court's ruling were made out of the hearing and presence of the jury.

Almaguer also contends that the court's denial of his motion for acquittal was an abuse of discretion. In addition, he claims that the court erred in failing to, alternatively, sua sponte dismiss the indictment.

Deciding whether a judgment of acquittal or the dismissal of an indictment is appropriate requires an assessment of the sufficiency of the evidence. The court " 'must determine whether, viewing the evidence in the light most favorable to the government, the jury could reasonably find the defendant guilty beyond a reasonable doubt.' " Merriweather, 777 F.2d at 507 (quoting United States v. Hazeem, 679 F.2d 770, 772 (9th Cir.), cert. denied, 459 U.S. 848 (1982)); see United States v. Reese, 775 F.2d 1066, 1070-71 (9th Cir. 1985).

There was testimony at trial supporting Almaguer's claim of innocence. For example, Almaguer's brother Jerry testified that Almaguer was not a knowing participant in cocaine transactions. However, there was also testimony from other witnesses from which it could be reasonably inferred that Almaguer was knowingly involved in various cocaine transactions: testimony showing that though Garcia had no cocaine upon Ancira's arrival at his house but sold an ounce to Ancira shortly thereafter, following a brief visit from Almaguer; corroborating testimony that a man was seen entering Garcia's home at the time Ancira was there to buy cocaine; and testimony that a government agent who had arranged cocaine purchases with Almaguer's brother Jerry, received delivery of the first purchase after Jerry met with Almaguer at the scene of the transaction, and that Almaguer drove Jerry when he delivered the second purchase.

"While mere proximity to the scene of illicit activity is not sufficient to establish involvement in a conspiracy, a defendant's presence may support such an inference when viewed in context with other evidence." United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987) (citing Reese, 775 F.2d at 1071-72). Viewing the evidence in the light most favorable to the government, a rational jury could reasonably have found Almaguer guilty beyond a reasonable doubt of the conspiracy to distribute, distribution, and aiding and abetting the distribution of cocaine charges. Cf. Reese, 775 F.2d at 1072.

The district court neither abused its discretion in admitting the co-conspirator's out-of-court statements, nor improperly commented on the evidence in rendering its ruling. Similarly, it did not improperly invade the province of the jury by refusing to grant Almaguer's motion for acquittal or by failing to dismiss the indictment at the close of the government's case.

AFFIRMED.