Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

No. 87-1205.

United States Court of Appeals, Ninth Circuit.

Before FERGUSON and LEAVY, Circuit Judges, STEPHEN V. WILSON,^*  District Judge.

MEMORANDUM^** 

Alton Jones appeals his conviction for possession of four ounces of heroin with the intent to distribute, on the grounds that insufficient evidence was presented to show either dominion or control over the heroin, or specific intent to distribute. He further alleges the district court erred in admitting certain statements under the co-conspirator exception to the hearsay rule, and in failing to give a requested jury instruction on his theory of defense. We affirm Jones' conviction.

On March 2, 1987, John Eubanks, who had previously been identified as a drug supplier by a confidential informant, met with Special Agent Golden of the U.S. Drug Enforcement Agency (DEA) in Richmond, California to arrange for the purchase of twelve ounces of heroin. During the course of their discussions, which were tape recorded by Golden, Eubanks referred several times to another buyer who was in the market for heroin. Since Eubanks did not have sufficient cash to make a purchase himself, he agreed to arrange for the other buyer, who he identified as "Alton," to come to the parking lot where the meeting with Golden was to take place. The other buyer was to bring money to purchase one four ounce block of heroin from Golden.

That evening, Alton Jones ("Jones") arrived at the designated parking lot. After he had placed a suitcase containing $24,000 in Agent Golden's car, he was directed to go to another DEA vehicle, which contained the heroin. Jones entered the car alone, reached into the back seat, and picked up a bag containing three four-ounce blocks of heroin. Immediately after placing both hands in the bag, Jones was arrested.

On April 29, 1987, a jury found Jones guilty of possession with intent to distribute four ounces of heroin. On May 28, 1987, Jones renewed his motion--originally made at the conclusion of trial--for judgment of acquittal. It was denied on July 2, 1987. Jones was sentenced at that time to a term of imprisonment of five years, to be followed by a period of supervised release of four years, and imposition of a fine of $5,000. On July 8, 1987, he timely filed a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We must affirm the district court if, construing the evidence in the light most favorable to the government, there is sufficient evidence so that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Stewart, 770 F.2d 825, 831 (9th Cir. 1985), cert. denied, 474 U.S. 1103 (1986).

Jones contends that insufficient evidence was presented at trial to sustain his conviction for possession with intent to distribute four ounces of heroin because (1) it was not demonstrated that he asserted dominion and control over the heroin; (2) the transaction involved was so tightly controlled by the government that Jones had only momentary contact with the heroin; and (3) Jones' intent at the time of his arrest was not to distribute heroin, but merely to select four ounces from a twelve ounce package for immediate purchase. There is no merit in any of his arguments.

A conviction for possession may rest on either actual or constructive possession. Actual possession connotes physical custody or actual personal dominion. United States v. Batimana, 623 F.2d 1366, 1369 (9th Cir.), cert. denied, 449 U.S. 1038 (1980). Constructive possession, on the other hand, requires

... a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer, ... But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug and cannot be said to have possession of it.

United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir. 1972) (quoting Hill v. United States, 379 F.2d 811, 814 (9th Cir. 1967).

Jones contends that he only had brief, momentary contact with the heroin, which was insufficient to support a finding of either actual or constructive possession. The mere fact that physical contact with the drug is for a brief or limited time, however, does not alone defeat a finding of possession. In Batimana, 623 F.2d 1366, upon which Jones relies, the appellants' convictions were reversed because the evidence was insufficient to support the charge of heroin possession. In that case, though, there was no personal possession of the package of heroin by the defendants. The defendants merely viewed the drugs in a hotel room. The court held that mere proximity of the defendants to the heroin, and mere association with those in control of the drugs, was insufficient to support possession.

In contrast, at the time of his arrest, Jones was physically holding the bag containing twelve ounces of heroin with the admitted purpose of selecting one of the four-ounce blocks contained therein for purchase. Both of his hands were in the bag. In addition, the agreed-upon purchase price had already exchanged hands, since he had previously placed $24,000 in the truck of Agent Golden's vehicle, with the understanding that the heroin cost $6,000 per ounce. Thus, not only was Jones in actual physical custody of the heroin, but he had paid for the four ounces. Thus, he was in a position to dispose of it by delivery to a customer. All that remained for Jones to do--had he not been taken into custody--was to exit the vehicle and leave the scene.¹ 

Jones additionally contends there was insufficient evidence produced at trial to support a finding of intent to distribute heroin. While he concedes that he manifested an interest in purchasing four ounces of heroin, he claims his intent at the moment he held the package containing twelve ounces was merely to pick out one four-ounce block for immediate purchase. Thus, he argues, the intent to distribute was not concurrent with possession of the heroin.

While Jones is correct that the intent to distribute must operate concurrently with his possession of the heroin, he interprets this concept too narrowly. There was substantial evidence presented to sustain a finding that Jones came to the scene with the intent to purchase heroin for distribution, and was selecting the four ounces to further that intent.

The evidence clearly indicates Jones' knowledge of, and participation in, the distribution scheme. Statements were made by Eubanks that Jones needed the heroin both because his "people" were out of heroin, and because Jones' regular supplier had disappeared. Jones himself later confirmed these statements. Moreover, Eubanks stated that Jones "has been dealing for a long time." Jones also referred several times to the heroin as "product."

In addition, in Eubanks and Jones' conversations with Agent Golden, several references were made to the purity and quality of the heroin involved, and the ability to "step on" or "cut" the heroin to make a substantial profit. The intent to distribute can be inferred from the amount and purity of the drugs purchased. See Stewart, 770 F.2d at 828 (intent to distribute inferred from possession of approximately one ounce of 80% pure cocaine and a quantity of glucose, a common dilutant); United States v. Valdovinos, 558 F.2d 531, 534 (9th Cir. 1977) (possession of 4.31 grams of 12% pure heroin supported an inference that distribution was intended). A jury could thus conclude from the evidence that Jones' purchase of four ounces of heroin for $24,000 was for distribution and not for his personal use.

The issue of whether there is a prima facie case to show the existence of a conspiracy for the introduction of a co-conspirator hearsay statement is a question of law subject to de novo review. United States v. Rosales, 584 F.2d 870, 872 (9th Cir. 1978); United States v. Guido, 597 F.2d 194, 197 (9th Cir. 1979).

Jones contends that recorded statements between John Eubanks and DEA Agent Golden were improperly admitted as evidence of conspiracy because the statements were made prior to the time that it could be shown by independent evidence that Jones had joined the conspiracy. Jones' contention has no merit in light of the Supreme Court's decision in Bourjaily v. United States, 107 S. Ct. 2775 (1987).

Federal Rule of Evidence 801(d) (2) (E) defines statements made by a co-conspirator of a party during the course and in furtherance of a conspiracy as "not hearsay." Prior to the statement's admission, the existence of the conspiracy must be established by a preponderance of the evidence. This preliminary inquiry may be determined by consideration of any available evidence, including the statements themselves. The court is not limited to analysis of independent evidence, as Jones contends. Bourjaily, 107 S. Ct. at 2779.

The recorded conversations between Eubanks and Agent Golden which were admitted into evidence under Federal Rule of Evidence 801(d) (2) (E) themselves point to the existence of a conspiracy involving Jones. Eubanks stated his "man" had the money on hand to buy the heroin, that he would come to look at the heroin, that he had several other people in line to buy the drugs, that the man with the money to purchase the heroin was named "Alton", and that all of "his customers" were out of heroin.² 

In addition to the recorded conversations between Eubanks and Agent Golden, other independent evidence also supports the district court's finding of a conspiracy. Jones made statements to Golden that indicated he was aware of the initial purchase price of the heroin quoted by Agent Golden to Eubanks, and stated that Eubanks had been the one who told him of that initial price. Jones stated to Agent Golden that he was "out of product" and needed to make the deal. He also confirmed Eubanks' statements that Jones' people were desperate for the heroin. In addition, Eubanks stated on several occasions that his partner carried a "beeper." When Jones was arrested, he was wearing a beeper.

The evidence supports the district court's findings that a conspiracy existed, and that the statements made between Eubanks and Golden were made in the course and in furtherance of it. Thus, admission of the recorded statements under the co-conspirator exception to the hearsay rule provided by Fed.R.Evid. 801(d) (2) (E) was not in error. Further, there exists no separate Confrontation Clause challenge to the admission of such statements where the requirements of Rule 801(d) (2) (E) are satisfied. See United States v. Knigge, 832 F.2d 1100 (9th Cir. 1987); see also Bourjaily, 107 S. Ct. at 2783.

Jones asked the district court to give an instruction to the jury which set out his theory of defense, i.e., that brief, momentary contact with the heroin was insufficient to sustain a finding of possession. The requested instruction also stated that the jury should consider whether the transaction was so tightly controlled by the police that Jones never had the power to control disposition of the heroin. The trial court refused to give the instruction, and instead substituted an alternative instruction defining actual and constructive possession. Jones' counsel did not object to the substituted instruction.

A district court's formulation of jury instructions is reviewed for an abuse of discretion, United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985), and the trial judge is given substantial latitude in tailoring those instructions. United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986). Jones is correct that instructions regarding the defense's theory of the case must be given if the theory is legally sound and the evidence in the case makes it applicable. Mathews v. United States, 56 U.S.L.W. 4183, 4184 (U.S. Feb. 24, 1988); United States v. Escobar De Bright, 742 F.2d 1196, 1201 (9th Cir. 1984).

However, as discussed above, Jones' assertion that government control may negate constructive possession is not the law in this circuit. See O'Connor, 737 F.2d at 819. Thus the trial judge did not err in refusing to give an instruction based on this theory.

In addition, while the district court did not use the exact words requested by Jones to indicate that proximity to the drug for a limited timespan is a factor in determining dominion and control, the substituted instruction clearly defined both actual and constructive possession. The instruction in fact defined the terms by using language from this court's opinion in Batimana, the very case which Jones argues supports his theory of defense.

Thus, the instruction given to the jury does not constitute reversible error.

Sufficient evidence was presented to support Jones' conviction of possession with the intent to distribute. The district court did not err in admitting certain statements under the co-conspirator exception to the hearsay rule, nor did it err in refusing to give Jones' preferred jury instruction. Thus, Jones' conviction is AFFIRMED.